8/10/26 — Eaton Weighs Class Certification for Importers Locked Out of CAPE, and Asks Whether CBP Deleted Entry Data

At an August 6 oral argument, Judge Richard Eaton heard argument on Terry Precision Cycling’s motion to certify a class of IEEPA tariff payers who lack access to CBP’s CAPE system (V.O.S. Selections v. United States, CIT No. 25-00066). Plaintiffs’ counsel Colleen Sinzdak argued that certification under Rule 23(b)(2) is the “perfect solution,” because a single class wide order would direct reliquidation of all finally liquidated entries without thousands of separate suits.

Eaton opened by calling CAPE a “remarkable success” but noted that some small importers cannot absorb the cost of filing suit to access it, leaving room for “other avenues” to relief. That follows his July order directing CBP to reliquidate finally liquidated entries in over 3,700 CAPE linked cases.

Government counsel Claudia Burke countered that the motion is “far too late,” coming after the Supreme Court had already ruled against the IEEPA tariffs, and that class wide relief would deprive defendants of notice of the scope of their exposure. Burke also argued the refunds are not the “incidental” monetary relief that Rule 23(b)(2) permits, and that a class wide reliquidation order would upend decades of Federal Circuit finality doctrine, under which CIT relief runs entry by entry.

Sinzdak responded that refunds are an incident of the relief sought rather than the relief itself, and that CAPE already calculates refunds mechanically, so the court would not need individualized damages determinations. Eaton signaled agreement with that framing, observing that “if the provision of money is mechanical, then it is incidental.” No ruling issued from the bench. A written order on certification is expected.

Separately, in Freestyle World v. United States, CIT No. 26-01088, Eaton filed a letter on August 7 asking the DOJ attorney handling the case whether CBP “has a protocol, of any kind, that would result in the deletion of any information relating to any entry” that entered the United States between February 1, 2025 and February 25, 2026, the period running from the first estimated deposits to the date collection ceased. Importers whose entry data may be incomplete in ACE should preserve their own records now rather than assume CBP’s data is intact.

In the same case, Eaton ordered the government to file another CAPE progress report by August 25 at 5 p.m. ET and set a closed settlement conference for August 26 at 2 p.m. ET. He also urged CAPE declaration filers to confirm that their Automated Clearing House account information is on file with Customs, because refunds cannot be disbursed without it.

The timing matters. CAPE Phase 3 is scheduled to go live on August 20, at which point CBP will be able to process refunds of finally liquidated entries for all importers who have filed litigation and whose counsel have registered the company with CBP for eligibility in the program. Two consequences follow. An importer that has filed suit but whose counsel has not completed the CBP registration will not be reached by Phase 3, and an importer that is registered but has no ACH information on file will have its refund calculated but not paid. Both are fixable before August 20, and both should be confirmed now. The certification motion matters precisely because it addresses the importers Phase 3 cannot reach, those who never filed suit at all.