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

> Court of Appeals for the D.C. Circuit · October 23, 1984 · 746 F.2d 865

URL: https://www.frixlaw.com/law-library/cases/9472753

## Case

- **Full name:** AMERICAN AIRWAYS CHARTERS, INC., Appellant v. Donald REGAN, Secretary of the Treasury, Et Al.
- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** October 23, 1984
- **Citations:** 746 F.2d 865; 241 U.S. App. D.C. 132; 1984 U.S. App. LEXIS 17472
- **Precedential status:** Published
- **Opinion:** Concurring in part by MacKinnon
- **Judges:** MacKinnon, Ginsburg, Greene
- **Cited by:** 43 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9472753

## How later opinions describe it (automated extraction)

- concluding that advance government approval apparently was not needed for bare representation

## Opinion text

MACKINNON, Senior Circuit Judge
(dissenting in part and concurring in remand):
In my opinion, this case should be remanded to the district court to determine whether or not a case or controversy exists. That court has not been allowed to evaluate the latest developments in the case, and should be permitted to consider, in the first instance, a variety of issues which are far from clear on this record and which undermine the majority’s attempt to reach the merits of the case. I do not join the majority’s opinion, which relies on a record that contains far more questions than answers and which signficantly impairs the ability of the Government to supervise and control the business activities of Cuban entities within the United States.
I.
First, some facts which are not noted in the majority’s opinion place the actions of the Office of Foreign Assets Control (the “Control Office”) in a more reasonable light than does the majority’s opinion. This is not, as the majority implies, a case *878 where some hapless corporation finds itself caught in the coils of a Kafkaesque bureaucracy that is systematically attempting to deprive it of its rights. It is, in fact, a case where the Government is questioning the continuing validity of an alleged employment contract under which an admittedly Cuban-controlled corporation may be charged $100 an hour in legal fees — for no specified corporate purpose — thus using up limited corporate assets that are needed to pay off the corporation’s creditors.
It is undisputed at this point that Cuba controlled American Airways Charters, Inc. (“Airways”), a Florida corporation. That designation has never been challenged, and is not being challenged in this litigation. Airways’ president and co-owner, Fernando Fuentes, already has been convicted of violating the Trading With the Enemy Act (“the Act”), for allowing assets of Airways to come into Cuban hands after it had been determined to be a Cuban national. His criminal conviction is not being challenged here. Fuentes’ partner in Airways, Roger Dooley, was also indicted, and is now a fugitive from justice outside the United States. The present validity of an “open-ended” employment contract which it is claimed was entered into by Fuentes, after the corporation came under the jurisdiction of the Control Office, is an open question.
On April 7, 1982, Airways was designated by the Control Office as a “specially designated national” of Cuba (J.A. 15-16, 69). 1 Thereafter, on the same day, Fuentes ordered one of Airways’ planes to be flown on an unscheduled flight to Cuba. Affidavit of Dennis M. O’Connell, Director of Office of Foreign Assets Control (J.A. 72-74). 2 The plane and other assets remaining in Cuba amount to about $375,000. That flight, made in defiance of American law, deprived the United States of a valuable asset that may be necessary to pay creditors of Airways. The Government, as the majority concedes, has a valid interest in preventing United States property from coming into Cuban hands.
The specific events leading to this section began on or about September 8,1982, when Fuentes (according to his affidavit) informed a lawyer, Harold Mayerson, that he wanted him to represent Airways. This was five months after Airways had been designated as a Cuban national. At a subsequent conference with representatives of the Control Office on September 16, 1982, Mayerson presented two letters: one from Fuentes (dated September 13) and one from Mayerson (dated September 15). Both letters notified the Control Office that Mayer-son had been retained to act as counsel to Airways. The Control Office advised Mayerson that a formal application was necessary under the Act and its implementing regulations. Mayerson refused to make formal application for a license. He later brought this action in Airways’ name in the district court. The court dismissed the action for lack of a case or controversy. Mayerson appealed.
After argument on appeal, this court ordered Mayerson to apply for a license. He did so. The Control Office replied promptly by letter of April 12,1984, as set forth in the margin. 3 The Control Office’s letter *879 was in the form of a “conditional license,” which conditioned Mayerson’s employment on his furnishing additional information to the Control Office. Most of the additional information — including information regarding Mayerson’s extensive contacts with other Cuban entities — has not been produced. Airways was subject to control under the Trading With the Enemy Act when it is claimed Mayerson was designated, and because he was hired by Fuentes (under whose presidency Airways was allowed to become a Cuban national) and because he seeks approval for his continuing employment as counsel, for no disclosed purpose., 4 under a contract which he contends authorizes him to bill Airways $100 an hour for his services, the Control Office has continued in its refusal to license Mayer-son, except on a conditional basis as heretofore noted. The inquiry by the Control Office to determine that Mayerson was properly authorized to represent the Corporation, that he was not actually intending to represent Fuentes, and that he had no conflict of interest that would disqualify him from representing Airways were all proper pre-license inquiries. So was the attempt to determine if Fuentes was trying to extend his authority and act as president of Airways after his disqualification.
II.
This case is simply not in the proper posture to permit resolution of the complex issues it contains. The district court ruled on the situation as it found it; the situation has now changed, and the case should be remanded for further proceedings.
At the time the district court rendered its decision in this case, Mayerson had not applied for a license to represent Airways. On appeal, it was clear that Mayerson had not exhausted his administrative remedies before bringing suit. The situation of this case was so muddled at oral argument that this court, to try to clear up some of the confusion, took the unusual step of ordering Mayerson to apply for a license. He did so. The Control Office responded by issuing a “conditional license” which demanded certain information and stated that the license would become effective only when someone currently authorized to act for Airways requested Mayerson’s services. This “conditional license” marks the first time in this litigation that the agency has done anything beyond stating that it did not consider Mayerson to be Airways’ lawyer. Thus, there is now — for the first time in this case — some concrete agency action for the trial court to review.
*880 Moreover, it is entirely possible that there is still no case or controversy because •when it was instituted the suit brought by Mayerson had not been properly authorized by responsible officers or directors of Airways. This lack of specific authority to institute the lawsuit when it was filed distinguishes this case from Dean Witter Reynolds, Inc. v. Fernandez, 741 F.2d 355 (11th Cir.1984). The majority’s approach to this problem is to assert the bald conclusion that “facts not in dispute” demonstrate that the suit was properly authorized. See Maj. at n. 5. But on this record it is impossible to determine that Mayerson had adequate corporate authorization to bring this suit. The continuance of Mayer-son’s authority to act as a lawyer for Airways and to institute this specific suit at the time he did are, under the Trading With the Enemy Act, valid subjects for inquiry by the Control Office. The Control Office in making the inquiries posed by its conditions is exercising a specific duty imposed upon it by Congress and is not to be considered as a stranger to the situation.
Fuentes claims in an affidavit that, prior to his disqualification, he directed Mayer-son “to take any and all actions necessary to represent [Airways’] rights and interests with respect to [the Control Office] or any other legal matter” (J.A. 32) (emphasis added). The delegation of such broad corporate authority is clearly ultra vires even a legal corporate president. A secret shareholders’ meeting of Fuentes and Dooley in the Bahamas, that may or may not have been legal, apparently attempted to “ratify” Fuentes’ action. 5 Neither this shareholders’ meeting, nor a subsequent directors’ meeting, purported specifically to authorize the initiation of any lawsuit. The present suit was not specifically “ratified” by the shareholders. One issue is whether or not Fuentes’ very broad statement, made long before this lawsuit was filed, and long before the subsequent attempted “ratification” of that statement, authorized the attorney to bring this specific lawsuit.
The majority relies for its position on this point on a section of a general treatise, which does not support its position. The treatise states:
The general rule that an attorney, who is clothed with no other authority than that arising from his employment in that capacity, has no power to compromise or settle or release and discharge his client’s claim, applies equally to attorneys for corporations____ The general counsel of a corporation, in the absence of provision in the charter or bylaws, has no authority to institute and prosecute suits without the sanction of the directors or other proper officer____ But such an attorney may do all things incidental to the prosecution of the suit but which affect the remedy only and not the cause of action.
9 W. Fletcher, Cyclopedia of the Law of Private Corporations § 483 (rev. perm. ed. 1982) (emphasis added). The work goes on to state specifically that “[a]s a general rule the control of the conduct of litigation is the responsibility of the directors.” 2 W. Fletcher, supra, § 4119 (rev.perm.ed. 1976) (emphasis added). Those provisions specifically apply to corporate general counsels; for outside retained attorneys like Mayerson, the rule is as follows:
They cannot themselves bring suits for the corporation, unless specially authorized, nor can they compromise or release a corporate claim; but they may do all things incidental to the prosecution of *881 the suit, and which affect the remedy only and not the cause of action.
Id. § 4220. Thus, even relying on the source cited by the majority, a lawyer cannot bring a lawsuit on behalf of a corporation unless, at the very least, he has been “specially authorized” to bring that particular suit. There is no “special” authorization for this suit in the present record, nor is any such authorization claimed. The district court has not passed upon whether Fuentes’ claim of direction to “take any and all actions necessary to represent” Airways on “any legal matter” is adequate special authorization to bring this particular suit. On the contrary, it appears to be an attempt to delegate an overly wide discretion to institute law suits that is specifically vested by statute in the directors. This court on appeal cannot properly decide such a fact-based issue on the present record.
Moreover, the majority’s reliance on an ambiguous paragraph from a general treatise for such an important point is curious. Clearly, the question of whether an agent has authority to bring a lawsuit is a matter of state law. In this case, as the majority frequently stresses, it is Florida law. Although the majority repeatedly chastises the Control Office — unjustly—for allegedly failing to determine Florida law, 6 it does not attempt to determine Florida law on this issue. 7 Either Florida law governs the *882 internal workings of this corporation, or it does not. It cannot be followed on some issues and ignored on others.
The district court has not had the opportunity to determine Florida law on this point, or to evaluate the initial validity or subsequent continuance of the FuentesMayerson relationship in light of that law. It is impossible on the present record to determine if this suit was properly authorized. That task is properly one for the trial court.
Despite their harsh condemnation of the Government, their claim to lofty principles of justice, and their high-sounding language, the majority and concurring opinions have merely gone a long way toward making this difficult case even more complicated. If the district court “stumbled” over the pitfalls of this case, see Maj. at 869, the majority, by contrast, has executed a half gainer onto the pavement. In its apparent eagerness to impugn the ethics and integrity of the Office of Foreign Assets Control, the majority has evaded all the jurisdictional problems and simply declared its own rule of law. Because the district court should pass on these questions in the first instance — especially in a case such as this where the factual record is in a highly unsatisfactory state for meaningful appellate review — I would remand to the district court to allow it to review the conditional license upon an adequate evidentiary record. 8
III.
If it were necessary or proper to reach the merits of this case, as the majority has, I would have very serious doubts as to the majority’s purported resolution of the issues. Most of those doubts revolve around the majority’s attempt to either (1) ignore the fact that this case involves an employment contract, or (2) draw some kind of line between employment contracts for lawyers and those for accountants, consultants, and mechanics. Without attempting to decide the issues or provide detailed analysis, the following are my areas of disagreement with the majority and the concurring opinions.
A.
It is a basic principle that authority over the foreign affairs of the United States is constitutionally vested in the Executive Branch of our Government, subject to some legislation that must pass constitutional muster. The Judiciary necessarily has a limited role to play. As the Supreme Court recently noted, “Matters relating ‘to the conduct of foreign relations ... are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference.’ ” Regan v. Wald, — U.S.-at-, 104 S.Ct. 3026, 3039 , 82 L.Ed.2d 171 (1984) (quoting Harisiades v. Shaughnessy, 342 U.S. 580, 589 , 72 S.Ct. 512, 519 , 96 L.Ed. 586 (1952)).
The authority delegated by Congress to the President under the Trading With the Enemy Act is considerable. “[B]oth the legislative history and cases interpreting the [Act] fully sustain the broad authority of the Executive when acting under this Congressional grant of power.” Dames & Moore v. Regan, 453 U.S. 654, 672 , 101 S.Ct. 2972, 2983 , 69 L.Ed.2d 918 (1981). The Supreme Court only recently refused to hold that the power originally granted to the President in the Act — and grandfathered as to Cuba under 1977 amendments to the Act — is to be narrowly construed. See Regan v. Wald, supra.
*883 Examining the statute in light of the President’s broad authority, it seems apparent that employment contracts of lawyers for countries or entities covered by the Trading With the Enemy Act would fall within the range of transactions for which the Control Office may require licenses. Section 5(b) of the Act provides that the Control Office, through “such rules and regulations as [it] may prescribe, by means of instructions, licenses, or otherwise,” has the authority to
investigate, regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power or privilege with respect to, or transactions involving, any property in which any foreign country or a national thereof has any interest by any person____
50 U.S.GApp. § 5(b)(1)(B); 91 Stat. 1625 (emphasis added). Pursuant to this delegation of power, the Secretary of the Treasury promulgated Cuban Assets Control Regulation C.F.R. § 515.201(b), 9 which provides:
(b) All of the following transactions are prohibited, except as specifically authorized by the Secretary of the Treasury ... by means of regulations, rulings, instructions, licenses, or otherwise
(1) All dealings in, including, without limitation, transfers, withdrawals, or ex-portations of, any property____
The regulations specifically apply to “transfers of property” which is specifically defined in the Regulations as follows:
any actual or purported ... transaction ... the purpose, intent, or effect of which is to create ... any right, ... power, ... or interest with respect to any property and ... shall include the making of any power of attorney, ... contract, the appointment of any agent, or the exercise of any power of appointment ... or other power.
3 C.F.R. § 515.310 (emphasis added). It thus appears that hiring a lawyer at $100 an hour “to take any and all actions necessary to represent [Airways’] rights and interests with respect to [the Control Office] or any other legal matter” (J.A. 32) constitutes “making a power of attorney,” “making a contract,” or “appointing an agent,” and hence is a “transaction” subject to licensing by the Control Office. This authority brings attorney’s contracts within the jurisdiction of the Trading With the Enemy Act in a manner similar to the way 11 U.S.C. § 327 (a) of the Bankruptcy Act brings the employment of attorneys within its jurisdiction:
§ 327. Employment of professional persons
(a) Except as otherwise provided in this section, the trustee, with the court’s approval, may employ one or more attorneys, accountants, appraisers, auctioneers, or other professional persons, that do not hold or represent an interest adverse to the estate, and that are disinterested persons, to represent or assist the trustee in carrying out the trustee’s duties under this title.
(Emphasis added.) Under both Acts it is legitimate for the agency charged with carrying out the terms of the Act to inquire whether an attorney purporting to act for a subject corporation does “hold or represent an adverse interest to the estate [or corporation] ...” Id.
The majority cites some legislative history that it admits is “less than crystalline,” but ignores one other indication of Congress’ intent. Forty-one years ago, the court in Alexewicz v. General Aniline & Film Corp., 181 Misc. 181 , 43 N.Y.S.2d 713 (Sup.Ct.1943), relying on essentially identical language, held:
[T]he Secretary of the Treasury, acting through his designated Treasury representative, had ample authority to condition the defendant’s continuance in business upon a severance of relationships with those individuals whom the Govern *884 ment believed to be improper employees. Having the power to regulate or prohibit in toto the financial operations of the defendant, it had the implied authority to condition the continuance of the license to do business upon its approval of the employment practices of the corporation.
Id. at 724. The relevant provisions interpreted in the Alexewicz decision have continued substantially unchanged by Congress for these many years. This continuing Congressional acquiescence indicates that Congress did not consider such employment contracts to be beyond the reach of the Treasury. 10
Indeed, the majority ultimately decides not to decide whether employment contracts as a class cannot be affected by the Control Office. But it seems clear that the majority would not have reached the same decision had the Office merely required a license for the hiring of an outside auditor. It is apparently the hiring of an attorney that makes the equation different. The majority tries to distinguish between the “bare formation of an attorney-client relationship,” Maj. at 871, and the actual retention of counsel, which obviously implies payment.
B.
That an attorney — rather than a pipefitter — is involved in this case does not necessarily alter the legal situation. The majority justifies its narrow restriction of the Control Office’s authority as necessary to avoid possible constitutional infirmities, i.e., infringement of the right to counsel. But this case does not involve a right to counsel under the Sixth Amendment (it is not a criminal case) or a right under the due process clause. The question is not whether the corporation had a right to appoint Mayerson as counsel, but whether the corporation properly authorized him to bring the suit.
I note, however, that the majority attempts to protect the right to counsel by drawing a theoretical line between issuing a license to a lawyer permitting him to enter into an employment contract, and issuing a license permitting him to be paid for performing under that contract. The majority apparently recognizes that the Control Office is free to refuse to allow Airways to pay Mayerson, but holds that it cannot forbid entry into the contractual relationship itself. In other words, the Office can bar performance of contracts for legal services, but not creation of such contracts. That is a very fine distinction, and hardly a practical one. It seems elementary that if one has a right to a lawyer it must include a right to pay the lawyer. 11 An employment contract is generally considered to include both services and reasonable compensation.
Mayerson claims to have been hired as Airways’ lawyer. He thus contends he has a contractual relationship with the corporation. He is not representing it on a pro bono basis; he fully intends to be paid his $100 an hour fee for whatever services he renders, and he intends to be paid out of the corporate assets that the Government is trying to preserve for Airways’ creditors. To assert that the Control Office cannot forbid the creation of a contract to provide legal services at $100 an hour, but can forbid its performance, would exalt form over substance. On this point, the concur *885 ring opinion concurs with this opinion that Mayerson cannot be paid by the corporation unless authorized by the Control Office.
C.
Part III of the majority’s opinion attempts to buttress its case by the use of a straw man: the majority characterizes the Control Office’s position as authorizing it to “tak[e] the corporation over from the inside.” The Government has never made such an argument. It simply claims the authority to regulate Airways’ external relationships, including entry into a contract for legal services not properly authorized by the corporation or the Control Office.
The majority begins by asserting that [the Control Office] has no authority to seize the corporation itself, to vest its assets, or — beyond the power it has over employment contracts entered into by [Airways] — to rearrange its internal affairs.
Maj. at 874. The Office, however, has made no attempt to “seize the corporation,” or “vest its assets,” or “rearrange its internal affairs.” It has done only two things: (1) prohibit the president from acting for the corporation (which the majority acknowledges that it may do), and (2) prohibit the creation of an employment contract without a license from the Control Office.
The majority goes on to state:
But [the Control Office] may not, to give an extreme example, take a member of its own staff and, without regard to [Airways’] corporate structure, install that person as [Airways’] new chief executive officer, thereby controlling [Airways’] operations from the inside.
Maj. at 875. The Control Office has not, of course, done this. Should it attempt improperly to do this at some time in the future, it can properly be reprimanded. Since it has not, the majority is just building straw men.
Finally, the majority suggests that the Control Office has failed to show “how taking the corporation over from the inside ... furthers the balancing of interests embodied in the congressional external control scheme.” Maj. at 875. The Office’s failure to make that showing may be due to the fact that it has never attempted to take over the corporation.
All of this miscast argument leads up to part IV of the opinion, in which the Control Office’s understandable reluctance to license the creation of an open contract obligating Airways to pay $100 an hour in legal fees is somehow found to be unworthy of the officers of our great Government. On the contrary, what evidence appears in this generally inadequate record supports an inference that the Control Office has acted in an intelligent, competent manner, and apparently within the scope of statutory and constitutional authority.
IV.
In sum, the majority’s attempt to draw a line between creation and performance of contracts is unconvincing; its misapplication of the right to counsel concept overlooks the fact that the real question is whether counsel under the corporate articles and bylaws and the laws of Florida was properly authorized to bring this lawsuit; and its refusal to recognize the broad foreign affairs authority of the Executive when acting pursuant to additional authority from the Congress usurps the constitutional power vested in the President and the Congress.
Most importantly, however, it is entirely possible that there is no case or controversy, and the district court should be permitted to address that issue on remand. For that reason, I agree with the remand to the district court. As to the legal issues purportedly resolved in the majority and concurring opinions, 12 I must respectfully dissent.
. The effect of this designation was to block all of Airways' assets and prohibit any transactions in property without a license from the Control Office.
. These allegations, made in the O'Connell affidavit, are not refuted by the appellants.
. In response to your application of March 30, 1984 on behalf of American Airways Charters, Inc. ("AAC”), pursuant to the March 29, 1984 Order of the United States Court of Appeals for the District of Columbia Circuit, the following action is taken:
1. You are hereby authorized to represent AAC as counsel until April 12, 1985, effective ten days following the receipt by this Office of satisfactory evidence and information in accordance with the conditions set forth in paragraphs two and three. This Office will conduct a review of the information and notify you prior to the expiration of the ten-day period whether the conditions have been satisfied.
2. You are required to present to this Office satisfactory evidence, including appropriate documentation, that a person currently authorized to act for AAC has retained your services on behalf of the corporation.
3. You are required to present to this Office the following information:
*879 a. Have you ever represented any person or persons identified in your response to paragraph two above in any matter or have you been retained by such a person? If so, please identify the time period and explain the nature of the representation in detail.
b. Whose instructions do you intend to follow with regard to your representation involving AAC matters?
c. What are the scope and nature of your anticipated activities for or on behalf of AAC as legal counsel to AAC?
d. What is the anticipated cost of your services and what is the anticipated source of funds for payment of fees?
e. What relationship do you have now and have you had with Marazul Tours, Inc., a New York travel agency and air carrier providing Cuban travel services to Cuba?
f. What contact or dealing, if any, do you have, or have you had, with Havanatur, a Cuban controlled firm that is AAC’s largest debtor and creditor, since January 1, 1982? Please explain in detail.
g. Please explain why it would not be a conflict of interest for you to represent AAC in light of the fact that you now represent or have very recently represented Marazul, which is dependent on concessions from Cuba for its significant Cuban travel business, and the Cuban entity Havanatur is AAC’s principal debtor and creditor.
4. You are hereby advised that this license authorizes only the representation described in paragraph one and does not authorize any further actions or transactions involving AAC or its assets, including debits to any AAC funds. Any such further transactions would require separate specific licensing action by this Office.
5. Unless extended, this license expires 30 days from the date of issuance thereof if the conditions set forth herein have not been satisfied by that date.
(Emphasis added.)
There is no indication in the record, which the concurrence seems to overlook (Conc.Op. p. 876), that Mayerson is seeking to bring a belated action to contest its designation as a "Cuban national.”
. A substantial question exists whether the shareholders’ meeting in the Bahamas comported with Florida law. Florida requires that a "majority” of the outstanding shares constitutes a quorum for conducting business, unless otherwise provided in the bylaws. Fla.Stat. § 607.-094. There is no evidence in the record as to how much of Airways stock each co-owner had. The May 27, 1983, meeting was conducted nine months after Fuentes was barred from acting for the corporation by the Control Office on September 17, 1982. The question is whether Fuentes, who had been disqualified from acting for Airways, could nevertheless thereafter exert control through a shareholders' meeting. If not, it is entirely possible that there was not a valid quorum present at the secret meeting. Such a fact-based question is obviously one that is initially for the trial court.
. The majority repeatedly implies that the Control Office somehow failed to follow Florida law when it decided that Airways’ vice president was the proper person to deal with when its president was incapacitated. There is nothing in the record to indicate that the Control Office erred in recognizing Vice President Masdeu as the legal spokesman for Airways. The majority itself, since it has not consulted Florida law, is not in a position to determine whether Masdeu is or is not the proper individual, yet it is willing to criticize implicitly the Office’s actions.
Actually, Florida law provides that “[ajll corporate powers shall be exercised by or under the authority of ... a board of directors,” although the articles of incorporation (which do not appear in this record) may provide otherwise. Fla.Stat. § 607.111(1). Thus, this court does not know whether the directors or the officers have the power to exercise "all corporate powers.” The only required officers of a corporation in Florida are (1) the president, (2) the secretary, and (3) the treasurer. Id. § 607.-151(1). And the law provides that:
All officers and agents, as between themselves and the corporation, shall have such authority and perform such duties in the management of the corporation as may be provided in the bylaws or as may be determined by resolution of the board of directors not inconsistent with the bylaws.
Id. § 607.151(2) (emphasis added). It thus is clear that the question of who can act for Airways is not determined wholly by the Florida statute. What is required, as is usual under corporate law, is an examination of Airways' bylaws and its corporate resolutions. As these bylaws are not conclusive and the other corporate records are not in the record, the majority is in no position to criticize the Control Office’s decision.
Similarly, the majority dismisses the Control Office’s argument that Mayerson’s authority lapsed when Fuentes was barred from acting by stating that the Office "misperceives agency law.” Maj. at 874 n. 17. Despite its insistance on the applicability of Florida law, the majority cites solely to the Restatement (Second) of Agency, as if there was some overriding federal common law of agency. The Restatement rule may or may not coincide with that adopted by the courts of Florida, but Florida law must be examined before summarily dismissing an argument.
. The majority does cite a Florida decision, Conlee Construction Co. v. Cay Construction Co., 221 So.2d 792 (Fla.Dist.Ct.App.1969), for the uncontroversial principle that "the president of a corporation has authority to engage the services of counsel on the corporation's behalf.” Maj. at n. 5. But the question is not whether Fuentes could hire Mayerson to advise the corporation, but whether Fuentes himself could authorize the bringing of a particular suit, and whether Fuentes’ very general statement amounted to such authorization. In Conlee, the board of directors deadlocked over whether to give special authorization for a suit; the president, who was a stockholder and authorized in that capacity to sue on behalf of the corporation, instituted suit to benefit the corporation. The court recognized that the Florida statute provides that ”[t]he business of every corporation shall be managed and its corporate powers exercised by a board of not less than three directors,” see Fla.Stat. § 609.09, but noted that if directors are hopelessly deadlocked, “the president as chief executive officer of a going concern may even in the face of a deadlock take steps to protect corporate interests where immediate and vital injury threatens." 221 So.2d at 796 . Under those circumstances, the court held that the suit was authorized. The case asserts that "in the absence of internal conflict, the president ...” may hire attorneys and institute suits. 221 *882 So.2d at 795 . But, internal conflict did exist here and the sanctions imposed by law as a result of the determination by the Control Office also satisfy that standard. Conlee did not purport to decide whether in the absence of explicit authorization from the board of directors, an earlier general designation by a corporate officer of a lawyer for no specific corporate purpose permits the lawyer on his own authority to institute lawsuits in the name of the corporation.
. The majority states that the case is to be remanded for "appropriate” relief, but nowhere indicates what that relief might be. The district judge who must attempt to implement the court’s decision has a difficult task.
. See 50 U.S.C.App. § 5 for Extension of National Emergency Powers, Cuban Assets Control Regulations, 31 C.F.R. Part 515, and history of extensions from 1978 to 1984.
. The majority attempts to downplay, by using bits of legislative history, the effects of the changes made in the Act in 1941. In fact, Congress granted to the President the power to define the terms used in the Act on December 18, 1941 — 11 days after Pearl Harbor. It is difficult to believe that Congress, with the nation at war on two continents, intended a narrow power to carry out the country’s war aims. As the Alexewicz court recognized, Congress intended the 1941 amendments to the Act to "confer upon the President or his representative the broadest possible authority over the property of foreign nationals, in order to forestall the possibility that such property might be utilized for purposes hostile to the common defense.” 43 N.Y.S.2d at 720 (emphasis added). So long as such powers do not offend the Constitution, the courts are obligated to give them full scope.
. Would the Court in Goldberg v. Kelly, 397 U.S. 254 (1970), for example, have upheld a regulation that permitted a welfare recipient to hire an attorney, but prohibited him from paying one?
. The record here, as yet, does not prove that the authorized officers of the corporation property exercised the "right to choose and obtain counsel” or properly authorized this lawsuit which so far as appears is a request for authority to bring any lawsuit that the lawyer decided *886 to bring — without prior approval of the corporation. The entire analysis of the concurring opinion is misguided, misstates the actual facts and indulges in extreme exaggeration. It is true that any person charged with a crime has a right to counsel, in fact every litigant has a right to counsel; but the continuing authority of counsel appointed by an ousted corporate officer is open to serious question, especially where the directors did not approve the appointment or the instigation of specific litigation, and the corporation has come under the licensing jurisdiction of the Control Office administering the Trading With the Enemy Act.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9472753. Public record. Not legal advice.