FedEx has sued the US Department of Commerce and Madame Secretary of Commerce Wilbur Ross over the impossibility of complying with the full extent of USG export control regulations. In the filing FedEx swears that they have a sophisticated system for checking sender and recipient identities against the USG's restricted entity list, but that determining whether any particular item entrusted to them as a common carrier is export controlled presents an excessive burden such that effective checks would require them to discard any pretense of customer privacy while forcing them to violate other laws in the process.

FedEx further laments that in other contexts common carriers enjoy protection from liability with respect to the contents of the package they are conveying, but not in this case. Either FedEx implements a regime of intensive package inspection trying to comply with US export controls and in the process breaks numerous other laws in their global area of operations, or they perpetually sit exposed to liability if the USG catches something going through under their care in violation of US export controls. Thusly, FedEx seeks relief under the Fifth Amendment of the US Constitution, because these burdens were placed upon them without due process. The full filing is below:

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
FEDEX CORPORATION,
942 S. Shady Grove Rd.
Memphis, TN 38120
 Plaintiff,
 v.
U.S. DEPARTMENT OF COMMERCE
1401 Constitution Ave., NW
Washington, DC 20230; and
WILBUR ROSS,
in his official capacity as Secretary of
Commerce, as well as his successors and assigns,
U.S. Department of Commerce
1401 Constitution Ave., NW
Washington, DC 20230; and
BUREAU OF INDUSTRY AND SECURITY
U.S. Department of Commerce
1401 Constitution Ave., NW
Room 2099B
Washington, DC 20230; and
NAZAK NIKAKHTAR,
in her official capacity as Assistant Secretary for
Industry and Analysis, as well as her successors
and assigns,
Bureau of Industry and Security
U.S. Department of Commerce
1401 Constitution Avenue, NW
Room 2099B
Washington, DC 20230,
 Defendants.
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 Civil Action No. ________________
COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND OTHER RELIEF
Case 1:19-cv-01840 Document 1 Filed 06/24/19 Page 1 of 19
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1. Plaintiff FEDEX CORPORATION (“FedEx”) brings this Complaint against
Defendants the U.S. DEPARTMENT OF COMMERCE (the “DOC”); WILBUR ROSS, in his
official capacity as Secretary of Commerce (“Ross”); the BUREAU OF INDUSTRY AND
SECURITY (the “BIS”), and NAZAK NIKAKHTAR, in her official capacity as Assistant
Secretary for Industry and Analysis, performing the non-exclusive duties of the Under Secretary
for Industry and Security (“Nikakhtar” and, together with DOC, Ross, and BIS, “Defendants”).
NATURE OF THE ACTION
2. FedEx is a global business that provides its customers with transportation,
e-commerce, and business solutions. Perhaps its best recognized offering is its time-sensitive,
air-ground express service that ships packages for customers worldwide.
3. FedEx receives approximately fifteen million packages for shipment daily. To
support its operations, FedEx has developed a complex logistics system consisting of over
450,000 team members, 2,150 express stations, 13 air express hubs, 679 aircraft, 650 airports, 39
ground hubs, 600 ground facilities and 180,000 motorized vehicles spanning more than 220
countries and territories to ensure packages get from their point of origin to their destination
safely and in compliance with applicable laws.
4. Millions of participants in the global economy rely on FedEx for their
transportation and freight needs. As a common carrier, FedEx is subject to a variety of statutory
and regulatory regimes. In the United States, FedEx is subject to the Export Control Reform Act
of 2018, 50 U.S.C. §§ 4801 et seq. (the “ECRA”) and its implementing regulations, the Export
Administration Regulations, 15 C.F.R. §§ 730 et seq. (the “EAR” and together with the ECRA,
the “Export Controls”).
Case 1:19-cv-01840 Document 1 Filed 06/24/19 Page 2 of 19
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5. To comply with the Export Controls, FedEx screens the names and addresses of
its shippers and the designated recipients prior to delivering any package in order to identify
whether the sender and/or recipient are an entity or person on the EAR’s “Entity List,” i.e., a list
of “persons reasonably believed to be involved, or to pose a significant risk of being or becoming
involved, in activities contrary to the national security or foreign policy interests of the United
States.” 15 C.F.R. § 744.16. Indeed, FedEx has developed a sophisticated proprietary risk-based
compliance system to perform such screening and takes seriously its responsibility to comply
with the law.
6. However, the Export Controls—specifically, the EAR—require considerably
more screening than possible from common carriers like FedEx.1
 For example, the EAR require
FedEx and similarly situated common carriers to ensure that packages containing “items” (a
broad term encompassing commodities, software, and technology) subject to the EAR that are
described on the Commerce Control List (“CCL”), 15 C.F.R. § 774, are not exported to
jurisdictions that require BIS export licenses, unless such licenses are in fact in place. The
determination of whether the tendered package contains an “item subject to the EAR” and
whether a license is required are virtually impossible for common carriers to comply with.
7. Typically, the law offers protection for common carriers, excepting them from
liability for the contents of packages and communications they transmit, such as internet service
providers and telecommunications companies. See, e.g., 21 U.S.C. § 822(c) (excepting
“common or contract carrier[s]” from the criminal transport provisions of the Controlled
Substances Act); 47 U.S.C. § 230(c)(1) (immunizing internet service providers from liability for
the content of their users under the Communications Decency Act of 1996). The EAR, however,

1
 The EAR define common carriers such as FedEx as “forwarding agents.” 15 C.F.R. § 772.1.
Case 1:19-cv-01840 Document 1 Filed 06/24/19 Page 3 of 19
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offer no safe harbor provision. To the contrary, the EAR hold common carriers liable as aiders
and abettors of the EAR violations committed by their customers, with steep penalties.
8. Thus, the EAR essentially deputize FedEx to police the contents of the millions of
packages it ships daily even though doing so is a virtually impossible task, logistically,
economically, and in many cases, legally. Indeed, the majority of transactions begin with the
customer providing FedEx with a previously sealed package.
9. Even if it could inspect every shipment, the complexity of the EAR would render
such a potentially-privacy-infringing program ineffective.2
 See generally United States v.
Jacobsen, 466 U.S. 109, 114 (1984) (“Letters and other sealed packages are in the general class
of effects in which the public at large has a legitimate expectation of privacy.”). Common
carriers, as transporters for the public, cannot reasonably be expected to police the contents and
ultimate destinations of the millions of daily shipments to ensure compliance with the EAR.
10. Without a safe harbor, the EAR give FedEx two options: continue to operate
under threat of imminent enforcement actions, or cease operations that may conceivably lead to
enforcement and face possible legal consequences from customers and foreign governments.
The Due Process Clause of the Fifth Amendment to the U.S. Constitution was enacted to prevent
such oppression and deprivations of liberty.
11. Accordingly, FedEx brings this action for declaratory and injunctive relief to
secure its constitutional due process and other rights which are imminently threatened by
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Defendants’ enforcement of provisions of § 736 the EAR. Further, the regulatory regime
imposed by the EAR is such a substantial burden that it deprives FedEx of substantive due
process under the Fifth Amendment. Thus, this Court should review, declare unlawful, and
permanently enjoin Defendants’ unconstitutional actions. Further, in implementing this
regulatory regime, Defendants have exceeded their statutory grant of authority under the ECRA,
and Defendants’ actions must be enjoined.
THE PARTIES
12. Plaintiff FedEx is a Delaware corporation with its principal place of business at
942 S. Shady Grove Rd., Memphis, Tennessee 38120. FedEx is a transportation, business
services, and logistics company, with global operations.
13. Defendant DOC is the U.S. agency that implements and enforces the EAR. The
DOC is headquartered at 1401 Constitution Ave., NW, Washington, DC 20230.
14. Defendant Ross is the current Secretary of Commerce and is named in his official
capacity, as well as his successors and assigns. He is charged with certain functions involved in
the implementation of the EAR, and is further authorized to delegate such powers and authority
to subordinate employees within the DOC. The DOC is headquartered at 1401 Constitution
Ave., NW, Washington, DC 20230.
 2
 For instance, “items subject to the EAR” include, inter alia, “[a]ll U.S. origin items wherever
located” and “[f]oreign-made commodities that incorporate controlled U.S.-origin commodities
. . . [i]n quantities exceeding the de minimis levels” established under the EAR. See 15 C.F.R.
§ 734.3(a)(2), (3). A visual inspection of the contents of a package is unlikely to reveal whether
a foreign-made item “incorporates” sufficient controlled U.S. content to make the item subject to
the EAR. Similarly, determining whether an “item subject to the EAR” is described on the CCL
generally requires intimate technical knowledge of the item’s capabilities and makeup.
Consequently, opening packages to ascertain compliance would prove useless and ineffective.
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15. Defendant BIS is a bureau (i.e., an agency) within the DOC. Among other
activities, the BIS administers and enforces the EAR. The BIS is headquartered at 1401
Constitution Ave., NW, Room 2099B, Washington, DC 20230.
16. Defendant Nikakhtar is the current Assistant Secretary for Industry and Analysis
at the BIS and is named in her official capacity, performing the non-exclusive duties of the
Under Secretary for Industry and Security, as well as her successors and assigns. The BIS is
headquartered at 1401 Constitution Ave., NW, Room 2099B, Washington, DC 20230.
JURISDICTION AND VENUE
17. This Court has federal question jurisdiction pursuant to 28 U.S.C. § 1331 because
this action arises under the Due Process Clause of the United States Constitution and the ECRA.
18. The Court also has jurisdiction pursuant to 28 U.S.C. § 2201 as there is an actual
controversy between the parties of sufficient immediacy and reality to warrant issuance of a
declaratory judgment.
19. Venue is proper in this district pursuant to 28 U.S.C. § 1391(e)(1).
STANDING
20. FedEx has standing to bring this complaint against Defendants. As stated above,
FedEx cannot continue to operate without substantial risk of an impending injury resulting from
enforcement actions.
21. FedEx faces substantial criminal and civil penalties. See ECRA § 1760(b)
(criminal penalties of up to $1,000,000), (c) (civil penalties of $300,000 (or twice the value of
the transaction) per individual violation) (50 U.S.C. § 4819(b), (c)).
22. The credible threat of civil and criminal liability places FedEx between a rock and
a hard place—absent the availability of review, FedEx must either forgo lawful activity because
Case 1:19-cv-01840 Document 1 Filed 06/24/19 Page 6 of 19
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of its well-founded fear of prosecution, or willfully violate the Export Controls, thereby
subjecting itself to criminal prosecution and punishment.
23. Indeed, FedEx has already suffered an injury-in-fact. In 2017, the BIS charged
FedEx with fifty-three violations of 15 C.F.R. § 764.2(b), despite already employing a
sophisticated and proprietary risk-based compliance system.
BACKGROUND
I. THE EXPORT CONTROLS REGIME
A. The EAR and its Statutory Underpinnings
24. The EAR, enforced by the BIS, set out the U.S. Government’s principal export
control regime, restricting the international transfer of commodities, technology, information,
and software for reasons of national security and foreign policy.
25. The EAR were originally promulgated pursuant to the Export Administration Act
of 1979 (Pub. L. 96-72) (the “EAA”). The EAA first expired in 1994 and was subsequently
reauthorized. During periods in which the EAA had lapsed, the EAR was kept in force by
presidential emergency declarations pursuant to the International Emergency Economic Powers
Act, 50 U.S.C. § 1701 et seq., (“IEEPA”). The regime was reauthorized by the ECRA in 2018.
26. The EAR control the exports, reexports (shipments or transmissions of items from
one non-U.S. country to another non-U.S. country), and transfers (in-country) of “items subject
to the EAR” by U.S. and foreign persons operating both inside and outside of the U.S.
27. “Items subject to the EAR” include: (i) items exported from the U.S.; (ii) U.S.-
origin items (manufactured in the United States); (iii) non-U.S. produced items that incorporate
greater than de minimis levels of controlled U.S. content by value (with exceptions for certain
Case 1:19-cv-01840 Document 1 Filed 06/24/19 Page 7 of 19
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highly controlled content where any amount is sufficient); and (iv) certain foreign-made direct
products of highly controlled U.S.-origin technology or software. See 15 C.F.R. § 732.
28. The analysis required to make determinations under clauses (iii) and (iv) above is
highly technical, and requires access to detailed information about the amount of U.S. controlled
content contained within a given item and/or specific information about the technology or
software used to create the item.
29. The EAR penalize parties (including common carriers) for “[p]roceeding with
transactions with knowledge that a violation [of the EAR] has occurred or is about to occur,”
including with respect to the mere transport or forwarding of packages. 15 C.F.R. § 736.2(10).
30. The ECRA requires strict compliance with the EAR: “[n]o person may cause or
aid, abet, counsel, command, induce, procure, or approve the doing of any act prohibited, or the
omission of any act required by this title, the Export Administration Regulations, or any order,
license or authorization issued thereunder.” ECRA § 1760(a)(2)(B) (50 U.S.C. § 4819(a)(2)(B)).
31. As noted above, the BIS may impose civil penalties for each individual violation
of the EAR, which include: (i) fines; (ii) revocation of export licenses, and (iii) a prohibition on
the person’s ability to export, reexport, or in-country transfer any “items subject to the EAR.”
ECRA § 1760(c)(1) (50 U.S.C. § 4819(c)(1)).
32. More specifically, the ECRA imposes significant civil and criminal penalties. See
ECRA § 1760(b) (criminal penalties of up to $1,000,000), (c) (civil penalties of $300,000 (or
twice the value of the transaction) per individual violation) (50 U.S.C. § 4819(b), (c)).
B. The BIS Entity List
33. U.S. and foreign persons are required to comply with a wide variety of “General
Prohibitions” regarding “items subject to the EAR,” regardless of the items’ location. 15 C.F.R.
Case 1:19-cv-01840 Document 1 Filed 06/24/19 Page 8 of 19
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§ 736. Among these prohibitions is General Prohibition Five, 15 C.F.R. § 736.2, which prohibits
U.S. and foreign persons from knowingly exporting or reexporting “items subject to the EAR” to
end-users or for end-uses that are prohibited by 15 C.F.R. § 744. Those end-users include
persons on the Entity List, for whom all items subject to the EAR generally require a license. 15
C.F.R. § 744.16.
34. License applications to export, reexport, or transfer items subject to the EAR to
persons on the Entity List are generally subject to a presumption of denial. See Supplement
No. 4 to 15 C.F.R. § 744. In the context of General Prohibition Five’s “knowingly” standard,
“knowledge” is defined broadly to include “not only positive knowledge that the circumstance
exists or is substantially certain to occur, but also an awareness of a high probability of its
existence or future occurrence. Such awareness is inferred from evidence of the conscious
disregard of facts known to a person and is also inferred from a person’s willful avoidance of
facts.” 15 C.F.R. § 772.1.
C. The CCL
35. The CCL is a list of items that trigger BIS export licensing requirements. General
Prohibitions One, Two, and Three prohibit U.S. and foreign persons from exporting or
reexporting without a license “items subject to the EAR” described on the CCL when the
Commerce Country Chart indicates that exports or reexports to the destination country requires a
BIS license. 15 C.F.R. § 736.2
D. There is No Common Carrier Exception in the EAR
36. A common carrier holds itself out to the public as engaged in the business of
transportation of person or property from place to place for compensation, offering its services to
the public generally. Thus, the common carrier undertakes to carry for all people indifferently.
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37. In promulgating the EAR, the DOC did not include any exception for common
carriers.
38. Thus, common carriers that take possession of items for transport that could be
subject to the EAR, without knowledge or the ability to know the jurisdictional status or export
classification of these items, can be held liable if the carrier ships such items in violation of the
EAR.
II. THE EXPORT CONTROL REGIME’S IMPACT ON FEDEX
A. FedEx’s Burdens Under the Entity List
39. The EAR effectively force FedEx to police the content of its packages in a
manner it is not able to do.
40. Even if FedEx were to inspect the contents of every package for reexport that it
delivers, the company would not have enough information to make highly technical
determinations to assess whether an item outside the U.S. is an “item subject to the EAR.”
41. For example, a computer brought to a FedEx location in Germany for shipment to
Indonesia may incorporate greater than a de minimis level of U.S. controlled content by value,
and thus be deemed an “item subject to the EAR” prohibited for reexport to Indonesian parties to
the Entity List, or it may not.
42. Even if FedEx could effectively examine every item tendered, this practice would
curtail the public’s interest in privacy. In the reexport context, requiring FedEx to
indiscriminately inspect every package abroad could place FedEx in violation of codified civil
privacy laws.
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B. The BIS Entity List Imposes an Overbroad, Disproportionate Burden on
FedEx.
43. General Prohibition Five of the EAR profoundly impacts FedEx’s non-U.S.
operations. FedEx cannot comply with the EAR without exceeding what is required by law, by
refusing to ship packages to every person or entity on the Entity List, regardless of whether
doing so would be unlawful.
44. For example, although the EAR impose no restriction on the export of cameras
(without requisite amounts of controlled U.S. content to be subject to the EAR) to an Entity List
party, FedEx would be forced to forgo these shipments, because FedEx does not know whether
or not the package contains “items subject to the EAR.” Thus, the regime would in practice
force FedEx to forgo every export shipment to an Entity List party to ensure strict compliance
with the EAR.
45. A substantial portion of all FedEx international shipments transit through FedEx
facilities in the U.S., including its logistical headquarters in Memphis, Tennessee, en route to
their destinations. These shipments, therefore, become “items subject to the EAR” while in
transit.
46. The DOC provides non-binding “guidance” relating to other provisions of the
EAR. The “Know Your Customer Guidance” states that, “absent ‘Red Flags’ (or an express
requirement in the EAR), there is no affirmative duty upon exporters to inquire, verify, or
otherwise ‘go behind’ the customer’s representations.”3
 The lack of guidance, however, related
to the obligations required of FedEx in order to comply with the BIS Entity List imposes an

3
 Know Your Customer Guidance, Bureau of Indus. & Sec. (2019),
https://www.bis.doc.gov/index.php/all articles/23 compliance-a-training/47-know-yourcustomer-guidance.

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overbroad and disproportionate burden on FedEx. Indeed, the same is true for the EAR licensing
requirements to ship to certain countries based on the export classification of the product.
47. The EAR regulations as applied to the BIS Entity List as its stands today, in
effect, require FedEx to refuse a large share of its international shipments to guarantee it would
not be subject to an enforcement action.
C. The EAR Impose an Overbroad, Disproportionate Burden on FedEx to
Comply with Export Licensing Requirements Based on Country of
Destination.
48. The inclusion of the CCL in the EAR also effectively forces FedEx to police the
content of its packages on an almost infinitely broad scale. Under General Prohibitions One,
Two, and Three, U.S. and foreign persons are prohibited from exporting or reexporting “items
subject to the EAR” that trigger BIS licensing requirements, unless such a license has been
obtained. See 15 C.F.R. 736.2(b)(1)-(3).
49. These licensing requirements would apply to the shipper and also to FedEx.
50. If a package FedEx ships to a foreign country contains any “item subject to the
EAR” that is restricted for export to that country under the CCL, FedEx could be charged with
violating General Prohibitions One, Two, or Three, as appropriate, because it would have
engaged in a prohibited export or reexport.
51. The only way for FedEx to even attempt to avoid inadvertently violating General
Prohibitions One, Two, and Three would be to inspect the contents of every package tendered for
shipment. Alternatively, FedEx would have to cease shipping to listed entities in any of the more
than 200 foreign jurisdictions on the Commerce Country Chart, which would make it unable to
operate as a common carrier.
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III. THE BIS HAS ALREADY ENFORCED THE EAR AGAINST FEDEX
52. FedEx is presently operating under a settlement agreement with the BIS, entered
into on April 23, 2018 (the “Settlement Agreement”).
53. FedEx settled an administrative proceeding in which the BIS alleged that FedEx
committed 53 violations of the EAR. Specifically, the BIS alleged that FedEx “caused, aided or
abetted acts prohibited by the [EAR]” when it transported “items subject to the [EAR] . . . valued
in total at approximately $58,091, from the United States to . . . France, or Pakistan, without the
required BIS licenses.” See Order Related to Federal Express Corporation d/b/a FedEx Express,
¶ 1, In re Federal Express Corporation, 17-BIS-0006 (Apr. 24, 2018).
54. The Settlement Agreement required that FedEx pay a civil penalty of $500,000,
plus interest. Further, FedEx is required to “complete external audits of its export controls
compliance program covering FedEx fiscal years 2017-2020.” Id., Order at 4. This requires
FedEx to hire a third party consultant “to conduct the external audits . . . with respect to all
exports or reexports to parties on the BIS Entity List and Denied Persons List that are subject to
the [EAR.]” Id. FedEx must report to the BIS where these audits “identify actual or potential
violations of the Regulations.” Id.
55. The Settlement Agreement further provides that “if FedEx should fail to pay the
civil penalty in a full and timely manner or fail to complete any of the audits and submit the
results in a full and timely manner, [the BIS] may issue an order denying all of FedEx’s export
privileges under the [EAR] for a period of one year . . . .” Id.
56. The penalties attendant to such agency enforcement actions are significant: the
civil penalty in the Settlement Agreement was equivalent to an 860% premium on the value of
the prohibited items.
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IV. THE BURDENS ON FEDEX RESULT FROM THE DOC’S FAILURE TO INCLUDE
A COMMON CARRIER EXEMPTION IN THE EAR
57. Congress never imposed or authorized the imposition of an inspection regime on
common carriers, likely because of the extraordinary burdens it would place on a common
carrier like FedEx.
58. At all relevant times, FedEx is and was functioning as a common carrier.
59. The law shields internet service providers and telecommunications companies
from certain liabilities because they are common carriers that merely provide a conduit for their
customers to exchange communications in the marketplace.
60. Yet, the DOC promulgated the EAR without any safe harbor for common carriers
like FedEx. As a result, the EAR impose a de facto duty to inquire. This is contrary to
Congress’s intent with respect to common carriers.
61. FedEx does know the identity of the shipper and the consignee. Accordingly,
FedEx screens these parties before shipment and has the ability to stop any shipment to an entity
on the Entity List.
62. However, because FedEx does not have the information necessary to determine
whether the contents of the shipment are subject to the EAR, its risk-based compliance policies
necessarily have traditionally prohibited all shipments destined for an Entity List consignee.
63. This is the only way FedEx can fulfill the compliance responsibilities arising from
the addition of a party to the Entity List.
64. In the absence of any other means to address the requirements imposed by the
EAR, FedEx is compelled to refrain from carrying out even lawful transactions. This result is
damaging to FedEx’s business.
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FIRST CAUSE OF ACTION
(The Due Process Clause of the Fifth Amendment of the United States Constitution)
65. Plaintiff FedEx incorporates by reference, as if fully restated herein, paragraphs 1
through 65 above.
66. The Due Process Clause of the Fifth Amendment provides that “[n]o person shall
. . . be deprived of life, liberty, or property, without due process of law.” U.S. Const. amend. V.
67. The EAR, as applied to FedEx, are an unconstitutional infringement upon
FedEx’s substantive Due Process rights under the Fifth Amendment.
68. Inherent in the powers granted to it by the Constitution, this Court is empowered
to enjoin unconstitutional government acts.
69. As the EAR now stand, FedEx is certain to find itself in violation of the EAR, and
will suffer irreparable harm if forced to cease significant business operations in order to
eliminate any risk of violation.
70. It is practically impossible for the common carrier to comply with many of the
EAR’s prohibitions in many situations.
71. The language of the EAR imposes a constitutionally unsupportable choice for
FedEx. Either FedEx can comply with the regulations as written, requiring it to cease all
business operations that create a reasonable risk of violation according to the statute, or proceed
with its business operations and face a substantial risk that it will violate the EAR and suffer
harm.
72. As a result, the EAR deprive FedEx of liberty and property by arbitrarily and
irrationally precluding FedEx from carrying out the basic functions of its business as a common
carrier.
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73. Accordingly, FedEx is entitled to a declaration that the EAR violate FedEx’s
constitutional Due Process rights, and an order permanently enjoining Defendants from
enforcing provisions of § 736 of the EAR against FedEx, as necessary to address the concerns
raised in this First Cause of Action.
SECOND CAUSE OF ACTION
(Violation of Export Control Reform Act 2018)
74. Plaintiff FedEx incorporates by reference, as if fully restated herein, paragraphs 1
through 74 above.
75. There is a well-established presumption favoring judicial review of administrative
action.
76. Even when a statute exempts agency action from administrative review under the
Administrative Procedures Act, 5 U.S.C. §§ 500-596, 701 et seq., judicial review is favored
when an agency is charged with acting beyond its authority.
77. Defendants’ promulgation of the EAR as it now stands is an ultra vires agency
action, subject to judicial review regardless of any statutory administrative review exemption.
78. Defendants’ own regulations (the EAR), are insufficient to expand the scope of
their authority beyond that delegated by statute, i.e. the ECRA.
79. Section 1752 of the ECRA sets forth, in paragraphs 1 through 10, the policy
objectives of the ECRA.
80. The primary policy of the U.S. under the ECRA is as follows:
To use export controls only after full consideration of the
impact on the economy of the United States, and only to the
extent necessary—
(A) to restrict the export of items which would make a
significant contribution to the military potential of any
other country or combination of countries which would
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prove detrimental to the national security of the United
States; and
(B) to restrict the export of items if necessary to further
significantly the foreign policy of the United States or to
fulfill its declared international obligations.
ECRA § 1752(1) (50 U.S.C. § 4811(1)) (emphasis added).
81. The ECRA also requires that the “export control system must ensure that it is
predictable . . . .” ECRA § 1752(8) (50 U.S.C. § 4811(8)).
82. The ECRA restricts implementation and enforcement of the EAR “only in
furtherance of all of the objectives set forth in paragraphs (1) through (10).” ECRA § 1752(11)
(50 U.S.C. § 4811(11)).
83. The EAR’s broad prohibition on aiding and abetting, without exception, exceeds
Defendants’ authority to use the export controls “only to the extent necessary” to protect the
national security of the United States or further significantly its foreign policy.
84. FedEx cannot realistically avoid violating the “aiding and abetting” provision of
the EAR (15 C.F.R. § 764.2(b)).4
85. The EAR also broadly provide that entities,
may not sell, transfer, export, reexport, finance, order, buy,
remove, conceal, store, use, loan, dispose of, transport, forward, or
otherwise service, in whole or in part, any item subject to the EAR
and exported or to be exported with knowledge that a violation of
the Export Administration Regulations, the Export Administration
Act or any order, license, License Exception, or other authorization
issued thereunder has occurred, is about to occur, or is intended to
occur in connection with the item.
15 C.F.R. § 736.2(1) (emphasis added).

4
 As noted above, this provision provides: “No person may cause or aid, abet, counsel, command,
induce, procure, or permit the doing of any act prohibited, or the omission of any act required, by
the EAA, the EAR, or any order, license or authorization issued thereunder.” 15 C.F.R.
§ 764.2(b).
Case 1:19-cv-01840 Document 1 Filed 06/24/19 Page 17 of 19
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86. The term “knowledge” is broadly defined in the EAR and includes awareness of a
high probability that circumstances exist. 15 C.F.R. § 772.1; supra, ¶ 34. This broad definition
precludes any safe harbor for common carriers, like FedEx, for inadvertent violations of the
EAR.
87. This definition of “knowledge” is virtually guaranteed to capture unintentional
violations of the EAR that FedEx could never sufficiently protect against.
88. EAR Section 736.2 demonstrates that Defendants have acted outside the statutory
authority granted to them by the ECRA, and their actions are thus subject to judicial review as
ultra vires acts.
89. Accordingly, FedEx is entitled to a declaration that the EAR are unlawful ultra
vires agency actions, and an order permanently enjoining Defendants from enforcing provisions
of § 736 of the EAR against FedEx, as necessary to address the concerns raised in this Second
Cause of Action.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff, FedEx Corporation, respectfully requests that the Court issue
the following relief:
a) An order granting permanent injunctive relief in favor of Plaintiff and against
Defendants that prohibits Defendants from enforcing § 736 the EAR against
Plaintiff, as necessary to address the concerns raised in this Complaint;
b) Declare that the EAR are unlawful as applied to Plaintiff;
c) Award Plaintiff its costs and expenses, including reasonable attorneys’ fees; and
d) Award such further and additional relief as is just and proper.
Case 1:19-cv-01840 Document 1 Filed 06/24/19 Page 18 of 19
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Dated: June 24, 2019
Respectfully submitted,
By: /s/
Maurice A. Bellan
DC Bar No. 992051
maurice.bellan@bakermckenzie.com
Kenneth P. Quinn
DC Bar No. 495423
Admission Request Forthcoming
kenneth.quinn@bakermckenzie.com
Kimberly F. Rich
Texas Bar No. 24010344
Pro Hac Vice Application Forthcoming
kimberly.rich@bakermckenzie.com
BAKER & McKENZIE LLP
815 Connecticut Avenue NW
Washington, DC 20006
Tel: (202) 452-7057
Fax: (202) 416-7024
Attorneys for Plaintiff, FedEx Corporation
Case 1:19-cv-01840 Document 1 Filed 06/24/19 Page 19 of 19