Robert A. Calandra^* and Patrick C. Reed^**

September 2, 2026

Editor’s note: Mensa is not a political organization and as such does not take political positions. However, many Mensa members, including Robert A. Calandra, are lawyers and can give us valuable insight on the law and public policy. This post is an update to a posting by Robert A. Calandra and Patrick C. Reed from March 27, 2026.

This article focuses on what importers can do to protect their rights if our appellate courts — in this case the Court of Appeals for the Federal Circuit (“CAFC”) and (possibly) the Supreme Court — agree with the May 7, 2026 decision by the U.S. Court of International Trade (CIT) that the 10% global tariffs imposed by the Trump administration on February 24, 2026 under Section 122 of the Trade Act of 1974 (Section 122) are illegal. Oregon v. United States, Slip Op. 26-47 (Ct. Int’l Trade May 7, 2026).

The CIT limited injunctive relief to plaintiffs found to have standing; however, if the CIT decision is upheld, every importer who has paid additional duties under Section 122 would be entitled to have the Section 122 duties refunded, with interest, on all entries where Section 122 duties were tendered.

 We understand that approximately $40 billion in duties were tendered from February 24 through July 24, 2026 on tens of millions of entries.

If the appellate courts agree with the CIT that President Trump exceeded his authority in assessing additional duties under Section 122, all importers who have paid Section 122 duties will be entitled to refunds. But this process could take several years as this issue works its way through the courts. This is significant because when the Supreme Court held in February that the duties imposed by the Trump Administration under the International Emergency Economic Powers Act (IEEPA) were illegal, the entire litigation leading to the Supreme Court’s decision took less than one year. As a result of this expedited review, most entries on which IEEPA duties were tendered remained unliquidated.

In the Section 122 litigation, in contrast, the CAFC has not indicated that it will be providing expedited review. Accordingly, under the normal 314-day liquidation cycle at U.S. Customs and Border Protection (“CBP”), we anticipate that many or most entries on which Section 122 duties have been assessed will be liquidated by the time there is a final judicial determination.

Importers who have recently received their portion of the $166 billion of IEEPA refunds, or are in the process of claiming such refunds, will appreciate the insight attributed to Yogi Berra—“It’s déjà vu all over again.” That is, importers who have paid Section 122 duties have many of the same questions as importers who have now received or are in the process of getting IEEPA refunds:

1. Do I have to do anything now?
2. What documents will I need to support a claim for a refund?
3. Do I have to file a case in the CIT?
4. Do I have to file a protest with CBP?

This article addresses these questions; and because we expect most Section 122 entries will have liquidated before a final judicial determination, the answers are not exactly the same as advice we have previously provided to clients under IEEPA. Specifically, for importers to protect their refund rights for Section 122 refunds, filing a 1581(i) “residual jurisdiction” case in the CIT is more compelling than under IEEPA, when most entries were unliquidated.

Spoiler Alert

The odds that the Section 122 duties will be held to be illegal are hard to predict with certainty (one of us says a good chance and the other says a reasonable chance); but if they are illegal, it will be at least two years before refunds will be forthcoming. Because we believe the Section 122 litigation could take years, we recommend a “belt and suspenders” approach to protecting your rights to Section 122 refunds. This would include

• Filing protests within 180 days from the date of liquidation (discussed in detail below), and
• Filing a 1581(i) “residual jurisdiction” case in the CIT, and the deadline to file a case is February 2028.

Background

The same day that the Supreme Court struck down the IEEPA tariffs, February 20, 2026, the President signed Proclamation 11012, which relied on Section 122 of the Tariff Act of 1974 to impose 10% tariffs on most imports from all countries. This provision became effective on February 24, 2026; and it authorizes the President to impose temporary import duties (of up to 15%) for no more than 150 days if “fundamental international payments problems require special import measures.” These duties expired at one minute after midnight on July 24, 2026. On the same day that the Section 122 duties expired, the Administration imposed an additional 10% or 12.5% duty on 60 countries, targeting countries that fail to ban goods made by forced labor. These latest tariffs are already being challenged in the CIT. Additional tariffs are in the pipeline as well, and they will be challenged also.

Section 122 in the Courts

On May 7, 2026, a divided three-judge panel in the CIT held that the Trump administration incorrectly used trade deficits as a proxy for a balance-of-payments emergency. Oregon v. United States, Slip Op. 26-47 (Ct. Int’l Trade May 7, 2026). This decision is currently under appeal in the CAFC.

When the IEEPA litigation came on appeal to the CAFC, the CAFC noted that the case presented “issues of exceptional importance” warranting expedited review and consideration en banc (all 11 CAFC judges). The CAFC did not do so in the Section 122 litigation.

In addition, with the IEEPA tariffs, it was understood that the Supreme Court would almost certainly review the CAFC decision. It is unclear whether the Supreme Court will do so in the Section 122 litigation.

Without expedited consideration, it is difficult to predict when the Section 122 litigation will end. In a typical tariff appeal, the CAFC might issue its decision approximately 18 months after the CIT’s decision. But in one recent tariff case arising from the first Trump Administration, the CAFC did not decide the appeal until two and a half years after the CIT’s decision, and then the losing party petitioned the Supreme Court to hear the case, and the Supreme Court issued its decision declining to hear the case eight months later, or more than three years after the CIT’s decision. In re Section 301 Cases, 570 F. Supp.3d 1306 (Ct. Int’l Trade 2022) (lawsuit filed in 2020), decision after remand, 628 F. Supp.3d 1235 (Ct. Int’l Trade 2023), aff’d sub nom. HMTX Industries LLC v. United States (Fed. Cir. 2025), cert. denied,   U.S.   (June 15, 2026). Under these time frames, there might not be a final decision until late 2027 and possibly not until 2029.

What Importers Should Do Now?

Here we answer the four questions we raised earlier.

Do I have to do anything now?

At the outset, we recommend that during the pendency of the Section 122 litigation, every importer keep a spreadsheet including the following columns:

• Entry number
• Commercial invoice number
• Port of entry
• Date of entry
• Date of liquidation
• Total duties paid
• Section 122 duties paid
• Expected refund.

In addition, we strongly recommend tracking the liquidation status of each entry and file a protest within 180 days from the liquidation date. (See Do I have to file a protest? below)

What documents will I need to support a claim for a refund?

In the event the Appellate Courts agree with the CIT, it is entirely possible that CBP will use its Consolidated Administration and Processing of Entries (CAPE) program as the basis for Section 122 refunds. CBP launched CAPE within CBP’s Automated Commercial Environment (ACE) system to handle the approximately 53 million entries entitled to $166 billion of IEEPA refunds. CAPE is designed to consolidate refunds of IEEPA duties, including interest, rather than processing refunds on an entry-by-entry basis. All that is required is a list of entries in a specific format; CAPE computes the refunds.

A favorable outcome of the Section 122 refund litigation will also affect tens of millions of entries and tens of billions of dollars in customs refunds, seemingly making the automated processing of these entries mandatory as well. The spreadsheets discussed above will have the entries and expected refunds if/when the time comes to file a claim.

Do I have to file a case in the CIT?

The short answer is that there does not appear to be any urgency to file a case in the CIT. However, as discussed above, because we believe that the Section 122 litigation could take a few years, we recommend both

• Filing protests within 180 days from the date of liquidation (discussed in question 4 below)
• Filing a 1581(i) “residual jurisdiction” case in the CIT by February 2028.

There are two ways under which a Section 122 case can be filed in the CIT: first:

• Under the court’s “denied protest” jurisdiction in 28 U.S.C. § 1581(a);
• Under the court’s residual jurisdiction in 28 U.S.C. § 1581(i).

The 1581(a) “denied protest” jurisdiction cannot be invoked unless the importer has filed a protest against a CBP decision and CBP has denied the protest. Protests are discussed under Do I have to file a protest?.

As for 1581(i) “residual jurisdiction,” this might be an appropriate way to proceed, but the key point is that there is a two-year statute of limitations (from February 2026) to do so. As a result, it would not be necessary to file a 1581(i) case until early February 2028. We recommend you consult with a Customs attorney before you bring a case under 1581(i) residual jurisdiction.

However, because the CAFC is not expediting the Section 122 litigation, it may be prudent to file a case under 1581(i). Again, there is no urgency to do so as an importer has until February 2028 to do so. By that time, we could have a better understanding of the CAFC’s position.

Do I have to file a protest?

An importer has 180 days from the date of liquidation to file a protest and cannot file a protest until after CBP has liquidated the relevant entry. Again, the “belt and suspenders” approach to protect your rights to Section 122 refunds would be

• Filing protests within 180 days from the date of liquidation and
• Filing a 1581(i) “residual jurisdiction” case in the CIT by February 2028.

The statute governing protests, 19 U.S.C. § 1514, provides (with certain exceptions not applicable here) that certain listed decisions of Customs are final and conclusive on all persons unless a protest is filed in accordance with section 1514, or unless a civil action contesting the denial of a protest, in whole or in part, is commenced in the United States Court of International Trade. That is, a protest must be based on and in response to a “decision” made by CBP. Section 1514 protestable decisions include:…

(2) the … rate and amount of duties chargeable;

(3) all charges or exactions of whatever character within the jurisdiction of the Secretary of the Treasury;… [and]

(5) the liquidation … of an entry ….

A protest has to be filed within 180 days after, but not before, the date an entry is liquidated or else it will be “final and conclusive upon all persons (including the United States and any officer thereof)” [emphasis added].

Now, it would not be unreasonable to conclude that Section 122 duties are duties and, as such, they must be protested within 180 days from the date of liquidation. However, there is authority for concluding that protests cannot be used to challenge trade decisions by the President. In U.S. Cane Sugar Refiners’ Ass’n v. Block, 544 F. Supp. 883, 887 (Ct. Int’l Trade), aff’d, 683 F.2d 399 (CCPA 1982), the plaintiff challenged a Presidential Proclamation that imposed quotas on the importation of sugar into the United States. 3 CIT 196, 200–02, 544 F. Supp. 883, 886–87 (1982). The court recognized that a protest could not provide the plaintiff with relief at the administrative level because “Customs officials, who would review a protest claiming that [the proclamation was] invalid, obviously [had] no authority to override the presidential proclamation and admit over-quota sugar.” Id. Therefore, the court determined that no remedy would be available under 28 U.S.C. § 1581(a) [protest jurisdiction] and, for that reason, jurisdiction under 28 U.S.C. §1581(i) [residual jurisdiction] was proper. See Patrick C. Reed, The Role of Federal Courts in US Customs & International Trade Law pp. 224-26 (1997).

In addition, there is a body of law, primarily concerning antidumping duties assessed by the Commerce Department, to support the contention that since the authority to determine the applicable antidumping duty rate is within the jurisdiction of the Commerce Department, CBP has only a “ministerial” role in liquidating antidumping duties and simply follows Commerce’s instructions when assessing and collecting such duties. See Mitsubishi Electronics America, Inc. v. United States, 44 F.3d 973, 977 (Fed. Cir. 1994) (holding that CBP has a ministerial role in liquidating antidumping duties and “cannot modify Commerce’s determinations, their underlying facts, or their enforcement”).

As such, there is no Customs decision regarding the assessment of antidumping duties that can be protested. Note that the “protest statute,” Section 1514, expressly refers to decisions of Customs.

Applying these cases to Section 122 duties, unless and until there is a final judicial decision, challenging the Section 122 duties by protest creates some legal issues, including whether such duties are protestable.

Nevertheless, we strongly recommend that all Section 122 duties that have been paid on entries that have liquidated be protested. If you file a protest because of the 180-day time limit before there is a final decision by the Courts (and we expect that will be the situation for most entries), we further recommend asking CBP to suspend the protest pending the outcome of the litigation. (Importers can request a suspension of their administrative protest if an ongoing court case could decide the outcome of their protest. See 19 C.F.R. § 174.13(a)(7).)

Again, since every importer of record will be affected by the Section 122 litigation, it is important that every importer of record know the liquidation status of every one of their Section 122 entries and be prepared to file protests on liquidated entries. Most Section 122 entries will liquidate under CBP’s 314-day liquidation cycle. For these entries, the five months of entries subject to Section 122 duties will be liquidated between early January and May 2027. The 180-day period for protesting these liquidations will expire for the earliest entries in early July 2027 and for the last entries in November 2027.

However, CBP can liquidate an entry outside of the 314-day cycle, so it is important to monitor the dates of liquidation and deadlines for filing protests.

One final thought

Most of the $166 billion in duties paid by importers under IEEPA was passed along to wholesalers/retailers and ultimately to the consumer as price increases. The importers who paid the duties are the parties legally entitled to the refunds. Nevertheless, consumers are filing lawsuits against importers arguing that some or all of the refunds should be passed along to them. Unless there is some sort of contractual agreement between the parties, we do not believe such lawsuits are legally sound; but from a public relations perspective, sharing the refunds may be appropriate. Looking into a crystal ball, one can see the same thing happening in 2028 with Section 122 refunds.

Conclusion

In the event our appellate court(s) agree with the CIT that the Section 122 tariffs are illegal, all importers who have paid such duties will be entitled to refunds. Because the CAFC has not indicated that it will be granting expedited review, it is likely that most Section 122 entries will be liquidated by the time a final decision is issued. Accordingly, importers must be prepared to file case in the CIT and file protests to protect their rights to a refund. Again, if the Section 122 duties are held to be illegal, it will be at least two years before refunds will be forthcoming.

Disclaimer: Nothing in this article is intended to create an attorney-client relationship, nor should anything in this article be construed as legal advice. In no event shall Robert A. Calandra, Attorney at Law, Patrick C. Reed, or Simons & Wiskin be liable for any special, direct, indirect, or consequential damages relating to this material. This article may be freely circulated with attribution to the authors.

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^* Principal, Law Office of Robert A. Calandra, Attorney at Law, Fairfield, NJ. Tel.: 973-244-0441. E-mail: customsesq@aol.com.

^** Of Counsel, Simons & Wiskin, New York City. Tel: 732-316-2300 (firm offices). E-mail: pcr@simonswiskin.com.