DOJ’s Opposition Filing and What Importers Must Do to Protect Their Position
By Simple Forwarding | March 2026
On February 20, 2026, the Supreme Court issued its ruling in Learning Resources v. Trump and V.O.S. Selections v. United States, holding that tariffs imposed under the International Emergency Economic Powers Act lacked statutory authority. The ruling created a clear legal basis for duty refunds on IEEPA-assessed entries. One week later, the Department of Justice moved to significantly delay the implementation of that mandate.
This post outlines the DOJ’s legal strategy, the new tariff framework now in effect, and the specific procedural steps importers must complete to be eligible for refunds when the mandate issues.
The DOJ’s February 27 Opposition Filing: A Procedural Analysis
The 90-Day Stay Request
On February 27, 2026, the DOJ filed its opposition to plaintiffs’ motion for immediate implementation of IEEPA refunds. The government’s central request is a 90-day stay on the issuance of the refund mandate itself — not merely on the processing timeline, but on the court’s obligation to formally direct Customs and Border Protection to begin the refund process at all.
The government’s stated justification is administrative: CBP lacks an established mechanism for refunding duties at this scale, and forcing the agency to operate at “breakneck speed” risks systemic errors, inequitable processing, and legal exposure. In effect, the DOJ is asking the court to treat the government’s own lack of preparedness as grounds for delay.
This argument has procedural implications. A 90-day stay on mandate issuance means the refund clock does not begin running until that stay expires — extending the total timeline to repayment by at minimum three months beyond the ruling date, with potential for additional litigation over the post-stay implementation schedule.
The “Irreparable Harm” Threshold Argument
The DOJ’s secondary argument targets the legal standard for emergency relief. The government contends that importers’ financial interest in receiving refund payments does not meet the “irreparable harm” threshold required to compel immediate government action.
The legal basis for this position is established doctrine: monetary damages are generally considered compensable and therefore not “irreparable” — because the injury, in theory, can be fully remedied by a later payment. By categorizing importer refund claims as ordinary monetary damages rather than a distinct category of ongoing harm, the DOJ is attempting to remove the urgency argument from the plaintiff’s toolkit.
The practical implication: importers who can document concrete, non-monetary downstream consequences of the tariff burden — supply chain restructuring costs, loss of contracts, capital allocation decisions made in reliance on the tariff regime — may be better positioned to contest this characterization. Generic claims of financial harm are unlikely to overcome the DOJ’s framing. Specific, documented impact will fare better.
The New Tariff Framework: Section 122 Under Proclamation 11012
A critical concurrent development requires separate analysis. On February 20, 2026 — simultaneous with the Supreme Court’s IEEPA ruling — the administration issued Proclamation 11012, imposing tariffs under Section 122 of the Trade Act of 1974. These Section 122 tariffs are currently in effect and being assessed on applicable entries.
Section 122 authorizes the President to impose temporary import surcharges of up to 15% for periods not to exceed 150 days in response to balance of payments deficits or significant trade imbalances. The legal basis is structurally distinct from IEEPA, and the Section 122 framework has not been subject to the same constitutional challenges that invalidated the IEEPA tariffs.
Importers must treat these as two separate compliance tracks:
Track 1 — IEEPA Refund Recovery: Identifying affected entries, filing appropriate protests or amendment requests, and enrolling in the required payment infrastructure to receive refunds when the mandate issues.
Track 2 — Section 122 Ongoing Compliance: Assessing current duty liability under Proclamation 11012, evaluating classification and valuation positions, and monitoring for any legal challenges to the Section 122 authority.
Failure to distinguish between these two regimes — or conflating the legal status of IEEPA entries with Section 122 entries — will result in compliance errors on both tracks.
Procedural Requirements: What Importers Must Complete Now
The following steps are not discretionary. Importers who do not complete them before the refund mandate issues will face delays, reduced recovery, or disqualification from the refund process entirely.
ACE Account Enrollment and Data Integrity
Automated Commercial Environment (ACE) is CBP’s centralized trade processing platform and the authoritative system of record for entry data, duty payments, and post-entry adjustments. All IEEPA refund processing will run through ACE.
Importers must:
- Confirm active ACE account status for all relevant importers of record
- Audit entry data for all IEEPA-assessed entries within the applicable statute of limitations window
- Identify and resolve any data discrepancies, particularly on entries involving multiple tariff provisions, complex classification, or first sale valuation
ACE data integrity is not a background task. Errors or gaps in entry records will create direct bottlenecks in refund eligibility determination. This audit should be underway now.
For step by step guidance on how to enroll in ACE click here
Mandatory ACH Enrollment
As of February 6, 2026, ACH (Automated Clearing House) enrollment is mandatory for all CBP refund disbursements. CBP has formally deprecated paper check processing for duty refunds. Importers who are not ACH-enrolled will not receive refund disbursements through the standard mechanism.
ACH enrollment is administered through the ACE portal and requires accurate banking information linked to the importer of record account. Importers should verify:
- ACH enrollment status is active and current
- Banking information on file is accurate and matches the intended receiving account
- All relevant importer of record entities — not just the primary account holder — are enrolled where applicable
This is a binary eligibility requirement. There is no workaround for non-enrolled importers at the point of disbursement.
Engage Qualified Trade Counsel and a Licensed Customs Broker
The DOJ’s own filing acknowledged that the refund process is a “mess.” That characterization is accurate from a procedural standpoint. IEEPA refund recovery intersects protest filing deadlines, entry liquidation timelines, ACE amendment procedures, and the evolving litigation posture of the mandate itself.
Importers attempting to self-manage this process face material risk of:
- Missing applicable protest windows
- Filing amendments that inadvertently affect unrelated duty positions
- Misidentifying which entries qualify under the refund scope
- Failing to coordinate ACE data corrections with the formal protest or amendment record
A licensed customs broker with CBP post-entry experience and trade counsel familiar with Court of International Trade procedures should be engaged immediately. The complexity here is not theoretical — it is baked into the process architecture, and errors made during this window may not be recoverable.
Summary of Required Actions and Timeline Considerations
| Action Item | Deadline | Status |
|---|---|---|
| ACE account audit (all IEEPA entries) | Before mandate issues | Initiate immediately |
| ACH enrollment verification | Immediate | February 6, 2026 deadline has passed |
| Protest/amendment strategy development | Before liquidation deadlines | Requires counsel review |
| Section 122 compliance assessment | Ongoing | Current entries being assessed now |
| Documentation of specific financial harm | Before any emergency relief filing | If contesting DOJ’s “irreparable harm” position |
Conclusion
The DOJ’s February 27 filing is a deliberate procedural strategy to extend the gap between the Supreme Court’s ruling and actual refund disbursement. The 90-day stay request, combined with the “irreparable harm” framing, is designed to reduce litigation urgency and shift the operational burden onto importers.
The importers who recover their IEEPA refunds in full and on schedule will be those who completed their procedural groundwork — ACE data integrity, mandatory ACH enrollment, and qualified representation — before the mandate issues. The importers who treat this as a passive waiting exercise will find themselves behind at every processing stage.
The legal work has been done. What remains is operational execution.
Simple Forwarding provides licensed customs brokerage and trade compliance advisory services. For entry-specific analysis, IEEPA refund exposure assessment, or Section 122 tariff compliance under Proclamation 11012, contact us directly.
