FEDERAL EXPRESS CORPORATION, APPELLANT v. UNITED STATES DEPARTMENT OF COMMERCE, ET AL., APPELLEES
No. 20-5337
Unitеd States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 5, 2021 Decided July 8, 2022
Appeal from the United States District Court for the District of Columbia (No. 1:19-cv-01840)
Eric D. McArthur argued the cause for appellant. With him on the briefs was Chelsea A. Priest.
Daniel Aguilar, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief were Brian M. Boynton, Acting Assistant Attorney General at the time the brief was filed, and Sharon Swingle, Attorney.
Before: HENDERSON and MILLETT, Circuit Judges, and SENTELLE, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge MILLETT.
Circuit Judge HENDERSON concurs in the judgment.
Some violations of the 2018 Export Controls Act and its implementing regulations trigger liability only if the entity acts willfully or knowingly, but others are enforced on a strict liability basis. Federal Express Corporation—commonly known as FedEx—challenges the Department of Commerce‘s authority to hold it strictly liable for aiding and abetting violations of the 2018 Export Controls Act. Because the statutory text, circuit precedent, and deference to the Executive Branch in matters of national security and foreign affairs all support Commerce‘s interpretation, we affirm the district court‘s dismissal of FedEx‘s complaint.
I
A
The 2018 Export Controls Act directs the President and the Secretary of Commerce “to restrict the export of items” (i) that “would make a significant contribution to the military potential of any other country or combination of countries which would prove detrimental to the national security of the United States[,]” and (ii) as “necessary to further significantly the foreign policy of the United States or to fulfill its declared international obligations.”
The 2018 Export Controls Act is only the latest version of the federal government‘s export control framework. The Executive and Legislative Branches have long sought to prevent exports from the United States that could assist the Nation‘s enemies. Before the 1940s, the United States primarily restricted exports in wartime, in response to emergency situations, or when other countries were engaged in conflict. See IAN F. FERGUSSON, PAUL K. KERR & CHRISTOPHER A. CASEY, CONG. RSCH. SERV., R46814, THE U.S. EXPORT CONTROL SYSTEM AND THE EXPORT CONTROL REFORM ACT OF 2018, at 2 (2021); 1 BRUCE E. CLUBB, UNITED STATES FOREIGN TRADE LAW § 8.1, at 133–134 (1991).
In 1949, Congress enacted “the first comprehensive system of export controls ever adopted * * * in peace time.” CLUBB, supra § 8.1.2, at 135–136 (citation omitted); see Export Control Act of 1949, Pub. L. No. 81-11, 63 Stat. 7; JOHN R. LIEBMAN & WILLIAM A. ROOT, UNITED STATES EXPORT CONTROLS xxx–xxxi (2d ed. 1989). Since then, the statutory scheme has been repeatedly updated, refined, and reauthorized. See, e.g., Export Administration Act of 1969, Pub. L. No. 91-184, 83 Stat. 841; Export Administration Act of 1979, Pub. L. No. 96-72, 93 Stat. 503.
Pursuant to those statutes, the Department of Commerce developed the Export Administration Regulations. See
When enacting the 2018 Export Controls Act, Congress statutorily еndorsed those preexisting regulations, explicitly preserving in law “[a]ll delegations, rules, regulations, orders, determinations, licenses, or other forms of administrative action that have been made, issued, conducted, or allowed to become effective under the Export Administration Act of 1979 * * * or the Export Administration Regulations” that were “in effect as of August 13, 2018[.]”
This case concerns the specific statutory and regulatory provisions addressing civil aiding or abetting violations of the 2018 Export Controls Act. The Act makes it “unlawful for a person to violate, attempt to violate, conspire to violate, or cause a violation of [the Act] or of any regulation, order, license, or other authorization issued under [the Act], including any of the unlawful acts described in paragraph (2).”
“Paragraph (2)” in turn provides an extensive list of “unlawful acts” that includes, as relevant here that “[n]o person may cause or aid, abet, counsel, command, induce,
The 2018 Export Controls Act prescribes criminal penalties for one “who willfully commits, willfully attempts to commit, or willfully conspires to commit, or aids and abets in the commission of, an unlawful act described in [Section 4819(a).]”
The Act separately authorizes the Secretary of Commerce to impose “civil penalties on a person for each violation by that person of [the 2018 Export Controls Act] or any regulation, order, or license issued under [the Act.]”
The Export Administration Regulations largely mirror these statutory provisions, stating that “[n]o person may cause or aid, abet, counsel, command, induce, procure, permit, or approve the doing of any act prohibited, or the omission of any act required, by [the 2018 Export Controls Act], the [Export Administration Regulations], or any order, license or authorization issued thereunder.”
The regulations delineate a variety of sanctions for violating these provisions, including administrative sanctions, civil penalties, denial of export privileges, and criminal punishment.
The regulatory provision that makes it unlawful to “cause or aid, [or] abet” an export control violation,
B
FedEx is an international express courier that offers expedited and time-definite delivery of approximately 15 million packages daily to more than 220 countries and territories.
In 2011, the Department of Commerce‘s Bureau of Industry and Security (“Bureau“) sent FedEx a “charging letter” alleging that FedEx had violated
FedEx settled again, this time for a civil penalty of $500,000. FedEx also agreed, among other stipulations, to “complete external audits of its export controls compliance program covering FedEx fiscal years 2017–2020[.]” J.A. 40. Under both settlements, FedEx agreed to “waive[] all rights to further procedural steps in this matter” including any right to “seek judicial review or otherwise contest the validity of this Agreement[.]” J.A. 48, 71.
C
About a year later, FedEx filed a complaint in federal district court against the Department of Commerce, the Bureau of Industry and Security, as well as the Secretary of Commerce and the Assistant Secretary for Industry and Analysis in their official capacities (collectively, “Commerce“). FedEx‘s operative complaint challenges Commerce‘s strict liability interpretation of
The district court granted Commerce‘s motion to dismiss the complaint. With respect to the due process claim, the district court held that Commerce‘s “strict-liability regime to prevent companies from aiding and abetting export violations that would jeopardize the country‘s national security or foreign policy interests” survived rational basis review. Federal Express Corp. v. Department of Com., 486 F. Supp. 3d 69, 76 (D.D.C. 2020).
The district court also dismissed FedEx‘s ultra vires challenge. The court reasoned that neither the plain text of the Department of Commerce‘s regulation,
FedEx timely appeals only the dismissal of its ultra vires claim. FedEx Opening Br. 11 n.4.
II
We have jurisdiction under
III
A
FedEx is unable to bring a traditional Administrative Procedure Act (“APA“) challenge to Commerce‘s interpretation of its regulation because the 2018 Export Controls Act provides that the “functions” the Department of Commerce exercises under that Act “shall not be subject to” the judicial review sections of the APA.
Long before the APA, the “main weapon in the arsenal for attacking federal administrative action” was a suit in equity seeking injunctive relief. KENNETH CULP DAVIS & RICHARD J. PIERCE, JR., ADMINISTRATIVE LAW TREATISE § 18.4, at 179 (3d ed. 1994); see Dart v. United States, 848 F.2d 217, 224 (D.C. Cir. 1988); Griffith v. FLRA, 842 F.2d 487, 492 (D.C. Cir. 1988); see, e.g., American Sch. of Magnetic Healing v. McAnnulty, 187 U.S. 94 (1902) (commonly cited as the wellspring of nonstatutory review of agency action).
Such review, commonly known as an ultra vires claim, is available where (i) there is no express statutory preclusion of all judicial review; (ii) “there is no alternative procedure for review of the statutory claim; and (iii) the agency plainly acts in excess of its delegated powers and contrary to a specific prohibition in the statute that is clear and mandatory[.]” Nyunt v. Chairman, Broadcasting Board of Governors, 589 F.3d 445, 449 (D.C. Cir. 2009) (internal quotation marks and citation omitted); see also DCH Reg‘l Med. Ctr. v. Azar, 925 F.3d 503, 509 (D.C. Cir. 2019).
Judicial review for ultra vires agency action “rests on the longstanding principle that if an agency action is ‘unauthorized by the statute under which [the agency] assumes to act,’ the agency has ‘violate[d] the law’ and ‘the courts generally have jurisdiction to grant relief.‘” National Ass‘n of Postal Supervisors v. USPS, 26 F.4th 960, 970 (D.C. Cir. 2022) (quoting McAnnulty, 187 U.S. at 108). This nonstatutory form of judicial review survived the enactment of the APA. Dart, 848 F.2d at 224 (“Nothing in the subsequent enactment of the APA altered the McAnnulty doctrine of review.“); see, e.g., Leedom v. Kyne, 358 U.S. 184, 188 (1958).
In Leedom v. Kyne, the Supreme Court explained that an ultra vires challenge is distinct from statutory review of an agency action taken “within [the agency‘s] jurisdiction,” and is available only for the narrow purpose of obtaining injunctive relief against agency action taken “in excess of its delegated powers and contrary to a specific prohibition” in the law. 358 U.S. at 188. In assessing an ultra vires claim, we apply that exacting standard of review in analyzing both “the extent of the agency‘s delegated authority” and “whether the agency has acted within that authority.” National Ass‘n of Postal Supervisors, 26 F.4th at 970 (citation omitted).
As a result, ultra vires claims are confined to “extreme” agency error where the agency has “stepped so plainly beyond the bounds of [its statutory authority], or acted so clearly in defiance of it, as to warrant the immediate intervention of an equity court[.]” Griffith, 842 F.2d at 493 (quoting Local 130, Int‘l Union of Elec., Radio & Mach. Workers v. McCulloch, 345 F.2d 90, 95 (D.C. Cir. 1965)). Only error that is “patently a misconstruction of the Act,” that “disregard[s] a specific and unambiguous statutory directive,” or that “violate[s] some specific command of a statute” will support relief. Id. (internal quotation marks and citations omitted); see National Ass‘n of Postal Supervisors, 26 F.4th at 971 (The “challenged [agency] action must ‘contravene[] a clear and specific statutory mandate’ to be susceptible to ultra vires review.“) (citation omitted).
B
The parties no longer contest that the first two prongs of an ultra vires claim are met here because the 2018 Export Controls Act does not expressly preclude all judicial review, and no alternative prоcedure for review of FedEx‘s claim exists. FedEx Opening Br. 16–17; FedEx Reply Br. 23; Gov‘t Br. 18; see Nyunt, 589 F.3d at 449. The dispute on appeal centers on whether FedEx has demonstrated the type of extreme agency error needed to demonstrate that Commerce acted ultra vires.
On that question, FedEx disagrees that its claim is subject to exacting review, arguing that it need only that show that Commerce “has exceeded its statutory authority” under a routinely deferential standard apparently akin to that of Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-844 (1984). FedEx Opening Br. 16–17.
FedEx argues that the requirement of showing a “patent violation of agency authority,” FedEx Opening Br. at 17 (quoting American Clinical Laboratory Ass‘n v. Azar, 931 F.3d 1195, 1208 (D.C. Cir. 2019)), applies only when Congress is understood generally to have precluded all statutory judicial review, id. at 16 n.5 (citing American Hosp. Ass‘n v. Azar, 964 F.3d 1230, 1238 (2020)). When, as here, Congress “withdraws only the APA cause of action” and does not reference other forms of judicial review, FedEx says that it need only show that the agency crossed statutory lines. FedEx Opening Br. 16 n.5.
FedEx‘s effort to dilute ultra vires review to the functional equivalent of the very APA action that Congress prohibited defies precedent and logic.
To start, the Supreme Court and this court have long required in ultra vires cases that the agency action go beyond mere legal or factual error and amount to a “clear departure by the [agency] from its statutory mandate” or be “blatantly lawless” agency action. Oestereich v. Selective Serv. Sys. Loc. Board No. 11, 393 U.S. 233, 238 (1968). Said another way, “[g]arden-variety errors of law or fact are not enough.” Griffith, 842 F.2d at 493; see Local 130, IUERMW, 345 F.2d at 95; National Air Traffic Controllers Ass‘n v. Federal Service Impasses Panel, 437 F.3d 1256, 1263 (D.C. Cir. 2006) (To succeed, an ultra vires claimant must show that the agency “has acted ‘in excess
An ultra vires challenge, in other words, is “еssentially a Hail Mary pass[.]” Nyunt, 589 F.3d at 449. The agency overstep must be “plain on the record and on the face of the [statute.]” Oestereich, 393 U.S. at 238 n.7. That demanding standard is necessary because ultra vires review seeks the intervention of an equity court where Congress has not authorized statutory judicial review, on the assumption that Congress has not “barred judicial comparison of agency action with plain statutory commands[.]” Dart, 848 F.2d at 222 (citation omitted); see Local 130, IUERMW, 345 F.2d at 95 (“Infirmities short of” stepping “plainly beyond the bounds” of a statute are insufficient in large part because our review of agency action is not “in [a] manner [expressly] provided by Congress.“).
Because nonstatutory review of agency action rests on that narrow presumption, challengers must show more than the type of routine error in “statutory interpretation or challenged findings of fact” that would apply if Congress had allowed APA review. Local 130, IUERMW, 345 F.2d at 95; see National Ass‘n of Postal Supervisors, 26 F.4th at 971, 975 (ultra vires review looks first at whether the agency contravened a “clear and specific statutory mandate,” and then, if applicable, whether the agency‘s statutory construction is “utterly unreasonable“). In other words, ultra vires claimants must demonstrate that the agency has plainly and openly crossed a congressionally drawn line in the sand.
That same demanding standard for judicial intervention applies even when Congress has only withdrawn APA review, rather than cut off all statutory judicial review. In Nyunt, after concluding that judicial review under the APA was unavailable but that not all avenues of statutory review were foreclosed as a general matter, this court nevertheless applied a “very stringent standard,” requiring the plaintiffs to demonstrate “the kind of ‘extreme’ error that would justify reliance on the Leedom v. Kyne exception.” 589 F.3d at 449; see Mittleman v. Postal Regul. Comm‘n, 757 F.3d 300, 307 (D.C. Cir. 2014) (emphasizing that ultra vires review is “quite narrow” in case where statute withheld only APA review). To that same point, in Trudeau v. FTC we explained that if the plaintiff‘s claims would have failed under the APA, then those same claims necessarily “could not succeed under” ultra vires review, which has an even “narrow[er] scope[.]” 456 F.3d 178, 190 (D.C. Cir. 2006).
FedEx relies on several cases to back up its claim for gentler review of ultra vires challenges when, as here, Congress has withdrawn only APA review. None of the cases supports that approach.
First, contrary to FedEx‘s reading, Aid Association for Lutherans v. United States Postal Service actually points to a demanding standard of review by drawing heavily on McAnnulty, Kyne, and their progeny when determining the availability of ultra vires relief. 321 F.3d 1166, 1173 (D.C. Cir. 2003).
Even more to the point, that case expressly did not address whether there is a delta between ultra vires review and less-exacting review under Chevron. Instead of parsing the differences in the two standards,
Second, neither does Northern Air Cargo v. United States Postal Service support a diluted ultra vires standard. 674 F.3d 852 (D.C. Cir. 2012). We had no occasion evеn to decide the question in that case because the agency had “never actually advanced any interpretation, let alone an authoritative one[.]” Id. at 860. The most that Northern Air Cargo says is that the “pre-existing administrative law requirement[]” that agency action “can be upheld only on the basis of contemporaneous justification by the agency itself” applies to ultra vires suits. Id. (citing SEC v. Chenery Corp., 318 U.S. 80 (1943)).
Third, American Hospital Association v. Azar is of no help to FedEx because it addressed a different question. 964 F.3d 1230. The issue in American Hospital Association was whether a change in hospital reimbursement rates under the Medicare program was the type of agency action that fell within a statutory prohibition on all judicial review. Id. at 1237–1238. The hospitals in that case argued that the reimbursement did not fall within the judicial review bar, and so they sought review directly under the statute. They did not seek nonstatutory review like FedEx does. See id. at 1239 (court noting that it is “not asked tо remedy a ‘statutory violation[] even when a statute precludes review‘“) (citation omitted). The government did suggest that ultra vires review applied, but this court declined to reach the question because it first had to determine the scope of the statutory “bar on judicial review.” Id. at 1240.2
Finally, this court has recently reconfirmed that ultra vires review imposes the same demanding standard in all cases, including those where only APA review is foreclosed. National Ass‘n of Postal Supervisors, 26 F.4th at 966 (citing
Mittleman, 757 F.3d at 307); see Mittleman, 757 F.3d at 305 (explaining that the relevant statute precludes judicial review under the APA). To be ruled ultra vires, the challenged action must “contravene[] a clear and specific statutory mandate[,]” National Ass‘n of Postal Supervisors, 26 F.4th at 971 (citation omitted), and the statutory construction adopted by an agency will be held “impermissible” only if it is “utterly unreasonable,” id. at 975 (quoting Aid Ass‘n for Lutherans, 321 F.3d at 1174); see also id. at 971 (applying Aid Ass‘n for Lutherans, Northern Air Cargo, Nyunt, and DCH Regional Medical Center). We reemphasize that rigorous standard for ultra vires review today, even in cases in which Congress has only expressly withdrawn APA review.
With the standard for FedEx‘s ultra vires claim settled, we turn to the merits. FedEx challenges Commercе‘s interpretation of its causing, aiding, or abetting regulation to apply strict liability,
A
We note at the outset that the mens-rea-omitting text of Commerce‘s cause, aid, or abet regulation falls squarely within its statutory authority. Section 4819 of the 2018 Export Controls Act expressly provides that “[n]o person may cause or aid, abet, counsel, command, induce, procure, permit, or approve the doing of any act prohibited, or the omission of any act required by” export control laws.
Commerce‘s regulation uses identical wording, specifying that “[n]o person may cause or aid, abet, counsel, command, induce, procure, permit, or aрprove the doing of any act prohibited, or the omission of any act required” by export control laws.
FedEx nevertheless argues that Commerce has crossed the ultra vires line by interpreting that regulation “to hold common carriers strictly liable for aiding and abetting and causing export violations[.]” FedEx Opening Br. 41. That argument fails for three reasons.
1
The first barrier to FedEx‘s ultra vires challenge is that Commerce‘s interpretation of its regulation to allow for strict liability in civil enforcement actions does not contravene any clear statutory command.
As noted, the 2018 Export Controls Act itself omits any mens rea requirement from its civil aiding or abetting prohibition.
Congress similarly picked and chose when to prescribe and when to omit a specific state of mind requirement for other violations of the 2018 Export Controls Act. For example, the Act specifies that “[n]o person may engage in any transaction or take any other action with intent to evade the provisions of” the Export Controls Act of 2018, “the Export Administration Regulations, or any order, license, or authorization issued thereunder.”
Congress‘s silence as to the state of mind required for a violation of still other provisions, including the neighboring Section 4819(a)(2)(b), indicates that Congress chose not to foreclose a lesser mens rea or strict liability standard there. After all, when Congress “includes particular language in one section of a statute but omits it in another section of the same Act,” courts presume that Congress knew what it was doing and meant for the omission to have significancе. Bates v. United States, 522 U.S. 23, 29–30 (1997) (quoting Russello v. United States, 464 U.S. 16, 23 (1983)) (applying that same selective-use principle to support the conclusion that a criminal offense did not include “an intent to defraud” state of mind requirement); accord Dean v. United States, 556 U.S. 568, 573 (2009) (applying selective-use principle in concluding that a statutory sentencing enhancement for a criminal offense did not include an intent requirement).
Closing the door even more firmly on FedEx‘s ultra vires argument is Congress‘s express delegation to Commerce to provide by regulation “standards for establishing levels of civil penalty” under Section 4819(c) “based upon factors such as * * * the culpability of the violator[.]”
Lastly, it bears noting that the omission of a mens rea requirement from the regulation is longstanding. Commerce removed a requirement that the violator act “knowingly” three decades ago, and has long interpreted the regulation to impose
strict liability.4 Yet Congress expressly carried the mens-rea-less regulation forward in
Taken together, these textual indicia firmly establish that Commerce‘s interpretation of the statute and its parallel regulation as allowing for strict liability is not “plainly beyond the bounds of [its statutory authority]” or “clearly in defiance of it[.]” Griffith, 842 F.2d at 493 (citation omitted).
2
FedEx‘s ultra vires argument runs into a second headwind-relevant circuit precedent.
In Iran Air v. Kugelman, this court upheld under APA review Commerce‘s interpretation of “causing” a prohibited act as a strict liability offense. 996 F.2d 1253, 1257–1259 (D.C. Cir. 1993) (interpreting
Given that this circuit has already specifically held that Commerce can attach strict liability to the first term in the string of verbs “cause or aid, abet, counsel, command, induce, procure, permit, or approve[,]”
3
If more were needed, the coup de grâce for FedEx‘s ultra vires argument would be the well-established rule of judicial deference to the Executive Branch in matters that involve foreign policy and national security.
Ample Supreme Court precedent counsels that courts accord special deference to an agency construction of a statute “in the areas of foreign policy and national security” in light of “the volatile nature of [such] problems[,]” over which the Political Branches each have preeminent expertise. Haig v. Agee, 453 U.S. 280, 291 (1981); see Regan v. Wald, 468 U.S. 222, 242–243 (1984) (applying “classical deference to the [P]olitical [B]ranches in matters of foreign policy” to “sustain the President‘s decision to curtail the flow of hard currency to Cuba” by restricting travel).
This court too has often noted that, “[b]y long-standing tradition, courts have been wary of second-guessing executive
That rule of deference applies with full force here. The 2018 Export Controls Act and its implementing regulations fall in the core of Executive and Legislative Branch expertise in the areas of national security and foreign affairs. The Act regulates the movement across the United States’ borders of items that could pose a grave risk to our national security if they were to fall into the wrong hands. Congress has specifically determined in the 2018 Export Controls Act that “[t]he national security and foreign policy of the United States require that the export, reexport, and in-country transfer of items” be regulated to “control the release of items for use” in “the proliferation of weapons of mass destruction or of cоnventional weapons[,]” “the acquisition of destabilizing numbers or types of conventional weapons[,]” “acts of terrorism[,]” and other harmful uses.
These issues lie at the heart of the United States’ national security and foreign policy interests. So our analysis of Commerce‘s efforts to protect the Nation‘s security and to prevent bad actors from acquiring restricted items must afford substantial deference to the judgments of the agency charged with enforcing the statute‘s export control program. Given that deference, we would be hard-pressed to hold that the law plainly forecloses Commerce from interpreting its regulation to strike the mens rea balance in favor of protecting the Nation‘s security.5
B
FedEx counters thаt “aiding and abetting” in the tort liability context requires “knowledge of unlawful activity and the intent to facilitate it[,]” and that Congress incorporated that common-law meaning into the 2018 Export Controls Act. FedEx Opening Br. 13–14. That argument is far too frail a reed on which to rest an ultra vires claim.
To start, we only “presume that Congress incorporates the common-law meaning of the terms it uses if those ‘terms have accumulated settled meaning
To start, the common law of tort does not so clearly or uniformly require a knowledge mens rea as FedEx supposes.
Certainly some jurisdictions do require “actual knowledge” of the primary wrongdoer‘s tortious activity for civil aiding and abetting liability.6 But others require only a general awareness of the primary tortfeasor‘s wrongdoing.7 Still other jurisdictions have held that recklessness or constructive knowledge may suffice.8 This variation takes the air out of FedEx‘s insistence that there was a “settled meaning under the common law” for aiding and abetting liability, Wells, 519 U.S. at 491 (formatting modified and citation omitted).
Even more relevantly, that variation in tort law‘s mens rea requirement as to aiding and abetting liability is amplified when the underlying primаry tort is itself a strict liability tort. FedEx concedes that at least some violations of the Export Administration
Since FedEx has not shown that its asserted mens rea requirement for aiding and abetting liability was truly settled in the common law at the time the statute was promulgated, or that its common-law meaning fits within this specialized national-security scheme, FedEx‘s argument does not come close to satisfying the strict standard for an ultra vires claim. In fact, the canon of interpretation that “when a statutory term is obviously transplanted from another legal source, it brings the old soil with it” cuts the other way in this case. Taggart v. Lorenzen, 139 S. Ct. 1795, 1801 (2019) (formatting modified and citation omitted). The more obvious legаl backdrop for Congress to have acted against in the 2018 Export Controls Act is Commerce‘s “causing, aiding, or abetting” regulation,
V
FedEx‘s last attempt to demonstrate that Commerce has acted ultra vires rests on the canon of constitutional avoidance. FedEx Opening Br. 38–40. No dice.
The “canon of constitutional avoidance is an interpretive tool, counseling that ambiguous statutory language be construed to avoid serious constitutional doubts.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 516 (2009). “[T]hose who invoke the doctrine must believe that the alternative is a serious likelihood that the statute will be held unconstitutional.” Almendarez-Torres v. United States, 523 U.S. 224, 238 (1998); see also Rust v. Sullivan, 500 U.S. 173, 191 (1991) (“Applying th[is] canon of construction” to regulations and holding that those regulations “d[id] not raise the sort of ‘grave аnd doubtful constitutional questions[]’ that would lead us to assume Congress did not intend to authorize their issuance.“) (citation omitted); Weaver v. United States Info. Agency, 87 F.3d 1429, 1436 (D.C. Cir. 1996) (applying the canon to regulations as well as statutes).
FedEx argues that the canon applies because the imposition of strict liability for aiding or abetting offenses raises “serious fair notice and vagueness concerns” under
The Due Process Clause‘s fair notice requirement generally requires only that the government make the requirements of the law public “and afford the citizenry a reasonable opportunity to familiarize itself with its terms and to comply.” United States v. Bronstein, 849 F.3d 1101, 1107 (D.C. Cir. 2017) (quoting Texaco, Inc. v. Short, 454 U.S. 516, 532 (1982)). “Even trained lawyers may find it necessary to consult legal dictionaries, treatises, and judicial opinions before they may sаy with any certainty what some statutes may compel or forbid.” Id. (quoting Rose v. Locke, 423 U.S. 48, 50 (1975) (per curiam)).
As a result, a statute or regulation is considered unconstitutionally vague only if, “applying the rules for interpreting legal texts, its meaning specifies no standard of conduct at all.” Bronstein, 849 F.3d at 1107 (formatting modified and citation omitted). The key question, then, is whether the law or regulation “provides a discernable standard when legally construed.” Id.
Commerce‘s strict-liability interpretation of its regulation and the parallel statutory provision satisfies that fair notice requirement.
To start, FedEx has already twice before been subjected to strict liability charges under this very regulation, once in 2011 and again in 2017. Both times it settled the claims. So FedEx has long had actual notice of Commerce‘s strict-liability interpretation and application of the regulation.
In addition, Commerce‘s interрretation is long-lived. See n.4, supra. And the plain text of the 2018 Export Controls Act textually preserves that preexisting regulatory standard.
If more were needed, this court has already held that “the language of the statute and the pertinent regulations adequately indicated that civil sanctions could be assessed on a strict liability basis.” Iran Air, 996 F.2d at 1259.
Finally, the statute‘s express state of mind requirements for criminal punishment, but silence as to civil sanctions, gives notice that civil penalties may be assessed on a strict liability basis. This is because there is a “strong presumption that Congress expresses its intent through the language it chooses[,]” including when it chooses to omit language that it used in a different part of a statute. INS v. Cardoza-Fonseca, 480 U.S. 421, 432 & n.12 (1987). Plus, the levy of civil sanctions without a state of mind requirement is not uncommon. See Iran Air, 996 F.2d at 1258.
VI
For all of those reasons, we hold that Commerce‘s rеgulation,
So ordered.