Robert William Haire, Sr. v. United States of America Malcolm Baldrige, Secretary of Commerce United States Department of Commerce

Robert W. Haire brought suit against the United States under the Equal Access to Justice Act (EAJA), 5 U.S.C. § 504 seeking to recover attorney’s fees and costs incurred in a proceeding under the Export Administration Act (EAA), 50 U.S.C.App. § 2401 et seq. The district court dismissed Haire’s suit for lack of jurisdiction, and Haire appealed. We hold that jurisdiction did exist and that the EAJA does not apply to the EAA proceeding.

BACKGROUND

Haire sought to export two upgraded wafer polishers used in manufacturing semi conductors to Czechoslovakia. The two machines were seized by Customs, acting under the authority of the EAA, 50 U.S.CApp. § 2411(a)(2)(B), at Los Angeles Airport in February 1984. On November 6, *533 1984, the General Counsel of the Department of Commerce issued a temporary order against Haire, denying him the privilege of exporting commodities or technical data. This order was followed on April 3, 1985, with a letter to Haire from the Commerce Department’s Office of Export Enforcement charging him with violating Export Administration Regulations, 15 C.F.R. § 387.3 (a) and (b) and § 387.4.

Haire sought a hearing both on the temporary denial order and the…

concurring specially:

Although I agree with the majority that the district court’s decision should stand, I write separately because I am convinced that the district court correctly dismissed Haire’s action for lack of jurisdiction, given the language of the EAA, 50 U.S.C.App. § 2412(c) and (d), saying that orders of the secretary “shall be final and not subject to judicial review.”

I disagree with the majority’s view that the EAJA’s jurisdictional requirement was met under 50 U.S.C.App. § 2410(f). Civil actions for recovery of penalties under § 2410(f) are available only “in the discretion of the head or agency concerned,” and must be brought in the name of the United States. The decision to seek or not seek enforcement is left to the secretary of state, treasury, agriculture, commerce, labor, and maybe even other department heads. Only if the government prevails at the administrative level can the enforcement action be brought.

It is only the government that can proceed under § 2410(f) and then only if a penalty is imposed at the administrative level.

Because Haire prevailed over the government at the administrative level, because the government imposed no penalty under §…

869 F.2d 531 57 USLW 2547 Robert William HAIRE, Sr., Plaintiff-Appellant, v. UNITED STATES of America; Malcolm Baldrige, Secretary of Commerce; United States Department of Commerce, Defendants-Appellees. No. 88-1627. United States Court of Appeals, Ninth Circuit. Argued and Submitted Jan. 13, 1989. Decided March 9, 1989. Mark D. Patrizio, San Francisco, Cal., for plaintiff/appellant. Jacob M. Lewis, Washington, D.C., for defendants/appellees. Appeal from the United States District Court for the Northern District of California. Before NORRIS, NOONAN and LEAVY, Circuit Judges. NOONAN, Circuit Judge: 1 Robert W. Haire brought suit against the United States under the Equal Access to Justice Act (EAJA), 5 U.S.C. Sec. 504 seeking to recover attorney's fees and costs incurred in a proceeding under the Export Administration Act (EAA), 50 U.S.C.App. Sec. 2401 et seq. The district court dismissed Haire's suit for lack of jurisdiction, and Haire appealed. We hold that jurisdiction did exist and that the EAJA does not apply to the EAA proceeding. BACKGROUND 2 Haire sought to export two upgraded wafer polishers used in manufacturing semi conductors to Czechoslovakia. The two machines were…