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Chichakli v. Kerry

United States District Court, District of Columbia

August 19, 2016

RICHARD A. CHICHAKLI, Plaintiff,
v.
JOHN KERRY, Secretary of State, et al., Defendants.

          MEMORANDUM OPINION

          COLLEEN KOLLAR KOTELLY United States District Court Judge

         This matter is before the Court on Defendants’ Motion to Dismiss [ECF No. 14].[1] For the reasons discussed below, the motion will be granted.

         I. BACKGROUND

         The 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possession of or control of United States persons [were] blocked and [were] not to be transferred, paid, exported [or] withdrawn” unless permitted under IEEPA.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).

         Defendants 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. at 6.

         In 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.

         Defendants 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.

         Meanwhile, 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.[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.

         In this 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.[3] 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).

         As a 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. ¶ 12.[4]

         II. DISCUSSION

         The 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.

         In 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).

         A. Privacy Act Claims Against the ...


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