Section 301 Tariff Litigation (re 2018 tariffs)

In 2018, President Trump launched section 301 investigations and tariffs against China for intellectual property theft and forced technology transfers. The tariffs were imposed in several tranches by the USTR. List 3 and List 4a were at a time when China was retaliating back against the United States tariffs, and importers therefore claimed that this ensuing “trade war” exceeded the scope of section 301.

In 2020, thousands of importers challenged whether those tariffs had been either lawfully imposed or properly implemented by the Trump administration.

The importing litigants: (1) lost at the district court, and (2) lost at the court of appeals. Ultimately, in 2026, the U.S. Supreme Court denied certiorari (appellate review).

Summary of the Litigation:

Lead plaintiffs (HTMX) argued that Congress never authorized Section 301 tariffs to be used as a tool for effecting "trade wars," and that the statute required that Section 301 tariffs be tailored to addres specific harms (as investigated by the USTR, as such those violations specifically related to forced IP theft and transfers). Additionally, Plaintiffs argued the USTR violated the Administrative Procedures Act by failing to provide meaningful due process to interested commenters in advance of levying said tariffs

In defense, the government attorneys argued that (1) the President’s decisions on political questions and foreign affairs are not subject to judicial review, (2) the decision to impose the additional 301 tariffs in response to China’s retaliatory tariffs was linked to the original Section 301 tariffs, and (3) that the APA had not been violated by a lack of meaningful comments by the Administration.

The U.S. Supreme Court refused to grant the plaintiffs petition for certiorari.

For importers, this means that existing and future refund claims premised on the alleged illegality of the Section 301 duties are effectively foreclosed, absent new legislation or a substantial change in U.S. trade policy. Companies that have been filing protests or maintaining “protective” claims based on the Section 301 litigation should expect Customs and the courts to continue denying those claims.

Curated News on Section 301 Issues:

June 16, 2026: Supreme Court Denies Cert in Section 301 China Tariffs Litigation, Ending Importers’ Refund Hopes

August 29, 2024: CAFC’s October schedule does not include the 301 litigation. Plaintiffs continue to wait for oral arguments to be scheduled on the briefs filed in December 2023 and February 2024.

August 13, 2024: CAFC: In related news, the CAFC again upholds the authority of the President to modify 201 tariffs (re: bifacial panels).

February 22, 2024: Plaintiff’s Reply Brief filed to the CAFC.

December 21, 2023: DOJ brief filed to the CAFC.

August 15, 2023: CAFC: Extends the time for DOJ’s response brief from August 28, 2023 to October 27, 2023.

July 17, 2023: CAFC: Plaintiff’s opening brief.

May 16, 2023: CAFC: Appeal docketed

March 17, 2023: CIT decision (adverse to plaintiffs).

April 1, 2022: CIT: First decision from the Court remands matter for further explanation from Commerce.

July 15, 2021: Status conference hears issues of parties attempting as government attempts to comply with order but proposes onerous filing requirement on importers - no resolution reached.

July 6, 2021: 301 litigation: CIT Opinion grants plaintiffs request for an injunction on liquidation - subject to procedures to be agreed on.

March 12, 2021: DOJ files generalized answer in section 301 litigation.

February 10, 2021: CIT: Section 301 litigation: Mass case assignments to 3 judge panel, followed by the issuance of Procedural Order.

(Under the order, a “master ” or test case has been created and the government will have until March 12, 2021 to submit a generic answer to all cases.)

September 21, 2020: CIT: DOJ files a motion for case management procedures similar to old HMT litigation, including the selection of a “test case” and a stay of all other cases involved.

September 21, 2020: Over 3,500 lawsuits filed to piggy-back on pending litigation against section 301 tariffs.

September 18, 2020: Trade litigants rush to file claims.

September 14. 2020: Firm advises clients of the opportunity to file lawsuits claiming section 301 refunds.

September 10, 2020: Lead plaintiff files lawsuit alleging the Trump Administration exceeded its statutory authority to implement section 301 tariffs.