Chichakli v. Obama , 242 F. Supp. 3d 45 ( 2017 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
RICHARD A. CHICHAKLI, :
:
Plaintiff, :
:
v. : Civil Action No. 14-2018 (CKK)
:
DONALD J. TRUMP, et al., :
:
Defendants. 1 :
MEMORANDUM OPINION
This matter is before the Court on the Official Capacity Defendants’ Motion to Dismiss
[ECF No. 18]. For the reasons discussed below, the motion will be granted.
I. BACKGROUND
Plaintiff is a United States citizen, Compl. ¶¶ 1, 13, who has been
tried [in the United States District Court for the Southern District of
New York] and convicted by a jury on . . . nine counts of an
indictment charging as follows: one count of conspiracy to engage
in business practices prohibited by the International Emergency
Economic Powers Act . . . , in violation of 50 U.S.C. § 1705 and 18
U.S.C. § 371; one count conspiracy to commit money laundering, in
violation of 18 U.S.C. § 1956(h); one count of conspiracy to commit
wire fraud, in violation of 18 U.S.C. § 1349; and six counts of wire
fraud, in violation of 18 U.S.C. §§ 1343, 2.
1
Pursuant to Federal Rule of Civil Procedure 25(d), the Court substitutes the current President of the United States,
Secretary of the Treasury, and Director of the Office of Foreign Assets Control as defendants in this case.
1
United States v. Bout, 651 F. App’x 62, 63 (2d Cir.), cert. denied sub nom. Chichakli v. United
States, 137 S. Ct. 412 (2016). 2 He is serving a sentence of 60 months’ imprisonment on each
count, with all sentences running concurrently. See Judgment in a Criminal Case, United States
v. Chichakli, No. S3 09-CR-1002-02 (S.D.N.Y. Dec. 8, 2014) at 3.
A. Liberian Sanctions Program
The International Emergency Economic Powers Act (“IEEPA”), see 50 U.S.C. §§ 1701-
07, “authorizes the President to declare a national emergency when an extraordinary threat to the
United States arises that originates in substantial part in a foreign state.” Holy Land Found. for
Relief & Dev. v. Ashcroft, 333 F.3d 156, 159 (D.C. Cir. 2003); see 50 U.S.C. § 1701(a)
(authorizing declaration of national emergency “to deal with any unusual and extraordinary
threat, which has its source in whole or substantial part outside the United States, to the national
security, foreign policy, or economy of the United States”). Such a declaration “clothes the
President with extensive authority set out in 50 U.S.C. § 1702.” Holy Land Found. for Relief &
Devel., 333 F.3d at 159. For example, the President may:
investigate, block during the pendency of an investigation, 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,
2
The United States Attorney’s Office for the Southern District of New York issued a press release on December 4,
2014, available at https://www.justice.gov/usao-sdny/pr/richard-ammar-chichakli-co-conspirator-international-arms-
dealer-viktor-bout-sentenced, which in relevant part stated:
CHICHAKLI conspired with Viktor Bout and others to violate IEEPA by engaging in prohibited
business transactions with companies based in the United States. The focus of these transactions
was the purchase of commercial airplanes for a company that Bout and CHICHAKLI controlled,
and the ferrying of those aircraft to Tajikistan. At the time of these unlawful transactions, both
CHICHAKLI and Bout had been designated by the U.S. Treasury Department as Specially
Designated Nationals (“SDNs”), which meant that individuals and businesses in the United States
were prohibited from engaging in financial transactions with them. CHICHAKLI sought to evade
these SDN sanctions by, among other things, concealing his identity and his SDN listing, and by
concealing Viktor Bout’s involvement in the airplane transactions. In connection with this
fraudulent scheme, CHICHAKLI helped to make a series of wire transfer payments, totaling more
than $1.7 million from overseas bank accounts into accounts in the United States.
2
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, or with respect to any property, subject to
the jurisdiction of the United States[.]
50 U.S.C. § 1702(a)(1)(B) (emphasis added).
In accordance with IEEPA and the United Nations Participation Act, see 22 U.S.C. §
287c, among other statutory provisions, former President George W. Bush issued an Executive
Order titled Blocking Property of Certain Persons and Prohibiting the Importation of Certain
Goods from Liberia:
I, GEORGE W. BUSH, President of the United States of America,
note that the actions and policies of former Liberian President
Charles Taylor and other persons, in particular their unlawful
depletion of Liberian resources and their removal from Liberia and
secreting of Liberian funds and property, have undermined Liberia’s
transition to democracy and the orderly development of its political,
administrative, and economic institutions and resources. I further
note that the Comprehensive Peace Agreement signed on August 18,
2003, and the related ceasefire have not yet been universally
implemented throughout Liberia, and that the illicit trade in round
logs and timber products is linked to the proliferation of and
trafficking in illegal arms, which perpetuate the Liberian conflict
and fuel and exacerbate other conflicts throughout West Africa. I
find that the actions, policies, and circumstances described above
constitute an unusual and extraordinary threat to the foreign policy
of the United States and hereby declare a national emergency to deal
with that threat.
Exec. Order No. 13348 (“E.O. 13348” or “Order”), 69 Fed. Reg. 44885 (July 22, 2004).
Pursuant to E.O. 13348, “all property and interests in property [of persons identified in
the Order] that are in the United States, that hereafter come within the United States, or that are
or hereafter come within the possession or control of United States persons, are blocked and may
not be transferred, paid, exported, withdrawn, or otherwise dealt in[.]” E.O. 13348 § 1(a)
(emphasis added). The Order also blocked property found “to be owned or controlled by, or
3
acting or purporting to act for or on behalf of, directly or indirectly, any person whose property
and interests in property [were] blocked pursuant to this [O]rder[.]” E.O. 13348 § 1(a)(ii)(D).
Further, E.O. 13348 delegated to the Secretary of the Treasury the authority to
promulgate regulations to carry out its purposes. E.O. 13348 § 6. This authority, in turn, was
delegated to the Office of Foreign Assets Control (“OFAC”), Compl. ¶ 15, which promulgated
regulations in 2007, see Former Liberian Regime of Charles Taylor Sanctions Regulations, 72
Fed. Reg. 28,855 (May 23, 2007); 31 C.F.R. Part 593. The regulations set forth procedures by
which a person subject to a Blocking Notice applies to OFAC for a license permitting a
transaction which otherwise would have violated the terms of the Order. See 31 C.F.R. §§
501.801-501.803, 593.501.
The Annex to E.O. 13348 listed 28 persons, such as “the . . . former president of Liberia,
his immediate family, Cabinet members, and . . . other foreign [persons] who allegedly
supported [Charles Taylor’s] regime,” Compl. ¶ 27, whose property and interests in property
were blocked. Among those foreign persons was Viktor Anatolijevitch Bout, whom plaintiff
describes as “a Russian national who allegedly sold arms to Liberia in 2000[.]” Id.; see E.O.
13348, Annex ¶ 2. In April 2005, OFAC designated plaintiff a Specially Designated National
(“SDN”) under E.O. 13348 when, “[a]fter an investigation, OFAC determined that [plaintiff] was
acting on behalf of Bout.” Chichakli v. Szubin, 546 F.3d 315, 316 (5th Cir. 2008). 3 Although
OFAC did not claim that plaintiff “is or was ever directly involved in Liberia with the [r]egime
of Charles Taylor,” Compl. ¶ 63, it nevertheless “issued a Blocking Notice subjecting [plaintiff]
to the sanctions set out in the Executive Order,” Chichakli, 546 F.3d at 316; see Compl. ¶¶ 29,
63. OFAC published plaintiff’s name and identifying information about him on its SDN List.
3
Treasury’s April 26, 2005 press release, available at http://www.treasury.gov/press-center/press-
releases/Pages/js2406.aspx, identified plaintiff as “Bout’s U.S.-based chief financial officer.”
4
See 75 Fed. Reg. 38212 (July 1, 2010) (most recent Federal Register publication of the then-
current SDN List). It denied plaintiff’s request for reconsideration of the Blocking Notice. See
Chichakli, 546 F.3d at 316.
“While [Executive Order] 13348 was in effect, [plaintiff’s] assets within the jurisdiction
of the United States were blocked and he could conduct no business with U.S. persons or
financial institutions except as authorized by license.” Mem. of P. & A. in Support of Official
Capacity Defs.’ Mot. to Dismiss (“Defs.’ Mem.”) at 4. According to defendants, “OFAC has
granted more than fifteen of [plaintiff’s] license requests,” which allowed him access to blocked
funds in order that plaintiff could conduct “transactions related to [his] maintenance, specifically
the ability to purchase food, clothing and other items.” Defs.’ Mem. at 5.
On November 12, 2015, former President Barack H. Obama issued Executive Order
13710 which terminated the national emergency with respect to Liberia. See Termination of
Emergency with Respect to the Actions and Policies of Former Liberian President Charles
Taylor, Exec. Order 13710, 80 Fed. Reg. 71,679 (Nov. 12, 2015). Subsequently, OFAC
removed plaintiff from the SDN List and published a notice listing “the entries which [were]
being removed from the SDN List in order to effectuate the removal.” Defs.’ Mem. at 7. 4
Accordingly, defendants have represented, plaintiff “is no longer a Blocked Person [and no
longer is] subject [to] the allegedly improper Liberia regulations,” and therefore “no longer
requires a license from OFAC to conduct transactions.” Reply Mem. of P. & A. in Support of
Official Capacity Defs.’ Mot. to Dismiss (“Reply”) at 4-5. OFAC has provided instructions to
plaintiff for the retrieval of his unblocked property. See generally id., Ex. 1 (Letter to plaintiff
from Jeremy R. Sausser, Acting Assistant Director, Enforcement, OFAC, dated April 18, 2016)
4
See Liberia Designation Removals and Updates, U.S. Dep’t of the Treasury (Nov. 12, 2015), available at
http://www.treasury.gov/resource-center/sanctions/OFAC-Enforcement/Pages/20151112.aspx.
5
(exhibit number designated by the Court). Further, OFAC informed plaintiff that “[a]pplicable
regulations do not provide for . . . inventories and accountings to be created, maintained, or
provided.” Id., Ex. 1 at 2.
B. Civil Action No. 3:06-cv-1546-N
In 2006, plaintiff, by counsel, filed a civil action in the United States District Court for
the Northern District of Texas challenging the actions of OFAC, its former Director Adam
Szubin, and the former Secretaries of State and Treasury under E.O. 13348 and the IEEPA. See
Complaint, Chichakli v. Szubin, No. 3:06CV1546 (N.D. Tex. filed Aug. 25, 2006) (“Texas
Complaint”) ¶¶ 1, 7-9. He alleged that federal officials “raided” his home, his office, and an
employee’s home on April 26, 2005. Id. ¶ 14. “A search warrant was presented” for plaintiff’s
homes in Richardson, Texas and for his office; a second home in Plano, Texas “was entered and
searched without a warrant.” Id. Plaintiff alleged that “property was seized by the FBI from all
three locations.” Id. OFAC agents left plaintiff with a copy of Special Designation and
Blocking Memorandum stating
[T]here was reason to believe that [plaintiff, other individuals and
30 corporate entities] (a) are owned or controlled by, or acting or
purporting to act for or on behalf of, directly or indirectly, a person
whose property and interests in property are blocked pursuant to
[E.O. 13348], namely Viktor Bout; and/or (b) have materially
assisted, sponsored, provided financial, material, or technological
support for, or goods or services in support of, the unlawful
depletion of Liberian resources, the removal of Liberian resources
from that country, and the secreting of Liberian funds and property
by any person whose property and interests in property are blocked
pursuant to [E.O. 13348], or (c) are owned or controlled by, or act
for or on behalf of, persons designated in or pursuant to [E.O.
13348], and therefore are designated as Specially Designated
[Nationals.]
6
Id. ¶ 15. Among the 30 corporate entities mentioned in the Blocking Notice were 11 companies
controlled by or affiliated with plaintiff. See id. ¶ 16.
Plaintiff first alleged a deprivation of property without due process in violation of the
Fifth Amendment. See id. at 6-7 (First Cause of Action). The district court found that plaintiff’s
SDN designation did not run afoul of the Fifth Amendment: because there were exigent
circumstances, he was not entitled to pre-designation notice, and his opportunity to seek
reconsideration post-designation satisfied due process requirements. Order, Chichakli v. Szubin,
No. 3:06CV1546 (N.D. Tex. filed June 4, 2007) (“Texas Order”) at 5-8. Second, plaintiff
alleged that the blocking of his assets amounted to a taking without just compensation in
violation of the Fifth Amendment. See Texas Complaint at 7 (Second Cause of Action). The
court rejected this argument. It ruled that, because the temporary deprivation of assets did not
vest the assets in the government, the blocking of plaintiff’s assets was not a taking under the
Fifth Amendment. See Texas Order at 8.
Third, plaintiff challenged his SDN designation on the ground that no unusual or
extraordinary threat regarding Liberia remained by the time he filed suit approximately 16
months after OFAC issued the Blocking Notice. Texas Complaint at 8 (Fourth Cause of Action).
The court deemed the claim “a “nonjusticiable political question” and dismissed it. Texas Order
at 9. Last, plaintiff alleged that defendants’ “action in [their] arbitrary, capricious, and abusive
discretion [was] unsupported by substantial evidence, and unwarranted by the facts.” Texas
Complaint at 7 (Third Cause of Action). According to plaintiff, defendants “seized and [were]
secreting properties without an accounting[,]” they “attempt[ed] to destroy [p]laintiff’s real
property holdings[,]” and they “forced the sale of properties.” Id. at 7-8. The court reviewed the
administrative record and found ample support for the SDN designation:
7
Substantial evidence in the record reveals that [plaintiff] held senior
level positions in several corporations that OFAC identified as
connected to or controlled by Viktor Bout. Furthermore, the record
indicates that [plaintiff] had a close working relationship with Bout
and had substantial knowledge of Bout’s business. OFAC therefore
had a reasonable basis for believing that [plaintiff] acted for or on
behalf of Bout.
Id. at 10.
On appeal, the United States Court of Appeals for the Fifth Circuit “vacate[d] the district
court’s judgment as it relate[d] to [plaintiff’s] takings claim under the Fifth Amendment.”
Chichakli, 546 F.3d at 317. Because plaintiff’s claim exceeded $10,000, it fell under the
exclusive jurisdiction of the United States Court of Federal Claims. Id. In all other respects, the
Fifth Circuit affirmed the district court’s judgment. Id. at 317-18. Plaintiff was not deprived of
due process, see id. at 317, and “OFAC did not act in an arbitrary and capricious manner in
determining that Chichakli acted for or on behalf of Viktor Bout,” id. at 318.
C. Plaintiff’s Factual Allegations and Legal Claims
1. Freedom of Speech and Association
Plaintiff admits to having communicated regularly with Viktor Bout, see Compl. ¶ 60,
having “spoke[n] to the media” about Bout and the allegations made against him, id. ¶ 63, and
having “solicited legal representation” for Bout, id. ¶ 58. He contends that OFAC blocked his
assets, id. ¶ 23, because of his association with and advocacy on Bout’s behalf, in violation of his
First Amendment rights to free speech and free association. See id. ¶¶ 6, 8(c), 24, 58-59, 63.
2. Warrantless Seizure of Property
Plaintiff considers the blocking of his property, all of which was “U.S. based[,] sourced,
owned, and domiciled,” id. ¶ 32, a warrantless seizure in violation of the Fourth Amendment, see
8
id. ¶¶ 6, 22-23. He alleges that “[t]he blocking by OFAC ‘completely eliminated all economical
values of plaintiff’s property’ by destroying the businesses beyond the point of possibility of
repair.” Id. ¶ 33 (emphasis removed). Further, he alleges that the “[s]eizure was carried out
without any notice . . . to ‘prevent the selling, disposition, or transfer of the assets which OFAC
intended to seize.’” Id. ¶ 57. Thus, OFAC allegedly is responsible for the abrupt closure of his
businesses, seizure of plaintiff’s bank accounts, jewelry, personal items, home furnishings,
vehicles, business-related documents and equipment, unpaid taxes and debts, and cancelled life
and health insurance policies. See id. ¶¶ 33, 40, 44.
In addition, plaintiff alleges that he could not “conduct[] any transaction with any U.S.
person or within the U.S. unless licensed for each and every singular transaction,” id. ¶ 36,
“regardless of the size, nature or the place” of the transaction, id. ¶ 44(g). Upon the loss of his
businesses and revocation of his CPA license, see id. ¶ 44(c), 44(i), plaintiff alleges that he was
unable to “work[] to earn a living,” id. ¶ 44(h) (emphasis removed), support his family, id. ¶ 46,
or receive “any financial assistance from friends, . . . family, . . . any source within the United
States, or from any US person,” id. ¶ 44(j); see id. ¶ 46. Nor could plaintiff pay for medical care,
see id. ¶¶ 40-41, or pay for his child’s education, see id. ¶ 41, without first enduring OFAC’s
“cumbersome, exhaustive, and . . . inefficient” license application process. To date, plaintiff
alleges, OFAC has not provided him with an inventory or accounting of the assets seized. Id. ¶
44(d).
3. Cruel and Unusual Punishment
Under the umbrella of “cruel and unusual punishment,” the Court understands plaintiff to
raise objections not only to the Blocking Notice itself but also the enforcement of the Blocking
Notice. First, plaintiff is “challenging the authority to designate him,” id. ¶ 54, under IEEPA and
9
E.O. 13348 on the ground that neither applies to a United States citizen and to the property of a
United States citizen, see id. ¶¶ 9-14, 32. Second, plaintiff challenges the application of
regulations OFAC promulgated in 2007, roughly two years after OFAC issued the April 2005
Blocking Notice. See id. ¶¶ 5, 30, 54. He alleges that the regulations are applied retroactively
and that they are vague, overbroad, and therefore unenforceable, see id. ¶¶ 65-66, 68. Third,
plaintiff objects to the absence of time and dollar limits, such that the sanctions and the hardships
they impose are of infinite duration and cost. See id. ¶¶ 8, 20, 25, 33-34. Fourth, plaintiff
objects to the cumbersome and lengthy process necessary to obtain each license from OFAC, see
id. ¶¶ 44(h), 48, and the arbitrary and subjective manner OFAC makes its decisions to grant or
deny license applications, see id. ¶¶ 39, 43. Fifth, plaintiff contends that neither E.O. 13348 nor
IEEPA authorized the liquidation of his assets by OFAC. See id. ¶ 24.
Plaintiff brings this action against the President of the United States, the Secretary of the
Treasury, and OFAC’s Director in their official capacities. See id. at 1 (caption). In addition,
plaintiff sues Adam Szubin, former OFAC Director, in his individual capacity. Id.; see id. ¶ 19.
Plaintiff demands a declaratory judgment, injunctive relief, and an award of $ 250 million. See
generally id. at 19-20.
D. Remand
The district court dismissed plaintiff’s complaint sua sponte as procedurally barred, and
plaintiff appealed. See Chichakli v. Obama, No. 1:14-CV-02018, 2014 WL 6755680, at *2
(D.D.C. Nov. 25, 2014), aff’d in part and vacated in part, 617 F. App’x 3 (D.C. Cir. 2015) (per
curiam). The United States Court of Appeals for the District of Columbia Circuit affirmed
dismissal of plaintiff’s “challenge [to] the Blocking Notice issued by the Office of Foreign
10
Assets Control (OFAC) on April [26], 2005.” Chichakli, 617 F. App’x at 3. However, it found
that the district court erred in dismissing the case in its entirety:
[T]he district court’s opinion did not explicitly address the
complaint’s additional allegations including, for example, that (1)
the application of 2007 regulations implementing Executive Order
13348 violates the Ex Post Facto Clause or has an impermissible
retroactive effect, and (2) OFAC has not properly handled
[plaintiff’s] license applications for the release of blocked funds.
Id. at 4. This court was instructed “to consider the full breadth of [plaintiff’s] claims” on
remand. Id.
II. DISCUSSION
A. Claim Preclusion (Res Judicata)
Generally, a plaintiff is expected to “present in one suit all the claims for relief that he
may have arising out of the same transaction or occurrence.” U.S. Indus., Inc. v. Blake Constr.
Co., Inc., 765 F.2d 195, 205 (D.C. Cir. 1985) (citation omitted). “Under claim preclusion, a final
judgment on the merits of an action precludes the parties or their privies from relitigating issues
that were or could have been raised in [a prior] action.” Sheppard v. District of Columbia, 791 F.
Supp. 2d 1, 4 (D.D.C. 2011) (quoting Drake v. FAA, 291 F.3d 59, 66 (D.C. Cir. 2002)) (internal
quotation marks and additional citation omitted); see New Hampshire v. Maine, 532 U.S. 742,
748 (2001) (“Claim preclusion generally refers to the effect of a prior judgment in foreclosing
successive litigation of the very same claim, whether or not relitigation of the claim raises the
same issues as the earlier suit.”). Two claims need not be “literally identical claims for res
judicata to apply.” Capitol Hill Grp. v. Pillsbury Winthrop Shaw Pittman, LLP, 574 F. Supp. 2d
143, 149 (D.D.C. 2008), aff’d sub nom. Capitol Hill Grp. v. Pillsbury, Winthrop, Shaw, Pittman,
LLC, 569 F.3d 485 (D.C. Cir. 2009). Parties are thus prevented from relitigating in a separate
11
proceeding “any ground for relief which they already have had an opportunity to litigate[,] even
if they chose not to exploit that opportunity,” and regardless of the soundness of the earlier
judgment. Hardison v. Alexander, 655 F.2d 1281, 1288 (D.C. Cir. 1981); I.A.M. Nat’l Pension
Fund v. Indus. Gear Mfg.Co., 723 F.2d 944, 949 (D.C. Cir. 1983) (noting that res judicata
“forecloses all that which might have been litigated previously”).
The D.C. Circuit upheld the district court’s initial determination that plaintiff’s “claims
are barred by res judicata . . . insofar as they challenge the Blocking Notice issued by the Office
of Foreign Assets Control (OFAC) on April [26], 2005[.]” Chichakli, 617 F. App’x at 4.
Coupled with the Fifth Circuit’s determination that the SDN designation was supported by the
evidence in the administrative record, it is apparent that nearly all of plaintiff’s claims are
precluded.
Plaintiff has had an opportunity to challenge defendants’ actions under IEEPA and E.O.
13348. Through his lawsuit in the United States District Court for the Northern District of
Texas, plaintiff has challenged the SDN designation itself, the destruction of his business, the
seizure of his property without an accounting, the destruction of his real estate holdings and the
forced sale of properties. At that time, he could have claimed as he does now that (1) the IEEPA
does not apply to a United States citizen or to the property of a United States citizen; (2) his SDN
designation was predicated upon his association with Viktor Bout, such that defendants imposed
sanctions based solely on plaintiff’s exercise of rights under the First Amendment; (3) the
blocking of plaintiff’s assets amounted to a warrantless search in violation of the Fourth
Amendment; and (4) the indefinite length of time the Blocking Notice was in effect and the
limitless dollar value of assets blocked violated the Eighth Amendment. And because plaintiff
knew “[w]ithin the first month of imposing the sanction OFAC destroyed [his] businesses
12
beyond repair, and eliminated the economic value of his assets,” he could have demanded
compensation for the “millions of dollars in tangible, intangible, and economic” losses he
allegedly sustained when OFAC liquidated the blocked assets, Pl.’s Response in Opp’n to Defs.’
Mot. to Dismiss (“Pl.’s Opp’n”) at 13 (page numbers designated by ECF). Also, he could have
challenged OFAC’s authority to liquidate blocked assets, see id. at 10, and asserted a right to an
inventory of the assets OFAC seized, liquidated or blocked, see id. at 4-5; Compl. ¶¶ 44c-3,
44(d). Furthermore, plaintiff could have brought a constitutional claim against defendant Szubin
in his individual capacity in the prior action. 5 For this reason, the Court need not consider
plaintiff’s belated attempt to flesh out his purported claim against Szubin under Bivens v. Six
Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). 6
The D.C. Circuit’s instruction to consider the full breadth of plaintiff’s claims is not an
invitation to raise new claims that plaintiff failed to raise in the Norther District of Texas and his
original complaint in this case. Plaintiff “cannot escape application of the [claim preclusion]
doctrine by raising a different legal theory or seeking a different remedy in the new action that
was available to [him] in the prior action.” Duma v. JPMorgan Chase, 828 F. Supp. 2d 83, 86
(D.D.C. 2011) (citations omitted), aff’d sub nom. Duma v. JPMorgan Chase & Co., No. 11-
7147, 2012 WL 1450548 (D.C. Cir. Apr. 20, 2012); see Apotex, Inc. v. FDA, 393 F.3d 210, 217-
18 (D.C. Cir. 2004) (“There are no new facts. Apotex is simply raising a new legal theory. This
is precisely what is barred by res judicata.”).
5
Plaintiff is proceeding pro se and in forma pauperis. In these circumstances, “the officers of the court issue and
serve all process.” 28 U.S.C. § 1915 (d); see Fed. R. Civ. P. 4(c)(3). Although none of the defendants appears to
have been served, the Court will deny defendants’ motion to dismiss under Fed. R. Civ. P. 12(b)(b)(5) for failure to
effect proper service.
6
See generally Supplement to Pl.’s Original Compl. Against Adam Szubin Individually in his Personal Capacity
[ECF No. 21],
13
B. Ex Post Facto Claim
Plaintiff makes much of the fact that, at the time OFAC issued the Blocking Notice on
April 26, 2005, there existed no regulations to implement E.O. 13348. He contends that, without
regulations, OFAC had no authority to issue the Blocking Notice and to block his assets.
Defendants’ response is twofold. They posit that “[p]laintiff’s ‘ex post facto’ allegations
simply seem to indicate that the implementing regulation was required to enforce the executive
order.” Defs.’ Mem. at 17. If so, defendants understand the claim as “just a challenge to the
Blocking Order and the adequacy of implementing regulations at the time of the blocking. To
that extent, it is a challenge to the designation and blocking that could have been raised at the
time of the blocking.” Id. Further, defendants contend that “the 2007 regulations are not
impermissibly retroactive as a matter of law.” Id. at 18. According to defendants, OFAC neither
imposes a criminal punishment in making a designation pursuant to E.O. 13348, nor applies its
2007 regulations retroactively. See id. OFAC designated plaintiff “under the terms of the
executive order, the substantive terms of which are identical to the terms of the regulation.” Id.
Plaintiff responds by referring to the IEEPA’s criminal penalty provision, see 50 U.S.C. §
1705, and deems it “[n]onsense[]” for defendants to argue that “IEEPA does not define crime.”
Pl.’s Opp’n at 13. Furthermore, he contends, “[u]pon the issuance of the regulation in 2007
OFAC used the Post-Ex-Facto [sic] regulations to justify the earlier abuses.” Id. at 9.
The Court concludes that plaintiff’s ex post facto claim must be dismissed. The United
States Constitution prohibits any State from passing an “ex post facto Law.” U.S. Const. art. 1, §
9, cl.3. The clause “is aimed at laws that ‘retroactively alter the definition of crimes or increase
the punishment for criminal acts.’” Cal. Dep’t of Corr. v. Morales, 514 U.S. 499, 504 (1995)
(quoting Collins v. Youngblood, 497 U.S. 31, 43 (1990)). It is apparent that IEEPA defines
14
criminal conduct and that plaintiff has been convicted of such conduct under 50 U.S.C. § 1705
and 18 U.S.C. § 371. Here, however, the focus is on OFAC’s SDN designation. The Fifth
Circuit found no fault with the SDN designation itself, and plaintiff cannot now challenge the
designation under a new legal theory.
It cannot be said that the 2007 regulations have been applied retroactively or otherwise
have an impermissible retroactive effect. The Court notes that the language of E.O. 13348 and
the corresponding regulation is virtually identical. Compare 31 C.F.R. § 593.201(a)(2)(iv), with
E.O. 13348 § 1(a)(ii)(D). If plaintiff violated E.O. 13348, as OFAC determined and the Fifth
Circuit upheld, plaintiff’s conduct necessarily would have violated the implementing regulations.
Cf. United States v. Arch Trading Co., 987 F.2d 1087, 1094-95 (4th Cir. 1993).
Lastly, the Court no longer has subject matter jurisdiction over the ex post facto claim.
The Court’s jurisdiction depends on the existence of an actual case or controversy. See Preiser
v. Newkirk, 422 U.S. 395, 401 (1975); Am. Bar Ass’n v. FTC, 636 F.3d 641, 645 (D.C. Cir.
2011). As defendants indicate, “[p]laintiff is no longer a Blocked Person and thus is not the
subject of the allegedly improper Liberia regulations.” Defs.’ Mem. at 13. “[A]n actual
controversy must be extant at all stages of review, not merely at the time the complaint is filed.”
Preiser, 422 U.S. at 401. Here, developments subsequent to the filing of this case and the D.C.
Circuit’s remand render plaintiff’s ex post facto claim moot. The national emergency with
respect to Liberia has ended, and the Order pursuant to which OFAC issued the Blocking Notice
no longer is in effect. Now that defendants’ challenged conduct has ceased, the Court is without
means “to grant any effectual relief whatever to [plaintiff].” Del Monte Fresh Produce Co. v.
15
United States, 570 F.3d 316, 321 (D.C. Cir. 2009) (internal quotation marks and citations
omitted). 7
C. Claim Regarding the Handling of License Applications
Suffice it to say that plaintiff’s claim regarding OFAC’s handling of his license
applications is unclear. He complains of inefficiency, inconvenience, delay, and the arbitrary
nature of OFAC’s decisions. If plaintiff were raising a claim under the Administrative Procedure
Act on the ground that OFAC’s decisions were arbitrary and capricious, neither the Court nor
defendants can determine the particular decision or decisions at issue. Even if plaintiff had
stated a viable legal claim, it does not appear that he demands any particular form of relief.
In the end, this claim must be dismissed as it is precluded and it is moot. Plaintiff had an
opportunity to challenge OFAC’s handling of his license applications when he brought the prior
civil action in the Northern District of Texas. He chose not to do so, and now the claim is
barred. And because plaintiff no longer is a Blocked Person subject to sanctions under IEEPA
and E.O. 13348, he no longer must obtain a license from OFAC for access to or use of his assets.
It appears, then, that this claim is moot.
D. Demand for Monetary Damages
“It is elementary that the United States, as sovereign, is immune from suit save as it
consents to be sued . . . , and the terms of its consent to be sued in any court define that court’s
7
Plaintiff maintains that “OFAC is still blocking plaintiff’s assets,” and that it “still refuse[s] to deliver plaintiff’s
cash and non-cash assets which are still held.” Pl.’s Opp’n at 4; see id. at 5-6. The Court notes that plaintiff left the
United States shortly after his SDN designation, returned to the United States in 2013 following his apprehension in
and extradition from Australia, see United States v. Chichakli, No. 09CR1002, 2014 WL 5369424, at *1 (S.D.N.Y.
Oct. 16, 2014), and was incarcerated when the national emergency ended and when OFAC unblocked the assets.
Plaintiff’s purported inability to retrieve his property from OFAC may be due to these circumstances rather than to
OFAC’s alleged misdeeds.
16
jurisdiction to entertain the suit.” United States v. Mitchell, 445 U.S. 535, 538 (1980) (quoting
United States v. Sherwood, 312 U.S. 584, 586 (1941) (internal quotation marks omitted)); FDIC
v. Meyer, 510 U.S. 471, 475 (1994) (“Absent a waiver, sovereign immunity shields the Federal
Government and its agencies from suit.”). Sovereign immunity extends to government agencies
and to their employees where such employees are sued in their official capacities. See Meyer,
510 U.S. at 483-86; Clark v. Library of Congress, 750 F.2d 89, 103 (D.C. Cir. 1984) (“Sovereign
immunity . . . bar[s] suits for money damages against officials in their official capacity absent a
specific waiver by the government.”). “To sustain a claim that the Government is liable for
awards of monetary damages, the waiver of sovereign immunity must extend unambiguously to
such monetary claims.” Lane v. Peña, 518 U.S. 187, 192 (1996) (citation omitted). Defendants
move to dismiss on the ground that plaintiff “has identified no waiver of sovereign immunity that
would permit a suit for damages under either the ex post facto clause or a challenging to
[OFAC’s] licensing decisions.” Defs.’ Mem. at 10.
Plaintiff responds by “asserting that this Court lacks jurisdiction over his money-damages
claims against the United States.” Pl.’s Opp’n at 3. Rather, he contends that “[j]urisdiction over
money damages claims against the United States Government, in amounts of [$10,000] or [more]
rests exclusively [with] the United States Court of [F]ederal Claims.” Id. (emphasis removed).
According to plaintiff, “OFAC . . . misappropriated, took and plundered his assets in violation of
[his] constitutional rights,” id., and he proposes “to amend his complaint to include the[se]
recently discovered violations,” id. Further, plaintiff states his intention to proceed with his
money damages claim in “a separate lawsuit against the defendants before the United States
Court of [F]ederal Claims[.]” Id.
17
There are significant obstacles to plaintiff’s proposed course of action. First, amendment
of his complaint to include a new claim “in the millions of dollars,” id., is futile because this
Court lacks subject matter jurisdiction over a “civil action or claim against the United States . . .
exceeding $10,000 in amount.” 28 U.S.C. § 1346(a)(2). Second, because any money damages
claim plaintiff may have arising from the April 2005 Blocking Notice should have been brought
in the Court of Federal Claims “within six years after [it] accrues,” 28 U.S.C. § 2501, his claim
is likely to be considered time-barred by the Court of Federal Claims, see Martinez v. United
States, 333 F.3d 1295, 1316 (Fed. Cir. 2003) (commenting that “statutes of limitations for causes
of action against the United States, being conditions on the waiver of sovereign immunity, are
jurisdictional in nature”).
III. CONCLUSION
The Court lacks subject matter jurisdiction over plaintiff’s claim for monetary
damages, and the complaint otherwise fails to state claims upon which relief can be granted.
Therefore, defendants’ motion to dismiss will be granted. An Order is issued separately.
DATE: March 16, 2017 /s/
COLLEEN KOLLAR KOTELLY
United States District Court Judge
18