United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 23, 2010 Decided July 16, 2010
No. 09-1155
MICEI INTERNATIONAL,
APPELLANT
v.
DEPARTMENT OF COMMERCE,
APPELLEE
Consolidated with 09-1186
Appeals of an Order
of the United States Department of Commerce
Robert Clifton Burns argued the cause for appellant.
With him on the briefs was Daniel T. O’Connor. Daniel I.
Prywes entered an appearance.
Anisha S. Dasgupta, Attorney, U.S. Department of Justice,
argued the cause for appellee. With her on the brief was Mark
B. Stern, Attorney. Samantha L. Chaifetz, Attorney, entered
an appearance.
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Before: GINSBURG and GRIFFITH, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge GRIFFITH.
GRIFFITH, Circuit Judge: The Department of Commerce
sanctioned Micei International for alleged violations of export
regulations. Per the agency’s instruction, Micei sought judicial
review directly in this court. We hold that jurisdiction lies in
the district court and transfer the matter there.
I.
The Department of Commerce promulgated regulations
(“export regulations”) to implement the Export Administration
Act of 1979 (EAA), 50 U.S.C. app. §§ 2401–2420 (2006). See
15 C.F.R. § 730.2 (2009). Designed to regulate the export of
dual-use items (goods with both commercial and military
applications), see 50 U.S.C. app § 2402(2), the EAA has
lapsed, as happens periodically because it is a temporary
statute with a set expiration date, see id. § 2419; Pub. L. No.
96-72, § 20, 93 Stat. 503, 535 (1979).
On many occasions, Congress has reauthorized the EAA
by simply postponing its expiration date, see, e.g., Pub. L. No.
98-108, § 1, 97 Stat. 744, 744 (1983), but it does not always do
so prior to the Act’s termination. As a result, there have been
periods of lapse, ranging in length from a few days to many
years, between the statute’s episodic expiration and revival.
See Wisc. Project on Nuclear Arms Control v. U.S. Dep’t of
Commerce, 317 F.3d 275, 278 (D.C. Cir. 2003). Most recently,
the EAA expired on August 20, 2001. 50 U.S.C. app § 2419.
Congress has not yet reenacted it.
On August 17, 2001, the President issued an executive
order directing the Department of Commerce to enforce the
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export regulations upon the EAA’s expiration as if they were
“in full force and effect.” Exec. Order No. 13,222, § 2, 3 C.F.R.
783, 784 (2002). The President issued the order under the aegis
of the International Emergency Economic Powers Act
(IEEPA), which provides, inter alia, that the President may
regulate certain export transactions in the instance of a
qualifying national emergency, see 50 U.S.C. §§ 1701,
1702(a)(1)(B). The President found such an emergency in the
expiration of the EAA and the resulting absence of an operative
export control law. Exec. Order No. 13,222, 3 C.F.R. at
783–84. As we have noted before, the use of IEEPA to
maintain the export regulations reflects a longstanding practice
consistent with congressional expectations. See Wisc. Project,
317 F.3d at 278–79, 283.
II.
In 2008, the Department of Commerce charged Micei
International, a Macedonian sporting goods and military
supply company, with violating the export regulations in a
series of transactions that took place in 2003. In the ensuing
administrative enforcement proceeding, the Department
entered a default judgment against Micei, resulting in a fine of
$126,000 and a five-year suspension of export privileges. In
the matter of: Micei Int’l, Resp’t, 74 Fed. Reg. 24,788, 24,790
(Dep’t of Commerce May 26, 2009) (final decision).
Commerce informed Micei that it had two avenues for
appeal. Within a year, Micei could petition the agency to
vacate the default judgment. Id. at 24,796 (citing 15 C.F.R.
§ 766.7(b)). Micei could also appeal the order “within 15 days
to the United States Court of Appeals for the District of
Columbia [Circuit] pursuant to 50 U.S.C. app § 2412(c)(3).” In
the matter of: Micei Int’l, Resp’t, 74 Fed. Reg. at 24,796
(quoting 15 C.F.R. § 766.22(e)). The statute referenced is the
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judicial review provision of the expired EAA, which provided
that this court “shall have jurisdiction” over challenges to civil
penalties imposed under the Act. 50 U.S.C. app. § 2412(c)(3).
Micei initially pursued both routes, filing a motion to
vacate the judgment with the Department on May 19, 2009,
and a notice of appeal in this court on May 28. Micei shortly
thereafter withdrew its motion to vacate. “Out of an abundance
of caution,” Br. of Pet’r at 2 n.2, Micei supplemented its direct
appeal to this court with a petition for review filed on June 29.
We consolidated the May 28 and June 29 filings, both of which
challenge the default judgment and resulting sanctions.
III.
Federal courts are courts of limited subject-matter
jurisdiction and “every federal appellate court has a special
obligation to satisfy itself . . . of its own jurisdiction, . . . even
though the parties are prepared to concede it.” Bender v.
Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986)
(internal quotation marks omitted).
“[T]wo things are necessary to create jurisdiction” in an
Article III tribunal other than the Supreme Court. Mayor v.
Cooper, 73 U.S. (6 Wall.) 247, 252 (1868). “The Constitution
must have given to the court the capacity to take it, and an act
of Congress must have supplied it.” Id. (emphasis added).
Without statutory authorization, the “inferior Courts” neither
exist nor have jurisdiction to wield “the judicial Power of the
United States.” U.S. CONST. art. III, § 1; see, e.g., Exxon Mobil
Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 553 (2005)
(stating the “bedrock principle that federal courts have no
jurisdiction without statutory authorization”).
“It is axiomatic that Congress, acting within its
constitutional powers, may freely choose the court in which
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judicial review of agency decisions may occur.” Five Flags
Pipe Line Co. v. Dep’t of Transp., 854 F.2d 1438, 1439 (D.C.
Cir. 1988) (internal quotation marks and brackets omitted).
“[T]he ‘normal default rule’ is that ‘persons seeking review of
agency action go first to district court rather than to a court of
appeals.’” Watts v. SEC, 482 F.3d 501, 505 (D.C. Cir. 2007)
(quoting Int’l Bhd. of Teamsters v. Pena, 17 F.3d 1478, 1481
(D.C. Cir. 1994)). “[O]nly when a direct-review statute
specifically gives the court of appeals subject-matter
jurisdiction to directly review agency action” may a party seek
initial review in an appellate court. Watts, 482 F.3d at 505.
The requisite direct-review provision must appear “in the
statute pursuant to which the agency action is taken, or in
another statute applicable to it.” Five Flags, 854 F.2d at 1439.
With the EAA in lapse, IEEPA “provides the statutory
authority for the continued enforcement of the EAA’s export
restrictions.” United States v. Hitt, 249 F.3d 1010, 1024 n.14
(D.C. Cir. 2001); accord United States v. Mechanic, 809 F.2d
1111, 1113 (5th Cir. 1987). IEEPA is silent regarding the
availability of and forum for judicial review of action taken
under its auspices. The Administrative Procedure Act (APA),
though, authorizes judicial review of final agency action. See 5
U.S.C. § 704. This authorization is inapplicable if another
statute provides for judicial review or precludes application of
the APA’s judicial review provisions, or where the action
challenged is committed to agency discretion by law, see id.
§§ 701(a), 704, but the Department of Commerce does not
contend that any of these exceptions apply here. Thus, judicial
review is available to Micei pursuant to the APA. See Holy
Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 162
(D.C. Cir. 2003) (reviewing agency action taken pursuant to
IEEPA under the APA); see also Br. of Resp’t at 2; Resp’t
Mot. to Transfer the Proceedings at 5. Unless a statute channels
review directly to the court of appeals, however, Micei’s
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challenge properly belongs in the district court under the
“normal default rule” of district court review. Pena, 17 F.3d at
1481; see Bell v. New Jersey, 461 U.S. 773, 777 & n.3 (1983)
(explaining that in the absence of a provision authorizing
review in the court of appeals, challenges to agency action to
which the APA’s judicial review provisions apply fall within
the district court’s federal question jurisdiction under 28
U.S.C. § 1331).
In its brief, the Department of Commerce identified § 704
of the APA as the statutory basis for direct-review jurisdiction
in this court. Br. for Resp’t at 1–2. This contention is surprising
(and wrong, too). It is well established that § 704 “is not a
jurisdiction-conferring statute,” Trudeau v. FTC, 456 F.3d 178,
183 (D.C. Cir. 2006), and, in any event, § 704 makes no
reference to the court of appeals.
Micei’s brief pointed to the provision of the EAA granting
this court jurisdiction to hear direct appeals of export sanctions
as the necessary direct-review statute. Br. of Pet’r at 1 (citing
50 U.S.C. app. § 2412(c)(3)). But that provision expired with
the rest of the EAA, see 50 U.S.C. app. § 2419, extinguishing
the jurisdiction the EAA had granted, for the ordinary rule is
that when a jurisdiction-conferring statute expires, our
“jurisdiction ceases,” McNulty v. Batty, 51 U.S. (10 How.) 72,
79 (1850); cf. Bruner v. United States, 343 U.S. 112, 116–17
(1952) (“This rule—that, when a law conferring jurisdiction is
repealed without any reservation as to pending cases, all cases
fall with the law—has been adhered to consistently by this
Court.”).
This is not a case in which the general savings statute
provides an exception to this rule. See 1 U.S.C. § 109. Under
the general savings statute, a temporary enactment that has
expired and does not provide otherwise is “treated as still
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remaining in force for the purpose of sustaining any proper
action or prosecution for the enforcement” of “any penalty,
forfeiture, or liability incurred under such statute.” Id. This
provision can perpetuate the jurisdiction granted in a statute
beyond its expiration, see De La Rama S.S. Co. v. United
States, 344 U.S. 386, 389–91 (1953), but only if the liability
that is the subject of the suit for which jurisdiction is sought
was “incurred under [the] statute,” 1 U.S.C. § 109, meaning
while the statute was in effect, see Allen v. Grand Cent.
Aircraft Co., 347 U.S. 535, 554–55 (1954) (“The precise object
of the general savings statute is to prevent the expiration of a
temporary statute from cutting off appropriate measures to
enforce the expired statute in relation to violations of it, or of
regulations issued under it, occurring before its expiration.”
(emphasis added)); see also Iran Air v. Kugelman, 996 F.2d
1253, 1257 (D.C. Cir. 1993). Here, Micei’s alleged violations
occurred in 2003, well after the EAA’s expiration. The general
savings statute saves nothing in this case.
Doubtful of our jurisdiction, we ordered the parties to
address the issue at oral argument. In that colloquy, neither side
offered an alternative statutory basis for our jurisdiction.
However, the Department of Commerce indicated that, at least
until the court requested that the parties address jurisdiction, it
had been of the view that the executive order issued upon the
EAA’s expiration preserved the availability of judicial review
in this court. See Oral Arg. Recording at 7:18–:28. The
Department has now abandoned that view.
In a motion filed with the court on June 23, 2010, the
Department of Commerce requested we transfer this matter to
the United States District Court for the District of Columbia,
urging us to conclude that that tribunal, and not this one, has
initial jurisdiction over Micei’s case. The Department
explained that when the export regulations remain in effect via
8
executive order, they are authorized by IEEPA. Resp’t Mot. to
Transfer the Proceedings at 5. As such, jurisdiction for review
of sanctions imposed for violating those regulations “must be
determined by reference to the IEEPA’s own jurisdictional
provisions” and “because the IEEPA does not contain a direct
review provision, review jurisdiction resides under current law
as a first matter in federal district court.” Id.
As is clear from our foregoing discussion, we agree with
the Department’s analytical approach. There remains,
however, the question of what effect, if any, the executive
order sustaining the export regulatory scheme has on this
court’s jurisdiction. In this litigation, the Department has not
argued that the executive order purports to maintain the EAA
in effect beyond the statute’s expiration. See Resp’t Mot. to
Transfer the Proceedings at 3; Br. of Resp’t at 6. The order can,
however, be read to intend precisely that result. See Exec.
Order No. 13,222, § 1, 3 C.F.R. at 784; cf. Wisc. Project, 317
F.3d at 279. Understood in this way, the executive order
purports to prolong the useful life of the lapsed EAA, which
would include perpetuating the jurisdiction conferred in that
statute’s direct-review provision, 50 U.S.C. app. § 2412(c)(3).
This court would have jurisdiction pursuant to the
President’s order only if the President has the authority to
confer jurisdiction—an authority that, if it exists, must derive
from either the Executive’s inherent power under the
Constitution or a permissible delegation of power from
Congress. See Am. Int’l Group, Inc. v. Islamic Republic of
Iran, 657 F.2d 430, 441–46 (D.C. Cir. 1981). The former is
unavailing, as the Constitution vests the power to confer
jurisdiction in Congress alone. See, e.g., Cary v. Curtis, 44
U.S. (3 How.) 236, 245 (1845) (“[T]he judicial power of the
United States . . . is . . . dependent for its distribution and
organization, and for the modes of its exercise, entirely upon
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the action of Congress, who possess the sole power of creating
the tribunals (inferior to the Supreme Court) for the exercise of
the judicial power, and of investing them with jurisdiction
. . . .”). Whether the executive order can provide the basis of
our jurisdiction, then, turns on whether the President can
confer jurisdiction on this court under the auspices of IEEPA.
We conclude that the President lacks that power. Nothing
in the text of IEEPA delegates to the President the authority to
grant jurisdiction to any federal court. Nowhere does the
statute even refer to the jurisdiction of federal courts. It never
mentions the direct-review provision of the expired EAA or,
for that matter, the EAA itself. To be sure, “IEEPA delegates
broad authority to the President.” Dames & Moore v. Regan,
453 U.S. 654, 677 (1981). That authority includes the power to
“investigate, block during the pendency of an investigation,
regulate, direct and compel, nullify, void, prevent or prohibit”
a wide array of transactions, 50 U.S.C. § 1702(a)(1)(B),
authority that might very well permit the President to maintain
many of the substantive provisions of the export regulations
and the EAA. But these powers do not include the power to
vest jurisdiction in the federal courts. Because we reach this
conclusion, we avoid whatever constitutional questions would
arise were Congress to delegate such authority. Cf. Loving v.
United States, 517 U.S. 748, 772 (1996) (explaining that
delegations calling “for the exercise of judgment or discretion
that lies beyond the traditional authority of the President” are
more likely to violate the separation of powers).
The basis for the Department of Commerce’s prior
position that the President could, under the authority of IEEPA,
confer jurisdiction on this court was our decision in Wisconsin
Project on Nuclear Arms Control v. U.S. Department of
Commerce, 317 F.3d 275. See In the matter of: Micei Int’l,
Resp’t, 74 Fed. Reg. at 24,790; Oral Arg. Recording at
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7:20–:35. That case, as Commerce’s counsel conceded, does
not speak to the question of Article III jurisdiction. See Oral
Arg. Recording at 7:36–8:39. The issue in Wisconsin Project
was whether an expired provision of the EAA could provide
the basis for the Department of Commerce to withhold certain
export data under Exemption 3 of the Freedom of Information
Act (FOIA), which permits agencies, in certain circumstances,
to withhold records “specifically exempted from disclosure by
statute.” 5 U.S.C. § 552(b)(3). Explaining that Exemption 3
requires asking whether “Congress has itself made the basic
decision” to withhold disclosure, Wisc. Project, 317 F.3d at
280 (brackets omitted), we held that Congress’s acquiescence
in the President’s use of IEEPA to maintain the export
regulations evinced sufficient Congressional intent to enable
the Department to invoke Exemption 3, see id. at 281–83. But
in applying a particular FOIA exemption, we had no occasion
to consider whether IEEPA purports to delegate to the
President the authority to determine the jurisdiction of federal
courts. Wisconsin Project does not control here.
In sum, the executive order extending the export
regulatory regime does not confer direct-review jurisdiction
upon this court. With the EAA in lapse and the general savings
statute inapposite, no statute does either. Accordingly, we
conclude that this court lacks jurisdiction over Micei’s case. As
the Department of Commerce now correctly concedes, the
default rule of district court review applies to the challenge to
export sanctions Micei brings here.
IV.
At oral argument, Micei requested that in the event we
concluded that it cannot obtain judicial review directly in this
court, we transfer its case to the United States District Court for
the District of Columbia. Oral Arg. Recording at 4:03–:28. The
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Department of Commerce, by its motion, has joined in this
request. This type of transfer is authorized under 28 U.S.C.
§ 1631, which provides that in the case of an action or appeal
for which the “court finds that there is a want of jurisdiction,
the court shall, if it is in the interest of justice, transfer such
action or appeal to any other such court in which the action or
appeal could have been brought at the time it was filed or
noticed.”
Transfer is appropriate here. As the Department of
Commerce has recognized, Micei sought judicial review in this
court in good-faith reliance on the Department’s own
instructions. Oral Arg. Recording at 10:27–:35; Resp’t Mot. to
Transfer the Proceedings at 6. Now, however, we have made
clear that Micei’s challenge properly belongs in the district
court, where Micei could have brought a cause of action in lieu
of the petition for review it filed here. See Godwin v. Sec’y of
Hous. & Urban Dev., 356 F.3d 310, 312 (D.C. Cir. 2004). We
therefore transfer Micei’s petition for review, No. 09-1186, to
the United States District Court for the District of Columbia.
Micei’s appeal, however, was filed in accordance with the
judicial review provision of the export regulations, 15 C.F.R.
§ 766.22(e) (2009), which directed parties to pursue an appeal
as contemplated in the EAA’s judicial review provision, 50
U.S.C. app. § 2412(c)(3). The Department of Commerce,
responding to the jurisdictional issue raised in this case,
recently deleted § 766.22(e) from the export regulations. See
Export Administration Regulations; Technical Amendments,
75 Fed. Reg. 33,682, 33,683 (June 15, 2010). With this
revision, we need not consider whether to transfer Micei’s
appeal to the district court, for neither the export regulations
nor the Department of Commerce contemplate the need for this
form of appeal while the EAA is in lapse. See id.; Resp’t Mot.
to Transfer the Proceedings at 5 (“[T]he availability of federal
12
court review must be determined by reference to the IEEPA’s
own jurisdictional provisions.”). We therefore dismiss Micei’s
appeal, No. 09-1155, for lack of jurisdiction.
So ordered.