United States v. Spawr Optical Research, Inc., Walter J. Spawr, and Frances Spawr, Defendants

864 F.2d 1467 UNITED STATES of America, Plaintiff-Appellee, v. SPAWR OPTICAL RESEARCH, INC., Walter J. Spawr, and Frances Spawr, Defendants- Appellants. No. 87-6272. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 7, 1988. Decided Dec. 29, 1988. Scott C. Witney, Washington, D.C., for defendants-appellants. William Fahey, Asst. U.S. Atty., Los Angeles, Cal., Ronald Roos, Washington, D.C., for plaintiff-appellee. Appeal from the United States District Court for the Central District of California. Before PREGERSON, WIGGINS and BRUNETTI, Circuit Judges. BRUNETTI, Circuit Judge: BACKGROUND 1 In the early 1970's, Walter Spawr, an optics expert, invented a superior process for polishing laser mirrors. By 1975, Walter and his wife Frances, through their corporation, Spawr Optical Research, Inc. (collectively "the Spawrs"), were marketing their laser mirrors nationally and exploring international markets. 2 In January 1976, the Spawrs accepted an order from a purchasing agency of the Soviet Government. They began filling the order in June of that year by delivering some of the mirrors to their agent in this country, who then departed for West Germany. The Spawrs…

dissenting:

I agree with the majority that the Secretary of Commerce’s decision to place a commodity on the Commodity Control List (“CCL”) is not subject to judicial review. I disagree, however, with the unwarranted conclusion that the majority draws from this initial proposition, to wit: that at a criminal trial the Secretary’s factual determination that a commodity had been placed on the CCL is conclusive and thus is not a question for the jury to determine. The authorities cited by the majority support the initial proposition, but not the conclusion drawn from it.

The majority cites two statutory grounds for its reading of the Act. First, Congress exempted the Secretary’s decision to place a commodity on the CCL from the judicial review provisions of the Administrative Procedure Act (“APA”). See § 8, Export Administration Act of 1969, reprinted in U.S.CODE CONG. & ADMIN.NEWS 943 (current version codified at 50 App.U.S.C. § 2412(a)) (excluding the functions exercised under the Export Administration Act from the operation of the APA’s judicial review provisions, 5 U.S.C. §§ 701-706 ). Section 704 of the APA provides for judicial review of agency action. The Spawrs are not…

BACKGROUND

In the early 1970’s, Walter Spawr, an optics expert, invented a superior process for polishing laser mirrors. By 1975, Walter and his wife Frances, through their corporation, Spawr Optical Research, Inc. (collectively “the Spawrs”), were marketing their laser mirrors nationally and exploring international markets.

In January 1976, the Spawrs accepted an order from a purchasing agency of the Soviet Government. They began filling the order in June of that year by delivering some of the mirrors to their agent in this country, who then departed for West Germany. The Spawrs shipped the balance of the order to the agent in West Germany in July. The agent then forwarded the entire order to Moscow. The Spawrs never attempted to obtain an export license for this shipment of mirrors.

In April 1976, the Spawrs received a second Soviet order. Walter decided to seek an export license for a portion of this second order. He filed a license application with the Commerce Department in May, identifying his agent in West Germany as the end-user of the mirrors. On October 7, 1976, the Secretary of Commerce (“Secretary”) denied the application, having determined that the Spawrs’ mirrors…