Justia U.S. D.C. Circuit Court of Appeals Opinion SummariesArticles Posted in International Trade
Changji Esquel Textile Co. Ltd. v. Gina Raimondo
Acting under the Export Control Reform Act of 2018 (ECRA) the Department of Commerce has maintained a so-called Entity List to restrict designated foreign parties from receiving United States exports. Plaintiff, Changji Esquel Textile Co, operates a spinning mill in Xinjiang. The United States has determined that China abuses the human rights of Uyghurs and other religious or ethnic minorities in Xinjiang, including imprisonment and forced labor. Changji and its parent company filed a lawsuit alleging that the Department, in adding Changji to the Entity List, violated ECRA and its implementing regulations, the APA, and the Due Process Clause. They moved for a preliminary injunction on the theory that the alleged ECRA and regulatory violations were ultra vires. The district court denied the motion on the ground that Plaintiffs are not likely to succeed on this claim. The DC Circuit affirmed. The court explained that to prevail on an ultra vires claim, Plaintiff must establish three things: “(i) the statutory preclusion of review is implied rather than express; (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. The court explained that the canons invoked by Plaintiffs can resolve statutory ambiguity in close cases, but they do not allow the court to discern any clear and mandatory prohibition on adding entities to the List for human-rights abuses, particularly given the breadth of section 4813(a)(16) and the deference owed to the Executive Branch in matters of foreign affairs. View "Changji Esquel Textile Co. Ltd. v. Gina Raimondo" on Justia Law
MediNatura, Inc. v. Food and Drug Administration
The Food, Drug, and Cosmetic Act (FDCA), 21 U.S.C. 321(g) regulates homeopathic drugs. A 1988 FDA guidance document outlined the circumstances in which the FDA intended to exercise its discretion not to enforce the full force of the FDCA against homeopathic drugs. In 2019, the FDA withdrew the guidance document, explaining that the homeopathic drug industry had expanded significantly and it had received numerous reports of “[n]egative health effects from drug products labeled as homeopathic.” The FDA then implemented a “risk-based” enforcement approach and added six of MediNatura’s prescription injectable homeopathic products to an import alert, notifying FDA field staff that the products appeared to violate the FDCA.The D.C. Circuit affirmed the dismissal of MediNatura’s challenges. When a product is detained under an import alert, the importer is given notice and an opportunity to be heard, so the import alert was non-final agency action. The court declined to enjoin the withdrawal of the 1988 guidance, noting the public’s strong interest in the enforcement of the FDCA. Requiring the FDA to keep in place a guidance document that no longer reflects its current enforcement thinking, particularly in light of present public health concerns related to homeopathic drugs, is not in the public interest. View "MediNatura, Inc. v. Food and Drug Administration" on Justia Law
Epsilon Electronics v. US Department of Treasury
OFAC is authorized to impose civil penalties against any person who exports goods to a third party who it has reason to know intends to send them to Iran. At issue was whether OFAC must also show that the goods actually ended up in Iran. The DC Circuit held that the government need not make that showing and affirmed the district court on that ground. However, the court held that OFAC did not adequately explain parts of its determination that the exporter in this case had reason to know that its shipments would be sent on to Iran. Therefore, the court affirmed the district court's order granting the government defendants' motion for summary judgment as to OFAC's determination that Epsilon's 34 shipments to Asra International between August 2008 and March 2011 violated section 560.204 of the Iranian Transactions and Sanctions Regulations. The court reversed as to OFAC's determination that Epsilon's five shipments to Asra International in 2012 violated the same regulation. The court remanded with instructions. View "Epsilon Electronics v. US Department of Treasury" on Justia Law
Posted in: Government & Administrative Law, International Trade
Nanko Shipping, USA v. Alcoa
In 1963, the Republic of Guinea entered into an agreement with Halco establishing the Compagnie des Bauxites de Guinée (CBG) for the purpose of developing Guinea's rich bauxite mines. Nanko filed suit against Alcoa, alleging breach of the CBG Agreement, asserting that it was a third-party beneficiary thereof, and another for racial discrimination in violation of 42 U.S.C.1981. Nanko later added Halco as a defendant and asserted an additional claim against Alcoa for tortious interference with contractual relations. The district court dismissed the case under Rule 12(b)(7) for failure to join Guinea as a required Rule 19 party. The court concluded that the district court's Rule 19 holding failed to fully grapple with Nanko's allegations and that those allegations, accepted as true, state a claim for racial discrimination under section 1981. The court reasoned that, insofar as the existing parties' interests are concerned, evidence of Guinea's actions, views, or prerogatives can be discovered and introduced where relevant to the parties' claims and defenses even if Guinea remained a nonparty. At this stage in the pleadings, the court did not believe that the allegations could be reasonably read to show that Guinea was a necessary party. Accordingly, the court reversed and remanded. View "Nanko Shipping, USA v. Alcoa" on Justia Law
Adenariwo v. FMC
Petitioner, owner and principal of MacBride Nigeria, seeks review of two of the Commissioner's decisions relating to the loss of concrete masonry equipment shipped from the United States to Nigeria in two separate shipping containers. BDP and Zim organized and carried out the transportation of the equipment. Petitioner alleged two identical complaints against Zim and BDP, contending that they engaged in unreasonable practices when handling the equipment, in violation of Section 10(d)(1) of the Shipping Act of 1984, 46 U.S.C. 41102(c). The court dismissed the portions of the petition relating to the first container because the petition for review of the Commission’s decision was untimely under the Hobbs Act, 28 U.S.C. 2342(3)(B), 2344. The court vacated the decision relating to the second container because the Commission improperly reduced petitioner's award for the loss of equipment. The court remanded for an award of the full amount supported by the record without mitigation and permitted under 46 C.F.R. 502.301(b). View "Adenariwo v. FMC" on Justia Law
Posted in: International Trade
McKesson Corp., et al. v. Islam Republic of Iran, et al.
McKesson first filed suit in 1982 after the Iranian government expropriated the interest held by McKesson in an Iranian dairy company. At issue now is the $13.4 million in attorney's fees the district court awarded McKesson. This appeal turns on the applicability vel non of Article 518 of the Iranian Civil Procedure Act of 2000. The court read Article 518's plain language to provide that "decided by the court" applies only "[i]n the instances where the amount of [attorney's fees is] not fixed in the law or official tariff." Article 518 provides a general rule that courts must use an official tariff or other amount fixed by law in awarding attorney's fees. The court has discretion only when the tariff does not apply. In this instance, the court concluded that the official tariff applies. Iran contends that, applied to McKesson's $29.3 million judgment, the tariff yields a fee award of $29,516. McKesson does not dispute the calculation. Accordingly, the court vacated the district court's fee award and instructed the district court on remand to grant McKesson $29,516 in attorney's fees.View "McKesson Corp., et al. v. Islam Republic of Iran, et al." on Justia Law
Posted in: International Trade, Legal Ethics
Folliard v. Government Acquisitions, Inc., et al.
Relator filed suit under the False Claims Act (FCA), 31 U.S.C. 3729-3733, alleging that the HP products Govplace sold to the federal government originated from non-designated countries, in violation of the Trade Agreements Act of 1979 (TAA), 19 U.S.C. 2501-2581. The court affirmed the district court's grant of summary judgment to Govplace, concluding that the district court properly exercised its discretion in managing discovery and that Govplace reasonably relied on Ingram Micro's certification. The court concluded that a contractor like Govplace is ordinarily entitled to rely on a supplier's certification that the product meets TAA requirements. In this case, Govplace has informed the GSA during multiple Contractor Administrator Visits that it relies on Ingram Micro's Program in representing that the country of origin information for the items listed in its GSA schedule is accurate, and GSA's Administrative Report Cards evaluating Govplace have all concluded that Govplace has complied with the TAA. View "Folliard v. Government Acquisitions, Inc., et al." on Justia Law
Posted in: Government Contracts, International Trade
Luan, et al. v. United States
Appellant fled to the United States after a Hong Kong magistrate issued a warrant for his arrest on charges of smuggling, evasion of customs duties, bribery, conspiracy to defraud, and money laundering. On appeal, appellant challenged the district court's grant of an application under 28 U.S.C. 2467(d)(3) for a restraining order to preserve appellant's assets. The court concluded that the district court's restraining order was issued in a manner consistent with the procedural due process protections of 18 U.S.C. 983(j)(1)(A) where the applicable foreign criminal or forfeiture proceedings in this case afforded protections consistent with those afforded by the filing of a civil forfeiture complaint in the United States. The court need not decide whether all of those proceedings were required, or whether fewer or different proceedings would have sufficed. Accordingly, the court affirmed the judgment, concluding that the proceedings appellant was afforded was sufficient to satisfy the mandate of section 2467(d)(3). View "Luan, et al. v. United States" on Justia Law
Delta Air Lines, Inc. v. Export-Import Bank of the U.S., et al.
Delta filed suit against the Bank, under the Export-Import Bank Act, 12 U.S.C. 635(b)(1)(B), arguing that the Bank failed to consider the effects of loan guarantees given to Air India so that Air India could purchase Boeing airplanes. The district court entered judgment in favor of the Bank and Delta appealed. The court reversed, concluding that the Bank failed to reasonably explain its application of the Act in this case, as required by the Administrative Procedure Act, 5 U.S.C. 500 et seq. The court directed the district court to remand the case to the Bank for further proceedings, but the district court should not vacate any of the Bank's actions in this matter to date. View "Delta Air Lines, Inc. v. Export-Import Bank of the U.S., et al." on Justia Law
Posted in: Banking, International Trade, U.S. D.C. Circuit Court of Appeals
Center For Int’l Env. Law v. Office of the U.S. Trade Rep., et al.
This case involved the district court's order requiring the Office of the United States Trade Representative to disclose a classified document describing the government's position during international trade negotiations. The only document that remained in dispute was a white paper referred to in the district court proceedings as "document 1," which consisted of the Trade Representative's commentary on the interpretation of the phrase "in like circumstances." The court concluded that the Trade Representative properly withheld the document as exempt from disclosure under exemption 1 of the Freedom of Information Act, 5 U.S.C. 552(b)(1), because the white paper was properly classified as confidential. Accordingly, the court reversed the district court's judgment. View "Center For Int'l Env. Law v. Office of the U.S. Trade Rep., et al." on Justia Law