The launch of Custom and Border Protection’s tariff refund platform on Monday is undoubtedly a boon to the companies that shelled out $166 billion on U.S. President Donald Trump’s International Emergency Economic Powers Act tariffs.
But while the deployment of the Consolidated Administration and Processing of Entries is “an encouraging sign for importers,” according to Matthew Seligman, founder of Grayhawk Law, “cause for caution remains.”
In Seligman’s view, several hurdles remain for importers, many of which began submitting their refund requests through the CAPE portal on Monday.
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First, the trade lawyer has long believed that the Trump administration would appeal the Court of International Trade’s ruling that CBP must begin dispersing tariff refunds in March. Why? Because the Department of Justice said so after the ruling, asking for a stay of the order—a request that was denied—while they filed an appeal on the decision that, thus far, has not materialized.
“Second, this universal injunction is almost certainly unlawful,” the lawyer said, referring to the CIT’s stance that all importers that paid IEEPA tariffs should be eligible for refunds. He cited a 2025 decision from the Supreme Court that stemmed from a case about birthright citizenship—Trump v. CASA Inc.—in which the nation’s highest court ruled that federal district courts don’t have the power to issue “universal” injunctions that apply to everyone, rather than just the plaintiffs in a case.
There are about 330,000 importers that paid into the IEEPA tariff scheme, and only a fraction have filed lawsuits of their own in the CIT with the goal of securing tariff refunds.
“And so if the government appealed, it would, I think, almost certainly win,” Seligman said, nothing the legal precedent. “The only reason this order would stand is if the government chooses not to appeal” by the June 7 deadline set by the court, he believes.
Like others in his field, Seligman is puzzled by the federal government’s lack of action on a potential appeal that could help it get out of paying billions of dollars in refunds.
“To get this whole [CAPE] system up and running, to have importers submit their refund requests, and then to shut it down later is not the way you would think it would go,” he said. However, the IEEPA tariffs were “the president’s signature economic policy, and everything that the White House has said has indicated that they’re going to fight.”
To clarify, Seligman said, “The important thing is that the lawfulness of the tariffs—that underlying issue—is not being disputed.” The Supreme Court’s invalidation of the IEEPA tariffs is final. “What is being disputed, or could be disputed, is what individual importers need to do in order to get their refund.”
Importers may well be confused by this, because CIT Judge Richard K. Eaton in March specified that “[a]ll importers of record whose entries were subject to IEEPA duties are entitled to the benefit” of refunds as a result of the Supreme Court ruling. The CIT will not require importers to file lawsuits to obtain the paybacks, he said, and the court doesn’t want the burden of a pile of additional cases to work through. “I want to make it clear to the customs service that they have to refund any money that was unlawfully collected,” Eaton said at the time.
The government, however, has made its stance known: “The DOJ previously told the Court of International Trade in March that its position was that every importer would have to file an individual lawsuit” to secure access to tariff refunds, Seligman said.
“If you require more arduous procedures, many importers are not going to do it either because they don’t know how or they can’t afford legal counsel,” Seligman said. “I’m not necessarily saying that’s [the government’s] strategy, but that’s part of the dynamic” that may work to its advantage. For that reason, Seligman isn’t convinced that an appeal from the DOJ on the issue isn’t imminent, even as the CAPE submissions continue to roll in.
There are other risks for importers that Seligman has been mulling.
“We’ve heard that there have been technical errors” with CAPE, “which, frankly, isn’t surprising,” he said. “They built this in six weeks, and the government—it has not covered itself in glory over the last several decades” when it comes to heavily trafficked online portals. Healthcare.gov, the government website launched during the Obama administration’s Affordable Care Act push, “broke on Day One.”
“It’s not surprising to me that, even assuming best efforts by CBP, this is just something that’s going to have a lot of glitches,” he added.
Delays for importers seeking refunds could be costly in more ways than the obvious ones.
CAPE’s capabilities are to be rolled out in phases, CBP has said, with phase one of the refund process applying to certain unliquidated entries and entries that are no more than 80 days past liquidation—around three-fifths of the total 53 million import entries subject to IEEPA duties. Presumably, phase two of CAPE’s deployment will apply to entries that are beyond 80 days past liquidation, but CBP has not yet announced the date that those capabilities will come online or what the process will look like.
“The issue that we’ve heard [is] there is a six-to-eight-week delay for importers registering a new [Automated Commercial Environment] account,” Seligman said, referring to CBP’s online import and export processing system. Many importers, especially small- and medium-sized businesses, do not have ACE accounts, and have relied instead on their customs brokers to handle tariff transactions and the procurement of refunds.
But those customs brokers are overburdened now with such requests, and many have told their clients to create their own accounts and pursue the refunds themselves.
So if it takes six to eight weeks to get an ACE account approved by CBP, and if CAPE continues to see technical hiccups due to the massive volume of activity on the platform, delays could be compounded. CBP has estimated that the payout of refunds could take 60 to 90 days, and that’s if they’re approved.
“You’re now stacking delays on delays, and that’s going to push more and more entries out of the CAPE window” of 80 days, after which point CBP does not have a process in place to issue refunds, he said.
Under established trade law, importers must file formal protests with CBP on entries within 180 days of liquidation or forfeit their rights to refunds altogether. There’s a possible scenario where importers that file refund requests with CAPE see delays in processing that put them outside of that window, too.
“There are a lot of procedural traps for importers without trade counsel, the small, medium-sized businesses that I represent and that I’m worried about,” Seligman said. “They could ultimately potentially lose their refund rights because of this complicated procedural minefield.”
