United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 23, 2010 Decided July 16, 2010 

No. 09-1155 

MICEI INTERNATIONAL, 

APPELLANT

v. 

DEPARTMENT OF COMMERCE, 

APPELLEE

Consolidated with 09-1186 

Appeals of an Order 

of the United States Department of Commerce 

Robert Clifton Burns argued the cause for appellant. 

With him on the briefs was Daniel T. O’Connor. Daniel I. 

Prywes entered an appearance. 

Anisha S. Dasgupta, Attorney, U.S. Department of Justice, 

argued the cause for appellee. With her on the brief was Mark 

B. Stern, Attorney. Samantha L. Chaifetz, Attorney, entered 

an appearance. 
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Before: GINSBURG and GRIFFITH, Circuit Judges, and 

WILLIAMS, Senior Circuit Judge. 

Opinion for the Court filed by Circuit Judge GRIFFITH. 

 GRIFFITH, Circuit Judge: The Department of Commerce 

sanctioned Micei International for alleged violations of export 

regulations. Per the agency’s instruction, Micei sought judicial 

review directly in this court. We hold that jurisdiction lies in 

the district court and transfer the matter there. 

I. 

The Department of Commerce promulgated regulations 

(“export regulations”) to implement the Export Administration 

Act of 1979 (EAA), 50 U.S.C. app. §§ 2401–2420 (2006). See 

15 C.F.R. § 730.2 (2009). Designed to regulate the export of 

dual-use items (goods with both commercial and military 

applications), see 50 U.S.C. app § 2402(2), the EAA has 

lapsed, as happens periodically because it is a temporary 

statute with a set expiration date, see id. § 2419; Pub. L. No. 

96-72, § 20, 93 Stat. 503, 535 (1979). 

On many occasions, Congress has reauthorized the EAA 

by simply postponing its expiration date, see, e.g., Pub. L. No. 

98-108, § 1, 97 Stat. 744, 744 (1983), but it does not always do 

so prior to the Act’s termination. As a result, there have been 

periods of lapse, ranging in length from a few days to many 

years, between the statute’s episodic expiration and revival. 

See Wisc. Project on Nuclear Arms Control v. U.S. Dep’t of 

Commerce, 317 F.3d 275, 278 (D.C. Cir. 2003). Most recently, 

the EAA expired on August 20, 2001. 50 U.S.C. app § 2419. 

Congress has not yet reenacted it. 

On August 17, 2001, the President issued an executive 

order directing the Department of Commerce to enforce the 
3 

export regulations upon the EAA’s expiration as if they were 

“in full force and effect.” Exec. Order No. 13,222, § 2, 3 C.F.R. 

783, 784 (2002). The President issued the order under the aegis 

of the International Emergency Economic Powers Act 

(IEEPA), which provides, inter alia, that the President may 

regulate certain export transactions in the instance of a 

qualifying national emergency, see 50 U.S.C. §§ 1701, 

1702(a)(1)(B). The President found such an emergency in the 

expiration of the EAA and the resulting absence of an operative 

export control law. Exec. Order No. 13,222, 3 C.F.R. at 

783–84. As we have noted before, the use of IEEPA to 

maintain the export regulations reflects a longstanding practice 

consistent with congressional expectations. See Wisc. Project, 

317 F.3d at 278–79, 283. 

II. 

In 2008, the Department of Commerce charged Micei 

International, a Macedonian sporting goods and military 

supply company, with violating the export regulations in a 

series of transactions that took place in 2003. In the ensuing 

administrative enforcement proceeding, the Department 

entered a default judgment against Micei, resulting in a fine of 

$126,000 and a five-year suspension of export privileges. In 

the matter of: Micei Int’l, Resp’t, 74 Fed. Reg. 24,788, 24,790 

(Dep’t of Commerce May 26, 2009) (final decision). 

Commerce informed Micei that it had two avenues for 

appeal. Within a year, Micei could petition the agency to 

vacate the default judgment. Id. at 24,796 (citing 15 C.F.R. 

§ 766.7(b)). Micei could also appeal the order “within 15 days 

to the United States Court of Appeals for the District of 

Columbia [Circuit] pursuant to 50 U.S.C. app § 2412(c)(3).” In 

the matter of: Micei Int’l, Resp’t, 74 Fed. Reg. at 24,796 

(quoting 15 C.F.R. § 766.22(e)). The statute referenced is the 
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judicial review provision of the expired EAA, which provided 

that this court “shall have jurisdiction” over challenges to civil 

penalties imposed under the Act. 50 U.S.C. app. § 2412(c)(3). 

Micei initially pursued both routes, filing a motion to 

vacate the judgment with the Department on May 19, 2009, 

and a notice of appeal in this court on May 28. Micei shortly 

thereafter withdrew its motion to vacate. “Out of an abundance 

of caution,” Br. of Pet’r at 2 n.2, Micei supplemented its direct 

appeal to this court with a petition for review filed on June 29. 

We consolidated the May 28 and June 29 filings, both of which 

challenge the default judgment and resulting sanctions. 

III. 

 Federal courts are courts of limited subject-matter 

jurisdiction and “every federal appellate court has a special 

obligation to satisfy itself . . . of its own jurisdiction, . . . even 

though the parties are prepared to concede it.” Bender v. 

Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986) 

(internal quotation marks omitted). 

 “[T]wo things are necessary to create jurisdiction” in an 

Article III tribunal other than the Supreme Court. Mayor v. 

Cooper, 73 U.S. (6 Wall.) 247, 252 (1868). “The Constitution 

must have given to the court the capacity to take it, and an act 

of Congress must have supplied it.” Id. (emphasis added). 

Without statutory authorization, the “inferior Courts” neither 

exist nor have jurisdiction to wield “the judicial Power of the 

United States.” U.S. CONST. art. III, § 1; see, e.g., Exxon Mobil 

Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 553 (2005) 

(stating the “bedrock principle that federal courts have no 

jurisdiction without statutory authorization”). 

 “It is axiomatic that Congress, acting within its 

constitutional powers, may freely choose the court in which 
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judicial review of agency decisions may occur.” Five Flags 

Pipe Line Co. v. Dep’t of Transp., 854 F.2d 1438, 1439 (D.C. 

Cir. 1988) (internal quotation marks and brackets omitted). 

“[T]he ‘normal default rule’ is that ‘persons seeking review of 

agency action go first to district court rather than to a court of 

appeals.’” Watts v. SEC, 482 F.3d 501, 505 (D.C. Cir. 2007)

(quoting Int’l Bhd. of Teamsters v. Pena, 17 F.3d 1478, 1481 

(D.C. Cir. 1994)). “[O]nly when a direct-review statute 

specifically gives the court of appeals subject-matter 

jurisdiction to directly review agency action” may a party seek 

initial review in an appellate court. Watts, 482 F.3d at 505. 

The requisite direct-review provision must appear “in the 

statute pursuant to which the agency action is taken, or in 

another statute applicable to it.” Five Flags, 854 F.2d at 1439. 

With the EAA in lapse, IEEPA “provides the statutory 

authority for the continued enforcement of the EAA’s export 

restrictions.” United States v. Hitt, 249 F.3d 1010, 1024 n.14 

(D.C. Cir. 2001); accord United States v. Mechanic, 809 F.2d 

1111, 1113 (5th Cir. 1987). IEEPA is silent regarding the 

availability of and forum for judicial review of action taken 

under its auspices. The Administrative Procedure Act (APA), 

though, authorizes judicial review of final agency action. See 5 

U.S.C. § 704. This authorization is inapplicable if another 

statute provides for judicial review or precludes application of 

the APA’s judicial review provisions, or where the action 

challenged is committed to agency discretion by law, see id.

§§ 701(a), 704, but the Department of Commerce does not 

contend that any of these exceptions apply here. Thus, judicial 

review is available to Micei pursuant to the APA. See Holy 

Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 162 

(D.C. Cir. 2003) (reviewing agency action taken pursuant to 

IEEPA under the APA); see also Br. of Resp’t at 2; Resp’t 

Mot. to Transfer the Proceedings at 5. Unless a statute channels 

review directly to the court of appeals, however, Micei’s 
6 

challenge properly belongs in the district court under the 

“normal default rule” of district court review. Pena, 17 F.3d at 

1481; see Bell v. New Jersey, 461 U.S. 773, 777 & n.3 (1983) 

(explaining that in the absence of a provision authorizing 

review in the court of appeals, challenges to agency action to 

which the APA’s judicial review provisions apply fall within 

the district court’s federal question jurisdiction under 28 

U.S.C. § 1331). 

In its brief, the Department of Commerce identified § 704 

of the APA as the statutory basis for direct-review jurisdiction 

in this court. Br. for Resp’t at 1–2. This contention is surprising 

(and wrong, too). It is well established that § 704 “is not a 

jurisdiction-conferring statute,” Trudeau v. FTC, 456 F.3d 178, 

183 (D.C. Cir. 2006), and, in any event, § 704 makes no 

reference to the court of appeals. 

Micei’s brief pointed to the provision of the EAA granting 

this court jurisdiction to hear direct appeals of export sanctions 

as the necessary direct-review statute. Br. of Pet’r at 1 (citing 

50 U.S.C. app. § 2412(c)(3)). But that provision expired with 

the rest of the EAA, see 50 U.S.C. app. § 2419, extinguishing 

the jurisdiction the EAA had granted, for the ordinary rule is 

that when a jurisdiction-conferring statute expires, our 

“jurisdiction ceases,” McNulty v. Batty, 51 U.S. (10 How.) 72, 

79 (1850); cf. Bruner v. United States, 343 U.S. 112, 116–17 

(1952) (“This rule—that, when a law conferring jurisdiction is 

repealed without any reservation as to pending cases, all cases 

fall with the law—has been adhered to consistently by this 

Court.”). 

This is not a case in which the general savings statute 

provides an exception to this rule. See 1 U.S.C. § 109. Under 

the general savings statute, a temporary enactment that has 

expired and does not provide otherwise is “treated as still 
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remaining in force for the purpose of sustaining any proper 

action or prosecution for the enforcement” of “any penalty, 

forfeiture, or liability incurred under such statute.” Id. This 

provision can perpetuate the jurisdiction granted in a statute 

beyond its expiration, see De La Rama S.S. Co. v. United 

States, 344 U.S. 386, 389–91 (1953), but only if the liability 

that is the subject of the suit for which jurisdiction is sought 

was “incurred under [the] statute,” 1 U.S.C. § 109, meaning 

while the statute was in effect, see Allen v. Grand Cent. 

Aircraft Co., 347 U.S. 535, 554–55 (1954) (“The precise object 

of the general savings statute is to prevent the expiration of a 

temporary statute from cutting off appropriate measures to 

enforce the expired statute in relation to violations of it, or of 

regulations issued under it, occurring before its expiration.” 

(emphasis added)); see also Iran Air v. Kugelman, 996 F.2d 

1253, 1257 (D.C. Cir. 1993). Here, Micei’s alleged violations 

occurred in 2003, well after the EAA’s expiration. The general 

savings statute saves nothing in this case. 

Doubtful of our jurisdiction, we ordered the parties to 

address the issue at oral argument. In that colloquy, neither side 

offered an alternative statutory basis for our jurisdiction. 

However, the Department of Commerce indicated that, at least 

until the court requested that the parties address jurisdiction, it 

had been of the view that the executive order issued upon the 

EAA’s expiration preserved the availability of judicial review 

in this court. See Oral Arg. Recording at 7:18–:28. The 

Department has now abandoned that view. 

In a motion filed with the court on June 23, 2010, the 

Department of Commerce requested we transfer this matter to 

the United States District Court for the District of Columbia, 

urging us to conclude that that tribunal, and not this one, has 

initial jurisdiction over Micei’s case. The Department 

explained that when the export regulations remain in effect via 
8 

executive order, they are authorized by IEEPA. Resp’t Mot. to 

Transfer the Proceedings at 5. As such, jurisdiction for review 

of sanctions imposed for violating those regulations “must be 

determined by reference to the IEEPA’s own jurisdictional 

provisions” and “because the IEEPA does not contain a direct 

review provision, review jurisdiction resides under current law 

as a first matter in federal district court.” Id. 

As is clear from our foregoing discussion, we agree with 

the Department’s analytical approach. There remains, 

however, the question of what effect, if any, the executive 

order sustaining the export regulatory scheme has on this 

court’s jurisdiction. In this litigation, the Department has not 

argued that the executive order purports to maintain the EAA 

in effect beyond the statute’s expiration. See Resp’t Mot. to 

Transfer the Proceedings at 3; Br. of Resp’t at 6. The order can, 

however, be read to intend precisely that result. See Exec. 

Order No. 13,222, § 1, 3 C.F.R. at 784; cf. Wisc. Project, 317 

F.3d at 279. Understood in this way, the executive order 

purports to prolong the useful life of the lapsed EAA, which 

would include perpetuating the jurisdiction conferred in that 

statute’s direct-review provision, 50 U.S.C. app. § 2412(c)(3). 

This court would have jurisdiction pursuant to the 

President’s order only if the President has the authority to 

confer jurisdiction—an authority that, if it exists, must derive 

from either the Executive’s inherent power under the 

Constitution or a permissible delegation of power from 

Congress. See Am. Int’l Group, Inc. v. Islamic Republic of 

Iran, 657 F.2d 430, 441–46 (D.C. Cir. 1981). The former is 

unavailing, as the Constitution vests the power to confer 

jurisdiction in Congress alone. See, e.g., Cary v. Curtis, 44 

U.S. (3 How.) 236, 245 (1845) (“[T]he judicial power of the 

United States . . . is . . . dependent for its distribution and 

organization, and for the modes of its exercise, entirely upon 
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the action of Congress, who possess the sole power of creating 

the tribunals (inferior to the Supreme Court) for the exercise of 

the judicial power, and of investing them with jurisdiction 

. . . .”). Whether the executive order can provide the basis of 

our jurisdiction, then, turns on whether the President can 

confer jurisdiction on this court under the auspices of IEEPA. 

We conclude that the President lacks that power. Nothing 

in the text of IEEPA delegates to the President the authority to 

grant jurisdiction to any federal court. Nowhere does the 

statute even refer to the jurisdiction of federal courts. It never 

mentions the direct-review provision of the expired EAA or, 

for that matter, the EAA itself. To be sure, “IEEPA delegates 

broad authority to the President.” Dames & Moore v. Regan, 

453 U.S. 654, 677 (1981). That authority includes the power to 

“investigate, block during the pendency of an investigation, 

regulate, direct and compel, nullify, void, prevent or prohibit” 

a wide array of transactions, 50 U.S.C. § 1702(a)(1)(B), 

authority that might very well permit the President to maintain 

many of the substantive provisions of the export regulations 

and the EAA. But these powers do not include the power to 

vest jurisdiction in the federal courts. Because we reach this 

conclusion, we avoid whatever constitutional questions would 

arise were Congress to delegate such authority. Cf. Loving v. 

United States, 517 U.S. 748, 772 (1996) (explaining that 

delegations calling “for the exercise of judgment or discretion 

that lies beyond the traditional authority of the President” are 

more likely to violate the separation of powers). 

The basis for the Department of Commerce’s prior 

position that the President could, under the authority of IEEPA, 

confer jurisdiction on this court was our decision in Wisconsin 

Project on Nuclear Arms Control v. U.S. Department of 

Commerce, 317 F.3d 275. See In the matter of: Micei Int’l, 

Resp’t, 74 Fed. Reg. at 24,790; Oral Arg. Recording at 
10 

7:20–:35. That case, as Commerce’s counsel conceded, does 

not speak to the question of Article III jurisdiction. See Oral 

Arg. Recording at 7:36–8:39. The issue in Wisconsin Project

was whether an expired provision of the EAA could provide 

the basis for the Department of Commerce to withhold certain 

export data under Exemption 3 of the Freedom of Information 

Act (FOIA), which permits agencies, in certain circumstances, 

to withhold records “specifically exempted from disclosure by 

statute.” 5 U.S.C. § 552(b)(3). Explaining that Exemption 3 

requires asking whether “Congress has itself made the basic 

decision” to withhold disclosure, Wisc. Project, 317 F.3d at 

280 (brackets omitted), we held that Congress’s acquiescence 

in the President’s use of IEEPA to maintain the export 

regulations evinced sufficient Congressional intent to enable 

the Department to invoke Exemption 3, see id. at 281–83. But 

in applying a particular FOIA exemption, we had no occasion 

to consider whether IEEPA purports to delegate to the 

President the authority to determine the jurisdiction of federal 

courts. Wisconsin Project does not control here. 

In sum, the executive order extending the export 

regulatory regime does not confer direct-review jurisdiction 

upon this court. With the EAA in lapse and the general savings 

statute inapposite, no statute does either. Accordingly, we 

conclude that this court lacks jurisdiction over Micei’s case. As 

the Department of Commerce now correctly concedes, the 

default rule of district court review applies to the challenge to 

export sanctions Micei brings here. 

IV. 

At oral argument, Micei requested that in the event we 

concluded that it cannot obtain judicial review directly in this 

court, we transfer its case to the United States District Court for 

the District of Columbia. Oral Arg. Recording at 4:03–:28. The 
11 

Department of Commerce, by its motion, has joined in this 

request. This type of transfer is authorized under 28 U.S.C. 

§ 1631, which provides that in the case of an action or appeal 

for which the “court finds that there is a want of jurisdiction, 

the court shall, if it is in the interest of justice, transfer such 

action or appeal to any other such court in which the action or 

appeal could have been brought at the time it was filed or 

noticed.” 

Transfer is appropriate here. As the Department of 

Commerce has recognized, Micei sought judicial review in this 

court in good-faith reliance on the Department’s own 

instructions. Oral Arg. Recording at 10:27–:35; Resp’t Mot. to 

Transfer the Proceedings at 6. Now, however, we have made 

clear that Micei’s challenge properly belongs in the district 

court, where Micei could have brought a cause of action in lieu 

of the petition for review it filed here. See Godwin v. Sec’y of 

Hous. & Urban Dev., 356 F.3d 310, 312 (D.C. Cir. 2004). We 

therefore transfer Micei’s petition for review, No. 09-1186, to 

the United States District Court for the District of Columbia. 

Micei’s appeal, however, was filed in accordance with the 

judicial review provision of the export regulations, 15 C.F.R. 

§ 766.22(e) (2009), which directed parties to pursue an appeal 

as contemplated in the EAA’s judicial review provision, 50 

U.S.C. app. § 2412(c)(3). The Department of Commerce, 

responding to the jurisdictional issue raised in this case, 

recently deleted § 766.22(e) from the export regulations. See 

Export Administration Regulations; Technical Amendments, 

75 Fed. Reg. 33,682, 33,683 (June 15, 2010). With this 

revision, we need not consider whether to transfer Micei’s 

appeal to the district court, for neither the export regulations 

nor the Department of Commerce contemplate the need for this 

form of appeal while the EAA is in lapse. See id.; Resp’t Mot. 

to Transfer the Proceedings at 5 (“[T]he availability of federal 
12 

court review must be determined by reference to the IEEPA’s 

own jurisdictional provisions.”). We therefore dismiss Micei’s 

appeal, No. 09-1155, for lack of jurisdiction. 

So ordered.