Islamic Am. Relief Agency v. Unidentified Fbi Ag.

• Decision Date: 15 September 2005
• Docket Number: No. CIV.A. 04-2264(RBW).,CIV.A. 04-2264(RBW).
• Citation: 394 F.Supp.2d 34
• Parties: ISLAMIC AMERICAN RELIEF AGENCY, Plaintiff, v. UNIDENTIFIED FBI AGENTS, et al., Defendants.
• Court: U.S. District Court — District of Columbia

394 F.Supp.2d 34

ISLAMIC AMERICAN RELIEF AGENCY, Plaintiff, v. UNIDENTIFIED FBI AGENTS, et al., Defendants.

No. CIV.A. 04-2264(RBW).

United States District Court, District of Columbia.

September 15, 2005.

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Shereef Akeel, Melamed, Dailey & Akeel, P.C., Huntington Woods, MI, for Plaintiff.

Andrea Marie Gacki, Carlton Greene, U.S. Department of Justice, Washington, DC, for Defendant.

MEMORANDUM OPINION¹

WALTON, District Judge.

On December 30, 2004, the plaintiff commenced this action claiming violations by the defendants of the First, Fourth and Fifth Amendment to the United States Constitution, the International Emergency Economic Powers Act ("IEEPA"), 50 U.S.C. § 1701 et seq. (2000), and the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq. (2003). Complaint ("Compl.") ¶ 1. On that same day, the plaintiff filed a motion for a preliminary injunction, which this Court denied on February 18, 2005. February 18, 2005 Order. Currently before the Court is (1) the Defendants' Motion to Dismiss and for Summary Judgment² and (2) Defendant Paul Schlup's Motion to Dismiss.³ For the reasons set forth below, the Court grants both motions.⁴

I. Background

(A) Factual Background

The Islamic African Relief Agency, now the Islamic American Relief Agency ("IARA-USA"), based in Columbia, Missouri, was established in 1985 as a nonprofit humanitarian relief organization under section 501(c)(3) of the United States Internal Revenue Code. Complaint ("Compl.") ¶ 8; Pl.'s Opp'n at 6. Specifically, the IARA-USA has "provided charitable and humanitarian aid to refugees, orphans, victims of human and natural disasters, and other poor and needy persons and entities throughout the world, without regard to faith or political affiliation." Compl. ¶ 9. At the time the IARA-USA was incorporated in the United States, an organization based in Sudan also existed under the name Islamic African Relief Agency ("IARA").⁵ Pl.'s Opp'n at 6. The plaintiff posits that the two organizations are completely separate entities and are in no way related. Compl. ¶¶ 12, 28. In 2000, the IARA-USA began expanding and providing humanitarian relief to other countries outside of the African continent. Pl.'s Opp'n at 7. Thus, to reflect its broader mission, the plaintiff changed its name to the Islamic American Relief Agency ("IARA-USA"). Id.

On October 13, 2004, pursuant to Global Terrorism Executive Order No. 13,224, and the IEEPA, the United States Department of the Treasury, Office of Foreign Assets Control ("OFAC"), designated the IARA, including the IARA-USA, as a Specially Designated Global Terrorist ("SDGT"), and blocked the assets of the IARA, along with the assets of five of its senior officials.⁶ Com pl. ¶¶ 23-26; Compl., Ex. A; Pl.'s Opp'n at 11. The designation was based on evidence, both classified and unclassified, that purportedly demonstrated that the IARA "assist[s] in, sponsor[s], or provide[s] financial, material, or technological support for, or financial or other services to or in support of, such acts of terrorism...." Exec. Order. 13,224, § 1(d)(i), 66 Fed.Reg. 49,079, at 49,080 (Sept. 23, 2001). Based upon the blocking notice against the IARA, the property of the IARA-USA was also blocked and its bank accounts frozen. Compl. ¶ 29. The OFAC blocking notice stated that the IARA-USA could challenge the blocking order by writing a letter to the Director of the OFAC. Compl., Ex. A at 2. In addition to the blocking notice, the plaintiff posits that the defendants illegally obtained a sealed search warrant, and seized and removed property from the IARA-USA office in Columbia, Missouri. Compl. ¶¶ 31-32.

On December 30, 2004, the plaintiff filed this action challenging the OFAC's decision to block its assets. In particular, the plaintiff brings this action against John Snow, Secretary of the Treasury and Alberto Gonzales, Attorney General of the United States,⁷ in their official capacities, and various unidentified Federal Bureau of Investigation ("FBI") Agents, Paul Schlup, a Special Agent with the Internal Revenue Service, and other unidentified Department of the Treasury employees both in their individual and official capacities. Compl. ¶¶ 13-21. The plaintiff's complaint asserts nine separate counts against the various defendants. Specifically, the plaintiff alleges violations of the APA, the First, Fourth and Fifth Amendments to the United States Constitution, Civil Liability for False Affidavit, and violations of 42 U.S.C. § 1985(3). Compl. ¶¶ 45-101. Moreover, the plaintiff seeks monetary damages pursuant to Bivens v. Six Unknown Agents of the Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) against the individual defendants.

(B) Statutory and Regulatory Background

(1) International Emergency Economic Powers Act ("IEEPA")

Through much of the Twentieth century, the United States utilized economic sanctions as a tool of foreign policy pursuant to the Trading With the Enemy Act ("TWEA"). Passed in 1917, and amended in 1933, the TWEA granted the President "broad authority" to "investigate, regulate, ... prevent or prohibit ... transactions" in times of war or declared national emergencies. 50 U.S.C. app. § 5(b). In 1977, through the passage of the IEEPA, Congress further amended the TWEA. The IEEPA delineates "the President's authority to regulate international economic transactions during wars or national emergencies." S.Rep. No. 95-466 at 2. The IEEPA limited the TWEA's application to periods of declared wars and to certain existing TWEA programs, while the IEEPA was applicable during other times of declared national emergencies. See Regan v. Wald, 468 U.S. 222, 227-28, 104 S.Ct. 3026, 82 L.Ed.2d 171 (1984). Under the IEEPA, the President can declare a 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." 50 U.S.C. § 1701(a). The IEEPA authorizes the President to

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 United States....

50 U.S.C. § 1702(a)(1)(B).⁸ However, the IEEPA specifically prohibits the President from regulating or prohibiting directly or indirectly "donations, by persons subject to the jurisdiction of the United States, of articles such as food, clothing, and medicine ... except to the extent that the President determines that such donations ... would seriously impair his ability to deal with any national emergency...." 50 U.S.C. § 1702(b)(2).

(2) Executive Order No. 13,224

Following the September 11, 2001 terrorist attacks on the United States, President Bush, on September 23, 2001, issued Executive Order 13,224, declaring a national emergency with respect to the "grave acts of terrorism ... and the continuing and immediate threat of further attacks on United States nationals or the United States." Exec. Order. 13,224, 66 Fed.Reg. 49,079, at 49,079 (Sept. 23, 2001). Through this Executive Order, President Bush invoked the authority granted to him under the IEEPA, id. § 1, and blocked all property and interests in property of twenty-seven foreign terrorist, terrorist organizations, and their supporters, each which were designated as SDGTs, id., annex.

The Executive Order authorizes the Secretary of the Treasury, in consultation with the Secretary of State and the Attorney General, to designate additional SDGTs whose property or interests in property should be blocked because they "act for or on behalf of" or are "owned or controlled by" designated terrorists, or because they "assist in, sponsor, or provide ... support for," or are "otherwise associated" with them. Id. § 1(c)-(d). Moreover, the Executive Order also authorizes the Secretary of Treasury to "employ all powers granted to the President by IEEPA and [the United National Participation Act (`UNPA')]" and to promulgate rules and regulations to carry out the purposes of the Order and to re-delegate such functions if he chose to do so. Id. § 7, 66 Fed.Reg. at 49,081. Moreover, the Executive Order states:

because of the ability to transfer funds or assets instantaneously, prior notice to such persons of measures to be taken pursuant to this order would render these measures ineffectual. I therefore determine that for these measures to be effective in addressing the national emergency declared in this order, there need be no prior notice of a listing or determination made pursuant to this order.

Id. § 10. In addition, section 4 of the Executive Order states that "the making of donations of the type specified in section 203(b)(2) of IEEPA (50 U.S.C. § 1702(b)(2)) ... would seriously impair my ability to deal with the national emergency declared in this order ... and [therefore the President] ... prohibit[s] such donations...." Id. § 4, 66 Fed.Reg. at 49,080.

(3) Executive Order 13,372

On February 16, 2005, President Bush issued Executive Order 13,372. This Executive Order amended Executive Order 13,224 to make clear that the IEEPA's humanitarian aid exception does not authorize entities blocked pursuant to Executive Order 13,324 to donate humanitarian aid articles to anyone, even unblocked persons, without prior authorization from the OFAC. Exec. Order No. 13,372, 70 Fed.Reg. 8499 (Feb. 16, 2005). Specifically, Executive Order 13,372 states:

I hereby determine that the making of donations of the...