As of September 8, 2026, no court has ordered anyone a Section 122 refund except three named importers. The Court of International Trade struck down the 10% surcharge on May 7, 2026, the Federal Circuit stayed that judgment on June 11, 2026, and the appeal is still sitting with a merits panel. If you paid the surcharge between February 24 and July 24, 2026, your money is not moving yet — but your own filing deadlines are, and they do not wait for the panel.
This is a status check, written as of the date above, on what has actually been decided, what has not, and which of your clocks are running while the lawyers argue.
What the Surcharge Was, in One Section
Proclamation 11012 of February 20, 2026 imposed a 10% ad valorem surcharge under Section 122 of the Trade Act of 1974 (19 U.S.C. 2132), on goods entered for consumption or withdrawn from warehouse for consumption on or after 12:01 a.m. EST February 24, 2026. The proclamation said the surcharge would "continue in effect through 12:01 a.m. eastern daylight time on July 24, 2026, unless the surcharge imposed in this proclamation is expressly suspended, modified, or terminated on an earlier date." That is the statutory ceiling: 19 U.S.C. 2132 authorizes a surcharge "not to exceed 15 percent ad valorem" for "a period not exceeding 150 days (unless such period is extended by Act of Congress)." Congress did not extend it.
The surcharge was reported under heading 9903.03.01 of the Harmonized Tariff Schedule of the United States (HTSUS) — "Except for products described in headings 9903.03.02–9903.03.11, articles the product of any country" — with the exemptions carried in those adjacent 9903.03 headings. The proclamation exempted, among other categories, critical minerals; metals used in currency and bullion; energy and energy products; unavailable natural resources and fertilizers; specified agricultural products including beef, tomatoes, and oranges; pharmaceuticals and pharmaceutical ingredients; certain electronics; passenger, light, medium, and heavy-duty vehicles, buses, and parts; certain aerospace products; informational materials and baggage; articles already subject to Section 232 tariffs; USMCA-qualifying goods of Canada and Mexico; and textile and apparel goods of the CAFTA-DR countries.
Two details still matter when you audit an entry. The surcharge was "in addition to any other duties, taxes, fees, exactions, and charges applicable to such products," so it stacked on top of Section 301, MFN, and the rest — our 2026 tariff stacking guide covers that layering. And goods admitted to a foreign trade zone during the window generally had to be admitted under privileged foreign status unless eligible for domestic status, fixing tariff treatment at admission rather than at withdrawal.
The May 7 CIT Ruling, and How Narrow It Actually Was
On May 7, 2026, a three-judge panel of the Court of International Trade (CIT — the federal trial court with exclusive jurisdiction over customs matters) issued Slip Op. 26-47 in The State of Oregon v. United States, Ct. Nos. 26-01472 and 26-01606, consolidated with Burlap and Barrel, Inc. v. United States. Judges Barnett and Kelly formed the majority; Judge Stanceu dissented. An errata followed on June 5, 2026.
The majority held Proclamation 11012 ultra vires. The reasoning turned on what "large and serious United States balance-of-payments deficits" meant to the Congress that wrote Section 122 in 1974 — deficits measured by liquidity, official settlements, or basic balance — rather than the current-account and trade-deficit figures the proclamation invoked. On the government's own numbers, the proclamation cited a 2024 current account deficit of 4.0% of GDP against a 2013–2019 average near 2.0%.
Here is the part importers keep missing. The court granted summary judgment and entered a permanent injunction only "for The State of Washington, Burlap and Barrel, Inc., and Basic Fun, Inc." Twenty-three other state plaintiffs were dismissed without prejudice for lack of Article III standing, because their alleged injuries were indirect pass-through costs. The court did not enter universal relief. It did not order CBP to reliquidate anyone else's entries. If your company is not one of those three names, the May 7 judgment did nothing for your entries directly — it only created a favorable precedent that may or may not survive appeal.
What the Federal Circuit's June 11 Stay Did and Did Not Decide
The government docketed its appeal on May 8, 2026. Per the Oregon Department of Justice's public litigation tracker for the case, the Federal Circuit entered an administrative stay on May 12, the CIT denied the government's own stay motion on May 20, the appellate court ordered stay briefing on May 21, and the plaintiff states cross-appealed on June 9.
Then, on June 11, 2026, the Federal Circuit granted the stay pending appeal in Nos. 2026-1804 and 2026-1805. The operative language is short: "IT IS ORDERED THAT: (1) The motions for a stay pending appeal are granted." The order also directed that "The Clerk of Court shall transmit a copy of this order to the merits panel assigned to these appeals."
The court's reasoning on likelihood of success is worth reading precisely rather than in summary. The panel said it was "persuaded by the federal government's argument that the CIT majority's interpretation ... may be incorrect," and that the legislative history "strongly call[s] into question" the narrow reading of "balance-of-payments deficit." That is a signal, not a holding. A stay ruling is a preliminary assessment made on a motion; it does not resolve the appeal, and the merits panel is not bound to it.
As of September 8, 2026, the Federal Circuit's public opinions-and-orders listing — which carries entries through September 8 — shows no merits opinion in 2026-1804 or 2026-1805. The appeal remains pending. Anyone telling you the question is settled in either direction is ahead of the record.
One structural point that changed the shape of this case: the surcharge expired on its own on July 24, 2026, under the 150-day statutory cap. So the appeal is no longer about whether the government may keep collecting. It is about roughly five months of duties already in the Treasury, and about who — if anyone — is entitled to get them back.
There Is No Section 122 Version of CAPE
Importers who went through the IEEPA refund cycle keep asking when the Section 122 equivalent opens. As of September 8, 2026, there isn't one.
CBP's trade remedies index lists a dedicated "IEEPA - Duty Refunds" page describing CAPE (Consolidated Administration and Processing of Entries), the electronic pathway CBP built so the trade can submit IEEPA (International Emergency Economic Powers Act) refund claims in ACE, CBP's Automated Commercial Environment. That page went live with CAPE on April 20, 2026. The same index lists Section 232 programs, several Section 301 programs, and Section 338 Canada. It lists no Section 122 refund program at all.
That absence is logical, not an oversight. CBP built CAPE after the IEEPA tariffs were finally invalidated and refunds were owed. Section 122 has not reached that posture: the judgment invalidating it is stayed, and only three importers hold an enforceable judgment. We will not tell you a Section 122 channel is coming, or when. If your recovery work spans both programs, our IEEPA refund deadline tracker explains why deadlines run per entry rather than on one calendar date. The same logic applies here.
Your Clocks Are Running Regardless
The appeal has no deadline that affects you. Your entries do.
The PSC window closes first. A Post Summary Correction (PSC) is the ACE amendment that fixes an entry before it liquidates. CBP's rule: "PSC filers can submit these changes within 300 days from the date of entry and up to 15 days of the scheduled liquidation date, whichever date is earlier." For an entry filed the first day of the surcharge, February 24, 2026, the 300-day mark lands on about December 21, 2026. For the last surcharge entries filed July 23, 2026, it lands in mid-May 2027. If a liquidation date is scheduled sooner, the 15-day rule binds instead.
Liquidation comes next. Under 19 U.S.C. 1504(a), an entry not liquidated within one year of entry is deemed liquidated at the rate and amount the importer asserted, subject to extension under 1504(b). So surcharge-period entries will finalize on their own schedules, with an outer statutory bound running from roughly late February 2027 through late July 2027 unless CBP extends or suspends them.
Then the protest window opens, and it is the one that ends things. Under 19 U.S.C. 1514(c)(3), a protest must be filed "within 180 days after but not before" the date of liquidation or reliquidation. Not before. That means no surcharge entry can be protested until it liquidates, and the decisions listed in 19 U.S.C. 1514(a) — including classification, rate and amount of duties, and the liquidation itself — become "final and conclusive upon all persons" if nobody protests in time.
Know which date starts that clock. Under 19 CFR 159.9, notice of liquidation of formal entries is provided on CBP's public website, and the electronic posting "will be deemed the legal evidence of liquidation." The courtesy notice your broker receives is expressly "informal, courtesy notice and not as a direct, formal, and decisive notice of liquidation." Diary the bulletin notice date, not the courtesy message.
Beyond protest, 28 U.S.C. 2636(a) gives 180 days from a protest denial to bring a CIT action, and 2636(i) sets a two-year limit for CIT actions under other 1581 jurisdiction. Whether either applies to your entries is a question for counsel on your specific facts. We do not give legal advice on which court door to use.
What a PSC Can and Cannot Fix on a Surcharge Entry
Do not file a PSC that simply deletes HTSUS 9903.03.01 and calls it a correction. For an importer who is not one of the three judgment plaintiffs, the proclamation was operative law when those entries were filed, and the CIT judgment saying otherwise is stayed. Stripping the surcharge line is not a correction of an error; it is an assertion that the duty was never owed, which is exactly what the Federal Circuit has not decided.
What a PSC legitimately fixes on these entries is real filing error, and there is more of it than most importers expect:
- A missed exemption. The 9903.03.02–9903.03.11 headings covered a lot of ground. Entries that qualified for USMCA treatment, that were already subject to Section 232, or that fell into critical minerals, energy, pharmaceuticals, vehicles and parts, aerospace, or CAFTA-DR textiles should not have carried 9903.03.01 at all.
- Classification and valuation errors that inflated the base the 10% was applied to.
- FTZ status errors where privileged foreign status was mishandled at admission.
Those are ordinary pre-liquidation corrections, and they do not depend on the appeal at all. If the entry is unliquidated and the error is real, the PSC path is open now. Our PSC filing guide walks the mechanics, and the Post Summary Corrections page covers our service: $150 per PSC entry, up to 10 lines. Importers who self-file through ABI (the Automated Broker Interface) can file their own PSCs in ACE; self-filing entries with us runs $30 per entry, and full-service brokerage runs $100–$250 per entry depending on complexity.
What to Do This Month
- Pull the population. Every entry summary with 9903.03.01, February 24 through July 24, 2026. Line-level, with entered value and the surcharge amount per line.
- Sort by the earliest closing clock. Not by refund size. An entry 40 days from its 300-day PSC cutoff outranks a larger entry that liquidates in June 2027.
- Separate the two buckets. Bucket one: entries with a real, correctable error — missed exemption, wrong classification, wrong value. Bucket two: entries where the only complaint is the surcharge itself. Bucket one is actionable now. Bucket two is a diary entry pending the appeal and a liquidation date.
- Diary the liquidation dates from the bulletin notice, and set a 180-day protest reminder from each one.
- Confirm ACH refund enrollment. CBP pays refunds electronically. Under 19 U.S.C. 1505(b), refunds of excess deposits with interest are to be paid within 30 days of liquidation or reliquidation, and 1505(c) accrues interest from the date the importer deposited the estimated duties. None of that helps if CBP has no banking instructions for you.
Not automatically, and not on the strength of that ruling alone. The May 7, 2026 judgment granted relief only to the State of Washington, Burlap and Barrel, Inc., and Basic Fun, Inc., and the Federal Circuit stayed it on June 11, 2026. As of September 8, 2026, no appellate decision has issued in Nos. 2026-1804 and 2026-1805. Whether relief ever extends to non-plaintiff importers is one of the open questions on appeal.
Should I file a protest now to protect my position?
You cannot. Under 19 U.S.C. 1514(c)(3), a protest is filed within 180 days after but not before liquidation, and surcharge-period entries are still pre-liquidation. What you can do before liquidation is correct genuine entry errors by PSC and build a diary of liquidation dates so the protest window does not pass unnoticed. Whether to protest, and on what grounds, is a decision to make with counsel when the entry actually liquidates.
Does the surcharge expiring on July 24, 2026 make the appeal moot?
Expiration ended collection; it did not end the dispute over money already collected. The 150-day cap in 19 U.S.C. 2132 ran out and Congress did not extend it, so no new entries carry the surcharge. The appeal now concerns roughly five months of duties already paid and the scope of any remedy.
Why is there a CAPE process for IEEPA refunds but nothing for Section 122?
Because the two are at different stages. CBP's trade remedies index lists an IEEPA Duty Refunds page built around CAPE, which launched April 20, 2026 after the IEEPA tariffs were finally invalidated. Section 122 has no comparable page as of September 8, 2026, because the judgment against it is stayed and unresolved on appeal. We will not predict whether CBP builds one, or when.
Get Your Surcharge Entries Inventoried Before the PSC Window Closes
The Federal Circuit will decide when it decides. What you control between now and then is whether your February–July 2026 entries are correctly filed, correctly diaried, and still inside the windows that let you do something about them. For the earliest surcharge entries, the 300-day PSC deadline is inside 15 weeks of this article's date.
Here is how we help. We consult on which of your surcharge entries carry a real, correctable error versus a litigation-contingent claim, and which clock governs each. We comply on the PSC package itself — reason codes, supporting documentation, ACH enrollment — at $150 per PSC entry, up to 10 lines. We automate the liquidation-date and protest-window diary so a bulletin notice does not slip past your team. And we clear your ongoing entries, self-filed at $30 per entry or brokered at $100–$250 per entry, while the appeal runs its course.
We do not promise a refund, a CBP decision, or an outcome on appeal. Nobody can. What we can do is make sure your entries are in a position to benefit if one arrives.
Talk to our team about a Section 122 entry review, or start with the background on the Section 122 surcharge and the IEEPA refunds and CAPE process if you are working both recoveries at once.