The Federal Circuit stayed a Court of International Trade ruling invalidating Section 122 tariffs, keeping a 10% import surcharge in effect while appeal proceeds.
The U.S. Court of Appeals for the Federal Circuit on May 12 issued an administrative stay of a lower court order that had invalidated a set of Section 122 tariffs, allowing Customs and Border Protection to continue collecting a 10% import surcharge while the appeal proceeds [1]. The stay halts, for now, any immediate obligation on the government to refund duties collected under the contested tariffs [1].
The Federal Circuit's action follows a May 7 ruling by the Court of International Trade striking down the Section 122 tariffs as unlawful [1]. Section 122 of the Trade Act of 1974 grants the president authority to impose temporary import surcharges under specified conditions, and the CIT's invalidation of duties imposed under that authority set the stage for the government's swift appeal. The Federal Circuit's administrative stay is a procedural mechanism distinct from a merits ruling; it preserves the status quo while the appellate court considers whether to grant a fuller stay pending resolution of the appeal [1].
The stay carries immediate practical weight for the import community. Importers who are not named parties in the underlying litigation cannot claim refunds at this stage, because CBP remains authorized to collect the surcharge and continue liquidating entries under the existing duty rate [1]. The window for affected importers to act is narrow. Trade counsel have flagged that non-party importers should consider filing administrative protests with CBP to preserve any potential refund claim before their entry liquidations become final, a step that becomes unavailable once the statutory protest deadline passes [1]. Failure to file in time could extinguish recovery rights regardless of how the appellate litigation ultimately resolves [1].
For the administration, the stay secures continued collection of tariff revenues during what could be a lengthy appellate process. The underlying legal question, whether the president properly invoked Section 122 authority to impose and maintain the surcharge, remains unresolved and will be briefed and argued before the Federal Circuit on a schedule not yet publicly set [1]. A decision on a fuller stay pending appeal, separate from the administrative stay already in place, is expected to follow in the near term [1].
The case sits at the intersection of executive trade authority and judicial review, and the Federal Circuit's ultimate ruling will carry significant precedential weight for how Section 122 can be deployed in future trade actions [1].