Exxon Mobil Corp. v. Mnuchin

Decision Date31 December 2019
Docket NumberCIVIL ACTION NO. 3:17-CV-1930-B
Citation430 F.Supp.3d 220
Parties EXXON MOBIL CORPORATION; ExxonMobil Development Company; and ExxonMobil Oil Corporation, Plaintiffs, v. Steven MNUCHIN, in his official capacity as Secretary of the U.S. Department of the Treasury; Andrea M. Gacki, in her official capacity as the Director of the U.S. Department of the Treasury's Office of Foreign Assets Control; and the U.S. Department of the Treasury's Office of Foreign Assets Control, Defendants.
CourtU.S. District Court — Northern District of Texas

Nina Cortell, Haynes & Boone LLP, Dallas, TX, Antonio J. Perez-Marques, Pro Hac Vice, Davis Polk & Wardwell LLP, New York, NY, Benjamin E. Moskowitz, Pro Hac Vice, Kannon K. Shanmugam, Pro Hac Vice, Katherine Stewart, Pro Hac Vice, Paul Weiss Rifkind Wharton & Garrison LLP, Neil MacBride, Pro Hac Vice, Davis Polk & Wardell LLP, Washington, DC, Patrick Joseph Conlon, Pro Hac Vice, Exxon Mobil Corporation, Houston, TX, Shannon H. Ratliff, Davis, Gerald, & Cremer, P.C., Austin, TX, for Plaintiffs.

Leslie Cooper Vigen, Nicholas Cartier, U.S. Department of Justice, Nathan Swinton, Washington, DC, for Defendants.



Before the Court is Plaintiffs Exxon Mobil Corporation, ExxonMobil Development Company, and ExxonMobil Oil Corporation's Motion for Summary Judgment (Doc. 92), as well as Defendants Steven Mnuchin, Andrea Gacki, and the Office of Foreign Assets Control's Cross-Motion for Summary Judgment (Doc. 95). The parties dispute whether the Office of Foreign Assets Control's imposition of a two-million-dollar fine upon Plaintiffs for alleged violations of Ukraine-related sanctions regulations was lawful. Because the Court concludes that Plaintiffs lacked fair notice that their conduct was prohibited, the Court GRANTS Plaintiffs' motion (Doc. 92) and DENIES Defendants' cross-motion (Doc. 95). Further, the Court VACATES the Office of Foreign Asset Control's Penalty Notice.


This is an administrative case prompting the Court to determine which party receives the benefit of having its cake and eating it, too—the regulating agency that failed to clarify, or the regulated party that failed to ask. Plaintiffs Exxon Mobil Corporation, ExxonMobil Development Company, and ExxonMobil Oil Corporation (collectively "Exxon") filed a motion for summary judgment challenging the Office of Foreign Assets Control (OFAC)'s imposition of a penalty against Exxon for alleged violations of Ukraine-related sanctions regulations.2 Doc. 93, Sealed Mem. in Supp. of Pls.' Mot., 1. Thereafter, Defendants Steven Mnuchin, Andrea Gacki, and OFAC (collectively "Government") filed a cross-motion for summary judgment, urging the Court to uphold OFAC's penalty decision. Doc. 95, Defs.' Cross-Mot., 1; Doc. 99, Br. in Supp. of Defs.' Resp. & Cross-Mot., 1. Before reaching the merits of the parties' claims, the Court reviews the relevant events leading up to the case.

A. The Ukraine-Related Sanctions Regulations

On March 6, 2014, President Barack Obama issued Executive Order 13660, which declared that the "actions and policies of persons ... who have asserted government authority in the Crimea region without the authorization of the Government of Ukraine ... constitute an unusual and extraordinary threat to the national security and foreign policy of the United States...." Exec. Order No. 13660, 79 Fed. Reg. 13,493 (Mar. 6, 2014). Subsequently, President Obama expanded Executive Order 13660 through the issuance of Executive Order 13661, which found that "the actions and policies of the Government of the Russian Federation with respect to Ukraine" were also a threat to the United States. Exec. Order No. 13661, 79 Fed. Reg. 15,535 (Mar. 16, 2014).

Executive Order 13661 authorizes the Secretary of the Treasury to promulgate regulations "as may be necessary to carry out the purposes of [the] order," as well as to designate individuals and entities—commonly known as Specially Designated Nationals (SDNs)—whose property would be "blocked" based on their ties to the Russian government. See id. at 15,535–36. Under Section 1 of the Order, "blocked" property that is "within the possession or control" of any United States individual or entity cannot "be transferred, paid, exported, withdrawn, or otherwise dealt in" by these individuals or entities. See id. at 15,535. Further, under Section 4 of the Order, the prohibitions of Section 1 "include ... the receipt of any contribution or provision of ... services." Id. at 15,536.

One day after the issuance of Executive Order 13661, the White House Office of the Press Secretary released a "Fact Sheet" on the Ukraine-related sanctions, which indicated: "Our current focus is to identify these individuals and target their personal assets, but not companies that they may manage on behalf of the Russian state." AR 360. Similarly, the Press Secretary released a "Background Briefing by Senior Administration Officials on Ukraine," which stated, "[O]ur current focus is to identify these cronies of the Russian government and target their personal assets and wealth, rather than the business entities and industries that they may manage or oversee." AR 23490. It also stated that "U.S. persons are prohibited from doing business with [designated persons.]" AR 23489.

Roughly one month later, the U.S. Department of the Treasury ("the Treasury") designated Igor Sechin as an SDN pursuant to Executive Order 13661. AR 23689–91. Sechin is the President and Chairman of the Management Board of Rosneft, a leading petroleum company in Russia. AR 23689. In announcing Sechin's designation, the Treasury noted that Rosneft "[had] not been sanctioned," though the Treasury did designate other entities that were "owned or controlled by persons ... whose property and interests in property are blocked...." Id. The announcement also stated that "transactions by U.S. persons or within the United States involving the individuals and entities designated today are generally prohibited." AR 23690. On the same day, the White House Office of the Press Secretary released a transcript of a conference call, which stated, "We are imposing sanctions on Sechin ... individually." AR 23501. Similarly, in an interview with PBS NewsHour , the White House Deputy National Security Advisor stated that "U.S. companies will not be able to do business with [designated individuals] in their individual capacities." AR 206. Further, the Advisor noted that Rosneft was not designated—Sechin "was in his individual capacity," but the Advisor had already seen "an impact on the company itself." AR 204–05.

Several major news outlets echoed this individual-capacity distinction. For example, Foreign Policy reported: "Treasury officials said the designation [of Sechin] wouldn't impact U.S. companies' ability to do business with Rosneft because Sechin does not control the firm." AR 23522. Likewise, based on representations from the Treasury, the New York Times reported that U.S. persons could still deal with Rosneft, such as by participating in meetings of the company board, despite Sechin sitting on this board. AR 23579. And the Wall Street Journal —albeit weeks later—reported, based on statements from the Treasury, that board interactions were permissible as long as "they are covering Rosneft business and not Mr. Sechin's personal business." AR 23584.

On May 14, 2014, OFAC issued the Ukraine-related sanctions regulations ("the Regulations") pursuant to Executive Orders 13660 and 13661. See 31 C.F.R. §§ 589.101 – .901 (2019) ; Exec. Order 13661, 79 Fed. Reg. 15,536 –37 (Mar. 16, 2014) (authorizing the Secretary of the Treasury to "redelegate any of [the functions laid out in Executive Order 13661 ] to ... agencies of the United States"). The Regulations prohibit all transactions that are prohibited under Executive Order 13661. 31 C.F.R. § 589.201. Additionally, the Regulations define "property" and "property interest" expansively, stating that these terms "include, but are not limited to ... services of any nature whatsoever [and] contracts of any nature whatsoever...." Id. § 589.308. Moreover, the Regulations warn that "[d]iffering foreign policy and national security circumstances may result in differing interpretations of similar language among the parts of this chapter." Id. § 589.101. Finally, the a Note in the Regulations advises that "OFAC intends to supplement this part with a more comprehensive set of regulations, which may include additional interpretive and definitional guidance...." Id.

B. Exxon's Alleged Violations of the Regulations

Exxon Mobil Corporation is a publicly traded oil-and-gas company that includes two subsidiary companies. AR 254–55. Exxon has done business in Russia—including with Rosneft—for over twenty years. AR 23408. Following the imposition of the Regulations in 2014, this business did not halt; rather, Exxon proceeded to execute eight contracts with Rosneft. AR 1; see AR 1564–66; AR 1825–915. The first seven were completion deeds related to a parent agreement entered into by the parties in June of 2013. See AR 1825–915. The eighth was an extension of an existing agreement between Exxon and Rosneft that was initially executed in September of 2013. See AR 1564. Sechin, as a representative of Rosneft, signed each of these eight contracts on May 23, 2014. AR 1566; see AR 1825, 1830; AR 1838, 1843; AR 1851, 1856; AR 1864, 1869; AR 1877, 1882; AR 1890, 1895; AR 1903, 1908. Exxon concedes it never sought guidance from OFAC prior to executing the contracts. See Doc. 93, Sealed Mem. in Supp. of Pls.' Mot., 37.

These transactions form the basis for OFAC's penalty notice. Specifically, OFAC found that the transactions violated Section 4 of Executive Order 13661, which prohibits the receipt of services from a blocked individual. Doc. 99, Br. in Supp. of Defs.' Resp. & Cross-Mot., 26; Exec. Order No. 13661, 79 Fed. Reg. 15,536 (Mar. 16, 2014).

C. Guidance...

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