                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA


 PACIFIC SOLAR ENERGY, S.A. de C.V.,

                Plaintiff,

        v.
                                                         Civil Action No. 18-48 (RDM)
 UNITED STATES DEPARTMENT OF THE
 TREASURY, et al.,

                Defendants.


                             MEMORANDUM OPINION AND ORDER

       By all accounts, Plaintiff Pacific Solar Energy, SA, de C.V. (“Pacific Solar”) did nothing

wrong. It is a Honduran company that sought to make a payment of $105,028.05 to its insurer,

Seguros Continental, which is also a Honduran company. Dkt. 1 at 8 (Compl. ¶¶ 15–17).

Because the payment was to be made in U.S. dollars, Pacific Solar directed its bank in Miami,

Florida—Banco Santander—to wire the premium payment to an account held by the insurer’s

Honduran bank—Banco Continental, S.A. (“Banco Continental”)—at Banco Continental’s

correspondent bank in Miami—U.S. Century Bank—so that Banco Continental could then credit

the transfer to the insurer’s account in Honduras. Id. at 8–9 (Compl. ¶¶ 18–20); Dkt. 61-1 at 2

(SUMF ¶ 5).

       But, unbeknownst to Pacific Solar, Defendant U.S. Department of Treasury, through its

Office of Foreign Assets Control (“OFAC”), designated Banco Continental as a Specially

Designated Narcotics Trafficker pursuant to Foreign Narcotics Kingpin Designation Act

(“Kingpin Act”), 21 U.S.C. § 1901 et seq., just hours before Banco Santander wired Pacific

Solar’s funds to U.S. Century Bank. Dkt. 66 at 4; Dkt. 61-1 at 1 (SUMF ¶ 1). Because the
designation had the effect of blocking all property (and interests in property) of Banco

Continental in the United States, see 21 U.S.C. § 1904(b), Banco Santander should not have

made the transfer and U.S. Century Bank should not have accepted it, id. § 1904(c). But they

did. Once U.S. Century Bank received the funds on behalf of Banco Continental, moreover, it

should not have issued a credit transfer message or payment order to Banco Continental in

Honduras for the purpose of transferring the funds from Banco Continental’s correspondent

account in the United States to Banco Continental in Honduras. But it did.

       Pacific Solar’s luck gets worse. Three days after OFAC blocked Banco Continental’s

accounts in the United States, the government of Honduras notified OFAC that it had initiated

proceedings to liquidate Banco Continental, and the bank is now under the control of the

Honduran government and has been placed in liquidation. Dkt. 29-1 at 17. Although the funds

at issue were credited on Banco Continental’s general ledger, they were never ultimately credited

to the insurer’s account. See Dkt. 45-1 at 19–22 (Exhibit B); see also Dkt. 45-1 at 13 (Manfull

Decl. ¶ 63). The Honduran government, however, acknowledges that Banco Continental

received the funds, and it has represented that Pacific Solar may file a claim against the estate of

the bank in Honduras. See Dkt. 45-1 at 19 (Exhibit B).

         This brings us to the present dispute: Shortly after OFAC blocked Banco Continental’s

U.S. accounts, Pacific Solar applied to OFAC for a license under 31 C.F.R. § 501.801 to unblock

the $105,028.05 held at U.S. Century Bank, so that it could then recover the funds that it had

sought to transfer to its insurer in Honduras. Dkt. 1 at 13 (Compl. ¶ 48). OFAC denied that

application, concluding that U.S. Century Bank had properly blocked the transfer to Banco

Continental and that “[i]t is OFAC’s policy to license the release of blocked property only in

limited circumstances” not present in this case. Dkt. 61-1 at 3 (SUMF ¶ 14). Pacific Solar asked



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OFAC to reconsider, and OFAC denied that request. Id. at 3–4 (SUMF ¶ 15). After Pacific

Solar brought this action challenging OFAC’s denial, however, OFAC learned that U.S. Century

Bank had issued the credit transfer message or payment order to Banco Continental in Honduras.

Id. at 4 (SUMF ¶¶ 16–17). After further investigation, it then wrote to Pacific Solar stating that

it was mistaken in its initial decision and that, in fact, the funds at issue are not blocked in the

United States and that as a result, no OFAC license is necessary (or appropriate) to recover the

funds in Honduras. Id.

        The parties’ cross-motions for summary judgment are pending before the Court. Dkt. 60;

Dkt. 61. These motions address three questions, although the first question was raised by the

Court and not the parties. First, in light of OFAC’s representations that it is authorized only to

block property located in the United States or held or controlled by a U.S. person, is Pacific

Solar’s claim seeking an OFAC license redressable for purposes of establishing Article III

standing? Second, even if Pacific Solar has standing, is there any basis for the Court to set aside

OFAC’s determination that Pacific Solar does not need a license because the funds at issue are

not located in the United States? Third, if Pacific Solar can clear the first two hurdles, is there

any basis for the Court to set aside OFAC’s decision declining to grant Pacific Solar a license?

        As raised with the parties at a status conference on March 26, 2019, however, an OFAC

regulation that was not addressed by OFAC in its administrative decisions and that was not

addressed by either party in the briefs currently before the Court, poses at least two additional—

albeit related—questions. See Minute Order (March 24, 2019); Minute Entry (March 26, 2019).

That regulation, promulgated by OFAC pursuant to the Kingpin Act, states:

        Any transfer after the effective date that is in violation of any provision of this
        part or of any regulation, order, directive, ruling, instruction, or license issued
        pursuant to this part, and that involves any property or interest in property of a
        specially designated narcotics trafficker is null and void and shall not be the

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       basis for the assertion or recognition of any interest in . . . such property or
       property interests.

31 C.F.R. § 598.205(a); see also id. § 598.302 (defining “effective date”); id. § 598.316

(defining “transfer”); id. § 598.314 (defining “specially designated narcotics trafficker”). The

plain language of the regulation would seem to indicate that any transfer of funds made in

violation of the Kingpin Act and OFAC’s implementing regulations or orders is “null and void.”

This, then, raises two significant questions: First, if, as the parties agree, OFAC’s blocking order

was in place prior to U.S. Century Bank’s initiation of a credit transfer message or payment order

to Banco Continental in Honduras, does the regulation have the effect of nullifying or voiding

that transfer, such that the funds held at U.S. Century Bank never made it to Honduras? Second,

does this same reasoning apply to Banco Santander’s initial transfer of funds into U.S. Century

Bank, such that the payment from Pacific Solar never made it into Banco Continental’s blocked

accounts to begin with?

       Because OFAC did not address the effect, if any, of the regulation on Pacific Solar’s

license application in its administrative decisions, the Court will deny both parties’ cross-

motions for summary judgment, Dkt. 60; Dkt. 61, and will remand the matter to OFAC for

further consideration. It is a cardinal rule of judicial review that “agencies, not courts, should

decide issues in the first instance, for courts ‘cannot exercise their duty of review unless they are

advised of the considerations underlying [agency] action.’” Eisai, Inc. v. Food & Drug Admin.,

134 F. Supp. 3d 384, 403 (D.D.C. 2015) (quoting SEC v. Chenery Corp. (“Chenery I”), 318 U.S.

80, 94 (1943)). Because an agency’s “action must be measured by what [it] did, not by what it

might have done,” Chenery I, 318 U.S. at 93–94, the Court cannot address the meaning of the

OFAC regulation—or how it might affect OFAC’s determination of Pacific Solar’s license

application—when OFAC itself has not yet done so.

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       For the foregoing reasons, both Plaintiff’s motion for summary judgment, Dkt. 60, and

Defendants’ cross-motion, Dkt. 61, are hereby DENIED without prejudice. It is further

ORDERED that the matter is remanded to OFAC to consider whether and how 31 C.F.R.

§ 598.205(a) and any related statutory or regulatory provisions apply to this matter. It is further

ORDERED that, within 45 days, (1) OFAC shall issue a decision addressing the questions posed

by this opinion, or (2) the parties shall file a joint status report informing the Court where the

matter stands and proposing next steps.

       SO ORDERED.

                                                       /s/ Randolph D. Moss
                                                       RANDOLPH D. MOSS
                                                       United States District Judge


Date: March 26, 2019




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