3/3/26 — When Does an IEEPA Liquidation Become Protestable?
After the Supreme Court's IEEPA decision, there is no definitive answer as to when CBP's liquidation of IEEPA-duty entries stops being "ministerial", and becomes a “protestable decision" under 19 U.S.C. § 1514. Different trade lawyers have advanced at least four plausible cut-offs:
On the date of the Supreme Court decision – from that day forward, CBP might be viewed as choosing to apply a tariff that the Supreme Court has already rejected, such that later liquidations are non-ministerial and must be protested before litigation can be advanced into the judiciary under 28 U.S.C. § 1581(a); one rebuttal, however, is that, although unlikely, the Court could still grant rehearing and issue a different decision, so CBP cannot yet be said to be definitively disregarding a final judicial mandate.
When the Federal Circuit issues its mandate to the CIT – the mandate could be treated as the practical moment when the lower court is formally empowered to apply the Supreme Court’s ruling (i.e., when a concrete legal effect manifests for the lower courts and, derivatively, CBP), but the same rehearing-period rebuttal applies here because the Federal Circuit may issue its mandate before the Supreme Court’s rehearing deadline has run, leaving some residual uncertainty as to the finality of the higher court’s disposition.
When the Supreme Court rehearing application period expires and/or rehearing is denied (if applied for) – the argument here is that once the time to seek rehearing has lapsed (or any rehearing petition is denied) then rehearing is effectively off the table and CBP is no longer in a posture of speculating about whether the Supreme Court’s decision will stand.
When the CIT enters a final judgment on remand and the 60-day appeal period runs (and assuming the Supreme Court has either denied rehearing or the rehearing period has expired) – only at that point has CBP been definitively told, through a fully final Article III judgment, that the executive’s tariff action is unlawful, such that liquidations before that moment may still be characterized as “ministerial” and within 28 U.S.C. § 1581(i), while liquidations after that point become protestable “decisions” under 19 U.S.C. § 1514 requiring recourse to 28 U.S.C. § 1581(a).
No court has yet provided clarity as to which of these options will apply in the IEEPA tariff litigation, so the timing remains an open legal question.
This is why practitioners have been recommending filing litigation claims early on. Nevertheless, given options 3 and 4, it is still not too late to file.
The answer matters because it determines an importer's available path to court. Under 19 U.S.C. § 1514, once a liquidation becomes a "protestable decision," the importer must use the protest-and-appeal route under 28 U.S.C. § 1581(a). Until that point, the liquidation may still be considered "ministerial," and the importer can instead proceed under the residual jurisdiction of 28 U.S.C. § 1581(i). Because § 1581(i) is unavailable where jurisdiction under § 1581(a) is or could have been invoked, the timing of when a liquidation becomes "protestable" directly controls which jurisdictional path applies.