39 F.4th 756
D.C. Cir.2022Background
- The Export Controls Act of 2018 empowers the President and Secretary of Commerce to restrict exports that threaten national security or foreign policy and authorizes civil penalties for violations; 50 U.S.C. § 4819 bars one who 'cause[s] or aid[s], abet[s]...' prohibited acts and the implementing regs mirror that language (15 C.F.R. § 764.2(b)).
- The regulation at issue predates the 2018 Act, had an earlier 'knowingly' requirement removed in the 1980s, and Congress carried the mens-rea-less regime forward when enacting the 2018 Act.
- FedEx, an international common carrier, was charged by BIS in 2011 and 2017 with multiple violations under § 764.2(b) for transporting items without required licenses; FedEx settled both matters and paid civil penalties.
- FedEx sued Commerce in district court challenging Commerce's strict-liability interpretation of § 764.2(b) as ultra vires and as a Due Process (vagueness/fair-notice) violation; the district court dismissed both claims; FedEx appealed only the ultra vires dismissal.
- The D.C. Circuit reviewed the dismissal de novo, addressed the applicable ultra vires standard (given APA review is statutorily precluded), and considered whether Commerce plainly exceeded its statutory authority in treating aiding/abetting as actionable without a mens rea for civil liability.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicability and standard of ultra vires review when APA review is precluded | FedEx: where Congress only withdraws APA review, plaintiff need only show the agency exceeded statutory authority under a deferential standard | Commerce: ultra vires review remains narrow and exacting even when APA review is precluded; plaintiff must show a patent, extreme statutory violation | Court: Ultra vires review is narrow and demanding here; plaintiff must show agency action plainly exceeds a clear statutory command |
| Whether Commerce acted ultra vires by interpreting 15 C.F.R. § 764.2(b) to allow civil strict liability for 'cause, aid, abet' | FedEx: 'aiding and abetting' imports the common-law mens rea (knowledge/intent), so treating carriers as strictly liable exceeds Commerce's authority | Commerce: statute and regulation omit a mens rea for civil liability; Congress authorized civil penalties and left culpability/penalty standards to Commerce | Court: Commerce did not act ultra vires; statutory text, history, and Congress' choice to distinguish criminal (willfulness) from civil silence permit strict-liability civil enforcement |
| Precedent bearing on interpretation of 'cause or aid, abet' | FedEx: common-law tort meaning controls and requires scienter | Commerce: circuit precedent (and long-standing regs) supports strict-liability administrative enforcement | Court: Iran Air v. Kugelman endorses strict-liability treatment of 'causing' in export regs; this supports Commerce's interpretation |
| Constitutional-avoidance / Due Process fair-notice concern | FedEx: imposing strict liability on aiding/abetting raises serious vagueness and fair-notice problems; canon of avoidance should require mens rea | Commerce: long-standing regulation, prior enforcement, and statutory text give adequate notice; criminal provisions require willfulness, civil silence signals different standard | Court: Canon not triggered—no serious constitutional doubt shown; prior agency practice and statutory text provide sufficient notice |
Key Cases Cited
- Leedom v. Kyne, 358 U.S. 184 (1958) (recognizes narrow equitable ultra vires relief against agency action beyond statutory authority)
- Iran Air v. Kugelman, 996 F.2d 1253 (D.C. Cir. 1993) (upheld Commerce's strict-liability interpretation of 'causing' in export regulations)
- Nyunt v. Chairman, 589 F.3d 445 (D.C. Cir. 2009) (applies stringent standard for ultra vires review when APA relief is unavailable)
- Haig v. Agee, 453 U.S. 280 (1981) (courts defer to political branches in foreign policy/national security matters)
- Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984) (framework for judicial deference to reasonable agency interpretations)
- Griffith v. FLRA, 842 F.2d 487 (D.C. Cir. 1988) (describes ultra vires relief as confined to extreme agency error)
- Oestereich v. Selective Service, 393 U.S. 233 (1968) (ultra vires relief requires blatant lawlessness by agency)