COLLEEN KOLLAR KOTELLY, United States District Court Judge
This matter is before the Court on Defendants' Motion to Dismiss [ECF No. 14].
The International Emergency Economic Powers Act ("IEEPA"), see 50 U.S.C. § 1701 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 50 U.S.C. § 1702." Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 159 (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, 69 Fed. Reg. 44885 (July 22, 2004). Pursuant to Executive Order No. 13348, "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possession of or control of United States persons [were] blocked and [were] not to be transferred, paid, exported [or] withdrawn" unless permitted under IEEPA. Id., 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." Id. at 6.
In April 2005, OFAC designated plaintiff a Specially Designated National ("SDN") under Executive Order 13348:
Chichakli v. Szubin, 546 F.3d 315, 316 (5th Cir.2008); see Defs.' Mem. at 4-5. "Concurrently with the 2005 designation, in accordance with statute, executive order and regulation, the 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, 546 F.3d at 317-18. 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, id., and published a notice listing "the entries which [were] being removed from the SDN List in order to effectuate the removal," id. 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.
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
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 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.
The Court begins its discussion by addressing plaintiff's reference to the Freedom of Information Act ("FOIA"), see 5 U.S.C. § 552, 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, 445 U.S. 136, 150, 100 S.Ct. 960, 63 L.Ed.2d 267 (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 numbers and other identifying information by OFAC or the State Department violates the United States Constitution. Cf. In re Crawford, 194 F.3d 954, 658-60 (9th Cir.1999) (finding that public disclosure of non-attorney bankruptcy petition preparer's social security number, which he was required to provide under 11 U.S.C. § 110(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, 333 F.3d 273, 274 (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
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, 444 F.3d 620, 624 (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. Holder, 67 F.Supp.3d 167, 176 (D.D.C.2014) (dismissing the Privacy Act claims against individual defendants and substituting Federal Bureau of Investigation as proper defendant); Cloonan v. Holder, 768 F.Supp.2d 154, 163 (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, 444 F.3d at 624 (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, 815 F.Supp.2d 176, 180 (D.D.C. 2011), aff'd, No. 11-5280, 2012 WL 1450574 (D.C.Cir. Apr. 20, 2012) (dismissing complaint against the individual officials and substituting the Department of Justice as the proper defendant).
"The Privacy Act regulates the collection, maintenance, use, and dissemination of information about individuals by federal agencies." Wilson v. Libby, 535 F.3d 697, 707 (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 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'
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." 79 Fed. Reg. 215 (Jan. 2, 2014). According to the published System of Records Notice ("SORN"), these records include:
79 Fed. Reg. 216 (emphasis added).
79 Fed. Reg. 217 (emphasis removed).
The SORN addresses OFAC's SDN List and the privacy interests of United States citizens appearing on it:
Id. (emphasis removed).
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." Id.
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 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.
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
The State Department maintains the Security Records system (State-36), about which it has published SORNs in the Federal Register. See id. at 14. 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 id. (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." 78 Fed. Reg. 27277 (May 9, 2013). Among the routine uses for Security Records are disclosures to:
78 Fed. Reg. 27278.
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 78 Fed. Reg. 27276). 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." Id. 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." Id. at 16.
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 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
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." F.A.A. v. Cooper, 566 U.S. 284, 132 S.Ct. 1441, 1448-49, 182 L.Ed.2d 497 (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.
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.
