United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 5, 2021 Decided July 8, 2022

No. 20-5337

FEDERAL EXPRESS CORPORATION,

APPELLANT

v.

UNITED STATES DEPARTMENT OF COMMERCE, ET AL.,

APPELLEES

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.
2

Circuit Judge HENDERSON concurs in the judgment.

MILLETT, Circuit Judge: The Department of Commerce 

has long regulated the export of items that have sensitive 

military, national security, intelligence, and foreign policy 

implications. The Export Controls Act of 2018, Pub. L. No. 

115-232, 132 Stat. 2209 (codified as amended at 50 U.S.C. 

§§ 4801–4826), legislatively confirmed that authority and 

statutorily empowered the President and the Secretary of 

Commerce to control “the export, reexport, and in-country 

transfer” of restricted items, as well as the “activities of United 

States persons, wherever located, relating to specific” weapons

and intelligence activities. 50 U.S.C. §§ 4812–4813. 

Penalties imposed by the Act apply not just to those who 

directly violate its terms, but also to those who “cause or aid, 

[or] abet” violations. Id. § 4819(a)(2)(B).

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 
3

“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.” 50 U.S.C. § 4811; see id. §§ 4812–

4813. In turn, the Export Administration Regulations, 15 

C.F.R. Part 730, which are authorized by the 2018 Export 

Controls Act, “are intended to serve the national security, 

foreign policy, nonproliferation of weapons of mass 

destruction, and other interests of the United States[.]” 15 

C.F.R § 730.6; see 50 U.S.C. § 4812(b). 

As relevant in this case, those regulations include an 

“Entity List” that identifies the persons, governments, and 

other entities to whom exports are prohibited, unless licensed 

by the Commerce Department. 15 C.F.R. Part 744, Supp. No. 

4. The regulations also include “[g]eneral [o]rders” the “terms 

and conditions” of which may not be violated, including orders 

that bar certain exports to some countries. 15 C.F.R. 

§ 736.2(9); 15 C.F.R. Part 736, Supp. No. 1.

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). 
4

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 15 

C.F.R. § 730.2. Before the 2018 Export Controls Act, 

Congress’s export administration laws were not permanent. 

See H.R. REP. NO. 115-784, at 51–52 (2018). The Export 

Administration Regulations were sustained by Congress’s 

temporary legislation. Whenever those statutes lapsed, 

Presidential executive orders issued under the International 

Emergency Economic Powers Act, Pub. L. No. 95-223, 91 Stat. 

1626 (1977) (codified at 50 U.S.C. §§ 1701–1706), “directed 

and authorized the continuation in force” of the Export 

Administration Regulations. 15 C.F.R. § 730.2. 

When enacting the 2018 Export Controls Act, Congress

statutorily endorsed 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[.]” 50 U.S.C. § 4826(a). 

Congress specified that these rules and regulations were to 

“continue in effect according to their terms until modified, 
5

superseded, set aside, or revoked under the authority of” the 

2018 Export Controls Act. Id.

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).” 50 

U.S.C. § 4819(a)(1).

“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, 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.” 50 U.S.C. 

§ 4819(a)(2). 

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).]” 50 U.S.C. § 4819(b). 

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.]” 50 U.S.C. § 4819(c). 

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 
6

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.” 15 C.F.R. § 764.2(b).

The regulations delineate a variety of sanctions for 

violating these provisions, including administrative sanctions, 

civil penalties, denial of export privileges, and criminal 

punishment. 15 C.F.R. § 764.3. The regulations specify that 

criminal sanctions are authorized to punish 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 50 U.S.C. [§] 4819(a)[.]” 15 C.F.R. 

§ 764.3(b).

The regulatory provision that makes it unlawful to “cause 

or aid, [or] abet” an export control violation, 15 C.F.R. 

§ 764.2(b), predates the 2018 Export Controls Act. A version 

of this regulation existed as early as 1954. At that time, the 

regulation made it unlawful to “knowingly” “cause, or aid, 

abet, counsel, command, induce, procure, or permit the doing 

of any act prohibited by, or the omission of any act required by 

the export control law or any proclamation, order, rule, 

regulation, or license issued thereunder.” Miscellaneous 

Amendments, 19 Fed. Reg. 89, 92 (Jan. 7, 1954); see also 15 

C.F.R. § 381.2 (1956). In the 1980s, the Department of 

Commerce removed the word “knowingly” from the provision. 

15 C.F.R. § 387.2 (1981). The provision has remained largely 

unchanged since that time and was “continue[d] in effect” 

when the 2018 Export Controls Act was enacted. 50 U.S.C. 

§ 4826(a).
7

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 15 C.F.R. § 764.2(b) 

six times. Specifically, the letter asserted that FedEx “caused, 

aided or abetted” acts “prohibited by the [Export 

Administration] Regulations” when it transported items to 

Syria, the United Arab Emirates, and China without the 

required licenses. Joint Appendix (“J.A.”) 74–79. In 

sending items to Syria and the United Arab Emirates, FedEx 

had allegedly violated two “general orders” promulgated under 

the Export Administration Regulations. 15 C.F.R. Part 736,

Supp. No. 1. FedEx and the Bureau reached a settlement 

agreement under which FedEx paid a $370,000 civil penalty.

In 2017, the Bureau sent another charging letter to FedEx, 

this time alleging that FedEx had committed 53 violations of 

15 C.F.R. § 764.2(b). Specifically, the Bureau accused FedEx 

of “caus[ing], aid[ing] or abett[ing]” a violation of the 2018 

Export Controls Act and its implementing regulations when it 

“facilitated the export” of a variety of civil aircraft parts and 

equipment either to France or Pakistan without the required 

licenses. J.A. 51–52 (citing 15 C.F.R. § 764.2(b)). The 

charging letter asserted that the items were sent either to 

Aerotechnic France SAS, a company that the Bureau 

previously determined had “engaged in actions that could 

enhance the military capability of Iran,” or to the Pakistan 

Institute for Nuclear Science and Technology, a subordinate 
8

entity of the Pakistan Atomic Energy Commission. J.A. 52

(citation omitted). Aerotechnic France SAS and the Pakistan 

Institute for Nuclear Science and Technology had both been on 

the Bureau’s Entity List for years.

1

 The Bureau alleged that 

FedEx “knew or should have known” that “its screening 

software did not flag a transaction unless the name of the 

recipient/consignee exactly matched the full name of the entity 

as found on the Entity List, even where the address information 

was identical or nearly identical.” J.A. 53.

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 15 C.F.R. § 764.2(b) as ultra vires—that is, in 

1

 See 15 C.F.R. Part 744, Supp. No. 4; India and Pakistan 

Sanctions and Other Measures, 63 Fed. Reg. 64,322, 64,337 (Nov. 

19, 1998) (adding the Pakistan Institute for Nuclear Science and 

Technology); Addition of Certain Persons on the Entity List: 

Addition of Persons Acting Contrary to the National Security or 

Foreign Policy Interests of the United States, 76 Fed. Reg. 37,632, 

37,632 (June 28, 2011) (adding Aerotechnic France SAS).
9

clear excess of statutory authority—and as violating the 

substantive protections of the Fifth Amendment’s Due Process 

Clause. 

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, 15 C.F.R. § 764.2(b),

nor Commerce’s interpretation of its regulation were ultra vires

because interpreting the regulation to impose strict liability for 

aiding or abetting did not “patently misconstrue[] [the] statute, 

disregard[] a specific and unambiguous statutory directive, or 

violate[] a specific command of [the] statute.” Federal 

Express Corp., 486 F. Supp. 3d at 81 (citation omitted).

FedEx timely appeals only the dismissal of its ultra vires

claim. FedEx Opening Br. 11 n.4. 

II

We have jurisdiction under 28 U.S.C. § 1291. We review

de novo the district court’s dismissal of a complaint for failure 

to state a claim, FED. R. CIV. P. 12(b)(6), “accepting the factual 

allegations made in the complaint as true and giving [the] 

plaintiff[] the benefit of all inferences that can reasonably be 

drawn from [its] allegations[,]” Emory v. United Air Lines, Inc., 

720 F.3d 915, 921 (D.C. Cir. 2013) (quoting Wagener v. SBC 
10

Pension Benefit Plan-Non Bargained Program, 407 F.3d 395, 

401 (D.C. Cir. 2005)).

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. 50 U.S.C. § 4821(a). 

For that reason, FedEx seeks nonstatutory review of 

Commerce’s strict-liability standard on the ground that the 

agency has acted patently in excess of its statutory authority. 

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 
11

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 
12

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 procedure 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 (D.C. Cir. 2020)). When, as here, Congress 

“withdraws only the APA cause of action” and does not 
13

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 of its delegated powers and contrary to a 

specific prohibition’ which ‘is clear and mandatory’”) (quoting 

Kyne, 358 U.S. at 188); Florida Health Sciences Ctr. v. 

Secretary of Health & Hum. Servs., 830 F.3d 515, 522 (D.C. 

Cir. 2016) (“To challenge agency action on the ground that it 

is ultra vires, [plaintiff] must show a ‘patent violation of 

agency authority.’”) (citation omitted). 

An ultra vires challenge, in other words, is “essentially 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 
14

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, 
15

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 lessexacting review under Chevron. Instead of parsing the 

differences in the two standards, the Aid Association court 

ruled instead that the question was “abstractly interesting, but 

ultimately unimportant in the resolution of this matter” because 

the claim failed under either standard. 321 F.3d at 1174; see 

id. at 1175 (“This being the case, the regulations cannot survive 

judicial review under National Association or Chevron.”). 

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 even 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)).
16

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 

1337–1238. 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 to 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 

2

 In one sentence in a footnote in FedEx’s opening brief, 

FedEx claims that Commerce did not exercise a “function[]” under 

the Export Administration Regulations because it acted ultra vires,

and thus the bar on APA review does not apply. 50 U.S.C. 

§ 4821(a) (“Except as provided * * * the functions exercised under 

[the 2018 Export Controls Act] shall not be subject to” judicial 

review under the APA.); FedEx Opening Br. 16–17 n.5. This 

argument merely repackages FedEx’s ultra vires claim and is unlike 

the statutory interpretation argument made in American Hospital 

Association because FedEx’s argument does not turn on the meaning 

of “functions[.]” 50 U.S.C. § 4821(a). Anyhow, an inchoate 

argument made only in a footnote is forfeited. CTS Corp. v. EPA, 

759 F.3d 52, 64 (D.C. Cir. 2014).
17

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. 

IV

With the standard for FedEx’s ultra vires claim settled, we 

turn to the merits. FedEx challenges Commerce’s 

interpretation of its causing, aiding, or abetting regulation to 

apply strict liability, 15 C.F.R. § 764.2(b), as plainly exceeding 

its regulatory authority under the 2018 Export Controls Act. 

FedEx, however, has failed to demonstrate the type of blatant

error necessary for an ultra vires challenge to succeed. 

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. 50 U.S.C. 

§ 4819(a)(2)(B). No mens rea is prescribed. 
18

Commerce’s regulation uses identical wording, specifying 

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. 15 C.F.R. § 764.2(b). Also like the statute, the 

regulation does not specify a mens rea for violation of its

provisions. A regulation that so faithfully hews to the statute 

it enforces is the antithesis of a facially ultra vires regulation. 

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. 50 U.S.C. § 4819(a)(2)(B). That omission 

stands in sharp contrast to a neighboring provision in which 

Congress specified the mental state required for a violation. 

Section 4819(b) allows the imposition of criminal penalties 

only if the person “willfully * * * aids and abets in the 

commission of[] an unlawful act[.]” 50 U.S.C. § 4819(b). 

Then, in the succeeding subsection addressing civil penalties, 

the statute is again silent about mens rea. Id. § 4819(c). The 

Act’s repeated omission of any state of mind requirement for 

civil liability and penalties weighs mightily against FedEx’s 
19

argument that the statute’s civil aiding and abetting prohibition

plainly requires a culpable mind. 

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.” 50 U.S.C. § 4819(a)(2)(G). The statute 

likewise specifies that “[n]o person may order, buy, remove, 

conceal, store, use, sell, loan, dispose of, transfer, transport, 

finance, forward, or otherwise service * * * any item exported 

or to be exported from the United States, or that is otherwise 

subject to the Export Administration Regulations, with 

knowledge that a violation of” export control laws “has 

occurred, is about to occur, or is intended to occur in 

connection with the item[.]” Id. § 4819(a)(2)(E). Both of 

these provisions clearly contain a mens rea requirement.

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 significance. 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 
20

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[.]” 50 U.S.C. 

§ 4819(c)(3). Congress, in other words, left it to Commerce 

to determine the role of “culpability” in the assessment of civil 

penalties. Culpability, of course, can range from a nonculpable mind to intentional violations, leaving no room for 

FedEx’s insistence that Congress required a specific

knowledge mens rea.

3

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 

3

 Exercising the discretion Congress afforded, Commerce has 

factored the culpability of the actor into the penalty, rather than 

liability, calculus. Under the regulations, the Bureau will “consider 

some or all” of a variety of “aggravating factors” when “determining 

the appropriate sanctions in administrative cases, including the 

appropriate amount of a civil monetary penalty[.]” 15 C.F.R. Part 

766, Supp. No. 1. Those aggravating factors include: “apparent 

willfulness or recklessness[,]” “pattern or practice of conduct[,]” and 

“notice” that the conduct “constituted a violation of U.S. law[.]” Id. 

The regulations observe that “[m]any apparent violations are isolated 

occurrences, the result of a good-faith misinterpretation, or involve 

no more than simple negligence or carelessness. In such instances, 

absent the presence of aggravating factors, the matter frequently may 

be addressed with a no action determination letter or, if deemed 

necessary, a warning letter.” Id.
21

strict liability.

4

 Yet Congress expressly carried the mens-realess regulation forward in the 2018 Export Controls Act. 50 

U.S.C. § 4826(a); see also id. § 4819(a)(2)(B) (“No person 

may cause or aid[] [or] abet, * * * the doing of any act 

prohibited, or the omission of any act required by this 

subchapter [or] the Export Administration Regulations[.]”); cf.

Gordon v. United States Capitol Police, 778 F.3d 158, 165 

(D.C. Cir. 2015) (“Where Congress ‘adopts a new law 

incorporating sections of a prior law, Congress normally can 

be presumed to have had knowledge of the interpretation given 

to the incorporated law, at least insofar as it affects the new 

statute.’”) (citation omitted).

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). 

4

 See In re Micei Int’l, 74 Fed. Reg. 24,788, 24,794 (May 26, 

2009) (“As with most of the 764.2 provisions, 764.2(b) of the 

Regulations is a strict liability offense”); Recommended Decision & 

Order; In re Kabba & Amir Invs., Inc., 73 Fed. Reg. 25,649, 25,652 

(May 7, 2008), aff’d In re Kabba & Amir Invs., Inc., 73 Fed. Reg. 

25,648 (May 7, 2008) (The Bureau “correctly argues that [the 

company’s] knowledge of the violation is irrelevant in determining 

whether a violation occurred because 15 [C.F.R.] 764.2(b) is strict 

liability. Knowledge or intent is simply not a requisite element of 

proof for an aiding or abetting violation.”); In re Petrom GmbH Int’l 

Trade, 70 Fed. Reg. 32,743, 32,754 (June 6, 2005); Rotler, 58 Fed. 

Reg. 62,095, 62,099 (Nov. 24, 1993); see also Iran Air v. Kugelman,

996 F.2d 1253, 1259 (D.C. Cir. 1993) (Commerce defending strict 

liability interpretation before this court).
22

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 15 C.F.R. § 787.2 (1992), now 

codified at 15 C.F.R. § 764.2(b)). Iran Air thus specifically 

upholds a strict-liability interpretation of “causing.” And

“causing” is part of the same string of verbs in the same 

sentence in 15 C.F.R. § 764.2(b) as aiding or abetting; in fact, 

“causing” directly precedes “aid” and “abet.” We held in Iran 

Air that Commerce’s strict-liability reading of that regulatory 

term was reasonable and within its statutory authority. 996 

F.2d at 1255, 1258. The relevant statutory provisions, we 

explained, “appear to leave room for civil penalty regulations”

that allow “the imposition of strict liability.” Id. at 1259. “It 

is not unusual[,]” we added, “for Congress to provide for both 

criminal and administrative penalties in the same statute and to 

permit the imposition of civil sanctions without proof of the 

violator’s knowledge.” Id. at 1258.

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[,]” 15 C.F.R. § 764.2(b), there is 

no basis for this court to hold that Commerce acted ultra vires 

in attaching that same strict-liability reach to the next two 

verbs. 
23

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 

branch decision[s] involving complicated foreign policy 

matters.” Legal Assistance for Vietnamese Asylum Seekers v. 

Department of State, 104 F.3d 1349, 1353 (D.C. Cir. 1997); see 

Islamic American Relief Agency v. Gonzales, 477 F.3d 728, 

734 (D.C. Cir. 2007) (“[O]ur review—in an area at the 

intersection of national security, foreign policy, and 

administrative law—is extremely deferential.”). Indeed, 

“[m]atters intimately related to foreign policy and national 

security are rarely proper subjects for judicial intervention.” 

Zivotofsky v. Secretary of State, 725 F.3d 197, 219 (D.C. Cir. 

2013) (quoting Agee, 453 U.S. at 292); accord Palestine Info. 

Off. v. Shultz, 853 F.2d 932, 942 (D.C. Cir. 1988).

That rule of deference applies with full force here. The

2018 Export Controls Act and its implementing regulations fall
24

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 

conventional weapons[,]” “the acquisition of destabilizing 

numbers or types of conventional weapons[,]” “acts of 

terrorism[,]” and other harmful uses. 50 U.S.C. § 4811(2). 

In addition, export controls aim to “preserve the qualitative 

military superiority of the United States” and to “strengthen the 

United States defense industrial base.” Id.; see also 15 C.F.R

§ 730.6.

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

5

 While this case concerns only civil liability, there is no 

question that Congress can allow even for “strict criminal liability” 

when necessary to protect the public welfare. Staples v. United 

States, 511 U.S. 600, 606 (1994). While “[h]ardship there doubtless 

may be” when actions are penalized even though “consciousness of 

wrongdoing be totally wanting[,]” United States v. Dotterweich, 320 
25

B

FedEx counters that “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 under the common law’ and ‘the 

statute does not otherwise dictate.’” United States v. Wells, 

519 U.S. 482, 491 (1997) (formatting modified and citation 

omitted). So a “common-law term of art” should not be given 

its common-law meaning “where that meaning does not fit.”

United States v. Castleman, 572 U.S. 157, 163 (2014) (citation 

omitted). Here, the statute indicates that the common-law 

meaning is out of place with its selective inclusion and 

omission of a mens rea, and Congress’s express affirmation of 

established agency regulations and orders. See supra Part 

IV.A.1. And rotely imposing common-law principles is 

especially inapt for a statute so deeply tied to foreign policy 

and national security. See Agee, 453 U.S. at 292. In fact, the 

common law on which FedEx relies is a misfit in many 

respects. 

U.S. 277, 284 (1943), Congress—or in this case, Commerce—may 

reasonably conclude, after “[b]alancing [the] relative hardships,” that 

the public interest is better served by placing the risk of harm “upon 

those who have at least the opportunity of informing themselves of 

the existence of conditions imposed for the protection of [others],”

id. at 285.
26

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 

6

 See, e.g., Alarmex Holdings, LLC v. JP Morgan Chase Bank, 

N.A., 48 N.Y.S.3d 19, 20 (N.Y. App. Div. 2017) (dismissing 

complaint that alleged claim for aiding and abetting conversion 

because it failed “to allege facts showing that defendant had actual 

knowledge of [the primary wrongdoer’s] fraud”); Lerner v. Fleet 

Bank, N.A., 459 F.3d 273, 292 (2d Cir. 2006) (New York law 

requires “actual knowledge” to establish liability for aiding and 

abetting a tort); Casey v. United States Bank Nat’l Ass’n, 26 Cal. 

Rptr. 3d 401, 405–408 (Cal. Ct. App. 2005); Invest Almaz v. TempleInland Forest Prods. Corp., 243 F.3d 57, 82–83 (1st Cir. 2001) 

(predicting that New Hampshire would adopt the tort of aiding and 

abetting a breach of fiduciary duty and would require “actual 

knowledge” of the breach of fiduciary duty to impose liability); 

Johnson v. Filler, 109 N.E.3d 370, 376 (Ill. App. Ct. 2018); see also 

Restatement (Third) of Torts: Liability for Economic Harm § 28, 

note c (2020). 

7

 See, e.g., Halberstam v. Welch, 705 F.2d 472, 477, 485 n.14

(D.C. Cir. 1983) (“[D]efendant must be generally aware of his [or 

her] role as part of an overall illegal or tortious activity at the time 

that he [or she] provides the assistance[.]”); Wells Fargo Bank v. 

Arizona Laborers, Teamsters & Cement Masons Loc. No. 395 

Pension Trust Fund, 38 P.3d 12, 26 (Ariz. 2002) (approving “general 

awareness” standard); FDIC v. First Interstate Bank of Des Moines, 

N.A., 885 F.2d 423, 431 (8th Cir. 1989) (knowledge may be proven 

by a “general awareness of [defendant’s] overall role” in the primary 

wrongdoer’s “scheme”; “actual knowledge” is not required); York v. 

InTrust Bank, N.A., 962 P.2d 405, 424–425 (Kan. 1998).

 
27

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 primary tort is itself a strict liability tort. 

FedEx concedes that at least some violations of the Export 

Administration Regulations are strict liability offenses. 

FedEx Reply Br. 9 n.4; see Oral Arg. Tr. 34:18–20. The

Second Restatement of Torts, on which FedEx relies, 

specifically carves out from any mens rea requirement for civil 

aiding and abetting liability the situation “when the conduct of 

either the [aider or abettor] or the [primary tortfeasor] is free 

from intent to do harm or negligence but involves strict liability 

for the resulting harm.” Restatement (Second) of Torts § 876

(1979). In those scenarios, strict liability is imposed “not on 

the ground that the conduct upon which it is based is wrongful,”

but because “the conduct, although lawful because of the 

importance of the enterprise to the community, creates such 

great risk of harm to third persons that it is fair that the one 

conducting the enterprise should be required to compensate for 

the harm caused by it.” Id. cmt. f. Ultimately, the Second 

Restatement took “no position” as to the liability of the aider 

8

 See, e.g., RBC Capital Markets, LLC v. Jervis, 129 A.3d 816, 

862 (Del. 2015) (“To establish scienter, the plaintiff must 

demonstrate that the aider and abettor had ‘actual or constructive 

knowledge that their conduct was legally improper.’”) (citation 

omitted); Chem-Age Indus., Inc. v. Glover, 652 N.W.2d 756, 775 

(S.D. 2002) (“Although in some instances actual knowledge may be 

required, constructive knowledge will often suffice.”); cf. Witzman 

v. Lehrman, Lehrman & Flom, 601 N.W.2d 179, 188 (Minn. 1999) 

(adopting a sliding-scale approach between actual and constructive 

knowledge).
28

and abettor when the underlying primary tort was one of strict 

liability. Id. § 876. Which underscores that, even when 

measured against the common law, Commerce’s position is not 

beyond the bounds of reason.

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 legal backdrop for 

Congress to have acted against in the 2018 Export Controls Act 

is Commerce’s “causing, aiding, or abetting” regulation, 15 

C.F.R. § 764.2(b), which predated the Act, has long been 

interpreted as a strict liability offense, see n.4, supra, and which 

Congress explicitly embraced in the Act, 50 U.S.C. § 4826(a). 

See Wells, 519 U.S. at 492 (rejecting proposed common-law 

meaning where “[s]tatutory history confirm[ed] the natural 

reading” of the statute).

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 
29

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 and 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 of the Fifth Amendment. FedEx Opening

Br. 2. Even assuming that an arguable constitutional concern 

would be enough to demonstrate that Commerce acted ultra 

vires, FedEx has not made that showing. 

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 say 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 
30

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 interpretation is long-lived. See 

n.4, supra. And the plain text of the 2018 Export Controls Act 

textually preserves that preexisting regulatory standard. 50 

U.S.C. § 4819(a)(2)(B).

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.
31

VI

For all of those reasons, we hold that Commerce’s 

regulation, 15 C.F.R. § 764.2(b), and its strict-liability 

interpretation of it are not ultra vires. The judgment of the 

district court granting the Department of Commerce’s motion 

to dismiss for failure to state a claim is affirmed.

So ordered.