Ralls’ reply brief - Amazon Web Services · B. Ralls’ Due Process Claim is Justiciable. ... 04/01/2014 Page 2 of 40. ii TABLE OF AUTHORITIES* ... Arbitraje Casa de Cambio,

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

USCA Case #13-5315 Document #1486411 Filed: 04/01/2014 Page 1 of 40

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


ii

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.


iii

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


iv

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


v

*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


vi

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


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


2

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


3

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


4

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”).


5

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


6

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


7

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.


8

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.,


9

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.


10

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


11

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


12

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


13

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.”).


14

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


15

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.


16

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.


17

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).


18

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


19

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


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.


21

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


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


23

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).


24

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.


25

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


26

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).


27

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


28

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


29

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.


30

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.


31

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


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.


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.


Documents

Ralls’ reply brief - Amazon Web Services · B. Ralls’ Due Process Claim is Justiciable. ... 04/01/2014 Page 2 of 40. ii TABLE OF AUTHORITIES* ... Arbitraje Casa de Cambio,