By David Zapp, Esq.
OFAC stands for the Office of Foreign Assets Control. It is a U.S. agency that puts people and nations on the so-called “Clinton list,” which is a sanction list made up of allegedly rogue corporations, rogue nations, rogue civic associations, and just plain rogues. Any one and anything that OFAC believes is involved in certain illicit activity is put on this list. In the case of people and corporations who engage in money laundering and/or narco-trafficking, they are placed on the so-called “Kingpin” list. The vast majority of these people are not kingpins but OFAC does not care and neither do the courts.
So what can you do? Hire a lawyer. It’s the best way to deal with government agencies. And have patience, and the equanimity to tolerate what you will perceive as abuse and arrogance. I always say I would rather argue a case before the Supreme Court than deal with administrative agencies such as BOP, OFAC, and the Veterans’ Administration to name a few. These agencies have a tendency to piss off the people they are dealing with, and, I suspect, even get a perverse pleasure from doing so. For example, they could easily respond to your attorney’s query as to why you are on the list by enumerating the reasons. But instead they could just as easily say “we think your client is a drug dealer because he is a drug dealer.” Period. That’s not an exaggeration. I once received such a response, and when I see such arrogance I believe there a reason for it, something or someone made them confident that they could be that arrogant, and I suspect it is the deference the courts generally give them.
Getting on the list though does not mean you staying on the list and there is good law that allows you to get off that list. Wait a respectable six months to a year during which you disassociate yourself from people and places that got you on the list in the first place, then make a request to OFAC to be de-listed and you are on your way to be able to get off the list. As President Obama said recently referring to Cuba, “a nation that meets our conditions and renounces the use of terrorism should not face this sanction.” Substitute “individual” for “nation” and “narco-trafficking” for “terrorism” and you have the same working legal principle.
OFAC’s main tool to thwart you, however, is to delay the process, slow it down, knowing that so long as it does not respond to your request to be de-listed you will continue to be on the list. And you cannot go directly to the court because there is an “exhaustion of remedies” rule that states that you must exhaust your administrative remedies before going to court. In other words you must first ask OFAC to reconsider its decision, and so long as OFAC does not answer, you cannot be said to have “exhausted” your administrative remedy. No response, no “exhaustion.”
So how do you deal with that? Document all you do. Stay on top of them. Apply the pressure but do it reasonably, perhaps more than reasonably so that no one can say you are acting unreasonably. If OFAC does not respond in two weeks, give them three weeks and follow it up with a reminder letter so that by the time you get to a court you are viewed as an indisputably reasonable person.
Now if they still do not respond or they deny your request for reconsideration, go to court, sue them. That way things will start moving in earnest. It is one thing to ignore a lawyer, it is quite another to ignore a federal judge or, worse, present him with a bogus justification for keeping an individual on the list. And the lawyer who will represent OFAC, a Department of Justice lawyer, will be sensitive to that fact. OFAC personnel are not lawyers. They are cops in plain clothes. They have no interest in getting you off the list.
If the case cannot be settled among the parties, the judge will decide and as I say the law is very good for a person on the list. You see, it is not about what you were doing. It is about what you are doing that determines whether you should still be on the list.
You are like Iran. You get off the sanction list if you get rid of your “uranium.” So get rid of your “uranium.”