UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

RICHARD A. CHICHAKLI, : : Plaintiff, : : v. : Civil Action No. 15-1152 (CKK) : JOHN KERRY, Secretary of State, et al., : : Defendants. :

MEMORANDUM OPINION

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

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

.” Holy Land Found.

for Relief & Dev. v. Ashcroft,

(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,

(July 22, 2004). Pursuant to Executive Order No. 13348,

1 Also before the Court is plaintiff’s Request for Expeditious Case Processing [ECF No. 23], which the Court will deny.

1 “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[were] blocked and [were] not to be transferred, paid, exported [or] withdrawn” unless permitted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.

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.”

.

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,

(5th Cir. 2008); see Defs.’ Mem. at 4-5. “Concurrently

with the 2005 designation, in accordance with statute, executive order and regulation, the

2 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,

-

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,

and published a notice listing

“the entries which [were] being removed from the SDN List in order to effectuate the removal,”

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

2 OFAC made its SDN designation on April 26, 2005, and “not until [January 2, 2013 was] plaintiff . . . officially charged with any crime.” Supp. Opp’n at 1. Plaintiff objected to defendants’ assertions that he was a fugitive in the interim or that he “fled the country” in 2005.

3 was unsealed in February 2010.

A subsequent “indictment against plaintiff [alone] in

Criminal Case 09-1002 (SDNY) was unsealed on [January 2,] 2013,”

and plaintiff was

returned to the United States in May 2013 upon his extradition from Australia, see United States

v. Chichakli, No. S3 09CR1002,

, 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

and

; one count conspiracy to commit money laundering, in

violation of

(h); one count of conspiracy to commit wire fraud, in violation of

; and six counts of wire fraud, in violation of

, 2.” United

States v. Bout, No. 14-4255-CR,

, at *1 (2d Cir. June 8, 2016); see Chichakli,

, 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

3 Plaintiff explains that he “has more than one social security number” and that they “are officially joint together (linked) as of the day of plaintiff’s discharge from his government service.” Pl.’s Resp. to Defs.’ Mot. to Dismiss [ECF No. 17] at 5; see Compl., Ex. 1 at 1-2; Supp. Opp’n at 3.

4 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

, 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,

(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

4 Plaintiff’s demand for injunctive relief in the form of “an order to compel the government to remove the illegally published personal information from all sources, Compl. at 8, appears to be moot in part because plaintiff no longer appears on the SDN List.

5 numbers and other identifying information by OFAC or the State Department violates the United

States Constitution. Cf. In re Crawford,

(9th Cir. 1999) (finding that

public disclosure of non-attorney bankruptcy petition preparer’s social security number, which

he was required to provide under

(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,

(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,

(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,

(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 Individual Defendants

Plaintiff purports to bring this action against the Secretaries of Treasury and State in their

official capacities only, and against OFAC’s Director in both in his official and individual

capacities. See Compl. at 1. The Privacy Act “concern[s] the obligations of agencies as distinct

from individual employees in those agencies.” Martinez v. Bureau of Prisons,

(D.C. Cir. 2006). The claims against the Secretaries of Treasury and State and against OFAC’s

Director are treated as if plaintiff had brought them against the United States itself. See Dick v.

6 Holder,

(D.D.C. 2014) (dismissing the Privacy Act claims against

individual defendants and substituting Federal Bureau of Investigation as proper defendant);

Cloonan v. Holder,

(D.D.C. 2011). Plaintiff simply cannot bring

Privacy Act claims against a government official or employee in his individual capacity and,

therefore, the Court will dismiss the Secretaries of Treasury and State and OFAC’s Director as

parties in this action. See Martinez,

(affirming dismissal of individual

defendants “because no cause of action exists that would entitle appellant to relief from them

under the Privacy Act”); Earle v. Holder,

(D.D.C. 2011), aff’d, No. 11-

5280,

(D.C. Cir. Apr. 20, 2012) (dismissing complaint against the individual

officials and substituting the Department of Justice as the proper defendant).

B. Privacy Act Claims Against OFAC 5

“The Privacy Act regulates the collection, maintenance, use, and dissemination of

information about individuals by federal agencies.” Wilson v. Libby,

(D.C.

Cir. 2008) (internal quotation marks and citations omitted). No agency is permitted to “disclose

any record which is contained in a system of records by any means of communication to . . .

another agency, except pursuant to a written request by, or with the prior written consent of, the

individual to whom the record pertains, unless disclosure of the record would be . . . for a routine

use as defined in subsection (a)(7) of this section and described under subsection (e)(4)(D).” 5

U.S.C. § 552a(b)(3). “The term ‘routine use’ means, with respect to the disclosure of a record,

the use of such record for a purpose which is compatible with the purpose for which it was

collected[.]” 5 U.S.C. § 552a(a)(7). An agency must “publish in the Federal Register upon

5 For purposes of this Memorandum Opinion, the Court presumes without deciding that plaintiff’s Privacy Act claims are not barred by the statute of limitations.

7 establishment or revision a notice of the existence and character of the system of records.” 5

U.S.C. § 552a(e)(4). Among other information, the notice must set forth “each routine use of

the records contained in the system, including the categories of users and purpose of such use[.]”

5 U.S.C. § 552a(e)(4)(D). “The government must therefore demonstrate both ‘compatibility’ and

publication in the Federal Register in order to successfully invoke the routine use exception.”

Radack v. U.S. Dep’t of Justice,

(D.D.C. 2005) (citations omitted).

OFAC maintains the Records Related to Office of Foreign Assets Control Economic

Sanctions system (DO.120) for “records related to the implementation, enforcement, and

administration of U.S. sanctions.”

(Jan. 2, 2014). According to the published

System of Records Notice (“SORN”), these records include:

Records related to . . . [i]nvestigations to determine whether an individual meets the criteria for designation or blocking and/or is determined to be a designated or blocked individual or otherwise affected by one or more sanctions programs administered by OFAC. In the course of an investigation, personally identifiable information is collected. Once an individual is designated, OFAC provides personally identifiable information to the public so that it can recognize listed individuals and prevent them from accessing the U.S. financial system. The release of personally identifiable information pertaining to the designee is also important in helping to protect other individuals from being improperly identified as the sanctioned target. The personally identifiable information collected by OFAC may include, but is not limited to, names and aliases, dates of birth, citizenship information, addresses, identification numbers associated with government-issued documents, such as driver’s license and passport numbers, and for U.S. individuals, Social Security numbers[.]

(emphasis added). 6 Routine uses of this information include:

6 Such personally identifiable information can be used to determine that an individual is not on the SDN List. See, e.g., Cortez v. Trans Union, LLC,

(3d Cir. 2010) (noting discrepancies between plaintiff’s date of birth and middle name to those of a person on the SDN List, yet credit reporting agency indicated that plaintiff’s name matched a name in OFAC database).

8 (3) Disclos[ure] of information to the Departments of State, Justice, Homeland Security, Commerce, Defense, or Energy, or other federal agencies, in connection with Treasury licensing policy or other matters of mutual interest or concern . . . ;

(8) Disclos[ure] of information to foreign governments and entities, and multilateral organizations—such as Interpol, the United Nations, and international financial institutions— consistent with law and in accordance with formal or informal international agreements, or for an enforcement, licensing, investigatory, or national security purpose . . . ; [and]

(12) Disclos[ure] of information to the general public, in furtherance of OFAC’s mission, regarding individuals and entities whose property and interests in property are blocked or otherwise affected by one or more OFAC economic sanctions programs, as well as information identifying certain property of individuals and entities subject to OFAC economic sanctions programs. This routine use includes disclosure of information to the general public in furtherance of OFAC’s mission regarding individuals and entities that have been designated by OFAC. This routine use encompasses publishing this information in the Federal Register, in the Code of Federal Regulations, on OFAC’s Web site, and by other means.

(emphasis removed).

The SORN addresses OFAC’s SDN List and the privacy interests of United States

citizens appearing on it:

Generally, the personal identifier information provided on the SDN List may include, but is not limited to, names and aliases, addresses, dates of birth, citizenship information, and, at times, identification numbers associated with government-issued documents. It is necessary to provide this identifier information in a publicly available format so that listed individuals and entities can be identified and prevented from accessing the U.S. financial system . . . . Because the SDN List is posted on OFAC’s public Web site and published in the Federal Register and in 31 CFR Appendix A, a designated individual’s identifier information can be accessed by any individual or entity with access to the internet, the Federal Register, or 31 CFR Appendix A. Thus, the impact on the individual’s privacy will be substantial, but this is necessary in order to make targeted economic sanctions effective.

(emphasis removed).

9 Defendants move to dismiss plaintiff’s Privacy Act claims against OFAC on the ground

that, consistent with OFAC’s SORN, “[a]ll of the disclosures identified in the Complaint –

including publication on the SDN List on OFAC’s website, disclosure to international

organizations, and other wise – fall within the published routine uses” for the Records Related to

Office of Foreign Assets Control Economic Sanctions system. Defs.’ Mem. at 13. According to

defendants, disclosure not only is “compatible with the purposes of the system,” but also is

necessary “in order to effectively implement . . . sanctions.”

Plaintiff deems the “use” of his social security number anything but “routine.” He opines

that a social security number is “relevant only to the United States,” and “means absolutely

nothing . . . to the world outside of the United States[] with the exception [of] ‘international

identity [t]hieves’ to whom it is worth a fortune.” Compl. ¶ 16 (emphasis removed). In his

view, “[i]t is an extraordinary event” to find that he is the only individual on an SDN List “of

more than one quarter of a million names” whose social security numbers are listed. Pl.’s Opp’n

at 2; see Compl. ¶ 25. Defendants respond by pointing to other examples of individuals whose

social security numbers are published on the SDN List, see Reply Mem. in Support of Mot. to

Dismiss [ECF No. 19] (“Reply”) at 2-3 (page numbers designated by ECF), yet none of the

parties explain the relevance of the regularity with which OFAC publishes the social security

numbers of designated individuals who are United States citizens. Even if plaintiff were the only

individual whose social security number appears, the rarity of this occurrence does not

demonstrate that OFAC violated the Privacy Act by publishing plaintiff’s social security

numbers.

The Records Related to Office of Foreign Assets Control Economic Sanctions system

maintains records pertaining to the enforcement of economic sanctions, and OFAC’s disclosure

10 of personal information about individuals on the SDN List – including plaintiff for the time he

was considered a Specially Designated National – is entirely consistent with OFAC’s mission to

implement and enforce economic sanctions. Therefore, the Court concludes that publication by

OFAC of plaintiff’s social security number, and all the other personal identifying information

about him, is a permissible routine use of this information.

C. Privacy Act Claims Against the State Department

For purposes of this Memorandum Opinion, the Court presumes without deciding that the

State Department “disclosed” information about plaintiff, even though OFAC already had made

this same information publicly available on its SDN List. Defendants argue that the State

Department, too, published personal information about plaintiff, including his social security

number, as a permissible routine use. See Defs.’ Mem. at 14-16.

The State Department maintains the Security Records system (State-36), about which it

has published SORNs in the Federal Register. See

. Defendants represent that the

original SORN and each of three subsequent amendments describe Security Records as including

“information about . . . individuals whose activities other agencies believe may have a bearing on

U.S. foreign policy interests.” See

(internal quotation marks and citations omitted). The

current SORN, for example, states that the Security Records system contains “documents and

reports furnished to the [State] Department by other Federal Agencies concerning individuals

whose activities these agencies believe may have a bearing on U.S. foreign policy interests.”

(May 9, 2013). Among the routine uses for Security Records are disclosures to:

(c) Any Federal, state, municipal, foreign or international law enforcement or other relevant agency or organization for law enforcement or counterterrorism purposes: threat alerts and analyses, protective intelligence and counterintelligence

11 information, information relevant for screening purposes, and other law enforcement and terrorism-related information as needed by appropriate agencies of the Federal government, states, or municipalities, or foreign or international governments or agencies; [and to]

(f) A Federal, state, local, foreign, or international agency or other public authority that investigates, prosecutes or assists in investigation, prosecution or violation of criminal law or enforces, implements or assists in enforcement or implementation of statute, rule, regulation or order[.]

.

Based on the plain language of the SORN, defendants maintain that any “[i]nformation

provided [by the State Department] to the United Nations about an individual designated by

OFAC for sanctions, with the aim of having the individual designated for similar sanctions by

the UN Security Council, constitutes information provided to a ‘foreign or international agency

or other a public authority that . . . enforces, implements, or assists in the enforcement or

implementation of a statute, rule, regulation or order.’” Defs.’ Mem. at 15 (quoting

). According to defendants, “[d]esignation for sanctions by the United Nations Security

Council assists in implementation of the U.S. sanctions pursuant to . . . IEEPA, because

designation by the Security Council requires all States to freeze the designated individuals’

assets and prevent their nationals . . . from providing assets to or for the benefit of the designated

individual.”

The Court concurs with defendants’ assessment that information supplied to the

United Nations about an individual subject to sanctions “is . . . fairly considered ‘law

enforcement-related’ information, and personally identifiable information would be [required in

order that] the United Nations impose sanctions.”

.

Plaintiff contends that the State Department’s disclosure to the United Nations differed

from OFAC’s disclosure because it included an additional piece of information – his driver’s

12 license number – that had not been published previously on the SDN List. Pl.’s Opp’n at 8. The

State Department’s disclosure occurred in 2013, after plaintiff’s arrest in Australia, at which time

the State Department “updated the . . . United Nations Sanctioned List by adding plaintiff’s

driver license number to the list of personal information” previously transmitted to the United

Nations. 7

In his view, the State Department “did not merely restate[] and/or republish[]

information that [had] been aired before by defendant U.S. Treasury or OFAC.” Supp. Opp’n at

5; see Pl.’s Opp’n at 8. Rather, the State Department “uniquely published [his] driver license

number and other details that were not aired previously,” and this act violates the Privacy Act.

Supp. Opp’n at 5. Plaintiff fails to notice, however, that “identification media (such as passports,

residence, or driver’s license information),”

, are among the types of

information about an individual maintained in the Security Records. It cannot be said that the

State Department’s addition of plaintiff’s driver license number, which was passed on the United

Nations, violates the Privacy Act, as the State Department may disclose information in its

Security Records system to a foreign or international agency or organization with regard to the

enforcement of OFAC or United Nations-imposed sanctions.

D. Actual Damages

Among the remedies available to a plaintiff who prevails on his Privacy Act claim are

actual damages. See 5 U.S.C. § 552a(g)(1)(D). If a plaintiff demonstrates an agency’s

“intentional or willful refusal or failure to comply with the Act, the United States shall be liable

for actual damages sustained by the individual as a result of the refusal or failure, but in no case

shall a person entitled to recovery receive less than the sum of $1,000.” FAA. v. Cooper, 132 S.

7 The driver license was issued by the State of Victoria, Australia. See Compl., Ex. 1 at 1-2.

13 Ct. 1441, 1448-49 (2012) (internal quotation marks and citation omitted). For purposes of the

Privacy Act, actual damages are “special damages for proven pecuniary loss.” Id. at 1452.

Even if plaintiff had alleged a viable Privacy Act claim, and if he had shown defendants’

actions to be willful and intentional, defendants argue that he has not incurred actual damages.

See Defs.’ Mem. at 18. Defendants deem plaintiff’s complaint deficient because it fails to allege

any special damages as is required under Federal Rule of Civil Procedure 9(g). See Defs.’ Mem.

at 18. Furthermore, defendants assert that neither plaintiff’s identity theft allegations nor the

existence of fraudulent accounts purportedly in plaintiff’s name establish actual damage,

particularly absent any indication that these accounts ever were active. Id. at 18-19. “Indeed, the

existence of OFAC sanctions prevents accounts in [plaintiff’s] name from doing any business in

the United States.” Id. at 19; see Reply at 4.

Plaintiff alleges in his complaint that “several fraudulent bank accounts were

establish[ed]” in his name, Compl. ¶ 12, and he suggests that his credit score will be affected

negatively now that his personal information is available on the internet and from other sources,

id. ¶ 11. In other submissions, plaintiff states that fraudulent income tax returns have been filed

under his social security numbers, see Supp. Opp’n at 5, and that credit cards have been issued

using his personal information, see id.; Pl.’s Opp’n at 4. Plaintiff explains that he cannot now

determine “the actual sum of the dollar amount in damages . . . because there are many credit

cards . . . still undiscovered and likely to be still in use.” Pl.’s Opp’n at 5. He maintains that

defendants’ actions “caused the theft of [his] identity, and resulted in . . . serious, actual, and

identifiable damages” to him in an amount that “is unknown at this point in time[.]” Supp.

Opp’n at 9-10.

14 The Court is persuaded that plaintiff “fail[s] to plead any cognizable pecuniary harm . . .

due to an unlawful Privacy Act disclosure.” Defs.’ Mem. at 18. He does not allege and fails to

demonstrate that he has sustained concrete and quantifiable damages.

III. CONCLUSION

The Court concludes that plaintiff’s complaint fails to state a claim upon which relief can

be granted. Accordingly, defendants’ motion to dismiss will be granted. An Order is issued

separately.

DATE: August 19, 2016 /s/ COLLEEN KOLLAR KOTELLY United States District Court Judge

15