Companies to Ask SCOTUS to Review Section 301 Case on Lists 3, 4A Tariffs
Plaintiffs in the massive Section 301 litigation "have every intention" to appeal their case challenging the lists 3 and 4A Section 301 tariffs on China to the Supreme Court, Matt Nicely, lead counsel for the companies, told the Court of International Trade during a Nov. 4 status conference.
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And on Dec. 1, the companies asked the Supreme Court for an extension of time to file their petition for certiorari. Chief Justice John Roberts granted the motion on Dec. 4, giving the parties until Feb. 20, 2026, to file their cert petition (HMTX Industries v. United States, U.S. 25A647).
In September, the U.S. Court of Appeals for the Federal Circuit upheld the lists 3 and 4A tariffs, finding them to be a valid exercise of authority under Section 307(a)(1)(C) (see 2509250028). The court said the statute's permission to "modify" Section 301 action where it's "no longer appropriate" lets the U.S. trade representative greatly escalate the tariffs if the original action is "insufficient" to achieve its "stated purpose."
The appellate court also said this authority doesn't violate the constitutional non-delegation doctrine, nor the statutory major questions doctrine, which protects against the use of broad and old statutes to claim newfound and unheralded authority over major politically or economically significant issues. Lastly, the court said the lists 3 and 4A tariff actions were subject to the Administrative Procedure Act, since they were made by the U.S. trade representative and not the president, and that USTR cleared APA review by adequately responding to comments on the duties on remand at CIT.
In asking for an extension to file their cert petition, the companies said there's "good cause" for such an extension, since the case "presents a fundamental question of statutory interpretation" and an extension "would increase the odds that the parties and the Court will have the benefit" of the high court's decision in the lead cases on the use of the International Emergency Economic Powers Act.
The "fundamental question of statutory interpretation" at issue in the present case is whether the term "modify" in Section 307 lets USTR "impose tariffs on a scale that is many multiples of the original trade action to wage a trade war with a foreign country." The companies said the "answer to that question is 'no,' as the plain meaning of the word 'modify' is to 'change moderately or in a minor fashion,'" citing the Supreme Court's 2023 decision in Biden v. Nebraska, which struck down President Joe Biden's attempt to eliminate certain student loan debt that also rested on the word "modify."
"The question raised is exceptionally important because it will determine the scope of USTR’s authority over trade issues that significantly impact the U.S. economy," the brief said.
An extension will also give the court time to issue its decision in the lead cases on whether the president can issue tariffs under the International Emergency Economic Powers Act, the parties said, noting that this decision will impact the Section 301 case, given that both cases involve the major questions and non-delegation doctrines "with respect to the Executive Branch's imposition of tariffs," the brief said.
Independently of the companies' extension motion, CIT Judges Mark Barnett, Jennifer Choe-Groves and Claire Kelly called a status conference with the members of the steering committee the trade court appointed to represent the thousands of companies that filed suit against the Section 301 tariffs. The conference was called to discuss how the court will proceed in the case that a cert petition is or is not filed.
Barnett laid out the court's "game plan," which will first include an order telling the parties in the lead case, HMTX Industries v. U.S., to file a status report within seven days of a cert petition being filed, if such petition actually is filed, though if an extension is granted, the court said it wants the parties to tell the court of such an extension within seven days of the deadline. The order also will say that if a cert petition is filed, all the stays in the case will remain in place with regard to the cases that have been assigned under the lead case. The same is true of the unassigned Section 301 cases, the judge said.
The court's plan included options for if the cert petition is not filed, and the plan may still be relevant if the Supreme Court denies the companies' cert petition. Barnett said that if no petition is filed, the court will "hold off" until January, at which time it will issue another order establishing a deadline for parties to indicate their intent to litigate any additional or alternative claims regarding the Section 301 tariffs. In addition, the court will "provide a streamlined process for dismissing cases."
Under the streamlined process, if no report is filed indicating an intent to litigate additional issues, the court will dismiss the cases within 60 days. Barnett noted that parties that brought cases assigned to the HMTX Industries action that don't want to wait for the court's streamlined process would have to file a dismissal under Rule 41(a)(1)(A)(ii), since the government's answer to the complaint in HMTX Industries is good for all the cases attached to the lead case, while unassigned cases would have to file a dismissal under Rule 41(a)(1)(A)(i).