A line-item IEEPA surcharge can identify a charge and a shipment. It does not establish a refund right.
The court has not decided that question, and both briefs state party positions. The label on an invoice starts the inquiry. The harder work is connecting it to a shipment and customs payment while showing how much pricing discretion the intermediary had.
Nabavian drew its proposed class narrowly. The opposition excludes buyers whose only injury was a general price increase and covers discrete, identifiable IEEPA charges allegedly paid through an importer or international courier.
That boundary is sensible because a separate line item can identify what the seller called the charge, how much it charged, and which invoice carried it. If the invoice also identifies a shipment, the buyer can begin matching the amount to a package, purchase order, or entry record.
An invoice cannot answer the legal question on its own. It does not show government direction, a corresponding CBP payment, or the company's authority to absorb, mark up, allocate, or waive the charge. Even a dollar-for-dollar match fits two stories. The company may have served as a conduit or transparently passed through its own expense.
This is the new dividing line. The relevant comparison is not itemized charge versus no charge. It is controlled collection versus independent pricing.
The parties begin from much of the same illegal-exaction framework but disagree about its operative limit. Under the Tucker Act, the Office of the Law Revision Counsel's current text of 28 U.S.C. Section 1491 gives the Court of Federal Claims jurisdiction over certain monetary claims against the United States. Both briefs cite Federal Circuit precedent describing money paid to the government directly or "in effect," but they give that phrase different content.
The United States focuses on direction. Its motion says importers of record were legally responsible for the duties, but the government never told them to bill Nabavian. On that account, a surcharge was a private response to a business cost. A third party's independent choice breaks both the causal chain for standing and the claimed payment chain to the Treasury.
Nabavian focuses on function. Its opposition says the importers and couriers collected the exact duty attached to particular shipments and sent the money to CBP. It relies on decisions involving money paid through intermediaries and argues that a direct command to collect from the claimant is not always necessary when the government's design leaves the intermediary no meaningful alternative.
The government's formulation asks who imposed the obligation to collect from the buyer. Nabavian's asks what the intermediary did with the charge and whether the tariff system forced that conduct. A ruling that reaches these alternative arguments may indicate which pleaded facts carry more weight.
The closest official appellate analogue cited by Nabavian also involved CBP and money from third-party users. In Virgin Islands Port Authority v. United States, Federal Circuit No. 2018-1698 (April 26, 2019), CBP collected port fees under an agreement with the territorial government. The port authority claimed those fees belonged to it.
The Federal Circuit said whether that collection counted as payment "in effect" was a merits question in that case, not a jurisdictional one. It did not decide the point because CBP had authority to collect the fees, which defeated the illegal-exaction claim on a different ground.
The resemblance is limited. CBP itself collected the fees under a documented agency relationship. Nabavian asks the CFC to treat private importers and couriers as comparable conduits, while the government calls their billing independent. The earlier case separates forum, pleading, and merits. It does not turn a private surcharge into a government collection.
For record-building purposes, the cleanest way to evaluate a surcharge claim is to separate four links that are often collapsed into one. This is an editorial framework, not a four-element test adopted by the court.
First is the customer charge. Preserve the commercial invoice, customs invoice, receipt, credit memo, and payment record. The description should identify IEEPA, a tariff, a duty, or a specific import charge. A generic handling fee is a poor substitute.
Second is the shipment. Match the invoice to a purchase order, tracking number, airway bill, bill of lading, SKU, country of origin, and import date. The goal is to establish that the line item concerned a particular imported shipment, not a portfolio-wide price adjustment.
Third is the customs payment. Find the entry number, broker statement, duty calculation, ACE record, or courier ledger that shows what the importer of record deposited with CBP. CBP's current refund architecture is organized around the importer and the entry. Its IEEPA Duty Refunds program page does not adjudicate who bore the cost after the entry crossed the border.
Fourth is control. Contracts, terms of carriage, brokerage authorizations, rate sheets, customer notices, internal pricing approvals, and waiver practices can show whether the intermediary treated the amount as a government collection or as its own charge. A fixed formula tied to CBP's assessment supports one inference. A markup, allocation across customers, negotiated waiver, or unrelated rate change supports another.
Missing one link does not automatically end a claim. It does change what the invoice can prove. A line item with no entry match shows a charge. An entry match with no remittance record shows an import event. A perfect numerical match with broad pricing discretion still leaves the central conduit question open.
The pleaded theory encompasses different commercial arrangements, and no class has been certified. Those arrangements may not travel together as the case develops.
The first is direct payment to CBP at a port of entry. The Office of the Law Revision Counsel's current text of 19 U.S.C. Section 1514 permits a protest by "any person paying any charge or exaction," provided there is a protestable customs decision and the statutory requirements are met. Nabavian's opposition excludes those direct payors from the class it defines and says any included direct-payment claims belong in the trade court and should be transferred there.
The second is courier collection tied to a shipment. A courier may transport the goods, act as customs broker, advance duties, hold a package pending payment, and bill the recipient. Those combined roles can produce a tight documentary chain, but titles alone are not enough. The file should still show who was importer of record, what was deposited, and whether the customer charge tracked that deposit.
The third is a seller or supplier surcharge. Even if the seller was importer of record and passed along the exact tariff, it may have set the customer's price under an ordinary sales contract. If it acted as a seller rather than a collection conduit, the live dispute may be with the seller, not the United States.
Those differences may affect commonality, typicality, predominance, ascertainability, and manageability at class certification. Direct-to-CBP claims are on the CIT track Nabavian concedes. The court has not reached any certification question.
CBP's CAPE records identify the importer of record, listed entries, liquidation or reliquidation status, refund amount, and designated recipient. Those records do not by themselves establish whether a downstream buyer owns any part of the refund.
The agency's proposed Court-Ordered Refunds Under the IEEPA Worksheet, 91 Fed. Reg. 42207 (July 8, 2026) illustrates the mismatch. The notice describes a CAPE collection built around importers of record and entry-summary numbers. It is not a customer-allocation ledger. A business that passed duties downstream needs a separate crosswalk from the CBP refund record to each customer charge, credit, dispute, and contractual obligation.
That crosswalk can identify claims concerning the same duty deposit before money is released twice or credited to the wrong customer. It also lets a buyer test whether a seller's surcharge was tied to the government's assessment.
This operational point builds on Traverse's earlier analysis of who owns IEEPA refunds and the CIT-CFC forum conflict, but it answers a different question. For a downstream claimant, the ownership theory still depends on showing which transaction moved through the chain and what role the intermediary played.
Nabavian's lawyers tried to address the risk that CBP could refund importers before the Court of Federal Claims decides the downstream-payor case. In the CIT's Euro-Notions litigation, they asked for permission to file an amicus brief proposing changes to the CAPE process. The requested changes included certifying amounts allegedly paid by downstream payors, reserving those sums, and coordinating with the claims court.
That request did not produce a reservation order. On July 17, the CIT denied the motion for leave in a one-page order that gives no reason. Traverse's Euro-Notions Florida, Inc. v. United States, CIT ECF 49 Order Denying the Payor-Counsel Amicus Motion (July 17, 2026) records the procedural result. The denial should not be described as a ruling on who owns the money, but it means that this motion did not create the requested backstop.
A separate letter entered the same day does not change that result. ECF 50 was addressed to counsel for iGlobal Exports, doing business as Zonos. It invited Zonos to refile its amicus motion and its response to the court's July 10 letter in Freestyle World after a motion for voluntary dismissal was filed in Euro-Notions. ECF 50 did not address the ECF 36 motion filed by Nabavian's putative-class counsel.
The distinction is consequential. The record reviewed through July 21 does not show a CIT order reserving a pool for the downstream-payor class. Companies should not assume that the trade court has separated those amounts while the CFC tests Nabavian's theory.
Buyers will naturally start with invoices. Importers will naturally start with entries. Both files are incomplete unless they also preserve evidence of choice.
Useful buyer records include the seller's tariff notice, contract, invoice, proof of payment, shipment identifiers, and calculation correspondence. Evidence that the charge was required, negotiable, or waivable may bear on the competing theories.
Importer, courier, or broker records may include the duty calculation, CBP deposit, billing rule, approval, markup method, waiver history, and refund policy. Together, they may show whether the business collected a fixed government amount, recovered a cost through pricing, or did something in between.
A claim-level crosswalk can be built before a refund arrives. Useful fields include the entry or shipment identifier, importer of record, customer, IEEPA duty deposited, surcharge billed, amount paid, contract provision, refund status, and any reserve or dispute flag. Where a commercial arrangement used allocations or consolidated entries, the file should preserve the method rather than force a one-to-one match.
Counsel can then sort the records into three working buckets. Those buckets are evidence consistent with a collection conduit, evidence consistent with a private pass-through, and unresolved files that need broker or entry support. Protest deadlines, forum choices, and preservation decisions require review of the specific transaction. Treating every line labeled "tariff" as the same claim skips that work.
The immediate event to watch is the CFC's disposition of the government's motion to dismiss. A dismissal for lack of jurisdiction, a dismissal on the sufficiency of the illegal-exaction theory, and a ruling allowing factual development would have different consequences. None has happened in the reviewed record.
If the CFC reaches the alternative standing and merits arguments, its ruling may clarify which allegations are sufficient before discovery. If the case proceeds, discovery may become as important as doctrine. Customer invoices are mostly in buyers' files. Entry and remittance records sit with importers, brokers, couriers, and CBP. Pricing discretion lives in contracts and internal systems. No single participant may hold the full chain.
A line-item surcharge does not answer the disputed conduit question by itself. It makes a downstream payment visible, but visibility is not the same as a government collection. The parties are litigating who controlled the charge, whose obligation it satisfied, and whether the customer payment corresponded to the government's exaction. Businesses that can connect the charge, shipment, customs payment, and intermediary pricing authority will be ready for either path the court chooses.
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