The opinion of the court was delivered by: Chief Judge Royce C. Lamberth
Now before the Court is plaintiff's motion  for summary judgment, and defendants' cross-motion  to dismiss or in the alternative, for summary judgment. Upon consideration of the motions, the oppositions, the replies, the entire record herein, and applicable law, the defendants' motion  will be GRANTED; plaintiff's motion  will be DENIED.
Two words-Havana Club-have been at the center of litigation that has now traversed two federal Circuits, two federal agencies, and two decades. The latest incarnation of this controversy is a suit by plaintiff Empresa Cubana Exportadora de Alimentos y Productos Various ("Cubaexport") against the United States Department of Treasury, the Secretary of the Treasury, the Director of the Office of Foreign Assets Control ("OFAC"), and the United States. This litigation arises out of OFAC's refusal to authorize Cubaexport to renew its trademark rights in the "HAVANA CLUB" name with the United States Patent and Trademark Office.
Given this case's significant legal and factual underbrush, the Court will set out the background to the case before delving into the specifics.
A. United States Trade Embargo Against Cuba
The Trading With the Enemy Act ("TWEA") authorizes the President to impose and administer trade embargoes during wartime. 50 U.S.C. App. § 5(b) (2007). The President has delegated this authority to the Secretary of the Treasury, who has in turn delegated it to the Office of Foreign Assets Control ("OFAC"), a division of the United States Department of Treasury. Regan v. Wald, 468 U.S. 222, 227 n.2 (1984). In 1963, when the TWEA also applied to peacetime emergencies, President Kennedy adopted the Cuban Asset Control Regulations ("CACR") "to deal with the peacetime emergency created by Cuban attempts to destabilize governments throughout Latin America." Id. at 226. Congress later removed peacetime emergencies from TWEA's scope but permitted the President to maintain existing embargoes, including the embargo against Cuba. Id. at 228--29.
The Cuban Asset Control Regulations ("CACR"), which implemented the trade embargo against Cuba, generally prohibit transactions in the United States involving Cuban-owned property unless the transaction is authorized by OFAC. A transaction involving Cuban-owned property can be authorized by OFAC in a couple of ways. The first way is through the general license, which broadly authorizes entire classes of transactions. 31 C.F.R. 515, subpart E. When no general license applies, "[a]ny person having an interest in a transaction or proposed transaction may file an application [with OFAC] for a [specific] license." Id. § 515.801(b)(2).
Prior to 1998, the CACR included a general license for trademark registration and renewal by Cuban nationals:
Transactions related to a registration and renewal in the United States Patent and Trademark Office or the United States Copyright Office of patents, trademarks, and copyrights in which the Government of Cuba or a Cuban national has an interest are authorized.
Congress carved out a major exception to the general license provision, however, when it passed Section 211(a)(1) of the Omnibus Act in 1998, which states:
[N]o transaction or payment shall be authorized or approved pursuant to section 515.527 of title 31 . . . with respect to a mark, trade name, or commercial name that is the same as or substantially similar to a mark, trade name, or commercial name that was used in connection with a business or assets that were confiscated unless the original owner of the mark, trade name, or commercial name, or the bona fide successor-in-interest has expressly consented.
Omnibus Consolidation and Emergency Supplemental Appropriations Act, Pub. L. No. 105-277, § 211(a)(1), 112 Stat. at 2681--88. Section 211(c) further instructed the Secretary of the Treasury, acting through OFAC, to "promulgate such rules and regulations as are necessary to carry out the provisions of this section."
Thereafter, OFAC amended its regulations to include a provision that essentially mimics Section 211(a)(1) and states that no general license for a trademark shall be authorized if the mark was used in connection with a business that was confiscated unless the original owner of the mark or the bona fide successor-in-interest has expressly consented.*fn1 OFAC did not enact any further regulations to implement Section 211.*fn2
B. The Procedural History of this Case
Plaintiff Cubaexport is a Cuban state-owned enterprise headquartered in Havana, Cuba. (Pl.'s Compl. ¶ 5.) The Cuban Ministry of Foreign Commerce chartered Cubaexport in 1965. In 1974, Cubaexport adopted the HAVANA CLUB trademark and registered it in Cuba for use in connection with rum. (Id.) Two years later, it applied to register the mark in the United States, and the United States Patent and Trademark Office ("USPTO") issued the registration on January 27, 1976.
Cubaexport periodically renewed the mark with the USPTO thereafter, but the registration was set to expire in January 2006. Cubaexport wished to renew the mark. Because Cubaexport is a state-owned company of Cuba, however, it needs either a specific or general license to overcome the CACR and conduct a transaction in the United States. Cubaexport's counsel, the law firm of Ropes & Gray, already had a specific license authorizing it to defend Cubaexport in proceedings initiated by Bacardi & Company in the USPTO's Trademark Trial and Appeal Board*fn3 ("TTAB"). On December 13, 2005, Ropes & Gray sent a letter to the USPTO enclosing a renewal application and filing fee for the HAVANA CLUB trademark, stating that renewal was necessary in order to preserve the status quo until a decision regarding the cancellation proceedings initiated by Bacardi could be rendered. (Pl.'s Mot.  at 23*fn4.) While the application for renewal was pending, OFAC intervened in the registration renewal process and sent a letter to Ropes & Gray and the USPTO on April 6, 2006. The letter stated that the specific license that had previously been granted to Ropes & Gray to defend Cubaexport in the trademark registration cancellation proceedings initiated by Bacardi did not authorize Ropes & Gray to pay a filing fee to the USPTO for renewal of the HAVANA CLUB registration. (Id. at 12.) OFAC also stated in that letter that Ropes & Gray could request separate authorization, including a separate specific license to renew the HAVANA CLUB trademark registration. The letter also stated that Ropes & Gray could seek further guidance regarding the separate authorization or ask any questions by contacting OFAC in writing or by telephone. The next day, April 7, 2006, Cubaexport, through Ropes & Gray, sought a specific license to renew the registration. Ropes & Gray also sent a letter to the USPTO*fn5 arguing that the trademark should be renewed pursuant to the general license, in order to preserve the status quo until issues regarding whether the HAVANA CLUB mark was "confiscated" could be resolved in the United States District Court.
On July 28, 2006, one day after the deadline to renew the HAVANA CLUB registration had passed, OFAC sent a letter to Ropes & Gray regarding the April 7, 2006 specific license application. The letter stated:
Pursuant to the Cuban Asset Control Regulations, 31 C.F.R. Part 515, administered by the U.S. Department of Treasury's Office of Foreign Assets Control ("OFAC"), renewal of the HAVANA CLUB trademark under these circumstances would be prohibited unless specifically licensed.
OFAC has been engaged in consultation with the relevant agencies in the U.S. Government, including the Department of State ("State"), on this issue. We have received guidance from State informing us that it would be inconsistent with U.S. policy to issue a specific license authorizing transactions related to the renewal of the HAVANA CLUB trademark. Accordingly, your request is hereby denied. (Id.)
Cubaexport thereafter filed its complaint in this action, asserting claims under the Administrative Procedure Act and the United States Constitution. The plaintiff alleged that OFAC violated the Administrative Procedure Act by: (1) deciding on April 6, 2006, that a specific OFAC license to defend Cubaexport in litigation involving cancellation of its HAVANA CLUB trademark did not authorize Ropes & Gray to renew Cubaexport's trademark registration; (2) deciding on July 28, 2006, that renewal of Cubaexport's HAVANA CLUB trademark registration "would be prohibited unless specifically licensed"; and (3) deciding on July 28, 2006, that it would not grant a specific license authorizing payment of the trademark renewal fee. Cubaexport also lodged constitutional claims, alleging that these decisions deprived it of procedural and substantive due process and violated the Takings Clause.
On September 27, 2007, this Court granted partial summary judgment in favor of defendants. The Court granted summary judgment in favor of defendants with respect to plaintiff's first and third APA challenges and denied without prejudice the defendants' summary judgment motion on the constitutional claims. The Court also denied without prejudice the defendants' motion for summary judgment on the second APA claim and remanded to OFAC to explain its second decision, the July 28, 2008 decision that the HAVANA CLUB trademark registration "would be prohibited unless specifically licensed." The Court directed the defendants to explain "whether it concluded Cubaexport could not rely on the general license in 31 C.F.R. § 515.527(a)(1), and if so, how and why it determined the exception in part (a)(2) embraced Cubaexport's HAVANA CLUB registration. Further, it should explain what process Cubaexport was afforded with respect to this particular determination." Cubaexport v. U.S. Dep't of Treasury, 516 F. Supp. 2d 43, 56--57 (D.D.C. 2007).
In response to this Court's order, OFAC supplemented the administrative record with a second declaration of its director Adam Szubin. (Docket No. .) Szubin's supplemental declaration addresses "the contemporaneous reasons for OFAC's decision at the time the July 28, 2006 letter was drafted." (Szubin Supp. Decl. ¶ 4.) Szubin states that OFAC's decision that the general license provision was inapplicable to Cubaexport's HAVANA CLUB trademark was "based primarily on factual findings made in litigation in the Southern District of New York*fn6 and the Second Circuit*fn7 concerning the HAVANA CLUB trademark." (Szubin Supp. Decl. ¶ 10.) Szubin's declaration also states that OFAC considered letters sent by Bacardi & Company Limited stating that it was the bona fide successor-in-interest to the HAVANA CLUB trademark and that it had not consented to the renewal of the HAVANA CLUB registration by Cubaexport. (Szubin Supp. Decl. ¶ 16.) With regard to the process given Cubaexport, Szubin's declaration states that OFAC gave Cubaexport an opportunity to comment and to seek guidance from OFAC regarding the applicability of the general licensing provision. (Szubin Supp. Decl. ¶ 23.) Szubin states that Cubaexport did not comment or seek guidance regarding the applicability of the general license provision but that Cubaexport only applied for a specific license. (Szubin Supp. Decl. ¶ 23.)
The plaintiff has now renewed its motion for summary judgment on the second and third APA claims*fn8 , and the defendant has filed a cross-motion to dismiss, or in the alternative, for summary judgment. The Court will grant the defendants' motion and deny the plaintiff's motion for the reasons set forth below.
A. Summary Judgment Standard
Under Federal Rule of Civil Procedure 56(c), a court must grant summary judgment*fn9 when the evidence in the record demonstrates that there are no disputed issues of material fact and that the moving party is entitled to judgment on the undisputed facts as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp., v. Catrett, 477 U.S. 317, 322 (1986). A genuine issue of material fact exists if the evidence, when viewed in a light most favorable to the non-moving party, "is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The burden is on the movant to make the initial showing of the absence of a genuine issue of material fact in dispute. Celotex, 477 U.S. at 323. The moving party is then entitled to summary judgment if the non-moving party fails to make a showing sufficient to establish the existence of an element essential to that party's claim, and on ...