What does 'exclusive importer' actually mean in the May 7 Section 122 ruling?

It is not a legal term of art — it is shorthand for the specific plaintiff-importers whom the CIT held had constitutional standing to sue and therefore could obtain relief. In State of Oregon, et al. v. United States and the consolidated Burlap and Barrel, Inc., et al. v. United States case, the CIT granted relief to exactly three plaintiff-importers: the State of Washington (specifically the University of Washington), Burlap and Barrel, Inc., and Basic Fun, Inc. Twenty-three other state co-plaintiffs were dismissed for lack of standing because their alleged harm was indirect (paying higher prices passed down by third-party importers). Husch Blackwell summarized this as 'limits relief to exclusive importers' — meaning the relief is exclusive to the importers who were direct parties to the case.

Why did 23 states lose on standing while 3 plaintiffs won?

Standing in U.S. federal court requires a concrete and particularized injury that is fairly traceable to the defendant's conduct. The CIT held that the three plaintiff-importers had concrete injuries because they were direct importers with shipments already scheduled to arrive, exposing them to immediate Section 122 tariff liability. The 23 dismissed states alleged only indirect economic harm — higher prices passed through by independent third-party importers — and the CIT found this too speculative because it depended on choices made by independent actors who were not parties to the case. The court applied the same standing test to Washington State's broader claims and limited Washington's relief to its own University of Washington imports, refusing to extend the injunction nationwide on Washington's behalf.

If I am not one of the three plaintiffs, can I still get a Section 122 refund?

Not automatically from the May 7 ruling. The CIT explicitly declined to issue a nationwide injunction, and the Federal Circuit stayed even the plaintiff-specific injunction on May 11–12, 2026. To position for a refund as a non-plaintiff importer, the realistic options are: (1) file your own complaint at the CIT to obtain plaintiff-specific relief — which gives you standing to argue for the same remedy if and when the appellate process resolves favorably; (2) file a protective protest under 19 USC § 1514 within 180 days of liquidation on each entry that paid Section 122 duties, to preserve administrative refund rights; or (3) wait and hope the government creates an administrative refund mechanism if it loses the appeal. Most trade counsel are recommending paths (1) and (2) in parallel for importers with material Section 122 exposure.

Was the CIT decision unanimous, and does that matter for the appeal?

No, it was a 2-1 split decision of a three-judge CIT panel. Judge Stanceu dissented, arguing that further proceedings were necessary and disagreeing with the majority's interpretation of Section 122. A split decision does not automatically signal a higher chance of reversal on appeal, but it does give the government a clear roadmap of arguments to advance at the Federal Circuit. The Federal Circuit's May 11/12 stay of the CIT's injunction pending appeal is consistent with the court taking the government's appeal seriously enough to preserve the status quo while it deliberates.

What case number and docket should my counsel pull?

The consolidated case is The State of Oregon, et al. v. United States, et al. and Burlap and Barrel, Inc., et al. v. United States, et al., decided May 7, 2026. The slip opinion is published at https://www.cit.uscourts.gov/sites/cit/files/26-47.pdf. The government's notice of appeal to the Federal Circuit was filed on May 8, 2026. The Federal Circuit stay order pending appeal is in the CIT docket at gov.uscourts.cit.19559.54.0. Husch Blackwell's published analysis (May 8, 2026) is a useful starting point for non-lawyers: 'The Court of International Trade Rules Section 122 Tariffs Unlawful But Limits Relief to Exclusive Importers.'

Section 122 Refunds: Who Qualifies as an 'Exclusive Importer'

The May 7, 2026 Court of International Trade ruling in The State of Oregon, et al. v. United States held that the 10% Section 122 surcharge is unlawful — but it gave refunds to exactly three plaintiff-importers. Husch Blackwell’s published summary captured the practical headline: the CIT “limits relief to exclusive importers.” That phrasing has confused a lot of importers who paid the 10% surcharge and assumed any CIT win opens the door to a refund. It does not. This post explains what “exclusive importers” actually means, why most importers were left out, and the three concrete refund paths still available.

Court of International Trade limits Section 122 refunds to plaintiff-importers with standing — most importers must file their own claims

“Exclusive Importer” Is Not a Legal Term of Art

The phrase is shorthand, not statute. It comes from Husch Blackwell’s published summary of the May 7 ruling and is being picked up across trade press because it captures the practical effect: relief is exclusive to the importers who were named plaintiffs and won standing. There is no separate “exclusive importer” certification, status, or ACE flag — the question is simpler and harder. Were you a named plaintiff in this case, or weren’t you?

The Three Plaintiff-Importers Who Won Refunds

The CIT granted summary judgment and a permanent injunction to exactly three plaintiff-importers:

The State of Washington — specifically through its instrumentality, the University of Washington. The state’s broader sovereign claims for nationwide relief failed; only the University of Washington’s direct importing role gave Washington standing for refunds on its own imports.
Burlap and Barrel, Inc. — a private specialty spice importer.
Basic Fun, Inc. — a private toy company.

Each of these three entities is entitled to:

A permanent injunction preventing CBP from collecting Section 122 duties on its own imports going forward, and
Refunds with interest for any Section 122 duties unlawfully collected to date.

That is the totality of the on-the-ground remedy from the May 7 ruling.

The 23 States the CIT Dismissed — and Why

Twenty-three other states joined the case as co-plaintiffs and lost on standing. The CIT’s reasoning is important because it tells importers exactly what kind of claim does not work:

Plaintiffs alleging only indirect economic harm — for example, paying higher prices passed down by third-party importers — failed to establish standing. Those injuries depended on the unpredictable choices of independent actors, making them too speculative to support a constitutional injury under Article III.

Translated: if you are not the importer of record on the entries that paid Section 122 duties, you almost certainly do not have standing in your own right. A retailer paying higher wholesale prices because its supplier paid Section 122 duties cannot sue under this theory. The importer of record on those entries can.

The CIT applied the same logic to Washington State’s broader claims. Even Washington — which did have standing through the University of Washington’s direct imports — was denied a nationwide injunction on the theory that increased downstream costs to one plaintiff is not a sufficient basis for universal relief.

Why the CIT Refused a Nationwide Injunction

This is the part of the ruling that catches most importers by surprise. Two factors drove the result:

Standing limits the remedy. Federal courts can only redress injuries to parties in front of them. Because standing existed only for the three plaintiff-importers, plaintiff-specific injunctive relief and refunds were sufficient to make those plaintiffs whole. A universal injunction would have been broader than necessary to remedy the proven injuries.
The 2-1 split. The decision was a divided 2-1 panel, with Judge Stanceu dissenting. A divided court is generally less willing to issue maximum-scope relief, particularly on a question the government will immediately appeal.

The result: the 10% surcharge is held unlawful in this case, but CBP continues to collect it from every other importer in the country.

The May 11/12 Federal Circuit Stay

The government appealed on May 8, 2026 to the U.S. Court of Appeals for the Federal Circuit. The Federal Circuit issued a stay of the CIT’s injunction pending appeal on May 11/12, 2026. The practical effect: even the three winning plaintiff-importers are not getting refunded right now — the relief is paused while the appeal proceeds. The 10% surcharge continues to be collected from everyone.

Trade counsel should pull the stay order from the CIT docket: gov.uscourts.cit.19559.54.0.

What This Means If You Are Not a Plaintiff

Three operational paths are available, and they are not mutually exclusive:

Path 1 — File Your Own CIT Complaint

The most direct way to position for plaintiff-specific relief is to become a plaintiff yourself. If your entries paid material Section 122 duties since February 24, 2026, a CIT complaint filed under 28 USC § 1581(i) gives you standing to argue for the same plaintiff-specific injunction and refund the three winning importers obtained. This path is meaningful for importers with five-figure or larger Section 122 exposure where the litigation cost is justified by the recovery.

Path 2 — File Protective Protests on Each Entry

Independent of CIT litigation, file a protest under 19 USC § 1514 within 180 days of liquidation on every entry that paid Section 122 duties. The protest preserves administrative refund rights so that, if the government later builds a Section 122 refund mechanism, your entries are positioned. Without a timely protest, the 180-day window closes regardless of how the appellate process ends. (The mechanics of a customs protest are covered in How to file a protest for IEEPA tariff refund — the same procedural rules apply to Section 122.)

Path 3 — Wait for an Administrative Refund Mechanism

If the Federal Circuit affirms the CIT and the government does not get further relief, CBP may eventually build a Section 122 refund process similar to CAPE. Husch Blackwell flagged this possibility but cautioned that “it is uncertain whether the Government would add any Section 122 refund functionality to the IEEPA refund process while any potential appeal is pending.” Treating this path as a backstop — not a primary strategy — is the safest posture.

Why CAPE Will Not Reach Section 122

CAPE Phase 1 is scoped exclusively to IEEPA duties under HTS subheadings 9903.01.25 through 9903.01.70, collected during the IEEPA period of February 2025 through February 2026. Section 122 has its own HTS classification, its own statutory authority (19 USC § 2132), and its own time window (February 24, 2026 onward). CBP has not announced any extension of CAPE to Section 122 — and the May 11/12 Federal Circuit stay makes any near-term administrative extension less likely, not more.

Three Things to Do This Week If You Have Section 122 Exposure

Quantify your exposure. Pull recent ACE entry summaries and filter on the Section 122 HTS line. Total the duties paid since February 24, 2026.
Check the 180-day clock on every liquidated entry. Any liquidated entry approaching day 180 needs a protest decision now, not later.
Talk to trade counsel about the parallel CIT-complaint option if your exposure justifies the cost. The three named plaintiffs were small and mid-size importers — Burlap and Barrel is a specialty spice company, Basic Fun is a toy importer. The CIT door is open to importers of comparable size with real exposure.

If you want help mapping which of the three paths fits your entry profile, request a CAPE & Section 122 assessment and we will pair you with a vetted U.S. trade-law professional.

Sources

The State of Oregon, et al. v. United States, et al. and Burlap and Barrel, Inc., et al. v. United States, et al., slip op. 26-47 (Ct. Int’l Trade May 7, 2026), PDF
Husch Blackwell, The Court of International Trade Rules Section 122 Tariffs Unlawful But Limits Relief to Exclusive Importers (May 8, 2026)
Dorsey & Whitney, U.S. Court of International Trade Holds Section 122 Tariffs Unlawful – Enjoins Tariff Collection and Orders Refunds for Plaintiff-Importers (May 8, 2026)
Federal Circuit stay order, CIT docket gov.uscourts.cit.19559.54.0 (May 11/12, 2026)

Disclaimer: We are not a law firm. This post explains a published court ruling and trade-counsel commentary. It is not legal advice. Section 122 standing, protest timing, and litigation strategy depend on facts specific to your entries — consult a qualified U.S. trade-law professional before acting.