Emergency Coalition to Defend Educational Travel v. United States Department of the Treasury

545 F.3d 4
CourtCourt of Appeals for the D.C. Circuit
DecidedNovember 4, 2008
DocketNo. 07-5317
StatusPublished
Cited by75 cases

This text of 545 F.3d 4 (Emergency Coalition to Defend Educational Travel v. United States Department of the Treasury) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Emergency Coalition to Defend Educational Travel v. United States Department of the Treasury, 545 F.3d 4 (D.C. Cir. 2008).

Opinions

Opinion for the Court filed by Senior Circuit Judge SILBERMAN.

Concurring opinions filed by Senior Circuit Judges EDWARDS and SILBERMAN.

SILBERMAN, Senior Circuit Judge:

Appellants include an association of aea-demics-the Emergency Coalition to Defend Educational Travel (the “Coalition”) — two college professors, and three undergraduate students. They sued the Secretary of Treasury and the Office of Foreign Assets Control within Treasury (the “Office”) asserting that the 2004 amendments to the Office’s regulations governing the Cuba trade embargo, which tightened restrictions on Cuba-based study programs, violated the First and Fifth Amendments of the Constitution, as well as the APA. The district court, in a thoughtful opinion, granted the Government’s motions to dismiss. We affirm.

I

In 1963, President Kennedy exercised his broad authority under the Trading with the Enemy Act, 50 U.S.C.App. § 5(b) (the “Act”), to impose a comprehensive trade embargo against Cuba. Pursuant to a presidential designation under the Act, Treasury is the agency responsible for administering the embargo regime, and Treasury has in turn delegated the promulgation and implementation of the regulations thereunder to the Office. Cuban Assets Control Regulations, 31 C.F.R. Part 515. While the regulations were initially issued in order to combat subversive activities undertaken by the Castro regime throughout Latin America, over the years, their scope and stringency have waxed and waned in response to the shifting foreign policies of succeeding presidential administrations. The essential objective of the embargo, however, has remained the same: to isolate the Cuban government by depriving the island’s economy of the benefit of U.S. dollars.

Under the present regulations, the Office authorizes travel to Cuba via the issuance of either a general or a specific license. A general license is made available for travel related to official government business and, in certain defined circumstances, for journalistic or professional research activities. Specific licenses are dispensed on a “case-by-case basis” for all other purposes, including, inter alia, travel connected with familial obligations, religious activities, humanitarian projects, and cultural performances or exhibitions. Under the regulations, accredited U.S. undergraduate or graduate degree-granting academic institutions are eligible to obtain a specific license so as to allow qualified individuals to engage in an enumerated list of activities, including “participation in a structured educational program in Cuba.” This limited exemption for selected educational activities has been in effect since 1999.

At immediate issue in this suit are certain 2004 amendments to the Cuba travel restrictions that resulted in a diminution of this exemption. These amendments were inspired by the recommendations of the interagency Commission for Assistance to a Free Cuba, established in 2003 by President George W. Bush. Secretary of State Colin Powell chaired the Commission, which was composed of high-level representatives from a variety of executive agencies, including the Secretaries of Treasury, Housing and Urban Development, Commerce, and Homeland Security, as well as the President’s National Security Advisor. President Bush directed the [7]*7Commission to report to him on how the U.S. Government might best induce the peaceful fall of the Castro dictatorship. Among the stated objectives of the Commission was to strengthen enforcement of travel restrictions in response to a perception that travel licenses had been abused as a covert means to undertake illegal business or tourist travel.

In May 2004, the Commission submitted its Report.1 The Commission noted that the Castro regime has aggressively promoted tourism as an integral part of its strategy for retaining its grip on power. The Commission observed that while some participants had used the specific licenses in accordance with their intended academic objective, less scrupulous travelers and universities had circumvented the embargo by using the licenses for improper tourist purposes. And the Report was particularly dubious of certain study-abroad programs of short duration that allowed for minimal cross-cultural interaction with Cuban citizens and provided for excessive unstructured time during which participants might pursue purely tourist activities. Concern was expressed that such programs were often cynically manipulated by the Cuban regime to coat the repressive Communist state with a patina of reasonability, openness, and legitimacy. The Report concluded that a requirement that specific licenses for educational activities be granted solely to semester-length ten weeks or more) programs would retain the benefits of promoting the study of Cuba and of diffusing American values throughout the island nation while curtailing abuses.

The 2004 amendments to the regulations resulted. First, a durational requirement for educational programs conducted in Cuba by U.S. academic institutions was added to the travel restrictions whereby any such program must last for at least one full academic term of no fewer than ten weeks. Second, the amendments require that any student traveling to Cuba under the specific license of an academic institution must be enrolled in either an undergraduate or graduate degree program at such institution — i.e., cross-registration in a course offered by another university would no longer be permitted. Finally, the amended regulations plainly state that any faculty teaching under the auspices of an academic institution’s license must be “full-time permanent employees” “regularly employed in a teaching capacity at the licensed institution.” The Coalition claims that this final requirement is new as of the 2004 amendments; the Government disputes this and asserts that the amendments merely clarified requirements contained in the existing regulations.

The Coalition is an organization of over four hundred academic professionals employed by accredited U.S. colleges and universities, both state and private. The group was formed in response to the 2004 amendments, and its sole purpose is to seek rescission of the amendments, or, in the Coalition’s more colorful language, “to defend the freedom of U.S. professors and students to design, teach, and attend courses in Cuba free of U.S. Government diktat.”

Appellant Dr. Wayne S. Smith, Ph.D., is the Chairman of the Coalition and an Adjunct Professor of Latin American Studies at Johns Hopkins University. He also serves as Director of Johns Hopkins’ Cuba Exchange Program, and between 1997 and 2004, Smith taught annual inter-session courses to American students enrolled in [8]*8the program. He asserts that the 2004 amendments not only resulted in the cancellation of the exchange program but also bar him personally from teaching in Cuba due to his status as an adjunct professor. Appellant Dr. John Walton Cotman, Ph.D., is an Associate Professor of Political Science at Howard University and specializes in the study of international relations and comparative politics in the Caribbean region. Cotman claims that the 2004 amendments prohibit him from teaching courses offered in Cuba by other universities. Appellant Abby Wakefield was a Johns Hopkins sophomore when this suit was filed.

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Bluebook (online)
545 F.3d 4, Counsel Stack Legal Research, https://law.counselstack.com/opinion/emergency-coalition-to-defend-educational-travel-v-united-states-cadc-2008.