It has come to our attention that, despite U.S. Customs and Border Protection’s (CBP) preparations for CAPE Phase 3, there remains a possibility that importers may need to file a lawsuit to continue the processing of entries that exceeded the 80-day liquidation period during Phase 1.
The Department of Justice (DOJ) has consistently maintained that once an entry has been finally liquidated, CBP lacks the authority to reliquidate the entry or issue a refund without a valid, importer-specific court order. In addition, the DOJ is challenging the U.S. Court of International Trade’s (CIT) order directing CBP to issue refunds on all affected entries, regardless of whether the importer filed an individual lawsuit. The DOJ’s position is that an importer must file and prevail in litigation to be eligible for a refund.
Further complicating this issue is the fact that the current litigation may not be resolved before the expiration of the two-year statute of limitations for filing a lawsuit. Additionally, it remains uncertain whether the DOJ will recognize protests filed before the 180-day deadline as sufficient to preserve an importer’s right to a refund.
As we have advised in previous customer communications, we strongly recommend that importers closely monitor the liquidation dates of their affected entries. In particular, importers should consider filing protests on entries that are approaching the 180-day protest deadline and have not yet been protested. Importers should also review the CAPE uploads they have already submitted and verify the liquidation status of entries that have not yet been refunded or reliquidated. At this time, there appears to be no assurance that submission through the CAPE upload process alone will preserve an importer’s rights or guarantee a refund.
CV International strongly recommends consulting with qualified trade counsel regarding the status of your potential refunds and whether filing a lawsuit may be appropriate in your specific circumstances. Only an attorney can provide legal advice tailored to your situation and help you determine the best course of action for your company.
John Boomhover
Director of Compliance & Customs Services
CV International, Inc.