CAPE Phase 3 Lets Eligible Plaintiffs File With Mixed Protests Open
The CIT says eligible CAPE Phase 3 plaintiffs can seek IEEPA refunds without withdrawing mixed protests, leaving other objections for separate resolution.
Primary lensEntry posture review
Sub-topicProtest window
Evidence base8 records used
Use caseRefund posture
In its October 29 order in Freestyle World, the Court of International Trade states its understanding that eligible individual plaintiffs can submit covered IEEPA refund claims through CAPE Phase 3 without withdrawing an existing protest. That clarification expressly includes protests raising classification, valuation or other issues alongside IEEPA duties.
For a customs manager handling a mixed protest, the clarification removes prior withdrawal as a necessary step before submitting a covered Phase 3 claim. The entry file must still distinguish the IEEPA refund from the disposition of the protest's other objections, each of which requires its own deadline review.
An open protest need not hold up an eligible Phase 3 claim
The court's statement addresses a specific population. CBP's October 26 declaration, paragraph 8, describes Phase 3 as covering finally liquidated plaintiff entries for which the court has ordered reliquidation, including entries subject to protest. Access opens on a rolling basis, with notices emailed to plaintiffs' counsel. At that declaration's cutoff, plaintiffs that had submitted valid importer-of-record numbers before August 14 could file.
A pending protest does not substitute for those conditions. The importer still needs the applicable court order and confirmation that its Phase 3 access is enabled. The October 29 order does not give every protest filer access or promise a payment date. Its operative direction requires CBP's next progress report, while the protest passage explains the court's understanding of existing processing.
What October 29 adds is express confirmation that the protest can remain pending, whether it concerns only IEEPA or also includes other issues. The covered IEEPA claim can enter Phase 3 processing while those other issues remain unresolved.
The old withdrawal instruction answers a different question
CBP's April 13 Phase 1 guidance excluded entries on open or suspended protests. It allowed withdrawal when a protest had been submitted solely for an IEEPA refund and the entry was within 80 days of liquidation. That was a limited route for an earlier phase. It was not a direction to withdraw a protest that also disputed classification or customs value.
The distinction is harder to see on the agency's website. When checked on October 29, the CBP refund webpage, marked 'last modified' October 28, still displayed an error table excluding entries on open or suspended protests without a Phase 3 explanation. The court's order separately noted the absence of an FAQ saying withdrawal was unnecessary for Phase 3.
For an enabled plaintiff receiving a protest-related rejection, that mismatch calls for a specific inquiry to CBP. Preserve the entry number, the exact error, the applicable court order and counsel's access notification. The order points filers to CBP's dedicated IEEPA mailboxes. Removing a mixed protest simply to clear the message would bypass the very distinction the court has now described.
IEEPA reliquidation does not restart every customs dispute
The scope of Phase 3 has always mattered. In its August 25 declaration, paragraph 8, CBP said it was building validations to prevent adjustments outside IEEPA refunds. Traverse's August 26 analysis of CAPE Phase 3's non-IEEPA adjustment limits explained why the process was not a general opportunity to correct unrelated duties. The October 29 record now confirms that a protest containing those other issues can remain unresolved while the IEEPA claim is processed.
There is a statutory reason to retain that distinction after the money arrives. 19 U.S.C. 1514(d) prevents reliquidation from reopening protest rights on questions not involved in that reliquidation. An IEEPA-only change therefore cannot be assumed to restart the filing period for an untouched classification or valuation question.
Consider an entry with a protest challenging both IEEPA duties and the tariff classification of the goods. A Phase 3 refund of IEEPA duties does not, by itself, show that CBP accepted the classification objection. Nor does it establish a fresh opportunity to bring that objection after withdrawing it. The existing protest, its specific objections and any later decision must be examined on their own terms.
The FAQ's general instruction to wait for reliquidation and a refund before filing a non-IEEPA protest should not be converted into a plan to abandon an existing claim and refile it later. Whether a later protest is available depends on the question decided and the governing deadlines.
Reconcile the refund, then check the protest decision
For the customs manager, the immediate task is to change what counts as completion in the entry file. A payment record answers a different question from a decision allowing or denying a protest. Section 1515(a) expressly permits CBP to allow or deny a protest in whole or in part. The file should identify which objections that decision actually reaches. Reconcile the refund amount as well, and identify any amount still disputed before treating the IEEPA claim as resolved.
For an eligible individual plaintiff with a mixed protest, these records support different conclusions. The comparison reflects the October 29 order and Sections 1514 and 1515. It is an internal review aid, not a new CBP filing requirement.
Record in the entry file
What it establishes
What still needs review
Phase 3 acceptance with the protest still pending
The IEEPA claim entered processing without prior withdrawal
Each unresolved objection in the protest
IEEPA reliquidation and matching refund
The documented IEEPA adjustment and payment
Whether any separate decision addresses the other objections
CBP allows or denies the protest in whole or part
The disposition stated in that decision
Any remaining issues and the deadline to challenge a denial
A protest denial creates its own court timetable. Under 28 U.S.C. 2636(a), an action challenging denial generally must begin within 180 days after mailing of the denial notice, or after denial by operation of law under the accelerated procedure. That is distinct from the period for filing the original protest. Counsel should calculate it from the controlling denial event, without assuming that CAPE processing suspends it.
Updated CBP instructions could resolve the remaining uncertainty over protest-related errors for plaintiffs whose access is enabled. The court has required a progress report by November 10 at 5 p.m. Eastern, followed by a November 12 conference. Until the agency explains that handling, an error message warrants an inquiry tied to the entry and access notice. It does not justify assuming that a mixed protest must be withdrawn.
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