Lower courts ‘avoided core issue’ says Deripaska, taking fight to Supreme Court

Oleg Deripaska, the Russian billionaire who forged his fortune in the world aluminium market, is taking his designation by the US Office of Foreign Assets Control (‘OFAC’) to the Supreme Court, claiming that OFAC acted outside of its statutory authority when it imposed sanctions on him, and is now asking that the sanctions be lifted.

As reported by WorldECR in March, Deripaska’s first appeal was heard by the US District Court of Columbia, which found that none of his three arguments made had merit.

The court said his first argument, that ‘The sanctions exceed OFAC’s statutory authority because they respond not to the threat Russia poses to Ukraine but to a generalized “undeclared national emergency” concerning Russia’s “worldwide malign activities,”’ failed because ‘[his] only support for that contention is OFAC’s April 6, 2018, press release announcing sanctions against him and numerous other actors.’

It said, ‘He reads that press release to imply that an undeclared emergency concerning perceived Russian malign activities broader than the Ukraine crisis “may have motivated the agency to undertake the action.”… Nothing about the press release displaces the usual rule that “a court may not reject an agency’s stated reasons for acting simply because the agency might also have had other unstated reasons” or motivations, including those stated only after the agency’s decision [and] the press release appropriately reflects how the executive orders apply to Deripaska by summarizing the extensive justifications OFAC gave in its evidentiary memoranda.’

In the June-filed ‘writ of certiorari to review the judgment of the United States Court of Appeals for the District of Columbia’, Deripaska, represented by the law firm Ferrari & Associates, argues,

‘Both the United States Court of Appeals for the District of Columbia and the United States District Court for the District of Columbia evaded the core issue at stake and erred in underestimating the import of OFAC’s press release announcing Deripaska’s designation – a press release which constitutes the sole public notice by the agency as to the reasons for acting against Deripaska. Instead of addressing whether the President can utilize IEEPA’s authorities in response to a threat for which no national emergency had been declared, both courts held that OFAC’s press release – which constitutes the sole document identifying the threat to which its designation action is responsive – cannot displace the administrative record. OFAC’s reasoning in that record, however, is silent with respect to the threat to which its designation actions were responsive. As a result, both courts avoided the core issue at stake in the litigation.’

Separately, the news agency AFP reported that on 28 June Deripaska had given a press conference at which he said that were Russia to ‘destroy Ukraine’ it would represent a ‘colossal mistake’, and that there was no possibility of regime change in Russia because ‘the opposition had withdrawn from the life of the country.’  

See the petition (courtesy of Thomson Reuters) at:

https://fingfx.thomsonreuters.com/gfx/legaldocs/lbvgnxynypq/Deripaska%20Petition.pdf