Kadi v. Geithner, Civil Action No. 09–0108(JDB).

• Citation: 42 F.Supp.3d 1
• Decision Date: 19 March 2012
• Docket Number: Civil Action No. 09–0108(JDB).
• Parties: Yassin Abdullah KADI, Plaintiff, v. Timothy GEITHNER, et al., Defendants.
• Court: U.S. District Court — District of Columbia

42 F.Supp.3d 1

Yassin Abdullah KADI, Plaintiff,
v.
Timothy GEITHNER, et al.,¹ Defendants.

Civil Action No. 09–0108(JDB).

United States District Court, District of Columbia.

March 19, 2012

Motion granted.

[42 F.Supp.3d 5]

Daniel L. Brown, Elizabeth M. Rotenberg–Schwartz, David F. Geneson, Sheppard, Mullin, Richter & Hampton LLP, Washington, DC, for Plaintiff.

Jonathan Eli Zimmerman, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION
JOHN D. BATES, District Judge.

This case, brought by Yassin Abdullah Kadi,² a citizen and permanent resident of Saudi Arabia, involves a challenge to the decision of the Office of Foreign Assets Control (“OFAC”) to designate him as a “specially designated global terrorist (“SDGT”).” Presently pending are (1) defendants' ³ motion to dismiss or, in the alternative, for summary judgment; (2) Kadi's motion for discovery under Fed.R.Civ.P. 56(f); and (3) Kadi's motion to amend his complaint. For the reasons that follow, the Court will grant defendants' motion for summary judgment, deny Kadi's motion for discovery under Rule 56(f), and deny Kadi's motion to amend the complaint.

After September 11, 2001, the President issued EO 13,224 invoking his authority under IEEPA and the United Nations Participation Act, 22 U.S.C. § 287c. The Executive Order declared a “national emergency” with respect to “grave acts of terrorism and threats of terrorism committed by foreign terrorists, including the terrorist attacks ... committed on September 11, 2001, ... and the continuing and immediate threat of further attacks on United States nationals or the United States.” Id. EO 13,224 ordered the blocking of property of twenty-seven specific terrorists and terrorist organizations identified in an Annex. Id. § 3. The Secretary of the Treasury is authorized to designate additional persons whose property or interests in property should be blocked, where the Secretary finds that such persons “act for or on behalf of” or are “owned or controlled by” designated terrorists, or they “assist in, sponsor, or provide ... support for” (including “financial ... support” or “financial ... services”) or are “otherwise associated with” them. Id. § 1(c)-(d). The Secretary has delegated his authorities under the Executive Order to the Director of OFAC. 31 C.F.R. § 594.802. Persons designated pursuant to the Executive Order are referred to as “specially designated global terrorists” (SDGT). See 31 C.F.R. § 594.310.

II. Procedural History and Designation ⁴

Kadi is a citizen and permanent resident of Saudi Arabia and a self-described “prominent Saudi Arabian businessman and philanthropist.” Compl. ¶ 1; AR 94. On October 12, 2001, OFAC designated Kadi a SDGT pursuant to the IIEPA and EO 13,224, Compl. ¶ 20, which, by operation of law, resulted in the blocking of all of his property and interests in property subject to the jurisdiction of the United States. It is undisputed that OFAC did not give notice to Kadi before blocking his assets. The designation was made known to Kadi and to the public through a press release instructing financial institutions to freeze Kadi's assets. Compl. ¶ 20; AR 123–26. A press release was also issued by authorities in the United Kingdom. Compl. ¶ 20. By letter dated October 15, 2001, OFAC also mailed Kadi a “Notice of

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Blocking” providing direct notice of the designation and blocking and advising him of the administrative procedures available to challenge OFAC's action. AR 2784–85. Notice of the designation was also published on October 26, 2001 in the Federal Register. See 66 Fed.Reg. 54404 (Oct. 26, 2001).

Kadi thereafter sought judicial review in the High Court in London. Compl. ¶¶ 22–23. In response to a request for information by the United Kingdom, the United States Treasury Department faxed a two-page document to United Kingdom officials in October 2001 (“two-page fax”), which Kadi learned about during his court proceedings in London. Compl. ¶ 24. Kadi places much emphasis on this two-page fax, which summarized unclassified information relating to Kadi's financial support of terrorist activities through a charitable organization known as the Muwafaq Foundation and his other ties to terrorists and terrorism financing. AR 39–40. Kadi claims that around May 23, 2002, he met with OFAC staff at the U.S. Embassy in Saudi Arabia, where OFAC denied knowledge of the two-page fax. Compl. ¶ 25. However, there is no dispute that Kadi received a copy of the two-page fax, reviewed it, and proceeded to refute various contentions as part of his petition for reconsideration. See Compl. ¶ 29.

Kadi petitioned OFAC for reconsideration on December 21, 2001. AR 23. In the months and years thereafter, he has submitted several witness statements and other materials in support of his petition and has engaged in a series of exchanges with OFAC. On March 12, 2004, OFAC issued a twenty-page unclassified memorandum denying Kadi's request for reconsideration (“OFAC Memorandum”). Compl. ¶ 30. AR 3–40. Kadi maintains that this is the only formal written statement he has received from the United States government. Compl. ¶ 31. Based on these events, Kadi filed this action on January 16, 2009, challenging the evidentiary basis for his designation and the freezing of his assets, and raising an array of constitutional claims. Specifically, he claims violations under the Administrative Procedure Act, 5 U.S.C. § 701 et seq., the IEEPA, and the First, Fourth, and Fifth Amendments. On May 22, 2009, defendants filed a motion to dismiss or, in the alternative, for summary judgment. Kadi opposes the motion and seeks discovery under Rule 56(f). Kadi also seeks leave to file an amended complaint. The Court heard argument with respect to the pending motions on April 9, 2010, and thereafter requested supplemental briefing, which has now been completed.⁵

STANDARD OF REVIEW

All that the Federal Rules of Civil Procedure require of a complaint is that it contain “ ‘a short and plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.’ ” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)); accord Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam). Although “detailed factual allegations” are not necessary to withstand a Rule 12(b)(6) motion to dismiss, to provide the “grounds” of “entitle[ment] to relief,” a

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plaintiff must furnish “more than labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555–56, 127 S.Ct. 1955; see also Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955); accord Atherton v. District of Columbia Office of the Mayor, 567 F.3d 672, 681 (D.C.Cir.2009). A complaint is plausible on its face “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1949. This amounts to a “two-pronged approach” under which a court first identifies the factual allegations entitled to an assumption of truth and then determines “whether they plausibly give rise to an entitlement to relief.” Id. at 1950–51.

The notice pleading rules are not meant to impose a great burden on a plaintiff. Dura Pharm., Inc. v. Broudo, 544 U.S. 336, 347, 125 S.Ct. 1627, 161 L.Ed.2d 577 (2005); see also Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512–13, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002). When the sufficiency of a complaint is challenged by a motion to dismiss under Rule 12(b)(6), the plaintiff's factual allegations must be presumed true and should be liberally construed in his or her favor. Leatherman v. Tarrant Cnty. Narcotics & Coordination Unit, 507 U.S. 163, 164, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993); Phillips v. Bureau of Prisons, 591 F.2d 966, 968 (D.C.Cir.1979); see also Erickson, 551 U.S. at 94, 127 S.Ct. 2197 (citing Twombly, 550 U.S. at 555–56, 127 S.Ct. 1955). The plaintiff must be given every favorable inference that may be drawn from the allegations of fact. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C.Cir.2000). However, “the court need not accept inferences drawn by plaintiffs if such inferences are unsupported by the facts set out in the complaint.” Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994). Nor does the court accept “a legal conclusion couched as a factual allegation,” or “naked assertions [of unlawful misconduct] devoid of further factual enhancement.” Iqbal, 129 S.Ct. at 1949–50 (internal quotation marks omitted); see also Aktieselskabet AF 21. November 2001 v. Fame Jeans Inc., 525 F.3d 8, 17 n. 4 (D.C.Cir.2008) (explaining that the court has “never accepted legal conclusions cast in the form of factual allegations”).

Under Fed.R.Civ.P. 56(a), summary judgment is appropriate when the pleadings and the evidence demonstrate that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Id. In a case involving review of a final agency action under the Administrative Procedure Act, 5 U.S.C. § 706, however, the standard set forth in Rule 56(a) does not apply because of the limited role of a court in reviewing the administrative record. See Nat'l Wilderness Inst. v. United States Army Corps of Eng'rs, 2005 WL 691775, *7 (D.D.C.2005); Fund for Animals v....