ralls’ reply brief - amazon web services · b. ralls’ due process claim is justiciable. ......
TRANSCRIPT
No. 13-5315
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
________________
RALLS CORPORATION,
Plaintiff-Appellant,
v.
COMMITTEE ON FOREIGN INVESTMENT IN THE UNITED STATES, JACOB J. LEW, and BARACK H. OBAMA,
Defendants-Appellees.
________________
On Appeal from the United States District Court for the District of Columbia, No. 1:12-cv-01513-ABJ (Hon. Amy Berman Jackson)
________________
REPLY BRIEF FOR APPELLANT RALLS CORPORATION ________________
TIM TINGKANG XIA MORRIS, MANNING & MARTIN, LLP 1600 Atlanta Financial Center 3343 Peachtree Road NE Atlanta, GA 30326 (404) 495-3677
PAUL D. CLEMENT VIET D. DINH H. CHRISTOPHER BARTOLOMUCCI GEORGE W. HICKS, JR. BANCROFT PLLC 1919 M Street NW Suite 470 Washington, DC 20036 (202) 234-0090 [email protected]
Counsel for Appellant Ralls Corporation
April 1, 2014
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TABLE OF CONTENTS
TABLE OF AUTHORITIES ..................................................................................... ii
INTRODUCTION .................................................................................................... 1
ARGUMENT ............................................................................................................ 3
I. THIS COURT HAS JURISDICTION TO CONSIDER RALLS’ DUE PROCESS CHALLENGE TO THE PRESIDENTIAL ORDER. .......................................................................................................... 5
A. Section 721 Does Not Eliminate Jurisdiction Over Ralls’ Due Process Claim. .............................................................................. 5
B. Ralls’ Due Process Claim is Justiciable. .............................................. 9
II. THE PRESIDENT’S ORDER DEPRIVED RALLS OF PROPERTY AND LIBERTY WITHOUT DUE PROCESS. ....................... 12
A. Ralls Was Deprived of Constitutionally Protected Interests. ............. 12
B. Ralls Was Deprived of Its Protected Interests Without Notice of the Grounds for the Government’s Actions or an Opportunity to Rebut Those Grounds. ............................................... 21
III. RALLS’ CHALLENGE TO THE CFIUS ORDERS IS NOT MOOT. .......................................................................................................... 25
IV. CFIUS’ ORDERS VIOLATE DUE PROCESS AND THE ADMINISTRATIVE PROCEDURE ACT. .................................................. 30
CONCLUSION ....................................................................................................... 30
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE
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TABLE OF AUTHORITIES*
Cases
Am. Coal. for Competitive Trade v. Clinton, 128 F.3d 761 (D.C. Cir. 1997) ....................................................................... 5, 12
Arbitraje Casa de Cambio, S.A. de C.V. v. U.S. Postal Serv., 297 F. Supp. 2d 165 (D.D.C. 2003) .................................................................... 16
Armstrong v. FAA, 515 F.3d 1294 (D.C. Cir. 2008) .......................................................................... 29
Bancoult v. McNamara, 445 F.3d 427 (D.C. Cir. 2006) ............................................................................ 10
Bartlett v. Bowen, 816 F.2d 695 (D.C. Cir. 1987) ..........................................................................5, 6
Bd. of Regents of State Colls. v. Roth, 408 U.S. 564 (1972) ............................................................................................ 13
*Boumediene v. Bush, 553 U.S. 723 (2008) ............................................................................................ 22
Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667 (1986) .............................................................................................. 6
Carey v. Piphus, 435 U.S. 247 (1978) ............................................................................................ 10
Chamber of Commerce of the U.S. v. Reich, 74 F.3d 1322 (D.C. Cir. 1996) ................................................................. 9, 10, 12
Chicago & Southern Airlines, Inc. v. Waterman S.S. Corp., 333 U.S. 103 (1948) ............................................................................................ 10
*Christian Knights of the Ku Klux Klan Invisible Empire, Inc. v. District of Columbia, 972 F.2d 365 (D.C. Cir. 1992) ............................................................................ 29
* Authorities upon which we chiefly rely are marked with asterisks.
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City of Los Angeles v. Lyons, 461 U.S. 95 (1983) .............................................................................................. 26
Clinton v. Jones, 520 U.S. 681 (1997) ............................................................................................ 11
Dalton v. Specter, 511 U.S. 462 (1994) .............................................................................................. 9
Dames & Moore v. Regan, 453 U.S. 654 (1981) ................................................................................. 9, 12, 20
Dep’t of Navy v. Egan, 484 U.S. 518 (1988) .............................................................................................. 6
*Doe v. Sullivan, 938 F.2d 1370 (D.C. Cir. 1991) .......................................................................... 27
EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621 (D.C. Cir. 1997) ............................................................................. 23
Elkins v. District of Columbia, 690 F.3d 554 (D.C. Cir. 2012) ............................................................................ 16
El-Shifa Pharm. Indus. Co. v. United States, 607 F.3d 836 (D.C. Cir. 2010) ...................................................................... 10, 11
Franklin v. Massachusetts, 505 U.S. 788 (1992) ...................................................................................... 11, 12
General Electric Co. v. EPA, 360 F.3d 188 (D.C. Cir. 2004) .............................................................................. 9
Greene v. McElroy, 360 U.S. 474 (1959) ............................................................................................ 22
Hamdan v. Rumsfeld, 548 U.S. 557 (2006) .............................................................................................. 9
*Hamdi v. Rumsfeld, 542 U.S. 507 (2004) ....................................................................................... 9, 22
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Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156 (D.C. Cir. 2003) ............................................................................ 23
Honig v. Doe, 484 U.S. 305 (1988) ............................................................................................ 27
Humane Soc’y of U.S. v. EPA, 790 F.2d 106 (D.C. Cir. 1986) ............................................................................ 29
Johnson v. Robison, 415 U.S. 361 (1974) .............................................................................................. 6
*Kahane Chai v. Dep’t of State, 466 F.3d 125 (D.C. Cir. 2006) ............................................................................ 22
Ky. Dep’t of Corrs. v. Thompson, 490 U.S. 454 (1989) ............................................................................................ 13
Lepre v. Dep’t of Labor, 275 F.3d 59 (D.C. Cir. 2001) ................................................................................ 6
Mathews v. Eldridge, 424 U.S. 319 (1976) ............................................................................................ 21
McBryde v. Comm. to Review Circuit Council Conduct & Disability Orders of Judicial Conference of United States, 264 F.3d 52 (D.C. Cir. 2001) ................................................................................ 7
Munsell v. Dep’t of Agric., 509 F.3d 572 (D.C. Cir. 2007) ............................................................................ 29
*Nat’l Council of Resistance of Iran v. Dep’t of State, 251 F.3d 192 (D.C. Cir. 2001) ................................................................ 11, 23, 24
Panama Ref. Co. v. Ryan, 293 U.S. 388 (1935) ............................................................................................ 12
Paul v. Davis, 424 U.S. 693 (1976) ............................................................................................ 18
People’s Mojahedin Org. of Iran v. U.S. Dep’t of State, 182 F.3d 17 (D.C. Cir. 1999) .............................................................................. 11
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*People’s Mojahedin Org. of Iran v. U.S. Dep’t of State, 613 F.3d 220 (D.C. Cir. 2010) ..................................................................... 22, 24
*Performance Coal Co. v. Fed. Mine Safety & Health Review Comm’n, 642 F.3d 234 (D.C. Cir. 2011) ............................................................. 27
Port Norris Exp. Co. v. ICC, 751 F.2d 1280 (D.C. Cir. 1985) ................................................................... 26, 30
Ralpho v. Bell, 569 F.2d 607 (D.C. Cir. 1977) .............................................................................. 6
Ramallo v. Reno, 114 F.3d 1210 (D.C. Cir. 1997)............................................................................. 5
Rasul v. Bush, 542 U.S. 466 (2004) ............................................................................................ 12
River Park, Inc. v. City of Highland Park, 23 F.3d 164 (7th Cir. 1994) ................................................................................. 13
Spencer v. Kemna, 523 U.S. 1 (1998) ................................................................................................ 26
Swan v. Clinton, 100 F.3d 973 (D.C. Cir. 1996) ............................................................................ 12
Theodore Roosevelt Conservation P’ship v. Salazar, 661 F.3d 66 (D.C. Cir. 2011) ........................................................................ 26, 27
Town of Castle Rock v. Gonzales, 545 U.S. 748 (2005) ............................................................................................ 13
Ungar v. Smith, 667 F.2d 188 (D.C. Cir. 1981) .............................................................................. 6
United States v. Verdugo-Urquidez, 494 U.S. 259 (1990) ............................................................................................ 17
Vieth v. Jubelirer, 541 U.S. 267 (2004) ............................................................................................ 10
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Vt. Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765 (2000) .............................................................................................. 5
Webster v. Doe, 486 U.S. 592 (1988) .............................................................................................. 6
Weinberger v. Salfi, 422 U.S. 749 (1975) ..........................................................................................5, 6
*Wilkinson v. Austin, 545 U.S. 209 (2005) ............................................................................................ 23
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) ....................................................................................... 9, 12
Zweibon v. Mitchell, 516 F.2d 594 (D.C. Cir. 1975) ............................................................................ 10
Statutes
50 U.S.C. app. § 2170(d)(4) ....................................................................................... 4
50 U.S.C. app. § 2170(e) ............................................................................................ 5
50 U.S.C. app. § 2170(g) (1993) ................................................................................ 8
50 U.S.C. app. § 2170(m) .......................................................................................... 8
Other Authorities
Legislative Res. Ctr., Reports to be Made to Congress, H.R. Doc. No. 111-83 (2010) ................................................................................ 9
Jill Priluck, The Mysterious Agency That Can Block a Global Merger, Reuters (July 8, 2013), http://tinyurl.com/priluck .............................................. 28
Neal S. Wolin, Deputy Secretary of Treasury, Remarks at the Singapore Exchange (May 20, 2011), http://tinyurl.com/wolinremarks ........................................................................... 4
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INTRODUCTION
The government’s effort to take property without providing even the most
rudimentary guarantees of due process should not be allowed to succeed. That
remains true no matter how many times the government invokes national security
concerns or the preclusion of other judicial review. This Court has heard those
arguments on multiple occasions in the past and never hesitated to vindicate the
most basic guarantees of due process. There is no reason for a different outcome
here.
Before the federal government obliterates Ralls’ state-law property interests
that even the district court recognized, the government must disclose what
potential “actions” by Ralls could pose a threat to national security and provide
Ralls some opportunity to respond. These are not novel requirements; they are the
basic building blocks of due process: notice which then facilitates a meaningful
opportunity to be heard. They derive from settled case law that makes clear that
although a national security context may shape the contours of the notice and
opportunity to be heard, it does not allow those basic guarantees to be dispensed
with altogether, as the government has been reminded time and time again.
The government’s suggestion that Ralls should have availed itself of pre-
deprivation procedures is a red herring, because Ralls still would not have learned
the first thing about the nature of the government’s objection. The issue here is the
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adequacy of the process, not its timing. An earlier opportunity for deficient
process is hardly an answer to a due process problem. It is the ability to receive
notice of the government’s concerns and a meaningful opportunity to address them
that distinguishes real process from Potemkin process.
The government thus principally argues that Ralls possessed no interests
protected by the Due Process Clause at all. But that contention founders in the
face of the district court’s observation that Ralls indisputably obtained state-law
property interests from Terna. Once it is accepted that Ralls did, in fact, possess
state-law property interests at the time the presidential order was issued, it follows
that when the federal government disturbs those interests based on an
individualized determination made pursuant to identifiable statutory standards, it
must comply with the Due Process Clause. The prospect that such federal
interference might occur (which is always the case with any interest) does not alter
this basic constitutional principle. Nor does the option (though not requirement) of
pre-acquisition review, particularly where neither the government nor the statutory
scheme suggests that more process would be provided in a pre-acquisition review.
The government alternatively goes all-in and argues that the federal courts
lack jurisdiction to even determine whether Ralls was deprived of due process.
The district court properly rejected this extreme argument. Given the serious
constitutional concerns that would otherwise ensue, the Supreme Court and this
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Court have consistently adopted—including in the national security context—a
strong presumption that nonreviewability provisions do not foreclose constitutional
claims absent clear and convincing evidence of contrary congressional intent.
Section 721 does not remotely evince such intent. Nor is Ralls’ due process claim
non-justiciable. Decades of precedent confirm that federal courts may determine
whether the executive employed constitutionally sufficient procedures before
rendering determinations within the executive’s special competence.
The Court should reject the government’s efforts to shield its constitutionally
deficient actions here from Article III authority. And that includes review of not
just the presidential order but also the CFIUS orders. The government’s
halfhearted effort to defend the district court’s deeply flawed mootness holding
confirms that Ralls’ challenge to the CFIUS orders—which violate both the
Constitution and the Administrative Procedure Act—remains justiciable.
ARGUMENT
To read the government’s description, this case is all about China. But
Section 721 does not prohibit “buying while Chinese” (although such a
prohibition, whatever its other flaws, would at least give Ralls notice of why its
property rights were being vitiated). Rather, the statute authorizes presidential
action “only if the President finds that … there is credible evidence that leads the
President to believe that the foreign interest exercising control might take action
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that threatens to impair the national security.” 50 U.S.C. app. § 2170(d)(4).
Congress so limited presidential authority in order to reassure our trade and
investment partners that the President did not have plenary authority to block
transactions and that their business is welcomed, not disfavored.1
But the government cannot get the benefit of these reassuring limitations and
then turn around and deny their obvious relevance for due process purposes. This
statutory circumscription of presidential authority gives Ralls the right, under the
Due Process Clause, to receive notice of what potential “action” the President
believes Ralls might take that threatens the national security and an opportunity to
address those concerns. The Due Process Clause does not allow the President to
simply label a transaction a threat to national security without any notice of the
nature of his concerns or any opportunity to address those concerns. The
government’s multiple efforts to avoid that straightforward conclusion are no more
successful than its previous attempts to use legitimate national security concerns to
generate an illegitimate blank check.
1 See, e.g., Neal S. Wolin, Deputy Secretary of Treasury, Remarks at the
Singapore Exchange (May 20, 2011), http://tinyurl.com/wolinremarks (stating that the government “has a very limited scope in its review of transactions” under Section 721, and “[t]his focused mandate reflects our belief in the importance of foreign investment as a source of national strength”).
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I. THIS COURT HAS JURISDICTION TO CONSIDER RALLS’ DUE PROCESS CHALLENGE TO THE PRESIDENTIAL ORDER.
Resuscitating an argument the district court properly rejected, the
government contends that the federal courts lack jurisdiction to consider Ralls’
constitutional due process claim. The government is wrong.
A. Section 721 Does Not Eliminate Jurisdiction Over Ralls’ Due Process Claim.
Section 721’s nonreviewability provision, 50 U.S.C. app. § 2170(e), does not
prohibit consideration of Ralls’ due process claim. Precluding federal courts from
addressing constitutional claims implicates two “serious constitutional
question[s].” Weinberger v. Salfi, 422 U.S. 749, 762 (1975). First, it is “flatly
inconsistent with the doctrine of separation of powers implicit in our constitutional
scheme.” Bartlett v. Bowen, 816 F.2d 695, 706 (D.C. Cir. 1987). Second, denying
a party any forum in which to present constitutional claims raises “serious due
process concerns.” Id. at 699; see also Am. Coal. for Competitive Trade v. Clinton,
128 F.3d 761, 765 (D.C. Cir. 1997). In short, “[a] statute that removes jurisdiction
from all courts to vindicate constitutional rights poses serious constitutional
objections.” Ramallo v. Reno, 114 F.3d 1210, 1214 (D.C. Cir. 1997).
For these reasons, and consistent with canons of constitutional avoidance,
see Vt. Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 787
(2000), an unbroken line of cases holds that statutory provisions precluding
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judicial review must be strictly construed to permit judicial review of constitutional
claims. See Webster v. Doe, 486 U.S. 592 (1988); Bowen v. Mich. Acad. of Family
Physicians, 476 U.S. 667 (1986); Weinberger, supra; Johnson v. Robison, 415 U.S.
361 (1974); Lepre v. Dep’t of Labor, 275 F.3d 59 (D.C. Cir. 2001); Bartlett, supra;
Ungar v. Smith, 667 F.2d 188 (D.C. Cir. 1981); Ralpho v. Bell, 569 F.2d 607 (D.C.
Cir. 1977). This strong presumption is overcome only if there is “clear and
convincing evidence,” Bowen, 476 U.S. at 680-81, and “special clarity,” Lepre, 275
F.3d at 65, that Congress intended to preclude constitutional claims.
This principle fully applies even where, as here, the government invokes
national security concerns. In Webster, the Supreme Court held that a terminated
CIA employee could proceed with his due process claim despite the government’s
contention that judicial review would be “to the detriment of national security.”
486 U.S. at 603-05. Likewise, in Ungar, notwithstanding a Trading With the
Enemy Act provision that determinations are “final and shall not be subject to
review by any court,” this Court asserted jurisdiction over a due process claim.
667 F.2d at 193 (quotation marks and ellipsis omitted). Indeed, the Court then held
that due process was violated. Id. at 197-98.2
2 Department of Navy v. Egan, 484 U.S. 518 (1988), did not involve
constitutional claims or even a nonreviewability provision; the “narrow question” was whether the Merit Systems Protection Board has “authority by statute” to review the substance of a security clearance denial. Id. at 520. Indeed, later that
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Here, Section 721(e) does not provide the “clear and convincing evidence”
or “special clarity” necessary to preclude adjudication of Ralls’ due process claim.
The government asserts that Section 721(e) broadly prohibits review of all “the
President’s ‘actions’ in the exercise of his authority under the statute,” Gov’t Br.
26. But Section 721(e)’s text expressly refers to “the actions of the President under
paragraph (1) of subsection (d),” i.e., Section 721(d)(1). Section 721(d)(1), in turn,
refers only to “such action” that the President may ultimately take “to suspend or
prohibit” a covered transaction, not to every possible action that the President
might take before reaching that kind of final determination. Indeed, Section
721(e)’s focused bar is far narrower than the preclusion provisions in Bowen,
Ralpho, Ungar, and Lepre, all of which were held to permit constitutional claims.
Against this wall of precedent, the government cites one readily-
distinguishable case, McBryde v. Committee to Review Circuit Council Conduct &
Disability Orders of Judicial Conference of United States, 264 F.3d 52 (D.C. Cir.
2001). There, a divided panel of this Court held that an Article III judge who had
the opportunity to raise constitutional claims before other Article III judges
overseeing his discipline could not raise those claims again in the federal courts.
Id. at 62-63. Unlike McBryde, this case involves Ralls’ claim for a single
same Term, the Court decided the constitutional case of Webster, which is far more apposite.
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opportunity for judicial consideration of its due process claim and fully implicates
the constitutional concerns engendered by unreviewable executive branch actions.
Lacking support in statutory text or precedent, the government relies heavily
on snippets of legislative history fourteen years apart to argue (at 28-29) that the
“history of the Defense Production Act confirms Congress’ intent to preclude”
Ralls’ due process claim. But the 1992 history supporting the government’s
proposition that reports to Congress will “hold the President accountable for
actions,” Gov’t Br. 29, refers to a provision of Section 721 that no longer exists.
That superseded provision required the President to “immediately transmit” to
Congress a “detailed explanation” regarding his determination. 50 U.S.C. app.
§ 2170(g) (1993). Now, Congress only receives aggregate information about
presidential determinations in one annual report covering all CFIUS-related
activity. 50 U.S.C. app. § 2170(m). All the other requirements the government
cites address CFIUS actions—not presidential determinations.
In all events, the possibility of congressional oversight was the unremarkable
baseline in all the decisions declining to read judicial review bars to reach
constitutional claims. None of those cases pointed to obstructions to congressional
oversight as the reason for allowing judicial review of constitutional claims. And
the “monitoring, assessment, and reporting requirements” the government
trumpets, Gov’t Br. 29, are nothing out of the ordinary. See Legislative Res. Ctr.,
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Reports to be Made to Congress, H.R. Doc. No. 111-83 (2010) (225-page list of
required reports to Congress).3
B. Ralls’ Due Process Claim is Justiciable.
Nor is Ralls’ due process challenge non-justiciable. See Gov’t Br. 30-34.
Judicial review of Ralls’ due process claim would not entangle this Court in the
executive branch’s exercise of authority in the area of national security any more
than in numerous other cases that addressed constitutional challenges to
discretionary determinations implicating national security, foreign policy, military
powers, and other functions where the executive holds special competence. See,
e.g., Hamdi v. Rumsfeld, 542 U.S. 507 (2004); Hamdan v. Rumsfeld, 548 U.S. 557
(2006); Dames & Moore v. Regan, 453 U.S. 654 (1981); Youngstown Sheet & Tube
Co. v. Sawyer, 343 U.S. 579 (1952).
Ralls does not challenge the correctness vel non of the President’s
discretionary determination to prohibit Ralls’ acquisition. This is not a situation,
therefore, where “judicial review of an abuse of discretion claim is not available,”
Chamber of Commerce of the U.S. v. Reich, 74 F.3d 1322, 1331 (D.C. Cir. 1996)
(citing Dalton v. Specter, 511 U.S. 462 (1994)). Rather, “whatever discretion …
3 General Electric Co. v. EPA, 360 F.3d 188 (D.C. Cir. 2004), neither addressed
nor questioned the longstanding presumption against precluding constitutional claims. Indeed, the Court expressly distinguished decisions “involv[ing] statutes precluding judicial review altogether,” which “applied an interpretive canon that we need not apply here.” Id. at 192.
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the President enjoys … is limited by the Constitution, and therefore an independent
claim of a President’s violation of the Constitution would certainly be reviewable.”
Id. at 1326; cf. Carey v. Piphus, 435 U.S. 247, 266 (1978) (“the right to procedural
due process … does not depend upon the merits of a claimant’s substantive
assertions”). And there are plainly “judicially discoverable and manageable
standards” for determining whether government action complies with the Due
Process Clause. Vieth v. Jubelirer, 541 U.S. 267, 277-78 (2004) (quotation marks
omitted).
Accordingly, the government’s reliance (at 31-32) on Chicago & Southern
Airlines, Inc. v. Waterman S.S. Corp., 333 U.S. 103 (1948), is misplaced. That
decision involved not a constitutional claim but a substantial-evidence claim
challenging the correctness of a presidential decision denying a certificate for
foreign air transport. Indeed, this Court has specifically held that Waterman is not
“conclusive as to the justiciability of presidential actions when a constitutional
provision is at issue.” Zweibon v. Mitchell, 516 F.2d 594, 623 (D.C. Cir. 1975) (en
banc). Instead, as this Court has repeatedly explained, Waterman was a classic
“political question doctrine” case. See El-Shifa Pharm. Indus. Co. v. United States,
607 F.3d 836, 842-43 (D.C. Cir. 2010) (en banc); Bancoult v. McNamara, 445 F.3d
427, 432-33 (D.C. Cir. 2006); Zweibon, 516 F.2d at 623-24.
But the government does not assert the political question doctrine here—and
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for good reason, since the doctrine does not bar determining “whether the
government has followed the proper procedures.” El-Shifa, 607 F.3d at 843.
Consequently, the circumstances here are readily distinguishable from People’s
Mojahedin Organization of Iran v. U.S. Department of State, 182 F.3d 17 (D.C.
Cir. 1999) (PMOI I). There, citing Waterman—a political-question case—this
Court deemed non-justiciable a foreign terrorist organization’s statutory (not
constitutional) claim that there was no substantial evidence to support the
executive’s determination that the organization’s terrorist activity threatened
national security. Id. at 23; see Nat’l Council of Resistance of Iran v. Dep’t of
State, 251 F.3d 192, 201 (D.C. Cir. 2001) (NCRI I) (noting that PMOI I “rejected
only … statutory arguments”). Here, by contrast, Ralls brings a constitutional
claim challenging “whether the government has followed the proper procedures”
before making its determination. El-Shifa, 607 F.3d at 843.
Finally, that the President issued the prohibition order does not deprive this
Court of jurisdiction. See Gov’t Br. 34. When “the President takes official action,
the Court has the authority to determine whether he has acted within the law.”
Clinton v. Jones, 520 U.S. 681, 703 (1997). The Supreme Court and this Court
have repeatedly reviewed the merits of constitutional challenges to presidential
orders and other presidential actions. See, e.g., Franklin v. Massachusetts, 505
U.S. 788, 801 (1992) (“the President’s actions may … be reviewed for
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constitutionality”); Dames & Moore, 453 U.S. at 666-67; Youngstown, 343 U.S. at
588-89; Panama Ref. Co. v. Ryan, 293 U.S. 388, 433 (1935); Chamber of
Commerce, 74 F.3d at 1339; cf. Rasul v. Bush, 542 U.S. 466, 470 (2004); Am. Coal.
for Competitive Trade v. Clinton, supra. Jurisdictional objections are especially
misplaced when, as here, a complaint seeks injunctive or declaratory relief against
“subordinate branch officials” who would implement or enforce a presidential
order. Swan v. Clinton, 100 F.3d 973, 980 (D.C. Cir. 1996); see also Franklin, 505
U.S. at 803; JA-43, JA-74, JA-76-77.
II. THE PRESIDENT’S ORDER DEPRIVED RALLS OF PROPERTY AND LIBERTY WITHOUT DUE PROCESS.
A. Ralls Was Deprived of Constitutionally Protected Interests.
Ralls’ due process claim rests upon two straightforward points. First, Ralls
possessed protected state-law property interests in ownership and operation of the
Project Companies. Second, the federal government cannot single out Ralls’ state-
law property rights for infringement without affording it due process. The
government does not come close to refuting either of these central points.
1. The district court itself held—indeed, found it undisputed—that Ralls
“obtained certain property rights under state law.” JA-153. The government
grudgingly concedes this point, as it must. See Gov’t Br. 37 (acknowledging that
“Ralls acquired some state property rights through its transaction” with Terna).
Despite that critical concession, the government leads off with a tangent, arguing
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that Section 721 does not itself create a property interest. See Gov’t Br. 35-36; see
generally Town of Castle Rock v. Gonzales, 545 U.S. 748, 766 (2005) (citing Bd. of
Regents of State Colls. v. Roth, 408 U.S. 564 (1972)); Ky. Dep’t of Corrs. v.
Thompson, 490 U.S. 454 (1989). But that issue is irrelevant in light of the
government’s concession; one protected property interest is enough to implicate
due process principles. In all events, Ralls has never claimed that federal law
granted it property rights. Rather, Ralls’ complaint is that the government’s
construction of federal law deprives Ralls of property interests that do not spring
from any federal statute.4
The government’s other tack is to suggest that Ralls’ state-law property
interests should be disregarded because Ralls failed to seek available, though not
mandatory, pre-acquisition approval. See Gov’t Br. 1, 3, 8-11, 39. But this
argument has numerous flaws. First, it is just a truncated rehashing of the district
court’s mistaken “waiver” argument, which Ralls has rebutted at length and to
which the government, notably, does not offer any actual response. See Ralls Br.
22-26. Section 721 unquestionably permits parties to engage in covered
4 Ralls’ interests are grounded in “traditional conception[s] of property,” Castle
Rock, 545 U.S. at 766—property interests arising from background state and common-law principles that indisputably accrued to Ralls upon completion of the Terna transaction, as the district court acknowledged. See River Park, Inc. v. City of Highland Park, 23 F.3d 164, 166 (7th Cir. 1994) (“Those things people can hold or do without the government’s aid count as property or liberty no matter what criteria the law provides.”).
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transactions without obtaining prior approval, and the government cannot insist
that the price of following that entirely legitimate course is the loss of due process
protection after the property has been acquired.
Second, the government’s argument is inadequate on its own terms. For its
“you-must-ask-beforehand-or-lose-due-process” theory to make any sense, there
would need to be some meaningful due process available beforehand if Ralls had
asked. But there is no evidence whatsoever that the government would have
provided Ralls with any additional process before the acquisition. To the contrary,
the government’s pre-deprivation process would still have left Ralls in the dark and
guessing about the nature of the government’s objections, and if Ralls had filed suit
seeking meaningful process, the government would be invoking the exact same
arguments about national security and presidential discretion. Earlier access to
inadequate process does not solve the constitutional problem, let alone deprive
Ralls of the opportunity to adjudicate the adequacy of its actual treatment.
Thus, the government’s highlighting of Ralls’ counsel’s indication at oral
argument that the “due process inquiry should be the same … before or after [the
transaction] occurred,” Gov’t Br. 20, 24, 35-36, hardly advances its case.
Procedures that fail to provide the constitutional prerequisites of notice and
meaningful opportunity to be heard are just as constitutionally deficient pre-
deprivation or post. Of course, when a government makes a pre-deprivation
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procedure optional, its availability does not excuse the government from providing
due process in the post-deprivation setting. See pp. 13-14, supra. But when both
procedures share the same basic deficiency, the existence of the flawed pre-
deprivation option is not even relevant.
For much the same reason, the government’s related contention (at 43-44)
that Ralls “failed to plead the deprivation of any liberty interest” completely misses
the boat. As noted, this case involves the deprivation of Ralls’ state-law property
interests. The question of a liberty interest in acquiring property arises only in
response to the government’s argument that either the option of pre-acquisition
determination or the known-possibility of post-acquisition deprivation renders
Ralls’ property interest so contingent that it does not exist at all. Ralls’ ability to
point out that this argument is not just flawed, but unavailing (because even if
Ralls did not have a full-blown property interest, it certainly had a liberty interest
in obtaining property), does not depend on what it pled in its complaint. Ralls’
complaint more than adequately pled its theory of the case—that its property rights
were deprived without due process of law—and it was under no obligation to
anticipate the government’s flawed arguments in response. To the extent that the
government’s response is easily defeated by reconceptualizing Ralls’ protected
interest as a liberty interest, nothing in the pleading remotely precludes either Ralls
or this Court from doing so.
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In all events, the cases cited by Ralls (at 25 n.5) amply demonstrate
compliance with federal pleading standards. By contrast, Elkins v. District of
Columbia, 690 F.3d 554, 561 (D.C. Cir. 2012), requires only that a complaint
“suggest ‘what sort of process is due,’” and the government does not contend that
the amended complaint fails this requirement. And in the case cited by the district
court that the government invokes, plaintiffs’ briefs included new factual
allegations and “voluminous exhibits.” Arbitraje Casa de Cambio, S.A. de C.V. v.
U.S. Postal Serv., 297 F. Supp. 2d 165, 170 (D.D.C. 2003).
The government downplays Ralls’ right to post-acquisition due process by
insisting that Ralls “took the risk” of acquiring the Project Companies without
prior approval. But the government is missing the obvious point. It is one thing to
say that a buyer of property takes a risk that its ownership and use of the property
may be limited by federal law. But no one in this country takes the risk that the
government will deprive it of its property or liberty interests without due process.
And that is true even if the government provides clear pre-acquisition notice that it
has no intent to behave constitutionally. Sending a message of caveat emptor to
potential investors (which is not the message the government has actually sent, see
n.1, supra) does not excuse the government from complying with the Due Process
Clause.
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Finally, the government argues that, because the federal government must be
able to speak with “one voice,” then “[n]either state property law nor Ralls’
possession of state-issued articles of incorporation can interfere with the
President’s exercise” of his Section 721 authority. Gov’t Br. 37-39. But the novel
proposition that preemption principles somehow eliminate Ralls’ right to due
process has no support in precedent (and the government identifies none). The
federal government routinely acts with “one voice” on matters of national scope,
but that does not mean that its actions not only displace contrary state law but
obliterate state-law property interests without the need to justify the obliteration
under the Due Process Clause. Numerous decisions have addressed due process
challenges to federal actions indisputably within the federal government’s special
if not exclusive competence. See pp. 22-23, infra. None suggests that this renders
all due process interests that flow from state law either preempted or irrelevant.5
5 The government contends (at 38) that “[f]oreign investment and involvement
in U.S. entities remains subject to restriction and regulation today.” But when that “restriction and regulation” involves an American company with property and presence in this country, like Ralls, constitutional protections unquestionably attach. Indeed, even foreign aliens (which Ralls is not) enjoy constitutional protections “when they have come within the territory of the United States and developed substantial connections with this country.” United States v. Verdugo-Urquidez, 494 U.S. 259, 271 (1990).
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2. Once it is recognized that Ralls has protected state-law property rights in
the Project Companies, it follows that the federal government cannot single out
Ralls’ property for special burdens without providing due process. Because Ralls
possessed interests “recognized and protected by state law,” those interests had
“th[e] constitutional status” of being “within the meaning of either ‘liberty’ or
‘property’ as meant in the Due Process Clause.” Paul v. Davis, 424 U.S. 693, 710
(1976). Accordingly, the federal government’s infringement of those interests
through an individualized determination made according to specified standards
must comport with the procedural safeguards of the Due Process Clause.
Like the district court, the government insists that Section 721 “‘gives the
President absolute, unreviewable discretion to prohibit a covered transaction.’”
Gov’t Br. 36 (quoting JA-157). But as explained, see Ralls Br. 26-31, there are
several problems with this assertion. To begin with, “absolute” discretion and
“unreviewable” discretion are not the same thing. That the merits of a specific
government action are not subject to review does not automatically mean that the
responsible government official can do whatever she wants procedurally or that she
may act for any reason or no reason at all. The scope of the official’s discretion
instead depends upon the substantive standards set forth in the governing law.
Here, the applicable standards—those contained in Section 721—make quite
clear that the President’s discretion is not “absolute.” To the contrary, as Ralls has
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explained, and the government does not dispute, Section 721 allows the President
to block a covered transaction only if (1) there is evidence that (2) the President
deems credible that (3) the particular foreign interest might take action that
(4) threatens to impair the national security. See Ralls Br. 27. Given that the
President cannot act without determining that the foreign interest “might take
action” posing a threat to national security, it is critical that the foreign interest
receive some notice about any possible “action” causing concern and a fair chance
to rebut inaccurate “evidence” on which the President might otherwise rely. Yet, it
is precisely that notice and opportunity that Ralls was denied. See pp. 21-25, infra.
The terms of Section 721 thus make it quite different from a generally
applicable law that operates without individualized standards. In Section 721,
Congress has not imposed a blanket prohibition on all property ownership by
foreign-controlled companies or banned all property ownership anywhere near
restricted airspace. Rather, Congress elected to restrict property ownership only
where the President makes particularized findings about the possible actions of
specific foreign-controlled parties. In that situation, procedural due process
assures that an accused party has an opportunity to know about the possible
grounds for the contemplated action and to respond in a meaningful fashion.
The government seems unable to grasp this basic distinction, as evidenced
by its reliance on Dames & Moore, supra. Even leaving aside the fact that the
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20
property right at issue in Dames & Moore (a license authorizing attachments
against Iranian property) was a right created by federal law, and that the license
holder brought a takings rather than procedural due process claim, the case is
readily distinguishable because the executive order there revoked all such licenses,
rather than providing that licenses should be assessed and revoked on a case-by-
case basis according to defined standards. 453 U.S. at 663-66. In the case of a
blanket prohibition, of course, procedural due process plays no role because the
outcome does not turn on specific factual predicates. Under Section 721, by
contrast, there are outcome-determinative questions about whether a foreign-
controlled party might take actions that would threaten the national security. Ralls
was thus fully entitled to the protections that due process affords. Were it
otherwise—i.e., if Section 721 truly conferred standardless discretion to deprive
particular parties of protected interests—serious due process problems would
result, see Ralls Br. 30-31, a troubling prospect about which the government has
nothing to say.6
6 Dames & Moore is further inapposite because, due to the case’s unusual
circumstances, the Court sought “to lay down no general ‘guidelines’ covering other situations not involved here” and confined its decision “only to the very questions necessary to the decision of the case.” 453 U.S. at 661. Accordingly, neither the Supreme Court nor this Court has ever cited Dames & Moore in the context of a procedural due process claim, as here.
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B. Ralls Was Deprived of Its Protected Interests Without Notice of the Grounds for the Government’s Actions or an Opportunity to Rebut Those Grounds.
The government’s lukewarm defense of the process afforded to Ralls before
the deprivation of its property only serves to confirm the constitutional violation
here. While the government claims that Ralls had ample opportunity to present its
position to CFIUS, it never actually addresses the procedural shortcomings that
Ralls has pointed out—most glaringly, that Ralls was unable to formulate and
articulate its position to CFIUS because Ralls had no idea what was troubling
CFIUS.
The government’s discussion of the standards set forth in Mathews v.
Eldridge, 424 U.S. 319 (1976), illuminates the inadequacies of its due process
argument. The government offers no response on the first Mathews factor except
to repeat its erroneous contention that Ralls lacked constitutionally protected
interests in the first place. Gov’t Br. 40. Likewise, on the third Mathews factor,
the government offers a single assertion: Ralls cannot “utilize this Court to force
the disclosure of the President’s thinking on sensitive questions in discretionary
areas and obtain otherwise forbidden judicial review.” Id. at 41. But that deftly
combines a straw-man with question-begging.
As for the straw-man, Ralls does not seek “disclosure of the President’s
thinking,” but has been deprived of even the most basic notice of the nature of the
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22
government’s objections. As for the question-begging, the whole question here is
whether under the minimal judicial review available to protect Ralls’ due process
rights, the process offered by the government (which does not involve judicial
review) is constitutionally adequate. Pointing out that the statutory bar otherwise
bars review hardly advances the government’s interests under the Mathews
balancing. All agree there will ultimately be no judicial review of the substance of
the decision, but that does not answer the question whether Ralls is entitled to the
notice necessary to make the executive branch process meaningful. Indeed, the
absence of judicial review only underscores the importance of providing the notice
necessary to make Ralls’ one and only opportunity to make its case meaningful.
As to the procedures actually afforded Ralls, the government does not
dispute that due process entitles parties to two “essential constitutional promises”
even in the national security context, Hamdi, 542 U.S. 533 (plurality): first, notice
of the factual basis for the deprivation, including unclassified materials giving rise
to the government’s action; and second, a fair opportunity for rebuttal of the
government’s case for deprivation. See, e.g., Boumediene v. Bush, 553 U.S. 723,
783-84 (2008); Hamdi, 542 U.S. at 533 (plurality); Greene v. McElroy, 360 U.S.
474, 496 (1959); People’s Mojahedin Org. of Iran v. U.S. Dep’t of State, 613 F.3d
220, 227 (D.C. Cir. 2010) (PMOI III); Kahane Chai v. Dep’t of State, 466 F.3d 125,
132 (D.C. Cir. 2006); Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d
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156, 163 (D.C. Cir. 2003); NCRI I, 251 F.3d at 209; cf. Wilkinson v. Austin, 545
U.S. 209, 225-26 (2005).
The “procedures” the government quickly reels off (at 41) do not remotely
satisfy these essential due process requirements.7 None gave Ralls notice of the
government’s reasons for the eventual deprivation, and none gave Ralls any
opportunity to rebut the government’s grounds. What the government
characterizes as “detailed written arguments” is just Ralls’ voluntary notice, which
Ralls submitted at the outset of CFIUS review (when it had no knowledge of the
government’s concerns) and which provided Ralls no opportunity for rebuttal.
Indeed, reflecting Ralls’ lack of knowledge about the government’s reasons for
concern, the vast majority of the notice consists of factual description about Ralls
and the transaction; only one page is devoted to Ralls’ affirmative statement that
the transaction raises no national security risks. See JA-14-15. And while Ralls
met once with CFIUS officials and answered their follow-up questions in the
period before the government orders were issued, see Gov’t Br. 41, during and
following those interactions, Ralls was never informed of the government’s reasons
for concern, never afforded any explanation for actions the government might take,
7 Notably, the government’s list, like much of its factual background, see Gov’t
Br. 12-16, is principally supported by disputed material beyond the complaint (including a CFIUS official’s declaration) and thus not properly before the Court in this Rule 12(b)(6) dismissal. See, e.g., EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624-25 (D.C. Cir. 1997).
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never provided with any materials supporting the government’s position, and never
able to address any of the government’s concerns. See JA-54-55, JA-61.
Empty process is not due process. The government has little to say about the
cases cited by Ralls except to claim that this Court’s FTO decisions are
distinguishable because the statutory scheme there requires the “compil[ation of]
an administrative record and expressly provides for judicial review.” Gov’t Br. 42.
But as Ralls has explained, and the government does not answer, the differences in
statutory schemes magnify, not diminish, the due process violation here. See Ralls
Br. 41-42. Parties do not somehow enjoy less constitutional protection because the
pertinent statutory scheme—i.e., Section 721—provides even fewer protections
than in the FTO context. And because judicial review “‘is not sufficient to supply
the otherwise absent due process protection’ of notice … and an opportunity for
meaningful hearing,” PMOI III, 613 F.3d at 227 (quoting NCRI I, 251 F.3d at 208),
it is all the most important for the government to provide the due process necessary
to make the administrative process meaningful.8
The government’s final argument repeats its mantra that Ralls could have
sought pre-acquisition review of the transaction but chose not to do so. Gov’t Br.
42-43. That argument is defective in its other variants, but it is not even relevant to
8 The government sensibly abstains from defending the district court’s
misreading of PMOI III and NCRI I. See Ralls Br. 37-38.
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the adequacy of the post-acquisition process actually offered. Section 721
indisputably permits parties to seek post-acquisition review, and the government’s
insistence that Ralls could have obtained pre-acquisition review does not answer
the question whether the post-acquisition procedures complied with due process.
Furthermore, the government makes no suggestion that it would have provided
more process in pre-acquisition review than it did here post-acquisition. Although
the government praises itself for an “articulated, flexible, and interactive procedure
through which to reach the required determination and redress such concerns,”
Gov’t Br. 43, the fact is that, however colorfully described, a process is
constitutionally infirm whether pre- or post-acquisition if, under either scenario,
the government never identifies any “concerns” and never provides the affected
party an opportunity to address those concerns.
III. RALLS’ CHALLENGE TO THE CFIUS ORDERS IS NOT MOOT.
The government tellingly devotes one paragraph responding to Ralls’
argument that its challenge to the CFIUS orders satisfies the “capable of repetition,
yet evading review” exception to mootness. See Gov’t Br. 46. Its contentions lack
merit.
The government wisely declines to defend the district court’s manifestly
erroneous holding that Ralls failed to satisfy the evading-review component of the
applicable two-prong test. See Ralls Br. 47-51. The government “concedes this
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point by not even attempting to rebut [Ralls’] argument.” Port Norris Exp. Co. v.
ICC, 751 F.2d 1280, 1285 (D.C. Cir. 1985).9
The government has almost as little to say about the capable-of-repetition
prong. It does not respond to any of Ralls’s cases, does not defend any of the
district court’s reasoning (including the court’s reliance on easily-distinguishable
authority), and does not dispute that Ralls intends to continue purchasing American
windfarms, the very action that led to the CFIUS orders here. See Ralls Br. 52-55;
JA-52, JA-54.
The government instead principally claims that “Ralls cannot show that
CFIUS would subject it to an ‘identical agency action’” because “CFIUS issued
the mitigation orders here in response to the particular concerns that arose in the
Committee’s review of the particular transaction, involving a particular geographic
area, giving rise to this case.” Gov’t Br. 46. This contention is thrice faulty. First,
the only case the government cites, Theodore Roosevelt Conservation Partnership
v. Salazar, 661 F.3d 66 (D.C. Cir. 2011), defines “same action” as not just an
“identical agency action” but “agency policies, regulations, [and] guidelines.” Id.
9 Contrary to the government’s suggestion, the “exceptional situations” standard
for the capable-of-repetition-yet-evading-review exception is not some independent barrier beyond the two-prong test. See Gov’t Br. 45-46 (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983)). Rather, the two-prong test describes the “exceptional situations” standard; they are coterminous. See Spencer v. Kemna, 523 U.S. 1, 17 (1998).
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at 79 (quotation marks omitted). Because every acquisition Ralls intends to
undertake will necessarily be a “covered transaction” under Section 721, Ralls will
always be subjected to the CFIUS “policies, regulations, [and] guidelines” that
resulted in the orders it challenges here. See Ralls Br. 57-58.
Second, the government’s fixation on the “particular” concerns, transaction,
and geographic area in this case cannot be squared with this Court’s admonition
that the relevant inquiry is not “whether the precise historical facts that spawned
the plaintiff’s claims are likely to recur.” Performance Coal Co. v. Fed. Mine
Safety & Health Review Comm’n, 642 F.3d 234, 238 (D.C. Cir. 2011) (quotation
marks omitted); see also Doe v. Sullivan, 938 F.2d 1370, 1379 (D.C. Cir. 1991)
(R.B. Ginsburg, J.) (courts must “apply the ‘reasonable expectation’ standard
without excessive ‘stringency’” (quoting Honig v. Doe, 484 U.S. 305, 318 n.6
(1988))).
Third, the government cannot avoid the capable-of-repetition doctrine by
pointing to the “particular concerns that arose in the Committee’s review of th[is]
particular transaction” because nobody knows what those particular concerns are.
See JA-140 (district court acknowledging that “what ultimately prompted CFIUS
to take action is unknown”). As explained, see Ralls Br. 55-56, under the
government’s heads-I-win-tails-you-lose approach, no party challenging a CFIUS
order could ever satisfy the capable-of-repetition prong, all CFIUS orders will
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remain unreviewable, and CFIUS will permanently be able to exercise its
extraordinary powers according to “lore, rather than law.” Jill Priluck, The
Mysterious Agency That Can Block a Global Merger, Reuters (July 8, 2013),
http://tinyurl.com/priluck. The government has no response to this perversion of
longstanding agency review principles.
The government asserts that “Ralls has completed other transactions that
have not caused CFIUS to issue mitigation orders.” Gov’t Br. 46. What the
government fails to mention is that CFIUS did not issue orders concerning the two
transactions identified in the government’s citations—both undertaken early in
Ralls’ existence—because neither was a covered transaction. In one, Ralls sold a
single turbine to a windfarm; in the other, Ralls was the original developer of a
windfarm and did not purchase any companies. JA-95-96. CFIUS lacked
jurisdiction to review those transactions, much less issue mitigation orders. Going
forward, however, as Ralls has alleged (and which must be taken as true), Ralls
intends to carry out its windfarm business by purchasing existing American
companies, just as it purchased the Project Companies. See JA-54. The
government’s implicit suggestion that Ralls can avoid CFIUS orders by
abandoning this preferred business approach and reverting to prior practice
underscores that mootness is inapplicable here. See Ralls Br. 54 (citing Humane
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Soc’y of U.S. v. EPA, 790 F.2d 106, 114 (D.C. Cir. 1986)).10
The government’s passing case citations are inapposite. Munsell v.
Department of Agriculture, 509 F.3d 572 (D.C. Cir. 2007), did not even address the
capable-of-repetition-yet-evading-review exception. Rather, the Court held an
APA challenge moot because plaintiff had divested the division subject to agency
“regulation and oversight.” Id. at 578. The Court rejected an argument that suit
was proper because plaintiff “might reenter [the] business,” deeming that argument
“speculation” given plaintiff’s lack of “definite plans.” Id. at 582-83. Likewise, in
Armstrong v. FAA, 515 F.3d 1294 (D.C. Cir. 2008), the Court held that a challenge
to an FAA “emergency determination” revoking plaintiff’s pilot certificate was
moot because plaintiff had not shown that he intended to seek a new certificate. Id.
at 1296. Here, however, Ralls’ intentions are not “speculation”; consistent with its
business strategy, it has alleged “definite plans” to continue engaging in the same
conduct that triggers CFIUS oversight and resulted in the orders here. See JA-54.
10 The government’s focus on past conduct is also wrong on the law. In
Christian Knights of the Ku Klux Klan Invisible Empire, Inc. v. District of Columbia, 972 F.2d 365 (D.C. Cir. 1992), which addressed the District’s denial of a parade permit, the Court held that “it is the likelihood of the plaintiff’s encountering a similar problem in the future that matters,” id. at 370 (emphasis added), and concluded that because plaintiff had alleged its future intention to conduct marches throughout the country, there was a reasonable expectation it would again seek a permit from the District and be subjected to the same allegedly illegal conduct. Here, Ralls has alleged its future intention to purchase American companies throughout the country; thus, there is a reasonable expectation it will be subjected to the same allegedly illegal conduct by CFIUS.
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IV. CFIUS’ ORDERS VIOLATE DUE PROCESS AND THE ADMINISTRATIVE PROCEDURE ACT.
The government does not even attempt to argue that the CFIUS orders
satisfy the Due Process Clause and the APA. See Gov’t Br. 46; Ralls Br. 57-58.
The government’s silence tacitly acknowledges the orders’ illegality. See Port
Norris, 751 F.2d at 1285. Ultimately, this underscores the importance of applying
the capable-of-repetition exception here. CFIUS’ playbook does not comply with
Due Process or the APA, and that playbook will be used against Ralls and
countless others for the foreseeable future. The capable-of-repetition doctrine
exists precisely to prevent the government from claiming an unreviewable right to
violate the law whenever it can do so quickly—before the course of appellate
review can run.
CONCLUSION
For the foregoing reasons and those stated in Ralls’ opening brief, the
judgment of the district court should be reversed and the case remanded for further
proceedings.
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Respectfully submitted,
TIM TINGKANG XIA MORRIS, MANNING & MARTIN, LLP 1600 Atlanta Financial Center 3343 Peachtree Road NE Atlanta, GA 30326 (404) 495-3677
s/PAUL D. CLEMENT PAUL D. CLEMENT VIET D. DINH H. CHRISTOPHER BARTOLOMUCCI GEORGE W. HICKS, JR. BANCROFT PLLC 1919 M Street NW Suite 470 Washington, DC 20036 (202) 234-0090 [email protected]
Counsel for Appellant Ralls Corporation
April 1, 2014
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CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION
I hereby certify that:
1. This brief complies with the type-volume limitation of Fed. R. App. P.
32(a)(7)(N) because it contains 7,000 words, excluding the parts of the brief
exempted by Fed. R. App. P. 32(a)(7)(B)(iii) and Circuit Rule 32(a)(1).
2. This Brief complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the typestyle requirements of Fed. R. App. P. 32(a)(6) because it has
been prepared in a proportionally spaced typeface using Microsoft Word 2010 in
14-point font.
Dated: April 1, 2014
s/GEORGE W. HICKS, JR. GEORGE W. HICKS, JR.
USCA Case #13-5315 Document #1486411 Filed: 04/01/2014 Page 39 of 40
CERTIFICATE OF SERVICE
I hereby certify that on April 1, 2014, I electronically filed the foregoing
with the Clerk of Court for the United States Court of Appeals for the District of
Columbia Circuit by using the appellate CM/ECF system, thereby serving all
persons required to be served.
s/GEORGE W. HICKS, JR. GEORGE W. HICKS, JR.
USCA Case #13-5315 Document #1486411 Filed: 04/01/2014 Page 40 of 40