United States District Court, District of Columbia
RICHARD A. CHICHAKLI, Plaintiff,
JOHN KERRY, Secretary of State, et al., Defendants.
COLLEEN KOLLAR KOTELLY United States District Court Judge
matter is before the Court on Defendants’ Motion to
Dismiss [ECF No. 14]. For the reasons discussed below, the
motion will be granted.
International Emergency Economic Powers Act
(“IEEPA”), see 50 U.S.C. § 1701
et seq., “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. Such a declaration clothes the President with
extensive authority set out in 50 U.S.C. § 1702.”
Holy Land Found. for Relief & Dev. v. Ashcroft,
333 F.3d 156, 159 (D.C. Cir. 2003). Pursuant to the 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. See
generally Exec. Order No. 13348, 69 Fed. Reg. 44885
(July 22, 2004). Pursuant to Executive Order No. 13348,
“all property and interests in property of [certain
persons subject to sanctions] that [came] within the United
States, or that [were] within the possession of or control of
United States persons [were] blocked and [were] not to be
transferred, paid, exported [or] withdrawn” unless
permitted under IEEPA. Id., Sec. 1; see
generally 31 C.F.R. Part 593 (July 1, 2005) (Former
Liberian Regime of Charles Taylor Sanctions Regulations).
explain that the “[t]hese targeted sanctions [were]
effectuated by informing the public and the financial sector
of the identities of persons added to [a] list of designated
persons and entities; such notice is required in order for
banks and other relevant entities to block any accounts or
other assets of the designated person[s] and report the
existence of blocked property to” the Office of Foreign
Assets Control (“OFAC”), a component of the
United States Department of the Treasury. Defs.’ Mem.
in Support of the Mot. to Dismiss [ECF No. 15-1]
(“Defs.’ Mem.”) at 1. “Financial
institutions are expected immediately to block any
transaction by a listed person or entity.” Id.
April 2005, OFAC designated plaintiff a Specially Designated
National (“SDN”) under Executive Order 13348:
[T]he Executive Order authorized the freezing of the assets
of 28 individuals who were deemed to be contributing to the
unstable situation in Liberia as well as anyone found
“acting or purporting to act for or on behalf of,
directly or indirectly, any person whose property and
interests in property are blocked pursuant to this
order.” Viktor Bout was one of the individuals
specifically listed in the Order. After an investigation,
OFAC determined that [plaintiff] was acting on behalf of
Bout. A Blocking Notice was issued, subjecting [plaintiff] to
the sanctions set out in the Executive Order.
Chichakli v. Szubin, 546 F.3d 315, 316 (5th Cir.
2008); see Defs.’ Mem. at 4-5.
“Concurrently with the 2005 designation, in accordance
with statute, executive order and regulation, the Government
identified [plaintiff] to financial institutions and the
public in order to effectuate the designation.”
Defs.’ Mem. at 1; see id. at 6. OFAC published
plaintiff’s name and other identifying information
about him on its SDN List, see Compl. for
Unwarranted Invasion of Privacy in Violation of the Privacy
Act and Request for Various Reliefs [ECF No. 1]
(“Compl.”) ¶ 6(b), and which in turn
“distributed [the SDN List] to financial institutions
and others in order to effectuate OFAC blocking orders,
” Defs.’ Mem. at 6. In December 2005, the United
Nations listed plaintiff “as subject to sanctions in
its Liberia sanctions regime.” Id. Plaintiff
unsuccessfully challenged the SDN designation in federal
court. See Chichakli, 546 F.3d at 317-18. As long as
“[Executive Order] 13348 remain[ed] in effect,
[plaintiff’s] assets within the jurisdiction of the
United States [were] frozen and he [could] conduct no
business with U.S. persons or financial institutions except
as authorized by license.” Defs.’ Mem. at 5.
explain that, in November 2015, President Barack H. Obama
issued Executive Order 13710 which terminated the emergency
with respect to Liberia. Defs.’ Reply Mem. in Support
of the Mot. to Dismiss [ECF No. 19] at 1 (page numbers
designated by ECF). Subsequently, OFAC removed plaintiff from
the SDN List, id., and published a notice listing
“the entries which [were] being removed from the SDN
List in order to effectuate the removal, ” id.
at 2 n.1.
plaintiff “left the United State[s] to exile” on
May 2, 2005. Supp. Mem. to Pl.’s Resp. in Opp’n
to Defs.’ Mot. to Dismiss [ECF No. 18] (“Supp.
Opp’n”) at 2. A grand jury indictment was returned on
Nov[ember] 10, 2009” against plaintiff and Viktor Bout,
and was unsealed in February 2010. Id. A subsequent
“indictment against plaintiff [alone] in Criminal Case
09-1002 (SDNY) was unsealed on [January 2, ] 2013, ”
id., and plaintiff was returned to the United States
in May 2013 upon his extradition from Australia, see
United States v. Chichakli, No. S3 09CR1002, 2014 WL
5369424, at *1 (S.D.N.Y. Oct. 16, 2014). Plaintiff “was
tried and convicted by a jury on all nine counts of an
indictment charging as follows: one count of conspiracy to
engage in business practices prohibited by [IEEPA], 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.” United States v. Bout,
No. 14-4255-CR, 2016 WL 3278785, at *1 (2d Cir. June 8,
2016); see Chichakli, 2014 WL 5369424, at *6.
civil action, plaintiff alleges that defendants disclosed
information about him, including his social security numbers,
date and place of birth, aliases, residence and business
addresses, country of origin and driver’s license
number, see Compl. ¶¶ 1, 20, in violation
of the Privacy Act, see 5 U.S.C. §
552a. According to plaintiff, the disclosures
are made principally by publication of the SDN List on
OFAC’s website, see Compl. ¶¶ 4,
6(a), 19, and by the United States Department of State to the
United Nations, see id. ¶ 6(b).
result of the disclosures, plaintiff alleges, he “was
targeted by and fell a victim to identity theft.”
Id. ¶ 7(b). He is aware of “several
fraudulent bank accounts . . . establish[ed] using the
[information] published [about him], ” and he suspects
that “many other fraudulent financial and non-financial
activities are still undetected, ” id. ¶
12. His requests to the Treasury and State Departments for
removal of his personal information have been denied, see
id. ¶ 7(a), and the Federal Bureau of Investigation
allegedly is aware of yet refuses to investigate the
fraudulent transactions, id. ¶ 7(b). For this
reason, plaintiff contends that the “government
intentionally and deliberately published [p]laintiff’s
personal information to cause him harm by making him an easy
target for identity theft.” Id. ¶ 7(c).
Plaintiff demands an award of $10 million, id. at 8,
for the “direct injury” he allegedly has
sustained “due to defendants’ act[ions] when he
fell victim to fraud, ” id. ¶
Court begins its discussion by addressing plaintiff’s
reference to the Freedom of Information Act
(“FOIA”), see 5 U.S.C. § 552,
specifically subsections (b)(3), (b)(6) and (b)(7)(C).
See Compl. at 1 (unnumbered paragraph); Pl.’s
Resp. to Defs.’ Mot. to Dismiss [ECF No. 17]
(“Pl.’s Opp’n”) at 1-2. Under the
FOIA, the Court may direct an agency to disclose improperly
withheld agency records. See Kissinger v. Reporters Comm.
for Freedom of the Press, 445 U.S. 136, 150 (1980). It
does not appear that plaintiff ever submitted a request for
information to either the Treasury or the State Department,
or that either agency disclosed information about plaintiff
in response to a FOIA request. Notwithstanding the provisions
cited by plaintiff, the FOIA and its statutory exemptions are
not applicable in this case.
broad and vague terms, plaintiff alleges that defendants
“deprived [him of] constitutional rights, ”
Compl. ¶ 15, protected under the First and Fifth
Amendments, see id. ¶¶ 9, 23; Pl.’s
Opp’n at 8. He does not demonstrate that the disclosure
of plaintiff’s social security numbers and other
identifying information by OFAC or the State Department
violates the United States Constitution. Cf. In re
Crawford, 194 F.3d 954, 658-60 (9th Cir. 1999) (finding
that public disclosure of non-attorney bankruptcy petition
preparer’s social security number, which he was
required to provide under 11 U.S.C. § 110(c), did not
violate constitutional right to privacy). Moreover, because
plaintiff’s claims arise from “the improper
disclosure of his personal information, ” Compl. at 1,
if he is entitled to any relief, it would be under the
Privacy Act. See Chung v. U.S. Dep’t of
Justice, 333 F.3d 273, 274 (D.C. Cir. 2003) (affirming
dismissal of “constitutional claims because . . . they
are encompassed within the remedial scheme of the Privacy
Act”); Tarullo v. Defense Contract Audit
Agency, 600 F.Supp.2d 352, 358 (D. Conn. 2009) (finding
that plaintiff’s “allegations that the Defendant,
on three occasions, wrongfully disclosed his [social security
number] to a contractor for government-sponsored,
contractor-issued travel charge card application “must
be brought pursuant to the Privacy Act's
‘catchall’ civil remedy provision, 5 U.S.C.
§ 552a(g)(1)(D), under which the Plaintiff would be
entitled only to damages”); Mittleman v. U.S.
Treasury, 773 F.Supp. 442, 454 (D.D.C. 1991) (concluding
that “plaintiff’s constitutional claims regarding
her records and any disclosures by defendants about those
records are barred” by the Privacy Act).
Privacy Act Claims Against the ...