Chichakli v. United States

3Jn tbc Wnitcb ~tatcs' q[,ourt of jfcbcral q[,laims
No. 18-978C (Pro Se)
(Filed: January 25, 2019)
)
RICHARD A. CHICHAKLI, ) Keywords: Pro Se; Motion to Dismiss;
) Takings Clause; IEEPA; Economic
Plaintiff, ) Sanctions; Executive Order 13348
)
V. )
)
THE UNITED STATES OF AMERICA, )
)
Defendant. )
--------------)
Richard A. Chichakli, Plano, TX, pro se.
Ann C. Motto, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of
Justice, Washington, DC, with whom were Tara K Hogan, Assistant Director, Robert E.
Kirschman, Jr., Director, and Joseph H Hunt, Assistant Attorney General, for Defendant.
OPINION AND ORDER
KAPLAN,J.
Plaintiff Richard A. Chichakli, appearing prose, brings this action against the United
States alleging that the Department of the Treasury, the Department of Justice, and other federal
entities appropriated his personal property in violation of various federal regulations and several
constitutional provisions, including the Fifth Amendment's Takings Clause. His allegations arise
out of an April 2005 decision by the Depmiment of the Treasury's Office of Foreign Assets
Control ("OFAC") classifying Mr. Chichakli as a "Specially Designated National" ("SDN")
pursuant to Executive Order 13348 ("EO 13348" or "the Order"). Treasury based the designation
decision on Mr. Chichakli's affiliation with Victor Bout, a Russian national and known arms and
minerals trafficker.
As a consequence of the designation, OFAC blocked all of Mr. Chichakli's funds,
accounts, business records, and assets and seized a number of items from his home. Among the
items taken during the seizure were various valuables including dimnonds, gold, cash, foreign
currency, bank notes, original art, and personal vehicles. Mr. Chichakli unsuccessfully
challenged his designation before OFAC and in federal court. Though the sanctions against Mr.
Chichakli were effectively lifted as a result of a November 2015 executive order, his assets were
not returned to him until May 2017.
7018 0040 0001 1393 1198
Mr. Chichaldi filed the present lawsuit on July 9, 2018, alleging, among other things, that
not all of his property was returned and that the eighteen-month delay between OFAC's release
and return of the assets constituted a taking without just compensation in violation of the Fifth
Amendment. Mr. Chichakli also alleges that the seizures of his property violate EO 13348 and
affiliated regulations. He further claims that the government officials "plundered" several items
which were not returned to him and that they deliberately caused other items to lose value.
Presently before the Court is the government's motion to dismiss. It argues that the Court
lacks jurisdiction over most of Mr. Chichakli's complaint because none of the sources oflaw on
which he bases his claims--other than the Fifth Amendment's Takings Clause-are money-
mandating. It further argues that Mr. Chichaldi has failed to state a viable claim under the
Takings Clause because his property was not taken for public use.
For the reasons set forth below, the Court agrees with the government. Accordingly, the
government's motion to dismiss is GRANTED.
BACKGROUND 1
I. The International Emergency Economic Powers Act and Executive Order 13348
In two resolutions, dated December 22, 2003 and March 12, 2004, the United Nations
Security Council ("the UNSC") established "a sanctions program, including both travel
restrictions and an asset freeze, related to Charles Taylor, his inner circle, and those supporting
actions and policies of his regime." Deel. of Adam J. Szubin ("Szubin Deel."), Comp!. Ex. 14, 1
19, Docket No. 1-2; see also S.C. Res. 1521 (Dec. 22, 2003); S.C. Res. 1532, (Mar. 12, 2004). 2
Shortly thereafter, in June 2004, the Liberia Sanctions Committee of the UNSC announced a list
of twenty-three individuals who would be subject to an asset freeze. Szubin Deel. 119.
Accordingly, the United States "had an international law obligation to freeze any assets of those
persons subject to United States jurisdiction." Id.
In response to the actions of the UNSC, President George W. Bush relied on the broad
powers granted to him under the International Emergency Economic Powers Act (''IEEPA").
IEEP A grants the President broad powers to "deal with 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 ... if the President declares a national emergency with
respect to such threat." 50 U.S.C. § 1701(a); see also Szubin Deel. 16.
1 The facts set forth in this section are based on the allegations in Mr. Chichakli's complaint,
which the Court assumes are true for purposes of deciding the government's motion to dismiss,
as well as on jurisdictional facts drawn from any additional documents submitted by the parties.
2 The Declaration of Adam Szubin was provided by Mr. Chichakli as an exhibit to his complaint.
The declaration was filed in a lawsuit brought in the United States District Court for the Northern
District of Texas challenging his classification as an SDN. Mr. Szubin was OFAC's Director at
the time the declaration was submitted.
2
Pursuant to his authority granted by IEEPA, President Bush issued EO 13348 in July
2004, declaring a national emergency in response to "the actions and policies of former Liberian
President Charles Taylor and other persons ... [which] undermined Liberia's transition to
democracy and the orderly development of its political, administrative, and economic institutions
and resources." Exec. Order No. 13348, 69 Fed. Reg. 44,885 (July 22, 2004). The President
declared that "all property and interests in property of [relevant] persons, that are in the United
States ... are blocked and may not be transferred, paid, exported, withdrawn, or otherwise dealt
in." Id. EO 13348 applied to "the persons listed in the Annex to this order" and any person
"determined by the Secretary of the Treasury, in consultation with the Secretary of State ... to
have materially assisted, sponsored, or provided financial, material, or technological support" to
any such individual. Id. Though Mr. Chichakli was not named in the Order, Viktor Bout-listed
as a "businessman, dealer and transporter of weapons and minerals"-appeared in the Order's
annex. Id. at 44,888.
President Bush authorized the Secretary of the Treasury to promulgate mies and
regulations and "to employ all powers granted to the President by IEEPA and [the United
Nations Participation Act, 22 U.S.C. § 287c] as may be necessary to carry out the purposes of
[EO 13348]." Id. at 44,886.
II. Mr. Chichakli's SDN Designation and the Seizure of His Property
Mr. Chichakli is aUnited States citizen who currently resides in Plano, Texas. In 1995,
Mr. Chichakli worked as ':an economic advisor to a head of state in the United Arab Emirates
(UAE), [where he was] appointed to create a 100,000,000 Square Feet[] 'Free Economic Trade
Zone' in the State of Sharjah-UAE." Comp!. ,r 15, Docket No. I. It was during this time that Mr.
Chichakli met Viktor Bout, whom he describes as an "alleged arms trafficker" and "person of
interest to the United States." Id. 3
Viktor Bout is a Russian national who had a number of firms that were "tied to several
major arms shipments to Liberia." Szubin Deel. ,r 22. He was known "by media sources as the
most prolific 'sanctions buster' and weapons trafficker in areas where international arms
embargoes [were] imposed on one or both sides in regional conflicts." Id. Mr. Chichakli
developed a close working relationship with Mr. Bout. Id. ,r 25; see also Comp!. ,r 16. In fact,
"Mr. Chichakli ha[d] been an integral part of the Bout network for many years ... [including] his
extensive management and coordination-ofactivities for Air Cess, Air Pass, and Centrafrican
Airlines, all prominent companies iri the Bout network." Szubin Deel. ,r 25. Mr. Chichakli "has
also established and registered in the United States several companies that [were] essential
components in the Bout network and its provision of weapons and other materials and services to
numerous regimes, including that of Charles Taylor in Liberia." Id.
3
Viktor Bout is more than an "alleged" trafficker or "person of interest."; he has been convicted
of four counts related to a "conspiracy to sell I 00 surface-to-air missiles to the Colombian
terrorist group Fuerzas Armadas Revolucionarias de Colombia" and sentenced to 300 months in
prison after a trial by jury in the United States District Court for the Southern District of New
York. United States v. Bout, 666 F. App'x 34, 36 (2d Cir. 2016).
3
It was Bout's connection with Charles Taylor, the President of Liberia from 1997 to
2003, that sparked the U.S. government's interest in Mr. Chichakli. See id. ,r,r 23, 25-26.
Following an investigation into Mr. Bout's network, OFAC classified Mr. Chichakli as an SDN
and, on April 26, 2005, blocked the funds, accounts, and business records belonging to him and
to ten companies under his control. See id. ,r 23, 26; Comp!. ,r 17. That same day, as part of a
separate criminal matter, FBI agents executed a search warrant at Mr. Chichakli's home in
Richardson, Texas. Szubin Deel. ,r 27. Accompanying the agents were two OFAC officers, along
with individuals from the Internal Revenue Service, Immigration and Customs Enforcement, and
the Dallas Police Department. Id. Federal personnel, including the two OFAC officers, also
executed a warrant at Mr. Chichakli's place of work (also in Richardson, Texas) and at the home
of his secretary in Plano, Texas. Id. ,r 28. Pursuant to the warrants and blocking order, the
government "took [Mr. Chichakli's] home, his vehicle, monies, and bank accounts [and] blocked
[his] business assets. . . [including] funds in several banks, accounts receivable, vehicles,
passenger and cargo airplanes, airplane[] engines and spare parts, inventory of cut and polished
diamonds, business equipment and furniture, and collection of original arts." Comp!. ,r 19.
According to Mr. Chichakli, he sought an inventory from OFAC and the FBI "as soon as
the blockage took place" but did not receive one until 2013. Id. ,r 24-25. Apparently, however,
the Inspector General conducted an inventory of the assets on May 22, 2007. See id. ,r 29.
Due to the extent of the sanctions against him, Mr. Chichakli left the United States on
May 2, 2005. Id. ,r,r 20-21. He unsuccessfully challenged his SDN designation and the freezing
and seizure of his assets, first before OFAC, then before the United States District Court of the
Northern District of Texas and, finally, the United States Comi of Appeals for the Fifth Circuit.
See Szubin Deel. ,r 30-39; Chichakli v. Szubin, 546 F.3d 315, 317 (5th Cir. 2008) (finding that
"exigent circumstances justif[ied] the holding of a hearing only after Chichakli's assets were
frozen").
III. Mr. Chichakli's Arrest, Prosecution, and Detention
An indictment against Mr. Chichakli was issued on January 2, 2013, alleging that "he
conspired to violate the political economic sanction imposed upon him pursuant to Executive
Order [13348]." Comp!. ,r 23. INTERPOL arrested Mr. Chichakli in Australia on January 9,
2013. Id. He was tried, convicted, and sentenced to five years imprisonment in the United States
District Court for the Southern District of New York in 2014. Id. ,r 23; United States v. Bout, 651
F. App'x 62, 63 (2d Cir. 2016). 4 Mr. Chichakli was released from prison in February 2017.
Comp!. ,r 23.
IV. OFAC Returns Seized Items
The sanctions against Mr. Chichakli were effectively lifted as a result of Executive Order
13710. 80 Fed. Reg. 71,679 (Nov. 12, 2015). Mr. Chichakli was still incarcerated when his assets
4He was convicted of nine counts: one count of conspiracy to engage in business practices
prohibited by IEEPA; one count of conspiracy to commit money laundering; one count of
conspiracy to commit wire fraud; and six counts of wire fraud. See Bout, 651 F. App'x at 63.
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were released. Comp!. ,r 28. In his complaint, Mr. Chichakli states that OFAC refused to release
his property to his daughter and former spouse while he was in prison. Id. ,r 56. However, in
January 2017 OFAC returned a motorcycle and car to a Gloria Catha (who the Court understands
to have been his wife). Pl.'s Resp. to Def.'s Mot. to Dismiss ("Pl. 's Resp.") Ex A, at 1, Docket
No. 13. Furthermore, OFAC had been in contact with Ariel Aponte to return the seized items
until Mr. Chichakli requested that the items be returned directly to him on April 3, 2017. Id.
Though not all of Mr. Chichakli's correspondence with OFAC is in the record, the Court
understands that on May 16, 2017, OFAC returned all of Mr. Chichakli's property, excluding the
disputed items in this case, to Mr. Chichakli, who was then in Dallas. Comp!. Ex 12. In a return
receipt provided to Mr. Chichakli by OFAC (which he signed), the agency specified that it had
returned: five evidence bags containing various amounts of U.S., Russian, Australian, and E.U.
cmTency; the keys to a car, a home in Plano, T.exas, an office suite, and a mailbox; and thirty-two
bags of material containing various diamonds, diamond cutting tools, gold coins, jewelry, etc. Id.
Mr. Chichakli noted on the receipt that three items had not been returned: "a $1,000 bill (1934),"
a "[r]ing with clear gem," and a "[g]old chain with pendant." Id. (listed as items 33-35 on
OFAC's "Receipt for Returned Property B").
In a January 10, 2018 letter, Mr. Chichakli asserted that these items were valued in
excess of$10,000. Comp!. Ex. 13. He further claims that the diamonds listed in Item 32 on the
return receipt (described as "containing 5 diamond papers with one round diamond in each,"
Comp!. Ex. 12) had been swapped with stones of lesser value. Id. He alleged that "OF AC and
[the] governments' [sic] agent took {9) stones with a total weight of 8.2 carats of diamonds and
replaced it with 5-stones with total weight of 1.04 carats." Comp!. Ex. 13. He further noted that
"more than 19-Carats of diamonds with a total value of nearly US $45,000 [were] missing." Id.
OFAC acknowledged receipt, but no response io this January I 0, 2018 correspondence is
contained in the record. See -id.
In his complaint, Mr.. Chichak:li also claims that a nmnber of other valuables were not
returned to him, including $40,000 in cash, "the proceed[s] from the sale of two real estate
properties that were blocked.in 2005 ... more than $80,000 in accounts receivable and [an]
unknown smn of money defendant receive[d] from the sale of [Mr. Chichakli's] business
assets." Comp!. ,r 37. Mr. Chichakli identified these discrepancies by comparing the items in
OFAC's return receipt with the Office of the Inspector General inventory conducted in 2007. Id.
,r 33; Comp!. Ex. IO (Inspector General 2007 inventory).
V. The Present Dispute
Mr. Chichak:li filed the present lawsuit in this court on July 9, 2018. Docket No. I. He
identifies three causes of action.
First, he asserts that the United States govenunent has "stolen, embezzled, plundered, or
otherwise illegally took, and failed to return" certain valuables in violation of 31 C.F .R.
§§ 593.201, 504,601,603 and EO 13348. Comp!. ,r,r 44-45. These valuables include: "diamonds
with an estimated value in excess of[$100,000]"; "cash and disregard [sic] of[$1,000,000]
including revenues from disposal of plaintiffs real properties"; "U.S. and Foreign collectible
currencies and bank notes valued at more than [$70,000]"; "business accounts receivable of
5
approximately $80,000"; "[m]ortgage note receivable of more than $20,000"; "original arts from
Plaintiffs public accounting Office with verifiable acquisition value of$320,000"; and "$45,000
in jewelry, gold, and other property." Comp!. 'if 44.
Next, Mr. Chichakli alleges that the United States government "deliberately caused the
lo[s]s of economic value of plaintiffs monetary asset[s] of nearly one million dollars in cash
deposits at various US banking institution[s] by failing its [obligation] to place Plaintiffs
blocked fund in an interest-bearing account" as required by law. Id. 'if 49. He also alleges that the
United States has "intentionally destroyed the blocked assets of Plaintiff by irrationally disposing
all of the income generating blocked property; namely, the rental properties held" and by storing
a $110,000 vehicle unprotected in the "Texas sun" for twelve years. Id. 'if 50. Such actions,
according to Mr. Chichakli, constitute violations of31 C.F.R. §§ 593.201, 203,504,601,603
and EO 13348. Id. 'if 51.
In his third cause of action, Mr. Chichakli alleges that OFAC's eighteen-month delay in
returning his property (between the unblocking of his assets in November 2015 and their return
in May 2017) violated his constitutional rights guaranteed by the Fourth, Fifth, and Fourteenth
Amendments to the United States Constitution. Comp!. ,r,r 55, 57.
Mr. Chichakli asks the Court to find that the government violated his constitutional rights
and 31 C.F.R. § 593.203 (requiring that any person holding blocked funds keep them in interest-
bearing accounts). Comp!. ,r 59b--c. He requests $1,650,000 "in addition to 18-month interest on
the said principal ... and further damages for defendant's failure to comply with 31 C.F .R.
§[]593.203 which obligate[s] the defendant to hold blocked funds in interest-bearing accounts."
Id. 'i['i[ 60-61.
The government filed a motion to dismiss on November 6, 2018 (Docket No. 11 ),
arguing that this Court lacks jurisdiction over most of Mr. Chichakli' s claims because they
present either tort claims or claims that are not based on money-mandating sources oflaw. Def.'s
Mot. to Dismiss ("Def. Mot.") at 10-12. The government further argues that though the Court
has jurisdiction to adjudicate Mr. Chichakli's Fifth Amendment takings claim, he fails to state a
claim upon which relief can be granted because his allegations do not support a claim that his
property was taken for public use. Id. at 12-17. The Court agrees with the government.
Accordingly, Mr. Chichakli's complaint must be DISMISSED.
DISCUSSION
I. The Court Lacks Jurisdiction over All of Mr. Chichakli's Claims Except His Fifth
Amendment Takings Claim
In considering a motion to dismiss for lack of subject-matter jurisdiction, the Court
accepts as true all undisputed facts in the pleadings and draws all reasonable inferences in favor
of the plaintiff. Trusted Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011).
The Court may, however, "inquire into jurisdictional facts" to determine whether it has
jurisdiction. Rocovich v. United States, 933 F.2d 991,993 (Fed. Cir. 1991). It is well established
that complaints filed by pro se plaintiffs are held to "less stringent standards than formal
pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519,520 (1972). Nonetheless, even
6
pro se plaintiffs must persuade the Court that jurisdictional requirements have been met. Hanis
v. United States, 113 Fed. Cl. 290, 292 (2013).
The Tucker Act provides that the Court of Federal Claims "shall have jurisdiction to
render judgment upon any claim against the United States founded either upon the Constitution,
or any Act of Congress or any regulation of an executive department, or upon any express or
implied contract with the United States, or for liquidated or unliquidated damages in cases not
sounding in tort." 28 U.S.C. § 1491(a)(l). It is well established that the Tucker Act-a
jurisdictional statute-"does not create any substantive right enforceable against the United
States for money damages." United States v. Testan, 424 U.S. 392, 398 (1976). Thus, a plaintiff
must identify a separate money-mandating source of substantive rights to establish the court's
jurisdiction. See Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005) (en bane in
relevant part).
The first and second counts of Mr. Chichakli' s complaint are beyond this Court's
jurisdiction under the Tucker Act because they allege the commission of intentional torts by
officials of the United States. Mr. Chichakli claims that the government has "stolen, embezzled,
plundered, or otherwise illegally [taken]" his property, "deliberately caused the lo[s]s of
economic value of plaintiffs monetary asset[s]," and "intentionally destroyed the blocked assets
of Plaintiff by inationally disposing all of the income generating blocked property." Comp!. ,r,r
44, 49-50. "The plain language of the Tucker Act excludes from the Court of Federal Claims
jurisdiction claims sounding in tort." Rick's Mushroom Serv., Inc. v. United States, 521 F.3d
1338, 1343 (Fed. Cir. 2008). Accordingly, these claims must be dismissed.
The Court also lacks jurisdiction over Mr. Chichakli's claims alleging a breach of various
federal regulations issued pursuant to EO 13348 because those regulations cannot "fairly be
interpreted as mandating compensation for damages sustained as a result of a breach of the duties
they impose." United States v. Mitchell, 463 U.S. 206,219 (1983); see also Testan, 424 U.S. at
400 (observing that entitlement to money damages "depends upon whether any federal statute
can fairly be interpreted as mandating compensation by the Federal Government for the damage
sustained") (internal quotation marks and citations omitted). The regulations Mr. Chichakli cites
cannot be so interpreted because they do not impose obligations on the United States, but rather
upon the persons or institutions holding the blocked funds. See 31 C.F.R. § 593.203(a) (2015)
(requiring "any U.S. persons holding funds" to place seized assets in an interest bearing account
located in the United States); 31 C.F.R. § 593.504 (2015) (requiring that any payment or transfer
of any blocked funds "must be blocked in an account on the books of [a] financial institution");
31 C.F.R. § 593 .601 (2015) (noting that "[r]ecordkeepings and reporting requirements imposed
by part 501 of this chapter ... are considered requirements arising pursuant to [part 593]"). 5
Further, Mr. Chichakli's claims brought under the Fourth and Fourteenth Amendments
are also not within this Court's jurisdiction under the Tucker Act because these provisions "do
not mandate payment of money by the government." LeB!anc v. United States, 50 F.3d 1025,
5 Mr. Chichakli also claims that the government has violated 31 C.F.R. § 593.603. Comp!. ,r 51.
There is cunently no such regulation, nor did such a regulation exist when these sanctions were
in effect.
7
1028 (Fed. Cir. 1995); see also Brown v. United States, 105 F.3d 621,623 (Fed. Cir. 1997)
("[T]he Fourth Amendment does not mandate the payment of money for its violation."). As such,
these claims must also be dismissed.
Finally, Mr. Chichakli also asserts a violation of his rights under the Fifth Amendment's
Takings Clause. See Comp!. ,r,r 54-55. This Court has jurisdiction over such allegations under
the Tucker Act. See Moden v. United States, 404 F.3d 1335, 1341 (Fed. Cir. 2005) (noting that
the Fifth Amendment's Takings Clause is money-mandating). The Court turns now to the
government's motion to dismiss under RCFC 12(b)( 6), for failure to state a claim for relief under
the Takings Clause.
II. Mr. Chichakli Has Failed To State a Fifth Amendment Takings Claim
Mr. Chichakli claims that he is owed compensation under the Takings Clause based on
the fact that his assets were retained for eighteen months after they were unblocked. See Comp!.
,r,r 54-55, 57. The government has moved to dismiss this claim pursuant to RCFC 12(b)(6). The
Court agrees with the government that Mr. Chichakli has failed to state a claim for relief under
the Takings Clause.
When considering a motion to dismiss for failure to state a claim under RCFC 12(b)(6),
the Court accepts as true the complaint's undisputed factual allegations and construes them in the
light most favorable to the plaintiff. Ashcroft v. lg bal, 556 U.S. 662, 678 (2009). The Court
draws all reasonable inferences in favor of the non-moving party, Sommers Oil Co. v. United
States, 241 F.3d 1375, 1378 (Fed. Cir. 2001), but the complaint's factual allegations still "must
be enough to raise a right to relief above the speculative level," Bell At!. Corp. v. Twombly. 550
U.S. 544, 555 (2007). In other words, the plaintiffs claim must be "plausible on its face." Id. at
570; see also Acceptance Ins. Cos., Inc. v. United States, 583 F.3d 849, 853 (Fed. Cir. 2009). "A
claim has facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged." Igbal, 556
U.S. at 678 (citing Twombly. 550 U.S. at 556).
The Takings Clause of the Fifth Amendment provides that "private property [shall not]
be taken for public use, without just compensation." U.S. Const. amend V. "The clause does not
entitle all aggrieved owners to recompense," however, "only those whose property has been
'taken for a public use."' AmeriSource Corp. v. United States, 525 F.3d 1149, 1152 (Fed. Cir.
2008).
"Property seized and retained pursuant to the police power is not taken for a 'public use'
in the context of the Takings Clause." Id. at 1153. And the government's police power
encompasses both the seizure of property for use as evidence in a criminal investigation and the
taking of property pursuant to economic sanctions. See Acadia Tech., Inc. v. United States, 458
F.3d 1327, 1332-33 (Fed. Cir. 2006) (finding that the forfeiture of imported counterfeit goods
was "the kind of exercise of the police power that has repeatedly been treated as legitimate even
in the absence of compensation to the owners of the [] property"); Paradissiotis v. United States,
304 F.3d 1271, 1274-75 (Fed. Cir. 2002) ("[V]alid regulatory measures taken to serve
substantial national security interests ... have not been recognized as compensable takings for
Fifth Amendment purposes.").
8
In Paradissiotis, a case strikingly similar to this one, OFAC froze the assets of an SDN
determined to be an agent of Libya. 304 F.3d at 1273. The court of appeals found that the
freezing of that individual's assets in the first instance was not a taking for which the govermnent
was required to provide just compensation. Id. at 1275-76. There, as here, the President ordered
the blocking of the individual's assets via executive order pursuant to his authority under IEEPA.
Id. at 1272, 1275. The court reasoned, as it had done in past cases, that the imposition of the
Libyan sanctions "substantially advance[d] the national security of the United States and that the
frustration of contract rights resulting from the application of those [sanctions] does not
constitute a Fifth Amendment taking." Id. at 1274 (citing Chang v. United States, 859 F.2d 893,
896-97 (Fed Cir. 1988); 767 Third Ave. Assocs. v. United States, 48 F.3d 1575, 1581 (Fed. Cir.
1995)). Indeed, the court of appeals noted, "[e]conomic sanctions would hardly be sanctions if
the foreign targets of the sanctions could simply stand in line to be compensated for the losses
those sanctions caused them." Id. at 1275.
Mr. Chichakli's challenge to OFAC's delay in returning his blocked assets also does not
state a claim under the Takings Clause. Because his claim "is predicated on the unlawfulness of
the delay ... the true nature of [that claim] is one for damages based on unlawful conduct by the
govermnent, not on a taking of private property for public use." Acadia, 458 F.3d at 1333. Such a
claim may implicate a due process right "not to have property held ... for an umeasonable
time," but that is also a claim this Court lacks jurisdiction to adjudicate. Id. at 1333-34.
CONCLUSION
For the foregoing reasons, the govermnent's motion to dismiss the takings claim pursuant
to RCFC 12(b)(6) is GRANTED and that claim is DISMISSED. The government's motion to
dismiss the remainder of the claims in the complaint pursuant to RCFC 12(b)(l) is GRANTED
and those claims are DISMISSED without prejudice. The Clerk shall enter judgment
accordingly. Each side shall bear its own costs.
IT IS SO ORDERED.
ELAINE D. KAPLAN
Judge
9