Karpova v. Snow, No. 05 CIV. 5812(CM).

CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
Writing for the CourtMcmahon
Citation402 F.Supp.2d 459
Docket NumberNo. 05 CIV. 5812(CM).
Decision Date28 October 2005
PartiesJudith KARPOVA, Plaintiff, v. John SNOW, Secretary, Department of the Treasury, and United States of America, Defendants.
402 F.Supp.2d 459
Judith KARPOVA, Plaintiff,
v.
John SNOW, Secretary, Department of the Treasury, and United States of America, Defendants.
No. 05 CIV. 5812(CM).
United States District Court, S.D. New York.
October 28, 2005.

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COPYRIGHT MATERIAL OMITTED

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Michael Howard Sussman, Law Offices of Michael H. Sussman, Goshen, NY, for Plaintiff.

Ross Eric Morrison, U.S. Attorney's Office, SDNY, New York, NY, for Defendants.

ORDER AND DECISION GRANTING DEFENDANTS' MOTION TO DISMISS, OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT

MCMAHON, District Judge.


One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the consequences.

Martin Luther King, Jr.

From "Letter from a Birmingham Jail," April 16, 1963.

The hallmark of civil disobedience is the willingness of the perpetrator to pay the price of his actions. The plaintiff in this case, Judith Karpova, broke American law by going to Iraq in violation of certain Treasury Department regulations, so she could serve as a "human shield" and protect elements of Iraqi infrastructure in the weeks preceding the American invasion of that country. For her actions, she was sanctioned, by imposition of a civil penalty authorized under these regulations.

Apparently, Ms. Karpova does not want to pay this price. Instead, she brings this action, seeking rescission of the $6,700 civil penalty imposed on her, pursuant to the Iraqi Sanctions Regulations (the "Regulations"),

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by the Department of Treasury's Office of Foreign Assets Control ("OFAC"). Plaintiff claims that she was in Iraq, inter alia, as a journalist, and so was exempt from the reach of the Regulations (which contain an exception for journalistic activity). She claims that the Regulations unconstitutionally restrict her First Amendment right of free speech and her Fifth Amendment right to travel, and that the penalty was imposed without affording her an adequate opportunity to be heard, in violation of her right to Due Process under the Fifth Amendment. Finally, plaintiff claims that she was penalized arbitrarily and capriciously, either because the activity for which she was cited did not violate the Regulations or because the Regulations are not authorized under the law.

Defendants John Snow and the United States of America (collectively, the "defendants") move to dismiss the Complaint for failure to state a claim or, in the alternative, for summary judgment. The motion is granted.

Statutory and Regulatory Background

As a general rule, the President enjoys broad economic powers in the realm of foreign policy. The United Nations Participation Act ("UNPA"), passed in 1945, confers upon the President the authority to "investigate, regulate, or prohibit, in whole or in part, economic relations or rail, sea, air, postal, telegraphic, radio, and other means of communications between any foreign country or any national thereof or any person therein and the United States or any person subject to the jurisdiction thereof, or involving any property subject to the jurisdiction of the United States." 22 U.S.C. § 287c(a). Similarly, the International Emergency Economic Powers Act ("IEEPA"), which Congress passed in 1977, authorizes the President to exercise economic powers by declaring a national emergency with respect to "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).

With respect to Iraq, Congress specifically has authorized the President to implement economic sanctions as a foreign policy and national security measure. The Iraqi Sanctions Act of 1990, passed shortly after Iraq's invasion of Kuwait on August 2, 1990, expresses support for "... the imposition and enforcement of multilateral sanctions against Iraq," and directs the President to "... continue to impose the trade embargo and other economic sanctions with respect to Iraq and Kuwait." Pub.L. No. 101-513, § 586A(5), 104 Stat.1979, 2047; § 586C(a), 104 Stat.1979, 2048 (1990).

Pursuant to this statutory authority, President George H.W. Bush issued an Executive Order in which he concluded, "... that the policies and actions of the Government of Iraq constitute an unusual and extraordinary threat to the national security and foreign policy of the United States and ... declare[d] a national emergency to deal with that threat." Executive Order 12,722, 55 Fed.Reg. 31,803 (Aug. 2, 1990). In a subsequent Executive Order, the President (1) directed that economic sanctions be imposed on Iraq, and (2) authorized the Secretary of Treasury, in consultation with the Secretary of State, to promulgate regulations implementing prohibitions on, among other things, the exportation of services to Iraq and transactions relating to travel in Iraq or activities within Iraq. Executive Order 12,724, 55 Fed.Reg. 33,089 (Aug. 9, 1990).

On January 18, 1991, OFAC issued the Iraqi Sanctions Regulations, which implemented the prohibitions outlined in the President's Executive Orders and delineated

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procedures for dealing with violations. See 31 C.F.R. §§ 575.201-211, 575.702-704. Pursuant to the Regulations, upon the Director of OFAC's reasonable belief that a violation has occurred, OFAC shall issue a Prepenalty Notice ("PPN") to the alleged offender. This notice informs the recipient that OFAC intends to impose a monetary penalty for a violation of the Iraqi Sanctions Regulations unless, within thirty days of the mailing of the notice, the recipient tenders a written response setting forth the reasons why the proposed penalty should be decreased or should not be imposed at all. See 31 C.F.R. §§ 575.702, 703. After considering any such written presentation, the Director of OFAC makes a final determination about whether a violation has occurred and, if so, what penalty shall be assessed. OFAC is required to issue a Penalty Notice setting out the basis for the decision. See 31 C.F.R. § 575.704.

Factual Background

The relevant facts are as follows:

In February, 2003, as a member of the Truth Justice Peace Action Project ("TJP Project"), plaintiff traveled to Iraq. The primary purpose of her trip was to serve as a so-called "human shield" in the event of a U.S. invasion of Iraq. (Complaint ("Cplt.") ¶¶ 10-11). As a human shield, plaintiff's mission was to protect the Iraqi infrastructure, by "actually going to such infrastructure sites, either to publicize the threat to them or to physically remain on such sites and protect them with [her life]." (Administrative Record ("AR") at 0035). Using a visa obtained through the TJP Project, plaintiff arrived in Iraq on February 19, 2003. (AR at 0033, 0035).

Prior to leaving the United States, for Iraq, plaintiff solicited donations to fund her trip. (AR at 0041). However, once she arrived in Iraq, she, like many other human shields, was hosted by the Peace, Friendship and Solidarity Organization ("PFSO"), an Iraqi Non-Governmental Organization. (AR at 0037). The PFSO provided plaintiff with hotels, meals and travel into and within Iraq. (AR at 0037).

Plaintiff remained in Iraq as a human shield until March 9, 2003, when she traveled to Jordan before returning to the United States. (AR at 0033).

On March 20, 2003, OFAC sent plaintiff a Requirement to Furnish Information ("RFI"), based on OFAC's receipt of information indicating that plaintiff, who had not been licensed to engage in "travel transactions" in Iraq, had traveled to Iraq in February-March 2003. (AR at 0028). In response to the RFI, plaintiff submitted a letter, dated April 21, 2003, describing her trip. (AR at 0033-0038). In the letter, plaintiff explained that she went to Iraq in three capacities: (1) as a member of the community of faith seeking to "bear witness to the effect of the sanctions" imposed on Iraq by the United States; (2) as a writer, leading to publication in The Jersey Journal newspaper of several of her letters home, and (3) as a human shield. (AR at 0033-36).

On June 2, 2003, plaintiff's case was referred from OFAC's Enforcement Division to its Civil Penalties Division. (AR at 0026). On June 23, 2004, OFAC sent plaintiff a PPN, informing her that OFAC intended to impose on her a civil penalty of $10,000 for exporting services to Iraq and for engaging in unauthorized travel-related transactions in Iraq. (Cplt. ¶ 18; AR at 0023-0024). The specific violations listed in the PPN include plaintiff's "... attempt[] to collect funds for [her] travel expenses to/from/within Iraq ... shielding a [Government of Iraq] infrastructure from possible U.S. military action ... purchase of food until [her] return to Amman, Jordan..." (AR at 0023). The PPN advised plaintiff that she had the right to

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respond in writing within thirty days. (AR at 0024).

On August 5, 2004, plaintiff, through counsel, submitted a written response to the PPN. In it, she objected to the imposition of a civil penalty, claiming that she provided "`no services' to any agency of the Iraqi government." (AR at 0007). She also maintained that the regulatory structure in place to effect the sanction violated her due process rights; that the Regulations exceed the authority of the Executive Branch; and that the sanctions trespassed her First and Fifth Amendment rights. (AR at 0007-0010).

On March 14, 2005, OFAC issued plaintiff a Penalty Notice, imposing a civil penalty for violation of the Regulations and underlying statutory authority. (AR at 0001-0002). Plaintiff was penalized for exporting services to Iraq and engaging in transactions related to travel in Iraq and activities within Iraq absent prior license or other authorization, as specifically set out in the PPN. (AR at 0001-0002). The Penalty Notice stated that, because "this is your first offense on record at OFAC and you provided a written response to the [PPN]," the proposed civil penalty "in the amount...

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9 practice notes
  • Natural Res. Def. Council v. U.S. Dep't of Energy, 17 Civ. 6989
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 22 Febbraio 2019
    ...record "present[ ] only a question of law" and directing parties not to submit Local Rule 56.1 statements); Karpova v. Snow , 402 F.Supp.2d 459, 465 (S.D.N.Y. 2005) (summary judgment appropriate without submission of statements of undisputed material facts in APA cases because the......
  • Bibicheff v. Holder, No. 13–CV–1305 DRHGRB.
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    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • 23 Settembre 2014
    ...absolute, and has been described as ‘no more than an aspect of the liberty protected by the Due Process Clause.’ ” Karpova v. Snow, 402 F.Supp.2d 459, 472 (S.D.N.Y.2005) (citing Haig, 453 U.S. at 306–07, 101 S.Ct. 2766 ), aff'd 497 F.3d 262 (2d Cir.2007). Furthermore, “[t]he freedom to trav......
  • Teleanu v. Koumans, 19-CV-8177 (VEC)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 20 Agosto 2020
    ...case seeking review of an administrative action under the APA because the case only presents a question of law. See Karpova v. Snow , 402 F. Supp. 2d 459, 465 (S.D.N.Y. 2005), aff'd, 497 F.3d 262 (2d Cir. 2007). Moreover, because "defendants made this motion in the alternative, under b......
  • Sacks v. Office of Foreign Assets Control, No. 04-36136.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 10 Ottobre 2006
    ...rail, sea, and air "communication" with another country in order to comply with United Nations directives); Karpova v. Snow, 402 F.Supp.2d 459, 469 (S.D.N.Y. 2005) (holding that the Iraq Travel Ban is duly authorized by the UNPA). Instead, he alleges that the Travel Ban regulation......
  • Request a trial to view additional results
9 cases
  • Natural Res. Def. Council v. U.S. Dep't of Energy, 17 Civ. 6989
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 22 Febbraio 2019
    ...record "present[ ] only a question of law" and directing parties not to submit Local Rule 56.1 statements); Karpova v. Snow , 402 F.Supp.2d 459, 465 (S.D.N.Y. 2005) (summary judgment appropriate without submission of statements of undisputed material facts in APA cases because the......
  • Bibicheff v. Holder, No. 13–CV–1305 DRHGRB.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • 23 Settembre 2014
    ...absolute, and has been described as ‘no more than an aspect of the liberty protected by the Due Process Clause.’ ” Karpova v. Snow, 402 F.Supp.2d 459, 472 (S.D.N.Y.2005) (citing Haig, 453 U.S. at 306–07, 101 S.Ct. 2766 ), aff'd 497 F.3d 262 (2d Cir.2007). Furthermore, “[t]he freedom to trav......
  • Teleanu v. Koumans, 19-CV-8177 (VEC)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 20 Agosto 2020
    ...case seeking review of an administrative action under the APA because the case only presents a question of law. See Karpova v. Snow , 402 F. Supp. 2d 459, 465 (S.D.N.Y. 2005), aff'd, 497 F.3d 262 (2d Cir. 2007). Moreover, because "defendants made this motion in the alternative, under b......
  • Sacks v. Office of Foreign Assets Control, No. 04-36136.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 10 Ottobre 2006
    ...rail, sea, and air "communication" with another country in order to comply with United Nations directives); Karpova v. Snow, 402 F.Supp.2d 459, 469 (S.D.N.Y. 2005) (holding that the Iraq Travel Ban is duly authorized by the UNPA). Instead, he alleges that the Travel Ban regulation......
  • Request a trial to view additional results

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