Foreign Relations & International Law

Opinion from D.C. Circuit in Ralls v. CFIUS

Wells Bennett
Tuesday, July 15, 2014, 1:34 PM
Here it is; you'll find some background here and here. Today's ruling from a panel of the D.C.

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Here it is; you'll find some background here and here. Today's ruling from a panel of the D.C. Circuit opens as follows:
KAREN LECRAFT HENDERSON, Circuit Judge: In March 2012, Appellant Ralls Corporation (Ralls) purchased four American limited liability companies (Project Companies) previously formed to develop windfarms in north-central Oregon. The transaction quickly came under scrutiny from the Committee on Foreign Investment in the United States (CFIUS), an Executive Branch committee created by the Defense Production Act of 1950 (DPA), codified as amended at 50 U.S.C. app. § 2170, and chaired by the Secretary of the U.S. Treasury Department (Treasury Secretary), see 50 U.S.C. app. § 2170(k). Pursuant to section 721 of the DPA, CFIUS reviews any transaction “which could result in foreign control of any person engaged in interstate commerce in the United States.” Id. § 2170(a)(3). Although Ralls is an American corporation, the transaction fell within the ambit of the DPA because both of Ralls’s owners are Chinese nationals. CFIUS determined that Ralls’s acquisition of the Project Companies threatened national security and issued temporary mitigation orders restricting Ralls’s access to, and preventing further construction at, the Project Companies’ windfarm sites. The matter was then submitted to the President, who also concluded that the transaction posed a threat to national security. He issued a permanent order (Presidential Order) that prohibited the transaction and required Ralls to divest itself of the Project Companies. Ralls challenged the final order issued by CFIUS (CFIUS Order) and the Presidential Order in district court, alleging, inter alia, that the orders violate the Due Process Clause of the Fifth Amendment to the United States Constitution because neither CFIUS nor the President (collectively, with Treasury Secretary and CFIUS Chairman Jacob Lew, Appellees) provided Ralls the opportunity to review and rebut the evidence upon which they relied. The district court dismissed Ralls’s CFIUS Order claims as moot and its due process challenge to the Presidential Order for failure to state a claim. For the reasons set forth below, we reverse.

Wells C. Bennett was Managing Editor of Lawfare and a Fellow in National Security Law at the Brookings Institution. Before coming to Brookings, he was an Associate at Arnold & Porter LLP.

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