United States District Court, District of Columbia
RICHARD A. CHICHAKLI, Plaintiff,
DONALD J. TRUMP, et al., Defendants.
COLLEEN KOLLAR KOTELLY United States District Court Judge
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.
is a United States citizen, Compl. ¶¶ 1, 13, who
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.
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). 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.
Liberian Sanctions Program
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,
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
50 U.S.C. § 1702(a)(1)(B) (emphasis added).
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
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 Dated:
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).
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 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).
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.
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). 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.
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.
[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.
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.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) (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.
Civil Action No. 3:06-cv-1546-N
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
[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],