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Micei International v. Dep't of Commerce

July 16, 2010

MICEI INTERNATIONAL, APPELLANT
v.
DEPARTMENT OF COMMERCE, APPELLEE



Appeals of an Order of the United States Department of Commerce.

The opinion of the court was delivered by: Griffith, Circuit Judge.

Argued February 23, 2010

Before: GINSBURG and GRIFFITH, Circuit Judges, and WILLIAMS, Senior 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 (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, ยง 1; see, e.g., Exxon Mobil Corp. v. Allapattah Servs., ...


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