The opinion of the court was delivered by: JOHN BATES, District Judge
The Office of Foreign Assets Control ("OFAC") seeks judicial
enforcement of civil monetary penalties assessed against Voices
in the Wilderness ("Voices") for violations of the Iraqi
Sanctions Regulations (the "Regulations"), 31 C.F.R. Part 575
(1991). Voices admits that it delivered medical supplies to Iraq
in July and September 1998 without obtaining a license as
required by the Regulations. Indeed, Voices has acknowledged its
actions since at least December 1998, when it first received a
warning from OFAC. However, OFAC waited three years and eleven
months, until November 2002, to levy a $20,000 penalty against
Voices. Voices defends on the grounds that the Regulations are
illegal, that its conduct is privileged by principles of
international law, and that OFAC's delay forecloses its pursuit
of civil penalties under the relevant statutes. Voices also
counterclaims for injunctive relief against OFAC's allegedly
wrongful civil enforcement action, and for malicious and
selective prosecution. OFAC has moved for judgment under FED. R.
CIV. P. 12(c), and to dismiss defendant's claims for lack of subject matter jurisdiction and for failure to state a claim
under Rules 12(b)(1) and 12(b)(6).
OFAC, a division of the Department of the Treasury, administers
and enforces economic and trade sanctions. Voices is an
unincorporated association of individuals based in Chicago,
Illinois. Since 1996, Voices has "campaigned to end economic and
military warfare against the Iraqi people . . . by organizing
over seventy delegations to Iraq in deliberate violation of UN
economic sanctions and US law." http://vitw.us/who_we_are/ (last
visited June 29, 2004).
In January 1996, Voices sent a letter to U.S. Attorney General
Janet Reno stating its intent to "publicly challenge" the Iraqi
sanctions regime. Ans. & Countercl. ¶ 12. OFAC responded with a
warning letter, but Voices "declared an intention to continue
with the medical supplies campaign." Ans. & Countercl. ¶ 13.
Voices delegations delivered medical supplies to Iraq in July and
September 1998. Ans. & Countercl. ¶¶ 14-16. For neither of these
trips did Voices obtain a license from OFAC, despite a Regulation
requiring them to do so. See 31 C.F.R. § 575.205 (1991);
31 C.F.R. § 575.211 (1991).
On December 3, 1998, OFAC issued a prepenalty notice to Voices
pursuant to the Regulations. Compl. ¶ 17; Ans. & Countercl. ¶ 17.
The prepenalty notice described the two alleged violations and
warned of an impending fine. On December 30, 1998, Voices
responded with a written presentation admitting the violations
and denouncing OFAC's licensing regime. Compl. ¶ 18; Ans. &
Countercl. ¶ 18. The Regulations required OFAC to respond
"promptly" to Voices' written presentation:
If, after considering any presentations made in
response to the prepenalty notice, the Director determines that there was a violation by the
person named in the prepenalty notice, he promptly
shall issue a written notice of the imposition of the
monetary penalty to that person.
31 C.F.R. § 575.704(b). OFAC, however, took no further
discernible action in 1998, 1999, 2000, or 2001.
On October 26, 2002, Voices participated in a protest against
recent United States military activities in Iraq. Voices members
rallied in Washington, D.C. and organized a demonstration outside
United Nations Headquarters in Baghdad. Ans. & Countercl. ¶ 43.
Nine days later, on November 4, 2002, OFAC issued a penalty
notice for the two 1998 violations. Voices was charged $10,000
per violation, to be paid within 30 days. Voices notified OFAC
that it did not intend to comply with the penalty notice, and it
has not paid the $20,000 fine. OFAC referred the matter to the
Department of Justice for adjudication pursuant to Section
575.705, and later filed its complaint in this Court on June 20,
B. The Iraqi Sanctions Regime
The Regulations have been in effect since January 1991. See
Iraqi Sanctions Regulations, 56 Fed. Reg. 2112 (January 18,
1991). The Regulations implemented several Executive Orders
issued by President George H.W. Bush in the wake of Iraq's
invasion of Kuwait. Id. They froze Iraqi assets in the United
States and prohibited American business transactions with Iraq.
Id. The Regulations cite several sources of authority,
including Exec. Order No. 12724, 55 Fed. Reg. 33089 (Aug. 9,
1990)*fn1 ("the Order"), the International Emergency
Economic Powers Act, 50 U.S.C. § 1701 et. seq. (1977) ("IEEPA"), and the United Nations
Participation Act, 22 U.S.C. § 287c(a) (1949) ("UNPA").
Both the Order and the Regulations reference UNPA as a source
of authority. See Pl.'s Mem. for J. at 5-6, 16-17. Congress
passed UNPA in 1945 and amended it in 1949, see United Nations
Participation Act of 1945, 81 Pub.L. No. 341, 63 Stat. 734
(1949), to give the President wide-ranging authority to comply
with United Nations Security Council Resolutions.
22 U.S.C. § 287c(a). Under UNPA, the President may:
through any agency which he may designate, and under
such orders, rules, and regulations as may be
prescribed by him, investigate, regulate, or
prohibit, in whole or in part, economic relations
. . . between any foreign country or any national
thereof or any person therein and the United States
or any person subject to the jurisdiction thereof, or
involving any property subject to the jurisdiction of
the United States.
Additionally, the Order and Regulations purport to be
authorized by IEEPA, which enables the President to identify and
respond to national emergencies. See 50 U.S.C. § 1701(a).
However, it excepts some activities from presidential authority:
(b) . . . The authority granted to the President by
this section does not include the authority to
regulate or prohibit, directly or indirectly . . .
(2) donations, by persons subject to the jurisdiction
of the United States, of articles, such as food,
clothing, and medicine, intended to be used to
relieve human suffering, except to the extent that
the President determines that such donations (A)
would seriously impair his ability to deal with any
national emergency declared under section 202 of this
title . . . (B) are in response to coercion against
the proposed recipient or donor, or (C) would
endanger Armed Forces of the United States which are
engaged in hostilities or are in a situation where
imminent involvement in hostilities is clearly
indicated by the circumstances . . .
50 U.S.C. § 1702(b)(2). ANALYSIS
A. Applicable Legal Standards
Under FED. R. CIV. P. 12(c), a motion for judgment on the
pleadings shall be granted if the moving party demonstrates that
"no material fact is in dispute and that it is entitled to
judgment as a matter of law." Peters v. Nat'l R.R. Passenger
Corp., 966 F.2d 1483, 1485 (D.C. Cir. 1992) (internal quotation
omitted). The appropriate standard for reviewing a motion for
judgment on the pleadings is "virtually ...