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December 16, 1986

SPAWR OPTICAL RESEARCH, INC., et al., Plaintiffs,
MALCOLM BALDRIGE, et al., Defendants

The opinion of the court was delivered by: GREENE


 In this case, the Court must determine on cross-motions for summary judgment whether plaintiffs were deprived of their right to a proper administrative hearing for violations of the Export Administration Act of 1969, as amended, 50 U.S.C.A. app. §§ 2401 et seq. (1986). According to plaintiffs, the administrative process was flawed because an administrative law judge (ALJ) in a civil proceeding adopted certain facts stemming from their prior criminal conviction without an evidentiary hearing and because he did not allow them to present evidence on sanctions. For the reasons stated below, the Court concludes that plaintiffs' rights were not violated, and defendants' motion for summary judgment will therefore be granted, and that of plaintiffs will be denied.


 Plaintiffs were convicted in 1980 in the District Court for the Central District of California of exporting laser mirrors to the Soviet Union without a license, *fn1" and that conviction was affirmed. United States v. Spawr Optical Research, 685 F.2d 1076 (9th Cir. 1982). *fn2"

 Plaintiffs requested a hearing before the ALJ, pursuant to section 13(c) of the Export Administration Act, 50 U.S.C.A. § 2412(c). The Department of Commerce moved for summary judgment before the ALJ on the ground that, because of the criminal convictions, plaintiffs were collaterally estopped from contesting the civil charges. The ALJ granted the summary judgment motion, and he denied plaintiffs' export privileges for a period of six years. *fn4" The decision was upheld by the Assistant Secretary for Trade Administration, who acted with the authority of the Secretary of Commerce. *fn5" The suit in this Court followed.


 The first issue raised by the papers is whether the Court has jurisdiction to review these claims, in view of a 1985 amendment to the Export Administration Act which provides in section 13(c) that the "order of the Secretary shall be final and is not subject to judicial review." 50 U.S.C.A. app. § 2412(c).

 Defendants argue that this language is clear and that it unambiguously and per se deprives the Court of jurisdiction. The legal situation is somewhat more complex, however. The Supreme Court has often stated that judicial review should be presumed to be available, see, e.g., Abbott Laboratories v. Gardner, 387 U.S. 136, 141, 18 L. Ed. 2d 681, 87 S. Ct. 1507 (1967), and that even compelling language will sometimes not preclude review if the statute's structure, history, or scheme casts doubt on the clarity of its words. See Block v. Community Nutrition Institute, 467 U.S. 340, 345, 81 L. Ed. 2d 270, 104 S. Ct. 2450 (1980). Indeed, the Supreme Court has recently implied, and other courts have held, that regardless of language that clearly attempts to preclude judicial review, such review is available to determine whether there has been "a substantial departure from important procedural rights, a misconstruction of the governing legislation, or some like error 'going to the heart of the administrative determination.'" Lindahl v. Office of Personnel Management, 470 U.S. 768, 84 L. Ed. 2d 674, 105 S. Ct. 1620 (1985); see also Fitzgerald v. United States, 224 Ct. Cl. 215, 623 F.2d 696, 699 (Ct. Cl. 1980).

 There is no question but that section 13(c) precludes judicial review of the Secretary's decisions on civil penalties and sanctions, see Dart v. United States, C.A. No. 86-2264 (Oct. 8, 1986). As noted, on that issue the statutory language is clear and compelling. Moreover, nothing in the Act's history or in the case law indicates that Congress did not mean what it said in that regard. In any event, the control of exports has traditionally been considered a subject that is entrusted exclusively to the political branches of government. See Harisiades v. Shaughnessy, 342 U.S. 580, 589, 96 L. Ed. 586, 72 S. Ct. 512 (1952).

 But the issue here does not revolve around the substance of the law, but around the question whether, in plaintiffs' words, there was "a substantial departure from important procedural rights" (emphasis added), i.e., the right to a hearing before the deprivation of export privileges. This is a matter with respect to which it is the Court's duty to review plaintiffs' claim, if only because that right is effectively granted by the same section 13(c) of the Export Act that precludes judicial review of decisions made after such a hearing, as follows:

In any case in which a civil penalty or other civil sanctions . . . is sought . . ., the charged party is entitled to receive a formal complaint specifying the charges and, at his or her request, to contest the charges in a hearing before an administrative law judge . . . Subject to the provisions of this subjection, any such hearing shall be conducted in accordance with sections 556 and 557 of [the Administrative Procedure Act] . . . After the hearing, the administrative law judge shall make findings of fact and conclusions of law in a written decision, . . . .

 50 U.S.C.A. App. § 2412. Plaintiffs argue -- by no means frivolously -- that the summary adoption of findings of fact by the ALJ from their prior criminal conviction proceeding deprived them of this statutory right to present their case at a hearing. Were the Court to decline to reach the merits of this claim, it would grant the Secretary unlimited and unreviewable discretion to deny those crucial procedures that Congress has written into this Act. The ...

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