DC Court Rejects DRC National's Sanctions Designation Challenge

The suit was filed by Marcellin Mukolo Basengezi, who was sanctioned by the Treasury Department's Office of Foreign Assets Control in 2019 for obstructing elections as a senior official with the DRC's National Independent Electoral Commission, which runs the nation's elections. Basengezi told OFAC through a delisting petition that he was wrongly designated, but the agency denied the petition.

In his suit, Basengezi argued the agency failed to explain why it "discounted" the claims and evidence submitted as part of his delisting application, and the court has no way to know whether OFAC actually considered the submitted materials. But Judge James Boasberg, who said OFAC’s denial wasn't arbitrary or capricious under the Administrative Procedure Act, said OFAC doesn't need to "specifically cite and rebut every piece of evidence favorable to a petitioner."

While OFAC didn't explicitly address all of Basengezi's evidence, "that does not render its decision arbitrary or capricious," the judge ruled. There's no authority mandating an agency to "specifically explain its view on each source of evidence in the record."

The judge also noted that OFAC did consider the claims in Basengezi's petition, summarizing the claims and structuring its "evidentiary memorandum to rebut each one." The question isn't whether OFAC could have been more detailed but whether it "minimally contain[ed] a rational connection between the facts found and the choice made," the court ruled.

Basengezi also argued that OFAC was wrong to reject his argument that his circumstances had changed since he was sanctioned. He said his "ongoing activities," which include maintaining contact with staff on the National Independent Electoral Commission, don't involve "illicit or sanctionable conduct" and weren't meant to undermine "democratic processes or institutions in the DRC."

But Boasberg said that even if OFAC was wrong in saying Basengezi continues to obstruct elections in the DRC, he didn't rebut OFAC's basis for sanctioning him on the grounds that "he still meets the past-tense designation criteria." The executive order OFAC used to sanction Basengezi says individuals can be designated solely based on their past activity, and the agency said that Basengezi continues to meet that original criterion. While he can petition to be delisted, "nothing in the regulations compels OFAC to delist an individual who has ceased to engage in previous sanctionable conduct," the court said.

Basengezi also criticized OFAC's reliance on a foreign-policy guidance memo from the State Department in helping it decide to sanction him. "This critique, like his others, comes up wanting," the judge said. "For one, there is nothing suspect about OFAC’s relying on State’s memorandum," adding that OFAC "most certainly may solicit and rely upon guidance from the State Department, as matters affecting this country’s foreign policy fall within its bailiwick." Reliance on the memo was also not "wholesale," as Basengezi claims, the court said, since the memo was only one piece of evidence used by OFAC.

Basengezi also argued he didn't receive proper notice of his designation. The court sidestepped the issue of whether Basengezi as a non-U.S. citizen is entitled to these due process protections, saying the U.S. Court of Appeals for the D.C. Circuit "has not articulated a specific test for determining when a foreign national residing outside the United States maintains the requisite ‘substantial connections'" with the U.S., affording that person constitutional protections. But even if the due process clause applies, "Basengezi received all the process he was owed," the court said.

While OFAC could have "made things easier for" Basengezi by giving him unclassified summaries of the classified parts of the record, "the Circuit has never held that such summaries are required by the Fifth Amendment," the court said. All the information OFAC did give him "adequately informed Basengezi of the basis of his continued designation."