United States District Court, District of Columbia
TIMOTHY J. KELLY, UNITED STATES DISTRICT JUDGE
2010, the Treasury Department (the “Department”)
designated Plaintiff Mohamed Bachir Sulemane a significant
foreign narcotics trafficker pursuant to the Foreign
Narcotics Kingpin Designation Act, thereby freezing any
assets he may have had in the United States. In 2015, the
Department denied his request for reconsideration of his
designation. The following year, Sulemane brought this
lawsuit, challenging the Department's denial of his
request for reconsideration. In his Complaint, Sulemane
alleges seven violations of the Administrative Procedure Act.
In the first six, he claims the Department erred in various
ways in reaching its decision to deny his request for
reconsideration. In the seventh, he claims the Department did
not give him adequate notice under the APA when it refused to
provide him the classified and law enforcement-privileged
information supporting his designation. Sulemane also
requests a writ of mandamus requiring the Department to
rescind his designation or disclose this classified and
privileged information to him.
moved to dismiss Sulemane's claims or, in the
alternative, for summary judgment. ECF. No. 7. Sulemane then
moved for summary judgment on all claims. ECF No. 9. For the
reasons explained below, the Court will grant Defendants'
motion and deny Plaintiffs motion.
1999, Congress enacted the Foreign Narcotics Kingpin
Designation Act (“Kingpin Act”). See 21
U.S.C. §§ 1901-08. “The Kingpin Act was
modeled on a specific, successful application of a similar
statute, the International Emergency Economic Powers Act
(IEEPA), 50 U.S.C. §§ 1701- 07 . . . [and] IEEPA
itself is closely analogous to the antiterrorism provisions
of the Antiterrorism and Effective Death Penalty Act of 1996,
8 U.S.C. § 1189 (AEDPA) .” Zevallos v.
Obama, 793 F.3d 106, 109-10 (D.C. Cir. 2015).
“Under all three statutes, the President can designate
individuals or entities as posing a threat to the security of
the United States or its interests and impose sanctions on
them.” Id. at 110.
Kingpin Act targets “significant foreign narcotics
traffickers, their organizations, and the foreign persons who
provide support to those significant foreign narcotics
traffickers and their organizations, whose activities
threaten the national security, foreign policy, and economy
of the United States.” 21 U.S.C. § 1902.
“Narcotics trafficking” means “any illicit
activity to cultivate, produce, manufacture, distribute,
sell, finance, or transport narcotic drugs, controlled
substances, or listed chemicals, or otherwise endeavor or
attempt to do so, or to assist, abet, conspire, or collude
with others to do so.” Id. § 1907(3).
Kingpin Act authorizes the designation of foreign persons
that “play a significant role in international
narcotics trafficking, ” Id. § 1907(7),
as “significant foreign narcotics traffickers, ”
Id. § 1903(b). In addition, it permits the
designation of foreign persons who “materially assist
in . . . the international narcotics trafficking
activities” of significant foreign narcotics
traffickers or are “owned, controlled, or directed
by” those traffickers as “specially designated
narcotics traffickers.” 21 U.S.C. §
1904(b)(2)-(4); 31 C.F.R. § 598.314. Persons and
entities designated under the Kingpin Act “are added to
the ‘Specially Designated Nationals and Blocked Persons
List,' 31 C.F.R. § 501.807(a), and all their assets
in the United States or under the control of any person who
is in the United States are ‘block[ed],' 21 U.S.C.
§ 1904(b), or effectively frozen.” Zevallos, 793
F.3d at 110 (alteration in original).
person or entity designated under the Kingpin Act “may
seek administrative reconsideration” of the designation
by submitting “arguments or evidence that the person
believes establishes that insufficient basis exists for the
designation.” 31 C.F.R. § 501.807. A
reconsideration request “may include arguments or
evidence rebutting Treasury's ‘basis . . . for the
designation,' or ‘assert that the circumstances
resulting in the designation no longer apply.'”
Zevallos, 793 F.3d at 110 (omission in original) (quoting 31
C.F.R. § 501.807, 807(a)). “As part of the
agency's reconsideration process, designated individuals
may request disclosure of the administrative record
supporting the designation decision.” Fares v.
Smith, 901 F.3d 315, 319 (D.C. Cir. 2018).
Office of Foreign Assets Control (OFAC) at the Department
reviews requests for reconsideration and “provide[s] a
written decision to the blocked person.” 31 C.F.R.
§ 501.807(d). If OFAC denies a request for
reconsideration, the blocked person may challenge that
determination under the APA. See, e.g., Fares v.
Smith, 249 F.Supp.3d 115, 129 (D.D.C. 2017), aff'd
901 F.3d 315 (D.C. Cir. 2018); Zevallos v. Obama, 10
F.Supp.3d 111, 123-24 (D.D.C. 2014), aff'd 793 F.3d 106
(D.C. Cir. 2015). The Kingpin Act “provides that, to
support its determinations, OFAC may submit classified
information ex parte and in camera to any court considering a
challenge to a designation.” Fares, 901 F.3d at 319
(citing 21 U.S.C. § 1903(i)).
Factual and Procedural Background
is a citizen and resident of Mozambique. Compl. ¶ 15. On
June 1, 2010, the Department designated him a significant
foreign narcotics trafficker under the Kingpin Act. AR
442-43. The Department also designated three
businesses purportedly owned or controlled by Sulemane-Grupo
MBS Limitada, Grupo MBS-Kayum Centre, and Maputo Shopping
Centre- as specially designated narcotics traffickers under
the Kingpin Act. AR 443. As a result, these designations
froze “any assets the three entities may have under
U.S. jurisdiction and prohibit[ed] U.S. persons from
conducting financial or commercial transactions with
them.” AR 472.
subsequently challenged these designations. On August 18,
2010, he submitted a proposed settlement to OFAC through
which he offered to undertake certain remedial steps in
exchange for his delisting. AR 1146-48. On September 29,
2010, OFAC acknowledged Sulemane's settlement offer but
requested that he file a formal petition for reconsideration
of his designation. AR 717-18. On November 30, 2010, Sulemane
did so. AR 508-44. After receiving his formal request for
reconsideration, OFAC issued two questionnaires to Sulemane,
dated March 2, 2011, and March 6, 2012, requesting additional
information to evaluate his reconsideration petition. AR
February 7, 2015, Sulemane inquired as to the status of his
request and again proposed a settlement. See AR
1323-32. In that letter, Sulemane also requested a copy of
the unclassified portions of the administrative record, as
well as either unclassified summaries of any classified
information in it or outright disclosure of that information
to his counsel, who retained a security clearance at the
time. AR 1325-27.
April 2, 2015, OFAC denied Sulemane's request for
reconsideration. AR 1341-43. In a three-page letter, it
concluded that “[a]fter reviewing all of the evidence
before OFAC, including law enforcement sensitive, diplomatic,
classified, and open source information, we do not find Mr.
Sulemane's claims that he has not engaged in narcotics
trafficking to be credible.” AR 1342. The letter went
on to inform Sulemane that “[m]ultiple sources indicate
that he has engaged, and continues to engage, in narcotics
trafficking.” Id. The letter further explained
the basis for its conclusion as follows:
. Sulemane “had financial dealings and
relations with persons engaged in narcotics trafficking, such
as Dawood Ibrahim, who was identified by the President as a
Tier I Drug Kingpin in June 2006.” Id.
. Open source reporting had referred to
Sulemane as “a narcotics trafficker who conceals
narcotics in trucks importing goods into Mozambique, ”
a “drug baron, ” and a “‘drug
underworld rival' to several detained and prominent
narcotics traffickers in Kenya.” Id.
. OFAC had “reason to believe that
Sulemane “engaged in corrupt activities to further his
narcotics-related activities, ” such as circumventing
port scanners to import narcotics into Mozambique.
. OFAC had reason to believe that
Sulemane's “violations of customs procedures,
foreign exchange regulations, and tax evasion announced by
the Government of Mozambique in September 2011 are related to
his involvement in ...