Micei Int'l v. Dep't Of Commerce

• Decision Date: 16 July 2010
• Docket Number: Nos. 09-1155, 09-1186.,s. 09-1155, 09-1186.
• Citation: 613 F.3d 1147
• Parties: MICEI INTERNATIONAL, Appellant v. DEPARTMENT OF COMMERCE, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

613 F.3d 1147

MICEI INTERNATIONAL, Appellant

v.DEPARTMENT OF COMMERCE, Appellee.

Nos. 09-1155, 09-1186.

United States Court of Appeals,District of Columbia Circuit.

Argued Feb. 23, 2010.

Decided July 16, 2010.

COPYRIGHT MATERIAL OMITTED.

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.

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 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 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, 106 S.Ct. 1326, 89 L.Ed.2d 501 (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, 18 L.Ed. 851 (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, 125 S.Ct. 2611, 162 L.Ed.2d 502 (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 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 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, 103 S.Ct. 2187, 76 L.Ed.2d 312 (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, 13 L.Ed. 333 (1850); cf. Bruner v. United States, 343 U.S. 112, 116-17, 72 S.Ct. 581, 96 L.Ed. 786 (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 remaining in force for the purpose of sustaining any...