American Airways Charters, Inc. v. Donald Regan, Secretary of the Treasury

746 F.2d 865, 241 U.S. App. D.C. 132, 1984 U.S. App. LEXIS 17472

• Court: Court of Appeals for the D.C. Circuit
• Decided: October 23, 1984
• Docket: 83-1860
• Status: Published

Opinions

Opinion for the Court filed by Circuit Judge GINSBURG.

Concurring opinion filed by District Judge GREENE.

Opinion dissenting in part and concurring in remand filed by Senior Circuit Judge MACKINNON.

GINSBURG, Circuit Judge:

This case concerns the right of a Florida corporation, specially designated a “Cuban national” pursuant to section 5(b) of the Trading with the Enemy Act, 50 U.S.C. app. § 5(b) (1982) (TWEA or Act), to choose and retain counsel without obtaining in advance a government (Treasury Department, Office of Foreign Assets Control) license to do so. We hold that although government permission, in the form of an Office of Foreign Assets Control license, is required prior to the execution of any transaction reaching the assets of a designated Cuban national, the Office of Foreign Assets Control lacks authority to condition the bare formation of an attorney-client relationship on advance government approval.

The administrative authority asserted in this case has never been asserted on any prior occasion; the controlling legislation, were we to read it as contemplating a government license prior to obtaining counsel, would trench on a right of constitutional dimension. We therefore decide this appeal in a manner that both is consistent “with the policy of the legislation as a whole,” Shapiro v. United States, 335 U.S. 1, 31, 68 S.Ct. 1375, 1391, 92 L.Ed. 1787 (1948) (quoting United States v. American Trucking Associations, 310 U.S. 534, 543, 60 S.Ct. 1059, 1063, 84 L.Ed. 1345 (1940)), and avoids a constitutional inquiry. See Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346-48, 56 S.Ct. 466, 482-83, 80 L.Ed. 688 (1936) (Brandéis, J., concurring); Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 441, 5 L.Ed. 257 (1821).

I.

The named plaintiff-appellant, American Airways Charters, Inc. (AAC), is a closely-held corporation, incorporated under the laws of Florida on February 15, 1977. Joint Appendix (J.A.) 15. AAC formerly provided charter service for tourist flights between the United States and Cuba. On April 7, 1982, the Treasury Department’s Office of Foreign Assets Control (OFAC), acting pursuant to section 5(b) of the Trading with the Enemy Act, 50 U.S.C. app. § 5(b),¹ specially designated AAC a Cuban national. This designation, under the Cuban Assets Control Regulations (CACR), 31 C.F.R. pt. 515 (1983),² effectively froze or blocked all of AAC’s assets.

At the time of the designation, and for over five months thereafter, AAC was represented by Allen L. Lear, a member of the bar of the District of Columbia. Lear advised AAC on OFAC’s regulations, applied for licenses to carry out various transactions, and generally represented AAC in its dealings with OFAC. Lear held no OFAC license to represent AAC; he never requested OFAC’s permission to represent AAC; he was never told by OFAC that his representation of AAC was contingent upon application for and receipt of a license. After April 7, 1982, however, he sought and obtained licenses authorizing payment for services he rendered to AAC. See J.A. 34-35 (Lear affidavit); Brief for Appellees at 7 (hereafter, OFAC Brief).

Lear ceased representing AAC on September 10, 1982, when he left his law firm to commence service as a Department of Justice trial attorney. To provide for continued representation of AAC upon Lear’s withdrawal as counsel, AAC’s then president, Fernando Fuentes, engaged Harold A. Mayerson of the New York bar, and his law firm, Mayerson & Smith, P.C., to represent the corporation. Fuentes authorized Mayerson, on or about September 8 or 9, 1982, to be AAC’s legal advocate before OFAC and for all other purposes relating to AAC’s corporate status. J.A. 27 (Mayer-son affidavit); id. at 32-33 (Fuentes affidavit); see OFAC Brief at 7-8. Both Fuentes, by letter dated September 13, 1982, and Mayerson, by letter dated September 15, 1982, notified OFAC that Mayerson & Smith, P.C., had been retained as AAC’s counsel. J.A. 18-19. In addition, on or about September 9, 1982, Mayerson called OFAC to schedule a meeting to discuss his substitution as counsel and the orderly transfer of AAC’s legal work from Lear to Mayerson & Smith, P.C. J.A. 27 (Mayerson affidavit); see OFAC Brief at 8.

The meeting took place on September 16, 1982, at OFAC’s offices. At the meeting, OFAC’s director, Dennis M. O’Connell, told Mayerson that legal representation of a “designated national” required a specific license, and that the letter Mayerson had written to OFAC was inadequate to be deemed a license request. In the absence of a proper application for and grant of a specific license, O’Connell stated, Mayerson could not represent AAC. J.A. 28-29 (Mayerson affidavit); id. at 71 (O’Connell affidavit); see OFAC Brief at 8. OFAC did not supply to, or identify for, Mayerson the application form to which its director referred. Nor, in response to Mayerson’s inquiries, did OFAC officers cite any prior instance in which OFAC had in fact conditioned counsel’s mere representation of a “designated national” on an advance application for and grant of a government license. J.A. 28-29 (Mayerson affidavit).³

On September 17, 1982, the day following Mayerson’s meeting with OFAC officials, OFAC’s director notified Fuentes, by letter, that he was henceforth “prohibited from engaging in any transactions for, on behalf of, or with [AAC], without a specific license from this Office.” J.A. 20. The letter stated that the prohibitions would “prevent [Fuentes] from functioning as the president and chief executive officer of AAC.” Id. It further stated that the director ordered the prohibitions “in the interests of conserving and liquidating AAC’s assets and the proper settlement of its accounts,” and in view of the “a) control of AAC by Cuba or Cuban nationals while [Fuentes was] its president and chief executive officer, b) the transfer out of the U.S. of AAC assets on the day AAC was designated as a Cuban national, and c) [Fuentes’] indictment for violations of the Trading With the Enemy Act.” Id.

Thereafter, OFAC chose to recognize and deal with Frank Masdeu, one of AAC’s two then vice-presidents, as the sole individual authorized to act on behalf of AAC. See J.A. 31 (Fuentes affidavit); id. at 76 (O’Connell affidavit). OFAC has advised Masdeu that he has the right to select counsel for AAC and to apply for a license for the retention of such counsel. J.A. 68 (Masdeu affidavit); id. at 76 (O’Connell affidavit). There is no indication in the record that OFAC ever consulted Florida law when it determined that Masdeu, and no other person, may properly speak for AAC. Nor is there any indication that Masdeu, on OFAC’s recommendation or on his own initiative, ever attempted to secure a Florida court determination that he is currently the proper spokesman for AAC.

The instant action, seeking injunctive and declaratory relief allowing Mayerson to represent AAC, was commenced on November 3, 1982. Both sides filed dispositive motions. On July 11, 1983, the district court dismissed the complaint for want of subject matter jurisdiction. American Airways Charters, Inc. v. Regan, Civ. No. 82-3143 (D.D.C. July 11, 1983), reprinted in J.A. 4-8. The district judge reasoned that on April 7, 1982, the day AAC was designated a foreign national, the corporation lost capacity to act; since that day, the court declared, AAC has “lack[ed] the capacity to retain counsel to bring this action in its own name.” J.A. 5.⁴ OFAC, according to the district court, “has plenary authority to control [AAC’s] operation.” J.A. 7 n. 4. Thus, the district court apparently concluded, without OFAC’s license, no attorney may prosecute this suit as AAC’s agent.⁵ But cf. Dean Witter Reynolds, Inc. v. Fernandez, 741 F.2d 355 (11th Cir. 1984) (Cuban national need not obtain a license prior to initiating an in personam lawsuit in a United States court).

We think the district court stumbled in attributing to OFAC more power than Congress conferred upon the Executive. AAC’s assets are blocked, and may not be touched without OFAC’s permission. But Congress has not authorized the Executive to seize the corporation, control all its internal operations, decide — with no regard to state law — who shall act as its president in lieu of the board-elected officer,⁶ and impose a prior license requirement before the corporation can designate an attorney to represent it.

Facts not in dispute reveal that in early September 1982, when Fuentes authorized Mayerson to represent AAC, Fuentes was AAC’s president and chief executive officer. Nor is it seriously disputed that, absent a valid prior license requirement, AAC’s president would have authority to obtain counsel for the corporation. Because we conclude that Congress did not commit to the Executive power to condition a designated Cuban national’s bare representation by counsel upon advance government approval, we reverse the district court’s judgment and remand the case with directions to enter appropriate relief for AAC.⁷

II.

Section 5(b) of TWEA confers upon the President authority to control, through any agency he designates, “transactions in foreign exchange”; “transfers of credit or payments between, by, through, or to any banking institution”; “the importing, exporting, hoarding, melting, or earmarking of gold or silver coin or bullion, currency or securities”; and finally “any ... transactions involving [] any property in which any foreign country or a national thereof has any interest.” 50 U.S.C. app. § 5(b)(1) (1982) . The CACR prohibitions track this TWEA language. See 31 C.F.R. § 515.201 (1983) .

First enacted in 1917 as a wartime measure, TWEA “evince[d] the purpose to clothe the President with definitely restricted powers in respect of seizing property of those designated as enemies.” Behn, Meyer & Co. v. Miller, 266 U.S. 457, 462, 45 S.Ct. 165, 165, 69 L.Ed. 374 (1925). The drafters of the original Act described it as designed

to mitigate the rules of law which prohibit all intercourse between the citizens of warring nations, and to permit, under careful safeguards and restrictions, certain kinds of business to be carried on. It also provides for the care and administration of the property and property rights of enemies and their allies in this country pending the war.

S.Rep. No. 113, 65th Cong., 1st Sess. 1 (1917), quoted in Markham v. Cabell, 326 U.S. 404, 414 n. 1, 66 S.Ct. 193, 198 n. 1, 90 L.Ed. 165 (1945) (Burton, J., concurring). The Act, as amended to extend to peacetime national emergencies, OFAC points out, serves three principal foreign policy purposes: It “prevents] [designated countries] from receiving any economic benefit from transactions with persons subject to the jurisdiction of the United States”; it “limit[s] the flow of currency to specified hostile nations”; and it “den[ies] [designated countries] outlet[s] for [their] goods in the United States market.” OFAC Brief at 5-6 (quoting Malloy, Embargo Programs of the United States Treasury Department, 20 ColumJ. Transnat’l L. 485, 487-88 (1981)).⁸

In asserting authority to control a designated foreign national’s formation of an attorney-client relationship, OFAC relies dominantly on the TWEA power/ carried over into the CACR, to license transactions involving “property in which any foreign ... national ... has any interest.” Fuentes’ purported retention of Mayerson as counsel for AAC on or about September 9, 1982, OFAC maintains, can only be viewed as an attempt to contract for services. Any contract, as OFAC reads the CACR and TWEA, constitutes a “transfer” of AAC’s “property,” and therefore cannot be consummated absent OFAC’s advance permission. See OFAC Brief at 25-26.

The Act’s catch-all reference to “property,” on which the agency relies, was added to TWEA when the statute was rewritten in 1941.⁹ The addition did not attract large attention, and congressional intent regarding its scope is less than crystalline.¹⁰ Congress recognized generally that the legislation enacted in 1941 concentrated “extraordinary” war powers in the President. See, e.g., 87 Cong.Rec. 9858 (1941) (statement of Rep. Sumners, chairman, House Judiciary Committee). Certain aspects of the section 5(b) amendments — matters not in question here — occasioned substantial debate, most notably, whether section 5(b) could or should be read to impose government control over property owned by persons not “alien enemies.” Id. at 9859; see id. at 9861 (concern of many Congress members that the Act clearly reflect “the intention of the [Judiciary] committee ... to deal only with foreign property”). It seems safe to say, however, that Congress, immediately concerned with other issues and more obvious forms of property, never explicitly contemplated the specific application of TWEA authority first announced by OFAC when OFAC told Mayerson that his substitution for Lear as AAC’s counsel could not be accomplished without government license.

We have no occasion in this case to address the claim implicit in plaintiff’s brief, see Brief for Appellant at 9, that the Act and regulations thereunder should never be read to cover the formation of executory contracts, absent any actual transfer of assets. Nor does the matter at hand involve any contest whether AAC was properly designated a “Cuban national,” or whether its holdings are properly considered Cuban property. We limit our inquiry to the sole question properly before us for review: Does the bare formation of an attorney-client relationship lie outside the reach of the Act and its implementing regulations? In deciding that question in plaintiffs favor, we are guided by the reminder in Real v. Simon, 510 F.2d 557, 564 (5th Cir.1975), that interpretation of TWEA terms must “have the support of the congressional policies behind the Act,” and by the due process concerns implicated in the asserted right to choose counsel without interference by officialdom.

It is doubtful whether any of the exclusively economic purposes, see generally Regan v. Wald, — U.S.-, 104 S.Ct. 3026, 82 L.Ed.2d 171 (1984), legitimately served by the Act would be advanced by upholding OFAC’s novel position. If AAC is allowed to retain — although not to pay— counsel without government license, Cuba will not thereby receive economic benefit from transactions with persons subject to the jurisdiction of the United States; the goal of limiting the flow of currency to Cuba will remain unimpaired; and Cuba will not gain any outlet for its goods in the United States market. See supra p. 871. OFAC asserts an interest in preserving the blocked assets of AAC against improper disposition by Mayerson, or exorbitant claims asserted by him.¹¹ But counsel for a designated national has no authority to dispose of the designated national’s assets; and no fee can be paid counsel absent a separate, and express, authorization from OFAC. At one point in this litigation, OFAC indicated a desire to protect AAC from the baleful effects of a conflict of interest on Mayerson’s part. See supra note 7. The disqualification of counsel for a conflict of interest, however, is a function generally entrusted to the judiciary,¹² not to an executive agency that is, in significant respects, the adverse party. An interpretation of TWEA and the CACR with an eye to “the congressional policies behind the Act,” in short, offers scant support for OFAC’s newly-minted claim of authority to preview, and then permit or restrain, a designated national’s choice of counsel.

The nature and purpose of the attorney-client relationship, moreover, impel us to review with special care any initiative by an administrative officer to expose to licensing the very creation of that relationship.¹³ We stress particularly that, in our complex, highly adversarial legal system, an individual or entity may in fact be denied the most fundamental elements of justice without prompt access to counsel. As this court observed in Martin v. Lauer, 686 F.2d 24 (D.C.Cir.1982): “[Wjhile private parties must ordinarily pay their own legal fees, they have an undeniable right to retain counsel to ascertain their legal rights.” Id. at 32 (emphasis added; footnote omitted).

The invalidity of a governmental attempt to deny counsel to a civil litigant was recognized in dictum over fifty years ago in Powell v. Alabama, 287 U.S. 45, 68-69, 53 S.Ct. 55, 64, 77 L.Ed. 158 (1932):

The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel____ If in any case, civil or criminal, a state or federal court were arbitrarily to refuse to hear a party by counsel, employed by and appearing for him, it reasonably may not be doubted that such a refusal would be a denial of a hearing, and, therefore, of due process in the constitutional sense.

More recent decisions have elaborated on the same basic theme. See, e.g., Goldberg v. Kelly, 397 U.S. 254, 270, 90 S.Ct. 1011, 1021, 25 L.Ed.2d 287 (1970) (AFDC recipient “must be allowed to retain an attorney [in benefits termination hearing] if he so desires”); Mosley v. St. Louis Southwestern Railway, 634 F.2d 942, 945 (5th Cir.) (“The right to the advice and assistance of retained counsel in civil litigation is implicit in the concept of due process, and extends to administrative, as well as courtroom, proceedings.”) (citation omitted), cert. denied, 452 U.S. 906, 101 S.Ct. 3032, 69 L.Ed.2d 407 (1981); see also United Mine Workers, District 12 v. Illinois State Bar Association, 389 U.S. 217, 221-22, 88 S.Ct. 353, 355-56, 19 L.Ed.2d 426 (1967) (striking down, on first amendment grounds, state rule barring union from hiring attorney to assist its members in the assertion of their legal rights).¹⁴

We place against this backdrop OFAC’s assertion of power to stop AAC from obtaining counsel unless and until the government licenses the corporation to do so. Even in the absence of a marked constitutional dimension to the problem, sensible construction of the Act would not encompass OFAC’s current, unprecedented, reading of highly general clauses. The agency, we believe, has gone beyond mere interpretation. It has effectively legislated in an area in which our tradition indicates the lawmakers themselves — Congress—should speak with a clear voice in advance of administrative action.

When we add to our consideration the constitutional dimension plaintiff’s aecessto-counsel plea entails, we find the case against OFAC’s position overwhelming. As OFAC would have it, once an entity, although incorporated in the United States, has been administratively designated a foreign national, and therefore placed under government control regarding commercial matters, the designated corporation can be subjected to the decision of a government office, bounded by no standards that have been presented to us, even as to the very question whether the corporation can meaningfully challenge the designation through counsel.¹⁵ We reject that bold view. Instead, we construe the Act and regulations thereunder “in a manner that not only upholds their constitutionality but also steers clear of uncertainty on that score.” Kelsey v. Weinberger, 498 F.2d 701, 708 (D.C.Cir.1974) (footnote omitted); see also Tagle v. Regan, 643 F.2d 1058, 1067 (5th Cir.1981) (construing TWEA).¹⁶ See generally NLRB v. Catholic Bishop, 440 U.S. 490, 500-01, 99 S.Ct. 1313, 1318-19, 59 L.Ed.2d 533 (1979) (courts should prefer plausible construction of statute that avoids “serious constitutional questions” to agency’s construction raising such questions, unless agency’s position reflects “the affirmative intention of the Congress clearly expressed”).¹⁷

III.

We thus conclude that Mayerson was properly retained by AAC as its counsel on or about September 9, 1982. No termination of that relationship by a person speaking for AAC is reflected in the materials supplied to us; the relationship thus continues in effect.¹⁸ At such time as a person with authority to speak for AAC terminates the relationship, it will come to an end.

To clarify and summarize our disposition, we add these closing remarks. TWEA, as implemented by the CACR, gives OFAC authority to control, in almost every respect, AAC’s commercial relations with the outside world. AAC does not argue otherwise. See Brief for Appellant at 16. OFAC’s power, however, extends only to the freezing or blocking of AAC’s assets and the licensing of its transactions; OFAC has no authority to seize the corporation itself, to vest its assets,¹⁹ or — beyond the power it has over employment contracts entered into by AAC — to rearrange its internal affairs.²⁰

OFAC has undisputed power to deny AAC permission to engage in specified commercial transactions. We caution here that nothing in our disposition is properly read as authorizing payment to counsel without the approval of OFAC. But OFAC may not, to give an extreme example, take a member of its own staff and, without regard to AAC’s corporate structure, install that person as AAC’s new chief executive officer, thereby controlling AAC’s operations from the inside. If it could, then the entire CACR licensing scheme, predicated on external control, would be superfluous as applied to corporations.

State law, beyond question, is preempted when it “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 404, 85 L.Ed. 581 (1941). But OFAC has not demonstrated why it is insufficient to control, through licensing, all transactions reaching the assets of AAC, a Florida-chartered corporation now designated a Cuban national, or how taking the corporation over from the inside, incidentally eliminating any genuine possibility of judicial review at the corporation’s behest, furthers the balancing of interests embodied in the congressional external control scheme. The internal structure of a designated national corporation remains properly governed by state law, not by agency fiat, in the absence of a concrete showing that state law in fact conflicts with federal purposes and objectives.

OFAC has repeatedly taken the position that it recognizes only Frank Masdeu as having any authority to speak for AAC, or to request any license on the company’s behalf. We express no opinion as to whether Masdeu, or anyone else, may properly speak for the company. We emphasize, however, that questions of AAC’s internal structure, and of who may speak for AAC when certain of its officers have been incapacitated by OFAC or by other federal action, are questions properly referred in the first instance to state law. Thus Florida law is the appropriate initial reference in determining who has authority to terminate the relationship between AAC and Mayerson or to hire other counsel.

IY.

In enforcing section 5(b) of TWEA, OFAC must seek resolution of “the paradox posed by the need for emergency power in a constitutional regime.” Note, The International Emergency Economic Powers Act: A Congressional Attempt to Control Presidential Emergency Power, 96 Harv.L.Rev. 1102, 1112 (1983). We are a constitutional regime in which even emergency power is subject to limitations under our highest law. OFAC’s unprecedented action in this case has disturbing implications. The government agency charged with control over a corporation’s external transactions, and the distribution of any of its assets, appears here to seek as well to stifle any voice the corporation might wish to raise before the courts in protest. We doubt that such an attempt is “worthy of our great government.” Brandt v. Hickel, 427 F.2d 53, 57 (9th Cir.1970). We find no congressional authorization for it.

For the reasons stated, the judgment of the district court is reversed and the case is remanded for proceedings consistent with this opinion.

It is so ordered.

1 . Section 5(b), subject to certain exceptions, no longer applies when the nation is not at war; instead, during peacetime, the International Emergency Economic Powers Act, 50 U.S.C. §§ 1701-1706 (1982), generally governs. See Act of Dec. 28, 1977, Pub.L. No. 95-223, § 101(a), 91 Stat. 1625, 1625. The case before us, however, falls within one of the exceptions. Under id. § 101(b), 91 Stat. at 1625,

the authorities conferred upon the President by section 5(b) of the Trading With the Enemy Act, which were being exercised with respect to a country on July 1, 1977, as a result of a national emergency declared by the President before such date, may continue to be exercised with respect to such country [if the President determines it to be in the national interest].

The Cuban Assets Control Regulations, 31 C.F.R. pt. 515 (1983), promulgated by OFAC pursuant to § 5(b), remain in force under this grandfather clause. See generally Regan v. Wald, — U.S.-, 104 S.Ct. 3026, 82 L.Ed.2d 171 (1984).

OFAC does not rely in this litigation on any authority stemming from § 620(a) of the Foreign Assistance Act of 1961, 22 U.S.C. § 2370(a) (1982). Cf. Regan v. Wald, — U.S. at-n. 1, 104 S.Ct. at 3030 n. 1.

2 . 31 C.F.R. §§ 515.302, .305, .201(d) define the terms “[Cuban] national” and "designated national” to include any person who has been a Cuban citizen, and "any person who has been within [Cuba,] whether domiciled or resident therein or otherwise," at any time on or since July 8, 1963; any organization organized under Cuban law; any organization that on or since July 8, 1963, had or has had its principal place of business in Cuba; any organization that on or since July 8, 1963, has been controlled, directly or indirectly, by Cuba or Cuban nationals; any person to the extent that that person is or has been, since July 8, 1963, acting or purporting to act directly or indirectly for the benefit of or on behalf of any Cuban national; and "[a]ny other person who there is reasonable cause to believe is a [Cuban] 'national’ as defined in this section.” 31 C.F.R. § 515.302(b) further provides: "The Secretary of the Treasury retains full power to determine that any person is or shall be deemed to be a ‘national’ within the meaning of this section____”

31 C.F.R. §§ 515.306, .305, .201(d) define the term "specially designated national” to include any person who, on or since July 8, 1963, has acted for or on behalf of the Cuban government; any organization that on or since July 8, 1963, has been owned or controlled directly or indirectly by the Cuban government or by any specially designated national; and "[a]ny person who is determined by the Secretary of the Treasury to be a specially designated national.”

In this proceeding, AAC does not contest its status as a "specially designated national.”

3 . In an affidavit supporting defendants’ motion for summary judgment in the district court, OFAC’s director characterized as "gross overstatement” the plaintiff’s contention "that this is the first time in which OFAC has ever sought to require a foreign national to obtain a license to retain counsel.” J.A. 76; see also OFAC Brief at 27 (repeating the "overstatement" characterization).

Several members of the bar experienced in representing clients before OFAC presented affidavits to the district court fully consistent with the description of OFAC’s position here as an unheralded, radical departure from prior practice. These affidavits inform that attorneys for designated nationals did obtain licenses for payment of legal fees, but had never known or heard of any case, prior to this one, in which OFAC conditioned mere representation of a designated national on an advance application for and grant of a license. See J.A. 29 (Mayerson affidavit); id. at 35 (Lear affidavit); id. at 36-37 (Rabinowitz affidavit); id. at 38-39 (Faulkner affidavit). OFAC, in face of these affidavits, did not call to the district court's attention any past occasion on which OFAC had announced or proposed that a designated national must seek and receive a license before obtaining legal representation. Nor has OFAC contended in this court that it has, at any time prior to the episode in suit, asserted that representation, without more, requires a license.

4 . The district court compared AAC, once it was designated a Cuban national, to a principal incapacitated by death or insanity. J.A. 7.

5 . We note the Catch-22 quality of this reasoning: the named plaintiff's incapacity to "prosecut[e] ... this suit by counsel,” J.A. 7, the district court essentially held, can be overcome only if the named defendants grant a license "authorizing] the[ir] prosecution.” Id. See also infra note 15 and accompanying text.

In this court, OFAC has elaborated on the district court's terse disposition. OFAC asserts that no case or controversy exists because suit was not properly authorized by AAC. According to OFAC, neither AAC’s authorization (through Fuentes) of Mayerson on or about Sept. 9 to "take any and all actions necessary to represent [AAC] and to protect [its] rights and interests with respect to OFAC or any other legal matter,” J.A. 32-33, see OFAC Brief at 14, nor any actions that were or could have been taken at a subsequent meeting, styled a Special Meeting in lieu of Annual Meeting of Shareholders, of Fuentes and Roger Dooley (AAC’s sole shareholders), constituted valid authorization for the litigation. OFAC points out that Frank Masdeu, the person it recognizes as sole "spokesman” for AAC, OFAC Brief at 20, did not request Mayerson to commence this civil proceeding. Masdeu is a vice-president of AAC but, unlike Fuentes and Dooley, he holds no shares in the company.

We need not address the particulars of OFAC’s "no case or controversy” contention. This suit, given the facts not in dispute, see infra p. 870, received adequate and appropriate “sanction of the directors or other proper officer." 2 Fletcher, Cyclopedia of the Law of Private Corporations § 483 (1982). Under Florida law, the president of a corporation has authority to engage the services of counsel and institute suits on the corporation’s behalf. See Conlee Constr. Co. v. Cay Constr. Co., 221 So.2d 792, 795 (Fla. Dist.Ct.App.1969).

6 . No contest has been raised in this proceeding concerning OFAC’s decision prohibiting Fuentes, on and after September 17, 1982, from "engaging in any transactions for, on behalf of, or with [AAC], without a specific license from [OFAC]." J.A. 20.

7 . OFAC additionally maintained on brief and at oral argument that AAC’s suit should be dismissed because the company had not exhausted its administrative remedies by filing a formal license request, or having one filed by Mayer-son. That position is no longer tenable. Upon consideration of the representation of Dennis O'Connell, OFAC’s director, that OFAC was "prepared to act quickly on any application AAC may wish to make to hire the counsel of its choice," and the indication of OFAC’s counsel at oral argument that the agency would give prompt consideration to a filing by counsel relating to AAC’s retention of Mayerson, we instructed Mayerson to file

a [formal] application with OFAC ... to confirm his representation of appellant American Airways Charters, Inc., pursuant to the September 1982 exchange of correspondence between Mr. Fuentes, Mr. Mayerson, and Mr. O'Connell ..., and to confirm his representation of appellant in the instant litigation for a declaration of appellant's right to retain counsel of its choice.

We further stated:

This instruction is without prejudice to the position advanced by Mr. Mayerson that the relevant federal law does not mandate, and the Constitution forbids, a requirement of OFAC licensing for the retention of counsel by a designated national.

American Airways Charters, Inc. v. Regan, No. 83-1860 (D.C.Cir. Mar. 29, 1984). Our order directed OFAC to act expeditiously on Mayer-son’s filing.

OFAC, in response to Mayerson’s filing, issued him a document it styled a "conditional license.” See Motion for Remand at 1. The license, OFAC informed Mayerson, would become effective only upon his submission to the agency of satisfactory evidence that Frank Masdeu, the person OFAC regards as sole "spokesman" for AAC, see supra p. 869 & note 5, had engaged his services on behalf of AAC. In addition, OFAC required Mayerson to answer a number of questions assertedly directed to whether representation of AAC by Mayerson might lead to a conflict of interest. OFAC subsequently informed Mayerson that "you have not met the conditions spelled out in the license” because “you have provided no indication that Mr. Masdeu seeks your services for AAC.” Letter from Dennis M. O’Connell, Director of OFAC, to Harold A. Mayerson (May 7, 1984).

8 . But see supra note 1.

9 . Prior to 1941, the Act extended to the President authority limited to

transactions in foreign exchange, transfers of credit between or payments by or to banking institutions ... and export, hoarding, melting, or earmarking of gold or silver coin or bullion or currency, and any transfer, withdrawal or exportation of, or dealing in, any evidences of indebtedness or evidences of ownership of property in which any foreign state or a national ... thereof ... has any interest.

See Act of May 7, 1940, ch. 185, § 1, 54 Stat. 179, 179.

10 . Some members of Congress stated that the Act as amended was intended to cover “all kinds of real and personal property belonging to aliens.” 87 Cong.Rec. 9861 (1941) (statement of Rep. Hancock); see also id. at 9863 (statement of Rep. Gwynne) ("this provision covers all property belonging to aliens that is within our jurisdiction”). That view, however, apparently was not deemed inconsistent with statements that "[sjubsection (b) [in relevant part] is the same as the old law.” Id. at 9865 (statement of Rep. Kefauver); see abo id. at 9859. The old law’s coverage, see supra note 9, did not on its face extend beyond foreign exchange transactions, banking transactions, and dealings in gold, silver, currency, and “evidences of indebtedness or evidences of ownership of property."

11 . Cf. Real v. Simon, 510 F.2d at 563 (government asserted interest in "retaining] blocked funds for possible use or vesting to the United States should such a decision be made[,] and ... [in] us[ing] blocked funds for negotiation purposes in discussions with the Cuban government”; argument rejected, on ground that claimants to blocked fund were United States nationals and “it is not the intent of this country to use the property of one group of Americans to provide compensation to another group”).

12 . Cf. Groper v. Taff, 717 F.2d 1415, 1418 (D.C. Cir.1983) (“the district court bears responsibility for supervising the members of its bar [for conflict of interest] and its exercise of this supervisory duty is discretionary”).

13 . We would face a different case if Congress itself inaugurated the prior license requirement. We note that in 1938, Congress passed the Foreign Agents Registration Act, ch. 327, 52 Stat. 631 (1938) (codified as amended at 22 U.S.C. §§ 611-621 (1982)), requiring agents of foreign principals to register with the Secretary of State. This Act requires registration only; it confers on the Secretary no authority to deny a registrant permission to act on behalf of the foreign principal. Initially, the legislation contained no explicit exemption for lawyers, and the Supreme Court refused to read such an exemption into the Act. Rabinowitz v. Kennedy, 376 U.S. 605, 84 S.Ct. 919, 11 L.Ed.2d 940 (1964) (attorneys representing Republic of Cuba required to register).

Although the Foreign Agents Registration Act serves only a notice, not a licensing function, Congress has indicated sensitivity to the lawyer’s role. After the decision in Rabinowitz v. Kennedy, Congress amended the statute to exempt lawyers insofar as they engaged or agreed to engage in the legal representation of a disclosed foreign principal before a court of law or in the course of established agency proceedings. Act of July 4, 1966, Pub.L. No. 89-486, § 3(b), 80 Stat. 244, 246 (codified at 22 U.S.C. § 613(g) (1982)). Congress further amended a separate section of the Act to ensure that attorneys engaging in "routine ... advising and counseling [of] foreign clients” would be exempt. See H.R. Rep. No. 1470, 89th Cong., 2d Sess. 9-10, reprinted in 1966 U.S.Code Cong. & Ad.News 2397, 2405. This congressional action, when only registration was at stake, adds to our grave doubts that Congress ever entertained the notion that an executive officer might extract from highly general statutory language authority to initiate a prior license requirement governing an attorney's response to a client's request for representation.

14 . It appears beyond sensible debate that corporations, in our society, do indeed enjoy the right to retain counsel. Corporations may not assert "purely personal” rights but, no less than natural persons, they are entitled to due process and the equal protection of the laws. Grosjean v. American Press Co., 297 U.S. 233, 244, 56 S.Ct. 444, 446, 80 L.Ed. 660 (1936). As our sister court observed, "the right to effective assistance of counsel is not so peculiarly applicable to individuals that corporations should not be entitled to it." United States v. Rad-O-Lite of Philadelphia, Inc., 612 F.2d 740, 743 (3d Cir.1979). In fact, denying a corporation the right to retain counsel may be tantamount to stripping the corporation of its right to defend itself in court, for "it is established that a corporation, which is an artificial entity that can only act through agents, cannot proceed pro se." Jones v. Niagara Frontier Transp. Auth., 722 F.2d 20, 22 (2d Cir.1983). A human shareholder's right to representation, of course, does not obviate the need for counsel to the corporation. No shareholder — not even a sole shareholder — has standing in the usual case to bring suit in his individual capacity on a claim that belongs to the corporation. See, e.g., Sherman v. British Leyland Motors, Ltd., 601 F.2d 429, 439-40 (9th Cir.1979); see also, e.g., Blum v. Morgan Guar. Trust Co., 539 F.2d 1388, 1390 (5th Cir.1976) (individual shareholder will not be permitted to sue derivatively on the corporation's behalf if court concludes that conflict of interest prevents him from serving as an appropriate representative).

15 . If OFAC is correct, AAC would also be precluded from litigating in the Florida courts any issues relating to its corporate existence, including the identity of its lawful spokesman.

16 . OFAC maintains that plaintiff's effort to implicate constitutional concerns is "no different,” OFAC Brief at 25, from the first amendment argument rejected in Veterans & Reservists for Peace in Vietnam v. Regional Comm’r of Customs, 459 F.2d 676 (3d Cir.), cert. denied, 409 U.S. 933, 93 S.Ct. 232, 34 L.Ed.2d 188 (1972). In Veterans & Reservists, the Third Circuit upheld OFAC’s requirement that plaintiff secure a license before receiving “Red Chinese literature,” id. at 679, in the form of English-language newspapers mailed from North Vietnam. The court found the government's interest in regulating the flow of money to designated countries compelling, id. at 682, and indicated that requesters would be entitled to a license upon certifying that they did not intend to pay for the materials, either directly or indirectly. Id. at 683. The merits of the Veterans & Reservists decision are not before us. We note, however, that the government concern asserted in that case was the threat of transfer of currency to North Vietnam and (at the time of the seizure still subject to our embargo) the People's Republic of China, a concern at the heart of the Act. In this case, OFAC identifies no interest of comparable dimension that reasonably supports its actions.

17 . Even if OFAC’s view of the law did not implicate constitutional concerns, the agency’s insistence that we owe its construction deference would be dubious. Far from representing a consistent, longstanding agency interpretation, OFAC’s current position apparently represents a sharp departure from prior practice, see supra note 3, first made public as a result of the events that precipitated this lawsuit, and explained, so far as the record shows, only in briefs and other papers generated by the litigation. See Tagle v. Regan, 643 F.2d at 1068 n. 13 ("[T]he Treasury’s interpretation of its authority [under TWEA] is neither contemporaneous with the statute's enactment, nor consistent with its earlier views. These facts considerably reduce the deference paid to its current position____”).

18 . Counsel for OFAC stated at oral argument that even if an attorney-client relationship was formed on September 9, it was extinguished one week later, when OFAC barred Fuentes from engaging in further transactions on behalf of AAC. The attorney-client relationship lapsed, counsel argued, when Fuentes became disabled.

OFAC’s portrayal of agency law is novel indeed. When OFAC barred Fuentes, his ability to serve as AAC’s agent ended; but we do not comprehend how that act served as well to terminate the pre-existing, ongoing agency relationship between AAC and Mayerson. See generally Restatement (Second) of Agency § 121 comment c, illustration 2 (1957).

19 . The war powers granted to the President under the 1941 amendments to the Act did include the power to "vest” assets of foreign nationals. See Silesian-American Corp. v. Clark, 332 U.S. 469, 474-77, 68 S.Ct. 179, 181-82, 92 L.Ed. 81 (1947) (upholding as constitutional, under war power, federal government's vesting under § 5(b) of stock beneficially owned by German national). However, OFAC does not purport to exercise that power under the CACR.

20 . OFAC cites Alexewicz v. General Aniline & Film Corp., 181 Misc. 181, 43 N.Y.S.2d 713 (Sup.Ct. Broome Cnty.1943), as authority for the proposition that AAC’s state-law-prescribed internal corporate structure must "g[i]ve way in the face of TWEA’s broad grant of foreign policy powers.” OFAC Brief at 20. The General Aniline court, however, held only that the Treasury Department had authority, during the Second World War when the executive power in question reached its height, to order the termination of an employment contract between a German national corporation and plaintiff, an industrial chemist. We do not touch that holding here. Nor do we wrench language from the General Aniline decision out of context and transpose it to the different time and regulatory setting of this case.

Other cases relied on by OFAC for its pronouncement that "state corporate law cannot justify a result contrary to ... the federal policies and purposes served by [TWEA],” OFAC Brief at 20, are similarly unhelpful. In Nielsen v. Secretary of the Treasury, 424 F.2d 833 (D.C. Cir.1970), the court relied upon the formal corporate structure of the entity in question and refused to pierce the corporate veil on behalf of the plaintiff shareholders. Sardino v. Federal Reserve Bank, 361 F.2d 106 (2d Cir.), cert. denied, 385 U.S. 898, 87 S.Ct. 203, 17 L.Ed.2d 130 (1966), stands simply for the proposition that OFAC has power, pursuant to the CACR, to freeze the bank account of a Cuban national.