                  UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF COLUMBIA

______________________________
                              )
UNITED STATES OF AMERICA,     )
                              )
          Plaintiff,          )
                              )
          v.                  )    Civil Action No. 12-1905 (RWR)
                              )
SUM OF $70,990,605, et al.,   )
                              )
          Defendants.         )
______________________________)

                  MEMORANDUM OPINION AND ORDER

     Plaintiff United States filed this civil in rem forfeiture

action, alleging that the defendant funds -- approximately $61.3

million in three different banks -- are the proceeds of a wire

fraud and subject to seizure under 18 U.S.C. §§ 981, 983 and 984.

Claimants Hikmat Shadman Logistics Services Co., Hikmat Shadman

General Trading, LLC, Faizy Elham Brothers, Ltd., Everest Faizy

Logistics Services, Hikmatullah Shadman, Najibullah, and Rohullah

move under Federal Rule of Civil Procedure 65 for a preliminary

injunction to release the funds held by the United States, to

enjoin the government from harassing or threatening their

witnesses and from transferring any assets of the claimants

beyond the court’s jurisdiction, to direct the United States to

“gather, segregate, and preserve” evidence, and to direct the

United States to identify any of the claimants’ assets and any

evidence about the claimants that have been transferred outside
                                 - 2 -

of the United States’ control.    Because the claimants’ request to

release the funds is moot, and because they have failed to show

that they will suffer an irreparable injury or that other

relevant factors favor relief, their motion for a preliminary

injunction will be denied.

                             BACKGROUND

     The United States filed this civil forfeiture action and

seized the defendant funds as the proceeds of a fraud.      The

United States alleges that Hikmatullah Shadman, as a

subcontractor and owner of Hikmat Shadman Logistics Services

Company, “conspired to obtain payments from the United States for

the transportation of military supplies in Afghanistan through

the illegal and fraudulent use of the wires . . . [by making]

bribe payments, fraudulently inflat[ing] prices, and caus[ing]

the United States to be invoiced for and to make payments of

$77,920,605 to two bank accounts in Afghanistan.”      2d Am. Compl.

at 6.

     On August 27, 2013, Shadman, Najibullah, and Rohullah filed

a verified claim and statement of interest in the seized

property, asserting that they are the owners of the seized funds.

Verified Claim and Statement of Interest or Right in Property

Subject to Forfeiture In Rem at 8.       They made these claims both

individually, and on behalf of their companies.      Id. at 14-16.

It appears that all the accounts are held in the name of the
                               - 3 -

companies, rather than the individuals, except for one account at

Emirate National Bank.   Id. at 8-12.   The claimants then filed

under 18 U.S.C. § 983(f) a motion for immediate release of funds,

which has been denied.

     The claimants now move under Federal Rule of Civil Procedure

65 for a preliminary injunction to suppress the warrants in rem

and to release the claimants’ property; to enjoin the government

from “threatening or harassing” witnesses and transferring assets

“beyond the jurisdiction of this Court;” and to direct the

government to “gather, segregate, and preserve any and all

evidence in any form in the possession of the United States or

its agents” and “to identify any assets of Claimants or evidence

related to Claimants that has been transferred outside United

States control since the filing of Claimants' notice of

appearance in this action.”   Claimants’ Mot. for Preliminary

Injunctive Relief (“Claimants’ Mot. for P.I.”) at 5.    The United

States opposes.   U.S.’s Opp’n to the Claimants’ Mot. for

Preliminary Injunctive Relief (“U.S. Opp’n”).1   A hearing on the


     1
        In a reply brief, the claimants raise for the first time
that “a claimant may request the pretrial suppression of these
warrants for a lack of probable cause.” Claimants’ Reply at 6.
The claimants’ entitlement to a probable cause hearing is unclear
in the context of a civil forfeiture action of fungible property.
Compare 18 U.S.C. § 985(e) (requiring a court to hold a “prompt
post-seizure hearing” when real property is seized to allow a
property owner to contest the basis of the seizure) with 18
U.S.C. § 984 (omitting the provision requiring a post-seizure
pretrial hearing when fungible property is seized) and 18 U.S.C.
§ 983 (omitting a requirement for a post-seizure, pretrial
                              - 4 -

motion for a preliminary injunction was held on November 14,

2013.2

                           DISCUSSION

     “[I]njunctive relief is an ‘extraordinary and drastic

remedy,’ and it is the movant’s obligation to justify, ‘by a

clear showing,’ the court’s use of such a measure.”   Citizens

United v. FEC, 530 F. Supp. 2d 274, 278 (D.D.C. 2008) (citing

Mazurek v. Armstrong, 520 U.S. 968, 972 (1997)); see also

Dorfmann v. Boozer, 414 F.2d 1168, 1174 (D.C. Cir. 1969) (holding

that a preliminary injunction is available only when “normal

legal avenues are inadequate”).   The movant “carries the burden


hearing in the general rules for civil forfeiture actions and
making no mention of such a hearing when a claimant petitions for
an immediate release of the seized property under § 983(f)); see
also United States v. Edwards, 856 F. Supp. 2d 42, 44-45 (D.D.C.
2012) (explaining that, under United States v. E-Gold, Ltd., 521
F.3d 411 (D.C. Cir. 2008), due process requires a post-
deprivation, pretrial hearing on probable cause for criminal
defendants only when the defendant has “‘demonstrated the
inability to retain counsel of [his] choice without access to the
seized assets’” (quoting E-Gold, 521 F.3d at 415)). In any
event, this argument is first raised in the reply brief and
accordingly will not be considered, Taitz v. Obama, 754 F. Supp.
2d 57, 61-62 (D.D.C. 2010) (“Courts ordinarily decline to
consider arguments that are raised for the first time in a reply
to an opposition.”). Furthermore, the claimants have not
requested a probable cause hearing, nor have they shown that they
are entitled to one.
     2
        At the preliminary injunction hearing on November 14,
2013, the claimants submitted a bench brief which contained a
summary of the argument and some of the exhibits filed with other
motions. However, the brief was not provided to the court or the
opposing party in advance of the hearing and has not been filed
with the court. Accordingly, only the docketed filings and the
arguments made at the hearing have been considered.
                               - 5 -

of persuasion by a clear showing 1) of a substantial likelihood

of success on the merits, 2) of irreparable injury if the

injunction is not issued, 3) that the injunction would not

substantially injure other interested parties, and 4) that the

injunction is in the public interest.”    Spadone v. McHugh, 842 F.

Supp. 2d 295, 300 (D.D.C. 2012) (citing Cobell v. Norton, 391

F.3d 251, 258 (D.C. Cir. 2004)).   “The four factors should be

balanced on a sliding scale, and a party can compensate for a

lesser showing on one factor by making a very strong showing on

another factor.”   In re Navy Chaplaincy, 516 F. Supp. 2d 119, 122

(D.D.C. 2007) (citing CSX Transp., Inc. v. Williams, 406 F.3d 667

(D.C. Cir. 2005)); see Davis v. Pension Ben. Guar. Corp., 571

F.3d 1288, 1291-92 (D.C. Cir. 2009).3    The claimants here seek

more than a prohibitive injunction that would maintain the status



     3
       Two judges on the Davis panel, see id. at 1295–96
(Kavanaugh, J. and Henderson, J., concurring), though, questioned
the continuing vitality of, but did not squarely jettison, this
sliding scale approach in light of dictum in Winter v. National
Resources Defense Council, Inc., 555 U.S. 7, 20 (2008) (listing
the four factors a plaintiff must establish, but neither invoking
nor rejecting the sliding scale method). The most that can be
said of what Winter decided regarding standards for securing
injunctive relief is that a plaintiff must demonstrate that
irreparable injury is “likely,” not just “possible,” 555 U.S. at
22, and that the balance of equities and the public interest were
sufficient in that case to weigh against injunctive relief. 555
U.S. at 32; see also Sherley v. Sebelius, 644 F.3d 388, 392–393
(D.C. Cir. 2011) (opinion by Ginsburg, J., joined by Griffith,
J.) (stating that “[l]ike our colleagues [in Davis], we read
Winter at least to suggest if not to hold ‘that a likelihood of
success is an independent, free-standing requirement for a
preliminary injunction’”).
                                   - 6 -

quo; they seek a mandatory injunction that would alter the status

quo.       “In this Circuit, ‘the power to issue a preliminary

injunction, especially a mandatory one, should be sparingly

exercised.’”       Mylan Pharms., Inc. v. Shalala, 81 F. Supp. 2d 30,

36 (D.D.C. 2000) (quoting Dorfmann, 414 F.2d at 1173).4




       4
        The claimants’ request to suppress the seizure warrants
and release the funds is moot because the claimants’ petition for
release of funds has already been denied. Additionally, it is
not even clear that the claimants can request return of their
property through a motion for a preliminary injunction. See,
e.g., United States v. Contents of Accounts, No. 3:10-CV-228-H,
2010 WL 2556849, at *7-9 (W.D. Ky. June 18, 2010) (finding that a
motion for injunctive relief is inconsistent with the
Supplemental Rules for Admiralty or Maritime Claims and Asset
Forfeiture Actions), aff’d in part, 629 F.3d 601 (6th Cir. 2011).
Insofar as the claimants’ request for suppression of the warrants
is separate from their request for release of funds, the
claimants fail to demonstrate that their request to suppress the
seizure warrants is appropriately resolved through a preliminary
injunction. They have cited no case law that supports this
proposition, or that the appropriate remedy for a seizure of
property pursuant to an allegedly defective seizure warrant is
suppression of the warrant and return of the property. The
claimants do not discuss why suppression of the seizure warrant
is appropriate, but merely request once at the beginning of their
opening brief that the warrants be suppressed. Claimants’ Mot.
for P.I. at 5. They include no request for suppression of the
warrants as part of the requested orders. See id. at 11-12. The
request to suppress the warrants seems to be a part of the
request to release the funds. However, the plain language of
§ 983 reflects that the only method for returning property before
trial is through a § 983(f) petition, which the claimants have
filed. Cf. United States v. Real Prop. Commonly Known as 16899
S.W. Greenbrier, Lake Oswego, Clackamas Cnty., Or., 774 F. Supp.
1267, 1274-75 (D. Or. 1991) (finding that a request for return of
property under Federal Rule of Criminal Procedure 41(g), which
allows “[a] person aggrieved by an unlawful search and seizure of
property or by deprivation of property may move for the
property’s return,” is inapplicable in a civil forfeiture case).
                                 - 7 -

I.   IRREPARABLE INJURY

     A showing of an irreparable injury traditionally “is a

threshold requirement for a preliminary injunction,”   City of

Moundridge v. Exxon Mobil Corp., 429 F. Supp. 2d 117, 127 (D.D.C.

2006), and parties must meet “a high standard for irreparable

injury,” Chaplaincy of Full Gospel Churches v. England, 454 F.3d

290, 297 (D.C. Cir. 2006).   “[T]he injury must be both certain

and great; it must be actual and not theoretical.   The moving

party must show [t]he injury complained of is of such imminence

that there is a clear and present need for equitable relief to

prevent irreparable harm.”   Id. (citations and internal quotation

marks omitted) (citing Wis. Gas Co. v. FERC, 758 F.2d 669, 674

(D.C. Cir. 1985) (per curiam)).    “The possibility that adequate

compensatory or other corrective relief will be available at a

later date, in the ordinary course of litigation weighs heavily

against a claim of irreparable harm.”    Wis. Gas Co., 758 F.2d at

674 (quoting Va. Petroleum Jobbers Ass’n v. Federal Power Comm’n,

259 F.2d 921, 925 (D.C. Cir. 1958)).

     “Implicit in each of these principles is the further

requirement that the movant substantiate the claim that

irreparable injury is ‘likely’ to occur.   Bare allegations of

what is likely to occur are of no value since the court must

decide whether the harm will in fact occur.”    Id. at 674

(citations omitted).   Rather,
                               - 8 -

      [t]he movant must provide proof that the harm has
      occurred in the past and is likely to occur again, or
      proof indicating that the harm is certain to occur in the
      near future.   Further, the movant must show that the
      alleged harm will directly result from the action which
      the movant seeks to enjoin.

Id.

      The claimants argue that “the failure to grant this motion

will result in the destruction of Claimants’ legitimate

business.”   Claimants’ Mot. for P.I. at 11.   The destruction of a

business can potentially establish an irreparable injury.      See

Wis. Gas Co., 758 F.2d at 674 (“Recoverable monetary loss may

constitute irreparable harm only where the loss threatens the

very existence of the movant’s business.”).    However, the

claimants have not demonstrated how the requested injunctive

relief is necessary to prevent the destruction of their business.

While releasing the defendant funds may affect the functioning of

their business, the claimants have already failed to demonstrate

that they are entitled to this relief.    Their remaining request

for an injunction against the government to protect potential

witnesses and evidence is devoid of factual support for how it

will prevent the destruction of the claimants’ business.      See

Wis. Gas Co., 758 F.2d at 674 (requiring that the movant

“substantiate” the claim with more than “[b]are allegations”).

They request that “any interrogation relating to the facts

alleged in this case by the government be conducted under Court

supervision with counsel for both parties present,” and seek “[a]
                               - 9 -

government-wide Order requiring the U.S. Government to gather and

preserve any evidence and assets of Claimants in its possession.”

Claimants’ Mot. for P.I. at 11.    They also request a

“[p]rotective Order regarding the taking and preservation of

testimony and evidence that may impact National Security or

contain classified information.”    Id. at 12.   These measures

would relate to taking and preserving evidence while the

claimants contest the forfeiture action.    But, the claimants make

no showing of how the measures would save or influence the

claimants’ ability to continue business operations, or how the

measures are in any way even related to their business

operations.   Accordingly, the claimants have failed to show that

their irreparable injury is the destruction of their business.

     The claimants argue that “[t]he bases for these requests

have all been filed with the Court” and they “incorporate[] by

reference” facts in their previous motions.      Claimants’ Mot. for

P.I. at 5-6, 11.   In a previous motion, the claimants contend

that the government “has threatened U.S. Special Forces witnesses

who want to testify in this case” and that the government “has

hid[den] vital evidence from this Court substantially

contradicting the allegations made here, possibly despoiled and

not preserved such vital evidence.”    Claimants’ Request for

Status Conference, and Mot. for Protective and Preservation
                               - 10 -

Orders (“Claimants Mot. for Protective and Preservation Orders”)

at 5.

     Threatening witnesses may implicate irreparable injury.    See

Arrendondo v. Delano Farms Co., No. CV F 09-1247, 2010 WL

3212000, at *2 (E.D. Cal. Aug. 10, 2010) (finding that documented

retaliatory threats against witnesses and potential class members

is sufficient to show a likelihood of irreparable injury to the

plaintiffs).    “[T]he chilling effect of unrestrained retaliation

can be irreparable injury justifying a preliminary injunction.”

Adam-Mellang v. Apartment Search, Inc., 96 F.3d 297, 301 (8th

Cir. 1996) (discussing retaliation in Title VII litigation as

chilling potential witnesses and possibly chilling other

employees from exercising their rights).   However, “a chilling

effect of this nature will not be presumed.   It is an issue of

fact that the [party] seeking a preliminary injunction must

prove.”   Id.

     The claimants allege that the government has “threatened

these witnesses,” Claimants’ Mot. to Dismiss at 9 n.5, and that

the government has “told them to keep quiet and threatened

adverse actions against them if they did not,” Claimants’ Mot.

for P.I. at 7.   However, the claimants have not provided evidence

of such threats.   The claimants supply a declaration from Jerry

Bradley stating that because he has “spoken out about my belief

in Hik’s innocence, and spoken to investigators on his behalf,”
                               - 11 -

he has been “interrogated, accused of being a participant in

illegal activities and informed that [he is] under investigation”

and his superiors have been notified that he is under

investigation.   Claimants’ Mot. for Immediate Release of Funds,

Ex. 59 ¶ 9.   However, the declaration does not state that the

government has done more than question and investigate the

witness; the declaration does not allege threats of adverse

action such as termination.    Cf. Moore v. Consol. Edison Co. of

N.Y., Inc., 409 F.3d 506, 511 (2d Cir. 2005) (affirming a

district court’s conclusion that a negative performance

evaluation “does not itself cause irreparable injury, nor does it

threaten termination”).   Moreover, the claimants have failed to

show that there was retaliation and that the retaliation is

having a chilling effect on witnesses coming forward, or that

investigating a potential witness is itself sufficient to prove

irreparable harm.   E.g., Jones v. Dallas Cnty., No. 3:11-CV-2153-

D, 2013 WL 4045291, at *3 n.6 (N.D. Tex. August 9, 2013) (finding

that plaintiffs’ “vague allegation” about intimidation “is alone

insufficient to establish a substantial threat that they will

suffer irreparable injury”).

     Destruction of evidence may also rise to the level of

irreparable harm, cf. Am. Friends Serv. Comm. v. Webster, 485 F.

Supp. 222, 233 (D.D.C. 1980) (finding that the plaintiff “will

suffer significant, irreparable injury if defendants’ continuing
                             - 12 -

destruction of FBI files [in accordance with its record

destruction program] is not enjoined”), but the claimants have

not provided more than bare allegations that the government has

destroyed evidence, see, e.g., Claimants’ Mot. for P.I. at 10

(stating that the government has “tried to destroy” evidence);

Claimants’ Mot. for Protective and Preservation Orders at 5

(stating that the government “possibly despoiled and not

preserved such vital evidence” (emphasis added)).   Even if the

claimants’ fears are well-founded, that falls well short of the

imminence required for the court to grant the “extraordinary and

drastic remedy” of a preliminary injunction.   Mazurek, 520 U.S.

at 972; see also Exxon Corp. v. F.T.C., 589 F.2d 582, 594 (D.C.

Cir. 1978) (“Injunctions . . . will not issue to prevent injuries

neither extant nor presently threatened, but only merely feared.”

(internal quotation marks omitted)); United Gov’t Sec. Officers

of Am. Int’l Union v. Serv. Emps. Int’l Union, 646 F. Supp. 2d

91, 94-95 (D.D.C. 2009); It’s a 10, Inc. v. Beauty Elite Grp.,

Inc., 932 F. Supp. 2d 1325, 1335 (S.D. Fla. 2013) (refusing to

enter a preliminary injunction to prevent the defendant from

destroying or tampering with evidence because “the purported harm

is speculative, rather than actual or imminent” since the

plaintiff offered no proof that the defendant was likely to

destroy evidence).
                               - 13 -

     In addition to failing to provide proof that evidence has

been destroyed, the claimants have not identified what evidence

the government has allegedly despoiled, either in their motion

for a preliminary injunction or in their motion for protective

and preservation orders.    Moreover, they have provided no proof

that the government has threatened to destroy any evidence.

Conclusory statements of what has occurred without factual

support is insufficient to justify the extraordinary remedy of a

preliminary injunction.    See Wis. Gas Co., 758 F.2d at 674;

Beattie v. Barnhart, 663 F. Supp. 2d 5, 9-10 (D.D.C. 2009).      This

allegation, without proof of destroyed evidence or a threat of

destroying evidence, does not demonstrate that there is an

imminent irreparable injury.    See Spadone, 842 F. Supp. 2d at 300

n.6 (explaining that Winter requires that a movant “demonstrate

that irreparable injury is ‘likely,’ not just ‘possible’”).

     Similarly, the claimants have not made clear how the United

States has “transferr[ed] Claimants’ assets beyond the

jurisdiction of this Court.”    Claimants’ Mot. for P.I. at 6.   As

is discussed in more detail in the memorandum opinion and order

resolving the claimants’ motion for release of funds, the court’s

jurisdiction to determine ownership extends solely over the

seized defendant assets.    Insofar as the claimants are asserting

that the government has transferred the claimants’ business

property outside of the jurisdiction of this court, business
                               - 14 -

property which was not seized under any seizure warrant

associated with this in rem action has never been within the

jurisdiction of this court in the first place.    See 4A Charles

Alan Wright & Arthur R. Miller, Federal Practice and Procedure

§ 1070 (3d ed. 1998) (“[W]hen jurisdiction is based on property

the resulting judgment can affect only the property that has been

brought before the court.”).   Insofar as the claimants are

claiming that the government has improperly transferred the

seized defendant funds outside of the jurisdiction of this court,

they have presented no such evidence.    Given the claimants’

repeated requests for release of those funds, those assets

apparently remain within the United States’ custody.

     At best, the claimants have provided some factual support

for their assertion that the government has not disclosed all of

the information in its possession in its complaint or motions.

See Claimants’ Mot. for P.I. at 7-9 (identifying information that

the government “hid from this Court”).    However, the claimants

have not shown either how the non-disclosure is relevant to their

request for a preliminary injunction or how it will cause

irreparable injury.   If anything, this information goes to the

merits of the government’s forfeiture action.    Any injury that

the claimants may suffer from the government’s non-disclosure can

be remedied through the normal course of litigation, if the

action proceeds to an adjudication on the merits.
                              - 15 -

     Finally, that the claimants filed the pending motion for

protective and preservation orders cuts against their argument

that any alleged injury is irreparable and that no other adequate

remedy exists.   The claimants have not provided any evidence

demonstrating why an order to protect witnesses from government

threats and to preserve evidence from government destruction, if

ultimately found to be warranted, would not be a sufficient

remedy.   Without that, there is simply “no justification for the

court’s intrusion into the ordinary process of administration and

judicial review.”   Va. Petroleum Jobbers Ass’n, 259 F.2d at 925.5


     5
        The claimants belatedly argue that there is no adequate
remedy at law because 18 U.S.C. § 983(f), as applied, violates
their constitutional rights. Claimants’ Notice of Supplemental
Authority in Support of Mot. for Preliminary Injunctive Relief at
2. However, a remedy is not inadequate merely because the
claimants were unsuccessful when pursuing that remedy, and the
claimants have provided no case law to support the argument that
a remedy is inadequate as applied if, when pursuing that remedy,
the claimant is unsuccessful. Further, the claimants still have
an adequate remedy for the ultimate release of their funds via
participation in the forfeiture action on the merits: if the
claimants succeed in proving that forfeiture is unjustified or
that the government has not met its burden of proof, the
claimants’ funds will be released. Moreover, the claimants’
constitutional claim lacks merit because § 983 does not
discriminate on the basis of national origin, nor do the
claimants provide persuasive evidence that there was
discriminatory intent based on the “disproportionate impact on
one national origin over another.” Id. at 3 (citing, in part,
Yick Wo v. Hopkins, 118 U.S. 356, 374 (1886)). In Yick Wo, the
disproportionate impact was evidence, along with the disparate
application of the regulation at issue, that the regulation was a
pretext for discrimination. 118 U.S. at 374. The claimants
present no proof here that § 983 is a pretext for discrimination.
Additionally, § 983 does not discriminate on the basis of
national origin because others who do not have ties to the
relevant community, regardless of their national origins, would
                              - 16 -

II.   LIKELIHOOD OF SUCCESS ON THE MERITS

      The inadequacy of the claimants’ showing that an irreparable

injury is likely to occur significantly heightens the claimants

burden to prove likelihood of success on the merits.    See Davis,

571 F.3d at 1292 (explaining that under the sliding scale

approach, “if substantial harm to the nonmovant is very high and

the showing of irreparable harm to the movant very low, the

movant must demonstrate a much greater likelihood of success”);

cf. Taylor v. Resolution Trust Corp., 56 F.3d 1497, 1507 (D.C.

Cir. 1995) (“Given the inadequacy of [the movant’s] prospects for

success on the merits, there may be no showing of irreparable

injury that would entitle him to injunctive relief.”).   The

claimants must show “a substantial likelihood of success on the

merits.”   Greater New Orleans Fair Hous. Action Ctr. v. U.S.

Dep’t of Hous. & Urban Dev., 639 F.3d 1078, 1083 (D.C. Cir.

2011).

      The claimants argue that Shadman has been “investigated” and

“exonerated” of wrongdoing by both the Afghanistan government and

a military tribunal.   Claimants’ Mot. for P.I. at 6.   However, it



similarly be denied release of their funds. See, e.g., United
States v. 2005 Mercedes Benz E500, 847 F. Supp. 2d 1211, 1215
(E.D. Cal. 2012) (denying release of the claimant’s property
despite the claimant being an American citizen). Finally, as is
discussed above, it is not clear, and the claimants have provided
no persuasive authority to support, that the claimants can
request a release of their funds through a motion for a
preliminary injunction. See supra at n.4.
                                - 17 -

is not clear from the record that the two tribunals considered or

ruled upon the allegations at issue here.    The regulations

governing military detentions cited by the United States during

oral argument provide the military with authority to intern

individuals who meet certain criteria -- primarily related to

their involvement in terrorism or hostilities against the United

States -- and are a threat to the United States.    See U.S.’s Mot.

for Leave to File Surreply Mem. in Opp’n to Claimants’ Mot. for

Immediate Release of Seized Property Pursuant to 18 U.S.C.

§ 983(f), attach. 3.     If a detained individual does not meet the

criteria or is not a threat, then the United States must release

that individual.   Id.   Here, the claimants have offered no

evidence that the military acted inconsistently with that

regulation.   In fact, the evidence that the claimants provided

about the military tribunal reflects that the military tribunal

was concerned with whether Shadman met the conditions for

internment, not whether he committed the acts alleged in the

complaint here.    Claimants’ Mot. to Dismiss, Ex. 23 (“By a vote

of 3 to 0, the board members found that the detainee did not meet

the criteria for internment and should be released.” (emphasis

added)); see also Claimants’ Mot. to Dismiss at 21-22 (“The

primary purpose of such a tribunal is to determine if he was an

‘enemy combatant’ and had committed terrorist or illegal conduct

that would justify continued detention.”).    The claimants also
                               - 18 -

argue that “[t]ellingly, the government has not offered the

detention file and report of the military hearing’s proceedings.”

Claimants’ Reply at 19; see also id. at 20 (“If the government

really wanted this Court to know what transpired leading up to

and during the military hearing, it would have produced the

entire investigative record or, at the very least, the tribunal

proceedings summary.”).    However, the claimants’ argument does

not comport with the procedural posture here.    It is the

claimants’ burden to make a clear showing that they are likely to

succeed on the merits.    Thus, it is their burden to bring

evidence that the military tribunal exonerated Shadman of the

very allegation at issue here, not the government’s burden to

provide evidence to rebut that allegation.

       Similarly, it appears that the Afghanistan proceeding did

not consider the same allegations as are leveled here because it

primarily considered whether Shadman engaged in “forgery,

deception, and manipulation in the contract documents” between

Shadman and TOIFOR, a contractor, in violation of Afghanistan

law.    See Claimants’ Mot. to Dismiss, Ex. 26. (“[P]rovoking a

criminal claim is not justifiable in accordance with the

provision of article (8) of the detection and investigation

law.”); id. (“[I]nterference of the Attorney General Office in

the issue of signing contracts, which has a legal origin, is

explicitly against decree number (45) . . . .”); id. (“[N]ot only
                              - 19 -

the issued order of the mentioned court . . . are not applicable

lawfully but also the above order is clearly in contradiction

with article (40) of the country’s constitution.”); id.

(“Therefore, in order to avoid violation of the country’s

applicable law, the papers are not process-able in the current

situation due to a lack of sufficient binding reasons until

article (169) of the penal procedure code relying on article (39)

of the provisional penal procedure code is realized.” (emphasis

added)).   Furthermore, the court in Afghanistan seemed primarily

concerned with whether a mutual legal assistance request from the

United States complied with Afghanistan law.   See, e.g, id. (“In

accordance with the clarity of the above articles, the court

order of the USA’s Columbia is not applicable in Afghanistan.”);

see also U.S. Opp’n to Mot. to Dismiss at 13 (explaining that the

Afghanistan judgment was in response to the “United States’

mutual legal assistance request to restrain the original

defendant accounts”).   Thus, it is not clear that the Afghanistan

court even considered whether Shadman violated United States law

by, as alleged by the United States, engaging in a conspiracy to

defraud the United States through bribery and price fixing, or if

the defendant assets are subject to forfeiture under 18 U.S.C.

§§ 981, 983, or 984.

     Even if the Afghanistan court determined that Shadman did

not conspire to violate United States law, the claimants must
                              - 20 -

still prove that they are likely to succeed on the merits of the

forfeiture action -- that is, they must make a clear showing that

the defendant assets are not subject to forfeiture.   Thus, not

only is it the claimants’ burden to produce sufficient evidence

of their factual allegations, but it is also the claimants’

obligation to show how an exoneration affects the claimants’

likelihood of success on the merits.   The claimants have provided

no legal or factual argument that an exoneration in a foreign

action or a military proceeding is determinative of whether a

civil forfeiture of the defendant assets is appropriate.    The

United States, on the other hand, provides legal support for the

argument that “an acquittal on criminal charges is not

dispositive of whether a wire fraud conspiracy occurred for the

purposes of forfeiture under 18 U.S.C. § 981(c).”   U.S. Opp’n at

14 (citing United States v. Real Prop. Identified as: Parcel

03179-005R, 287 F. Supp. 2d 45, 62 (D.D.C. 2003) for the

proposition that “because ‘a criminal conviction is not a

prerequisite for civil forfeiture,’ it did not matter that the

defendant’s conviction for money laundering had been vacated”

(quoting id.)).   Without the claimants providing legal authority

to the contrary, it appears that even if another proceeding

determined that Shadman was innocent of the underlying offense,

that is not dispositive of the civil forfeiture action.

Therefore, the claimants have failed to provide sufficient
                              - 21 -

evidence that because Shadman was ostensibly exonerated by the

military and by an Afghanistan court, the claimants are likely to

succeed on the merits of the forfeiture action.

     The claimants also asserted at oral argument that the act of

state doctrine and international comity demonstrate their

likelihood of success on the merits.   First, the claimants argue

that the act of state doctrine requires dismissal of the case

because “Afghanistan has already issued an Executive Order that

declared Mr. Shadman not guilty under Afghan laws.”   Claimants’

Mot. to Dismiss at 33.   Second, the claimants argue that the

requested relief would “directly invalidate[] the Afghan Attorney

General’s Executive Order that claimed exclusive authority over

this civil action.”   Claimants’ Reply on Claimants’ Mot. to

Dismiss at 9.

     The act of state doctrine “applies when the relief sought or

the defense interposed would require a court in the United States

to declare invalid the official act of a foreign sovereign

performed within its boundaries.”   United States v. One

Gulfstream G-V Jet Aircraft, Civil Action No. 11-1874 (RC), 2013

WL 1701831, at *6 (D.D.C. April 19, 2013) (citing W.S.

Kirkpatrick & Co., Inc. v. Envtl., Tectonics Corp., Int’l, 493

U.S. 400, 409 (1990)).   However, as is explained above, the

plaintiff’s requested relief would not require that any official

Afghan act be declared invalid because a determination of guilt
                                - 22 -

or innocence is not dispositive of whether the defendant assets

should be civilly forfeited under United States’ law.    Second,

the Afghanistan Executive Order would not need to be declared

invalid because it determined that “Mr. Shadman [was] not guilty

under Afghan law,” Claimants’ Mot. to Dismiss at 33, not whether

the defendant assets are subject to forfeiture under United

States’ law.    Finally, the claimants argue that the Afghanistan

government asserted exclusive jurisdiction, but the exhibits they

cite do not explicitly claim exclusive authority to adjudicate

this in rem civil forfeiture.    See Claimants’ Mot. to Dismiss,

Ex. 26 (“[I]t is an authority of the courts of the IRA . . . .”);

id. (“[A]ddressing the issue is an authority of the courts of

Afghanistan . . . .”).   At best, Afghanistan appears to be

stating that it has jurisdiction, but the document does not

discuss exclusive jurisdiction or rule out concurrent

jurisdiction.   “[T]he party raising the [act of state doctrine as

a] defense bears the burden to affirmatively show that an act of

state has occurred,”   Helmerich & Payne Int'l Drilling Co. v.

Bolivarian Republic of Venezuela, Civil Action No. 11-1735 (RLW),

2013 WL 5290126, at *8 (D.D.C. Sept. 20, 2013), and the claimants

have failed to do so here.

     Assuming that the Afghanistan court did make some assertion

of exclusive jurisdiction, it is also unclear what the

Afghanistan court is asserting exclusive jurisdiction over and
                              - 23 -

for what duration.   It is not evident from the facts presented

that an act of state would need to be invalidated here because

the contours of that ostensible act of state have not been

defined by the claimants.6   Even if this court’s factual findings

must necessarily “cast doubt upon the validity of the foreign

sovereign’s acts,” the act of state doctrine is inapplicable if

the foreign act of state does not need to be invalidated.

Kirkpatrick, 493 U.S. at 406 (“Regardless of what the court’s

factual findings may suggest as to the legality of the Nigerian

contract, its legality is simply not a question to be decided in

the present suit, and there is thus no occasion to apply the rule

of decision that the act of state doctrine requires.”).




     6
        Moreover, the claimants have provided no legal support
for the argument that a foreign court’s assertion of exclusive
jurisdiction is a proper exercise of its sovereign power, and
that it strips a United States district court of jurisdiction to
hear a case that is properly within its jurisdiction, see One
Gulfstream, 2013 WL 1701831, at *8 (stating that “the party
invoking the doctrine must establish that the act was an exercise
of its sovereign power”), particularly when, as here, the action
in the United States began before the foreign court’s ostensible
assertion of exclusive jurisdiction. The claimants argue that
“Afghanistan has properly asserted exclusive jurisdiction in this
case because no agreement between the United States and
Afghanistan prevents such an assertion.” Claimants’ Mot. to
Dismiss at 30. Even assuming that there is no agreement that
prevents such an assertion, the claimants have provided no
factual or legal support for the affirmative proposition that,
absent an agreement to the contrary, Afghanistan can legally
assert exclusive jurisdiction over an individual or a set of
facts and subsequently divest another court of jurisdiction over
a case properly before it.
                              - 24 -

     Similarly, the claimants’ international comity argument

fails to show that they are likely to succeed on the merits of

the forfeiture action.   International comity “provides that a

U.S. court should give full effect to a foreign judgment that has

been rendered with impartiality and due process.”   One

Gulfstream, 2013 WL 1701831, at *4.    Additionally, “a court will

abstain from exercising jurisdiction in the interests of

international comity only where ‘there is a true conflict between

domestic and foreign law.’”   United States v. All Assets Held at

Bank Julius Baer & Co., Ltd., 772 F. Supp. 2d 205, 210 (D.C. Cir.

2011) (quoting Sarei v Rio Tinto, PLC, 487 F.3d 1193, 1211 (9th

Cir. 1997)).

     The claimants assert that Afghanistan has three comity

interests: “(1) the recognition of its asserted jurisdiction; (2)

the honoring of its Afghan laws; and (3) the enforcement of its

foreign judgment and Executive Order.”7   Claimants’ Mot. to

Dismiss at 29.   With respect to the first interest, as is

discussed above, it is not clear that Afghanistan has in fact



     7
        It is also not clear if the Afghanistan court’s decision
is final. See Claimants’ Mot. to Dismiss at 10 (explaining that
“this case is now before the Appeal Court of Kabul Province”).
See Ricart v. Pan Am. World Airways, Inc., Civil Action No. 89-
0768 (HHG), 1990 WL 236080, at *1 (D.D.C. Dec. 21, 1990) (“A
judgment of a foreign court is not entitled to automatic
recognition by courts in the United States, but may be recognized
by principles of international comity . . . . [F]or any foreign
judgment to be enforced by this court it must be a final judgment
according to the jurisdiction in which it was rendered.”).
                              - 25 -

claimed exclusive jurisdiction, nor is it clear that

international comity would counsel deference if a foreign country

has claimed exclusive jurisdiction in a case where there is

concurrent jurisdiction.   Cf. Laker Airways Ltd. v. Sabena,

Belgian World Airlines, 731 F.2d 909, 915-16 (D.C. Cir. 1984)

(discussing the issuance of an antisuit injunction and stating

that “[a]ccession to a demand for comity predicated on the

coercive effects of a foreign judgment usurping legitimately

concurrent prescriptive jurisdiction is unlikely to foster the

processes of accommodation and cooperation which form the basis

for a genuine system of international comity.”).   The claimants

have offered no case law that supports the argument that

international comity requires a United States district court to

abdicate its jurisdiction in the face of a foreign court’s

assertion of exclusive authority.   Without such legal authority

mandating otherwise, “[t]he short of the matter is this: Courts

in the United States have the power, and ordinarily the

obligation, to decide cases and controversies properly presented

to them.”   Kirkpatrick, 493 U.S. at 409.

     With respect to the second asserted comity interest,

international comity here does not require that the court impugn

Afghan law.   The claimants here have failed to identify a

conflict between United States law and Afghanistan law with

respect to civil forfeiture or wire fraud.   Rather, the claimants
                               - 26 -

rest on general assertions that, because the Afghanistan court

has declared Shadman innocent and has ostensibly asserted

exclusive jurisdiction, the court should defer to the Afghanistan

judgment and “respect” Afghanistan’s “comity interest in using

its own court system.”    See Claimants’ Mot. to Dismiss at 29-32.

However, there is no evidence that the present case will harm or

is in conflict with those interests since this case in no way

limits Afghanistan’s ability to pursue its own case based on its

own law, as Afghanistan has already done.    The case at bar is

premised solely on a violation of United States law.    Further,

comity is inapplicable when deference “‘would be contrary to the

policies or prejudicial to the interests of the United States.’”

One Gulfstream, 2013 WL 1701831, at *6 (quoting Pravin Banker

Assocs., Ltd. v. Banco Popular Del Peru, 109 F.3d 850, 854 (2d

Cir. 1997)).   When the Executive Branch decides to bring a case,

the policies undergirding the principle of international comity

also have less force.    Id. (“Thus, the Executive Branch’s

decision to bring this case could be viewed as evidence of its

judgment that the delicate balance of foreign affairs would not

be disturbed by this lawsuit.”).

     With respect to the third asserted comity interest, the

claimants have failed to provide evidence that the proceeding was

done in accordance with due process.    The claimants state that,

during the proceeding, the United States government’s complaint
                                - 27 -

and evidence located in Afghanistan were examined and that

Shadman himself was interviewed.    Claimants’ Mot. to Dismiss at

29-30.   However, the claimants do not provide evidence that the

United States government -- a party in the instant dispute --

participated in the proceedings, or that the United States

government had the opportunity to produce evidence.   See One

Gulfstream, 2013 WL 1701831, at *4 (explaining that there must be

“due citation or voluntary appearance by the defendant”); Int’l

Transactions, Ltd. v. Embotelladora Agral Regiomontana, SA de CV,

347 F.3d 589, 594 (5th Cir. 2003) (stating a foreign court’s

judgment should be conclusive under the principles of

international comity when, among other things, “the relevant

parties had an opportunity to be heard”); Cunard S.S. Co. v.

Salen Reefer Servs. AB, 773 F.2d 452, 457 (2d Cir. 1985) (“The

rationale underlying the granting of comity to a final foreign

judgment is that litigation should end after the parties have had

an opportunity to present their cases fully and fairly to a court

of competent jurisdiction.”).

     Finally, the claimants’ remaining assertions about the

substance of the government’s complaint -- such as the argument

that the money was merely a donation, not a bribe -- are

insufficient to tip the scales in their favor because it is

directly contested by the government’s allegations in the

complaint.   Here, the “host of contested factual issues”
                             - 28 -

precludes “a determination at this time as to which party is

likely to succeed on the merits.”    Ideassociates, Inc. v.

Ideatech, Inc., 704 F. Supp. 294, 295 (D.D.C. 1989).    And since

the claimants fail to demonstrate that an irreparable harm is

likely, the claimants’ weak showing of likelihood of success on

the merits does not rescue them.    See Aviles-Wynkoop v. Neal,

Civil Action No. 13-1240 (JDB), 2013 WL 5739214, at *4 (D.D.C.

Aug. 27, 2013) (explaining that, under the sliding scale

approach, if the movant “‘makes a particularly weak showing on

one factor . . . the other factors may not be enough to

compensate’” (quoting Morgan Stanley DW Inc. v. Rothe, 150 F.

Supp. 2d 67, 72 (D.D.C. 2001)).

III. ADDITIONAL FACTORS

     Nor do the remaining factors tilt in favor of granting the

claimants the relief they seek.    The claimants argue that an

injunction would not cause injury to the government “for a

multitude of reasons, including the fact that it has failed to

state a proper claim, relied upon incompetent evidence,

frustrated the ability of favorable witnesses to present

evidence, and ignored contrary determinations by a United States

Military Tribunal and an Afghanistan Special Court,” and that the

injunction “is not contrary to the public interest because

Claimants have properly asserted their standing, their rights to

dismissal of this action, and early release of their assets (and
                               - 29 -

due process regarding the same).”    Claimants’ Mot. for P.I. at

11.   To the contrary, there may be inherent harm in a broad

protective order which could bar the government from questioning

individuals subject to a criminal investigation.    See U.S. Opp’n

at 9.   While the claimants contend that the government is

“persecuting” the witnesses that the injunction seeks to protect,

Claimants’ Mot. for P.I. at 8, the claimants do not contest that

these individuals are under investigation.    Moreover, the

claimants have made no showing that there is a strong public

interest in favor of issuing a preliminary injunction to preserve

evidence that the government has not even threatened to destroy,

or to protect witnesses that the government has not prevented

from providing evidence.    Ultimately, the claimants’ requests can

be appropriately resolved in the context of civil discovery and

their pending motions, and a preliminary injunction is an

inappropriate tool for addressing the claimants’ concerns about

protecting witnesses and preserving evidence.

                       CONCLUSION AND ORDER

      Because the claimants have failed to demonstrate that they

will suffer an irreparable harm or that the relief they seek is

warranted by other relevant factors, they are not entitled to a

preliminary injunction.    Accordingly, it is hereby

      ORDERED that the claimants’ motion for a preliminary

injunction [42] be, and hereby is, DENIED.
                        - 30 -

SIGNED this 25th day of November, 2013.



                                   /s/
                         RICHARD W. ROBERTS
                         Chief Judge
