Richard Chichakli v. Rex Tillerson , 882 F.3d 229 ( 2018 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 1, 2017 Decided February 13, 2018
No. 16-5258
RICHARD A. CHICHAKLI,
APPELLANT
v.
REX W. TILLERSON, UNITED STATES SECRETARY OF STATE IN
HIS OFFICIAL CAPACITY, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:15-cv-01152)
Kendall Turner, appointed by the court, argued the cause
as amicus curiae in support of appellant. With her on the briefs
was David W. DeBruin.
Richard A. Chichakli, pro se, filed the briefs for appellant.
Laura Myron, Attorney, U.S. Department of Justice,
argued the cause for appellees. With her on the brief were
Jessie K. Liu, U.S. Attorney, and Douglas N. Letter, Attorney.
Before: KAVANAUGH and WILKINS, Circuit Judges, and
RANDOLPH, Senior Circuit Judge.
2
Opinion for the Court filed by Circuit Judge WILKINS.
WILKINS, Circuit Judge: Richard A. Chichakli,
proceeding pro se, brought this lawsuit against the Office of
Foreign Assets Control and the Department of State, alleging
disclosures of his personal identifying information in violation
of the Privacy Act. The District Court granted the motion to
dismiss filed by the defendants, holding that Chichakli failed
to state a claim under the Privacy Act because the government
agencies had made the purported disclosures as a proper
“routine use” of the information. On appeal, Chichakli filed
his own briefs and adopted the arguments made in the briefs of
court-appointed amicus.1 For the reasons discussed below, we
affirm.
I.
The International Emergency Economic Powers Act
(“IEEPA”) authorizes the President to regulate foreign
commerce after identifying an “unusual and extraordinary
threat” from abroad. See 50 U.S.C. § 1701. President George
W. Bush issued an Executive Order pursuant to IEEPA on July
22, 2004, declaring a national emergency, blocking property of
certain persons, and preventing importation of goods from
Liberia. Exec. Order No. 13,348, 69 Fed. Reg. 44,885 (July
22, 2004). The Order specified that “all property and interests
in property” of persons subject to sanctions would be “blocked
and [were] not [to] be transferred, paid, exported, withdrawn,
or otherwise dealt in.” Id. OFAC later determined that
Chichakli was acting on behalf of an arms-trafficker named
Viktor Bout, who had been named in the Order. In April 2005,
1
The Court thanks Kendall Turner and David W. DeBruin for
accepting the appointment and for their excellent work on behalf of
Mr. Chichakli.
3
OFAC issued a Blocking Notice listing Chichakli as a
Specially Designated National (“SDN”), subject to the
provisions of Executive Order 13,348. See Chichakli v. Szubin,
546 F.3d 315, 316 (5th Cir. 2008).
U.S. agencies released Chichakli’s personal, identifying
information pursuant to the Order. OFAC published
Chichakli’s name on its SDN list, which is “designed . . . to
assist the public in complying with the various sanctions
programs administered by OFAC.” 70 Fed. Reg. 38,255;
38,334 (July 1, 2005); OFAC, SPECIALLY DESIGNATED
NATIONALS AND BLOCKED PERSONS LIST,
https://www.treasury.gov/ofac/downloads/sdnlist.pdf. This
list included Chichakli’s name, Social Security Number, date
of birth, aliases, residential and business addresses, and country
of origin. OFAC transmitted Chichakli’s information to the
Department of State, and the Department of State then
transmitted the information to the United Nations to consider
implementing similar sanctions. The United Nations identified
Chichakli as subject to its sanctions regime, and it published
his personal information, including his Social Security Number
and his Australian Driver’s License number, online. See J.A.
16; see also United Nations, Consolidated United Nations
Security Council Sanctions List, https://www.un.org/sc/suborg/
en/sanctions/un-sc-consolidated-list.
Chichakli left the United States on May 2, 2005. J.A. 45,
74-75. He was extradited to the United States from Australia
after being indicted by a Grand Jury in the United States in
2009. See United States v. Chichakli, No. S3:09-cr-1002, 2014
WL 5369424, at *1 (S.D.N.Y. Oct. 16, 2014). He was
sentenced to five years in prison and remained incarcerated
until June 9, 2017. United States v. Bout, 651 Fed. App’x 62,
63 (2d Cir. 2016); Judgment, United States v. Chichakli, No.
S3:09-cr-1002-02, at 3 (S.D.N.Y. Dec. 9, 2014).
4
Chichakli challenged OFAC’s Blocking Notice listing him
as an SDN and lost in the Fifth Circuit. Szubin, 546 F.3d at
316. He tried to bring a similar claim in the District of
Columbia, but the claim was precluded on the basis of res
judicata. Chichakli v. Obama, 617 Fed. App’x 3, *3-4 (D.C.
Cir. 2015). President Obama signed Executive Order No.
13,710 on November 12, 2015, which terminated the Liberian
crisis’ emergency status and, with it, Chichakli from the
Specially Designated Nationals and Blocked Persons lists. See
Exec. Order No. 13,710, 80 Fed. Reg. 71,679 (Nov. 12, 2015).
Shortly thereafter, the United Nations Security Council ended
the bulk of its sanctions against Liberia.
Chichakli, proceeding pro se, filed the complaint below on
July 20, 2015, seeking damages and injunctive relief. J.A. 6,
22-24.2 He alleged that OFAC violated the Privacy Act when
it published his personal information online and when it
transmitted the information to the State Department. J.A. 6-7.
Chichakli also alleged that the State Department violated the
Act by transmitting his personal information to the United
Nations. J.A. 7. He claimed that, as a result of the publication
of his personal information, he was a victim of identity theft.
J.A. 8. He alleged that multiple bank accounts were opened in
his name, and the opening of new accounts harmed his credit
score, leaving him unable “to buy a home, rent, obtain credit,
work, buy insurance, or perform any of the basic and
everyday[] functions that require ‘credit check.’” J.A. 13;
Compl. ¶ 23.3
2
Because Chichakli is no longer on any of the designated- or
blocked-persons lists, he has not pressed any claims for injunctive
relief on appeal.
3
In his opposition to the motion to dismiss, Chichakli added that
fraudulent tax returns had been filed using his name and that identity
thieves stole “thousands of dollars” from him. J.A. 29, 48.
5
The defendants moved to dismiss Chichakli’s Complaint
on multiple grounds: (1) Chichakli’s claims were barred by the
statute of limitations; (2) the defendant agencies had engaged
in a valid “routine use” of the information, consistent with the
Privacy Act; (3) Chichakli failed to allege a disclosure by the
State Department; and (4) Chichakli failed to properly allege
any pecuniary damages. Appellees’ Br. 7-8.
The District Court granted the defendants’ motion to
dismiss on August 19, 2016. Chichakli v. Kerry, 203 F. Supp.
3d 48 (D.D.C. 2016). The court first construed all of the claims
to fall under the Privacy Act and the claims against individual
defendants as “if [Chichakli] had brought them against the
United States itself” because the Privacy Act does not provide
a cause of action against individuals. Id. at 53. Bypassing the
statute-of-limitations issue, the District Court held that
Chichakli failed to state a claim because OFAC’s use of his
personal information fell into the “routine use” exception. Id.
at 53 & n.5. The District Court concluded that disclosing
Chichakli’s information, including his Social Security
Number, was “entirely consistent with OFAC’s mission to
implement and enforce economic sanctions.” Id. at 55.
Similarly, the District Court held that Chichakli had failed
to state a claim against the State Department because the
agency’s alleged disclosure was also pursuant to a valid routine
use of the information. The District Court rejected Chichakli’s
argument that the State Department’s disclosure of an
additional piece of identifying information – his Australian
driver’s license number – somehow changed the calculus
because “‘identification media (such as passports, residence, or
driver’s license information),’ . . . are among the types of
information about an individual maintained in [the State
Department’s] Security Records.” Id. at 57 (quoting 78 Fed.
6
Reg. 27,277). As an alternative ground for dismissal, the
District Court held that Chichakli had also failed to plead
“concrete and quantifiable damages.” Id. at 58. Chichakli
timely filed a notice of appeal, and this Court appointed amicus
to represent him. In addition to the arguments made in his
brief, Chichakli has adopted the arguments made in the amicus
brief filed on his behalf.
II.
To state a claim under the Privacy Act, a plaintiff must
establish that (1) the agency violated a provision of the Act; (2)
the violation was intentional or willful; and (3) the violation
had an “adverse effect” on the plaintiff in the form of actual
damages. Maydak v. United States, 630 F.3d 166, 178 (D.C.
Cir. 2010) (citing 5 U.S.C. § 552a(g)). An agency violates the
Act when it “discloses” information in the form of a “record”
from a “system of records” and the disclosure is not pursuant
to a valid exception under the Act. 5 U.S.C. § 552a(b).
Whether the purported disclosure was made pursuant to a
valid “routine use” is the only issue here.4 “To fit within the
confines of the routine use exception to the Privacy Act, an
agency’s disclosure of a record must be both (i) ‘for a purpose
which is compatible with the purpose for which it was
collected’ and (ii) within the scope of a routine use notice
published by the agency.” Ames v. Dep’t of Homeland Sec.,
861 F.3d 238, 240 (D.C. Cir. 2017) (quoting 5 U.S.C.
§ 552a(a)(7) and citing § 552a(e)(4)(D)). The District Court’s
opinion focused on whether the purported disclosures were “for
a purpose . . . compatible with the purpose for which [the
record] was collected,” ultimately holding that they were. See
4
We presume without deciding, as the District Court did, that a
disclosure occurred here.
7
203 F. Supp. 3d at 53-57. The District Court also held that the
purported disclosures were within the scope of routine-use
notices published by the agencies. Id.
Amicus for Chichakli argues, in the main, that the purpose
of OFAC’s and the State Department’s disclosures of
Chichakli’s personal identifying information was incompatible
with the reasons the information was collected. Without
deciding the precise definition of “compatibility,” we agree
with the District Court that under any reasonable interpretation,
the purposes of OFAC’s and the State Department’s
disclosures were compatible with the purposes for which each
agency collected the information. The purpose for collecting
Chichakli’s identifying information – to investigate whether to
designate him for economic sanctions and to implement the
sanctions – is precisely aligned with the purpose of disclosure
– to implement the sanctions by publishing the information to
the public. This is true for OFAC, as well as the Department
of State. Amicus relies on Sussman v. U.S. Marshals Service,
494 F.3d 1106 (D.C. Cir. 2007), but that case is inapposite. In
Sussman, this Court held that when a U.S. Marshal disclosed
personal information by “yelling and screaming” at a group of
individuals being questioned in an investigation, the disclosure
was not compatible with the purpose of disclosing information
“to the extent necessary to obtain information or cooperation”
in an investigation. Sussman, 494 F.3d at 1122-23. That is a
far cry from the situation here. The purpose of the purported
disclosures was in no way incidental – the information was
published by OFAC and transmitted by the State Department
to implement the sanctions regime. As in Ames, the disclosure
here was compatible with the purpose of collection “under any
reasonable formulation of the compatibility test . . . .” See
Ames, 861 F.3d at 240 n.1.
8
For the routine-use exception to apply, the disclosure must
also be covered by a routine-use notice published by the
agency. The State Department published a routine-use notice
in 2005, which covers the publication of personal identifying
information to foreign entities and “other public authorit[ies]”
for law-enforcement purposes. 70 Fed. Reg. 3,430, 3,432 (Jan.
24, 2005). To the extent the problematic disclosures occurred
after 2010, OFAC has had a routine-use notice published in the
Federal Register, which also covers disclosure of personal
identifying information “to the general public . . . regarding
individuals and entities whose property and interests in
property are . . . affected by . . . OFAC economic sanctions
programs[.]” See 75 Fed. Reg. 61,853, 61,856 (Oct. 6, 2010).
Both of these routine-use notices cover the alleged disclosures
of Chichakli’s personal identifying information.
OFAC’s routine-use notice that was on the books from
2005 until 2010 did not clearly cover publication of personal
information to the public. See 67 Fed. Reg. 7,460, 7,483-85
(Feb. 19, 2002). But Chichakli failed to raise this argument
below, and therefore it is forfeited. See, e.g., Keepseagle v.
Vilsack, 815 F.3d 28, 36 (D.C. Cir. 2016) (argument not raised
below was forfeited). In any event, an argument about OFAC
disclosures in violation of the 2005 OFAC regulations would
be barred by the two-year statute of limitations. See 5 U.S.C.
§ 552a(g)(5). Chichakli has not plausibly alleged that any
damages incurred after 2013 are traceable to the 2005 notice as
opposed to the 2010 notice.
***
The core question at issue in this case is whether
Chichakli’s personal identifying information was released
pursuant to a valid routine-use notice. The answer turns not on
9
the tension between the Privacy Act and the IEEPA, but on
whether the release of the information is compatible with the
purpose for which the information was collected. Because we
hold that it was, the decision of the District Court is affirmed.