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Ralls Corporation v. Committee On Foreign Investment In United States

United States District Court, District Circuit

October 10, 2013

RALLS CORPORATION, Plaintiff,
v.
COMMITTEE ON FOREIGN INVESTMENT IN THE UNITED STATES, et al., Defendants.

AMENDED MEMORANDUM OPINION

AMY BERMAN JACKSON, District Judge.

This action is before the Court on defendants' second motion to dismiss.

Plaintiff Ralls Corporation ("Ralls") is a Delaware corporation owned by two Chinese nationals. In March 2012, Ralls entered into a transaction involving the acquisition of several windfarm projects located in the vicinity of a U.S. Naval installation in Oregon, where Ralls planned to install wind turbines manufactured by the Chinese company with which it is affiliated. Ralls filed its original complaint and motion for temporary restraining order to challenge an order issued by the Committee on Foreign Investment in the United States ("CFIUS") on August 2, 2012, under the Defense Production Act of 1950, also known as the "Exon-Florio Amendment." On July 25, 2012, CFIUS found that the transaction posed a national security risk to the United States, and on August 2, it issued an amended order establishing mitigation measures Ralls was required to follow pending further action by the President. President Barack Obama then issued an order under section 721 of the Defense Production Act of 1950 ("section 721") "prohibiting" the transaction.

Ralls withdrew its motion for temporary restraining order and filed an amended complaint, challenging both the CFIUS amended order and the President's order on the grounds that they were ultra vires, issued in violation of the Administrative Procedure Act, an unconstitutional violation of Ralls's right to equal protection under the Fifth Amendment of the Constitution of the United States, and an unconstitutional deprivation of property without due process under the Fifth Amendment.

In its order dated February 22, 2013, the Court dismissed all of Ralls's claims challenging the CFIUS amended order as moot because the CFIUS order was expressly revoked by the President's order. Order (Feb. 22, 2013) [Dkt. #45]. The Court also dismissed the ultra vires, Administrative Procedure Act, and equal protection challenges to the President's order for lack of subject matter jurisdiction because the finality provision in section 721 bars judicial review of the merits of the President's decision. Id .; see generally Am. Mem. Op. (Feb. 26, 2013) [Dkt. # 48]. But the Court found that the finality clause in section 721 did not bar judicial review of Ralls's claim that the issuance of the President's order violated the due process clause, and the Court permitted that portion of Ralls's complaint to proceed to the merits. Am. Mem. Op. (Feb. 26, 2013) at 33-35.

Defendants have now filed a motion to dismiss the remaining claim, and that motion has been fully briefed by the parties. Because Ralls has not alleged that it was deprived of a protected interest and because, even if the Court were to find a protected interest, Ralls received sufficient process before the deprivation took place, the Court will grant defendants' motion to dismiss.

BACKGROUND

The statutory background and the facts alleged in the Amended Complaint were set out in detail in the Court's previous Memorandum Opinion, Ralls Corp. v. Comm. on Foreign Inv. in the United States, 926 F.Supp.2d 71, 76-82 (D.D.C. 2013), so what follows is simply a brief summary of the background that is relevant to the currently pending motion.

I. Statutory Background

Section 721 of the Defense Production Act of 1950, also known as the "Exon-Florio Amendment, " established CFIUS. Section 721 gives CFIUS and the President the authority to take action in connection with a "covered transaction, " which is defined as "any merger, acquisition, or takeover... by or with any foreign person which could result in foreign control of any person engaged in interstate commerce in the United States." 50 U.S.C. app. § 2170(a)(3) (2012).

CFIUS is a committee comprised of the Secretaries of Treasury, Homeland Security, Commerce, Defense, State, Energy, and Labor; the Attorney General of the United States; the Director of National Intelligence; and the heads of any other executive department, agency, or office the President determines to be appropriate; or their designees. 50 U.S.C. app. § 2170(k)(2).[1] CFIUS review of a covered transaction can be initiated in two ways. First, any party or parties to the transaction may initiate a review by submitting a written notice to the chairperson of the committee. Id. § 2170(b)(1)(C)(i). Alternatively, the President or CFIUS itself may initiate a review. Id. § 2170(b)(1)(D). Once review has been initiated, the statute grants the committee thirty days to review the transaction to determine its effects on the national security of the United States. Id. § 2170(b)(1)(A), (E). If the review results in a determination that the transaction threatens to impair the national security of the United States and that the threat has not yet been mitigated, the committee must conduct an investigation of the effects of the transaction on national security and "take any necessary actions in connection with the transaction" to protect national security. Id. § 2170(b)(2)(A)-(B). The statute expressly grants CFIUS the authority to "negotiate, enter into or impose, and enforce any agreement or condition with any party to the covered transaction in order to mitigate any threat to the national security of the United States that arises as a result of the covered transaction." Id. § 2170(l)(1)(A). The investigation must be completed within 45 days. Id. § 2170(b)(2)(C).[2]

After CFIUS completes its investigation, it is required to submit a report to Congress on the results of the investigation or submit the matter to the President for decision. 50 U.S.C. app. § 2170(b)(3)(B). Section 721 grants the President the authority to "take such action for such time as the President considers appropriate to suspend or prohibit any covered transaction that threatens to impair the national security of the United States, " so long as he finds that: (1) there is credible evidence that leads him to believe the foreign interest exercising control might take action that threatens to impair the national security; and (2) other provisions of the law do not provide adequate and appropriate authority to enable him to protect the national security. Id. § 2170(d)(1), (4). The President is required to announce his decision no later than fifteen days after the CFIUS investigation is completed. Id. § 2170(d)(2).

The statute also provides that "[f]or purposes of determining whether to take action under paragraph (1), the President shall consider, among other factors, each of the factors described in subsection (f) of this section, as appropriate." Id. § 2170 (d)(5). Subsection (f), in turn, lists the factors that "[f]or purposes of this section, the President or the President's designee may, taking into account the requirements of national security, consider." Id. § 2170(f).

Importantly, the statute contains a finality provision which states: "The actions of the President under paragraph (1) of subsection (d) of this section and the findings of the President under paragraph (4) of subsection (d) of this section shall not be subject to judicial review." Id. § 2170(e).

II. Factual Background

Ralls is a Delaware corporation that is privately owned by two Chinese nationals. Am. Compl. [Dkt. #20] ¶ 14. In March 2012, Ralls acquired from Terna Energy USA Holding Corporation ("Terna") - a Delaware corporation owned by a publicly traded Greek company - membership interests in four companies that each corresponded to the development of a windfarm project in Oregon (collectively, "Project Companies"). Am. Compl. ¶¶ 36, 59-60. Ralls did not file a voluntary notice with CFIUS before engaging in the transaction. At the time that Ralls purchased the Project Companies from Terna, the companies' assets consisted of:

[E]asements with local landowners to access their property and construct windfarm turbines; power purchase agreements with the local utility, PacifiCorp; generator interconnection agreements permitting connection to PacifiCorp's grid; transmission interconnection agreements and agreements for the management and use of shared facilities with other nearby windfarms; and necessary government permits and approvals to construct windfarm turbines at particular locations.

Am. Compl. ¶ 61.

After the transaction between Terna and Ralls closed, the United States Navy, which operates a military base nearby the Project Company sites, expressed concerns regarding the location of one of the windfarms Ralls had acquired. Am. Compl. ¶ 62. Ralls agreed to move the windfarm in question to a different site to ease the Navy's concerns. Am. Compl. ¶ 64.

Shortly thereafter, CFIUS contacted Ralls and invited Ralls to file a voluntary notice of the transaction under 50 U.S.C. app. § 2170(b)(1). Marisa Lago Decl. ("Lago Decl.") [Dkt. #11-1] ¶ 5. The CFIUS representative informed Ralls's representative that, if Ralls did not file a voluntary notice, the Department of Defense would file an "agency notice" that would trigger the committee's review of the transaction. Id. Ralls filed the voluntary notice on June 28, 2012, which included an argument for why its acquisition of the Project Companies did not pose any national security concerns. Am. Compl. ¶ 72; Voluntary Notice, Ex. F to Mot. for TRO and Prelim. Inj. [Dkt. #7-7] at 5-6. In the weeks that followed, CFIUS asked Ralls and Terna a number of follow-up questions, and Ralls was provided with an opportunity to meet with CFIUS about the review. Am. Compl. ¶¶ 73-74.

On July 25, 2012, CFIUS issued an Order Establishing Interim Mitigation Measures, in which it reported its determination that "there are security risks to the United States that arise as a result of the Transaction." The order prescribed measures that Ralls was required to implement in order to "mitigate those risks pending any further action by the President, or by CFIUS on his behalf." Order Establishing Interim Mitigation Measures, Ex. 4 to Am. Compl. [Dkt. #20-4] at 2. On August 2, 2012, CFIUS issued an amended order that included additional mitigation measures with which Ralls was required to comply. Am. Order Establishing Interim Mitigation Measures, Ex. 5 to Am. Compl. [Dkt. #20-5].

After completing the initial review, CFIUS determined that a further investigation should be conducted under 50 U.S.C. app. § 2170(b)(2). Am. Compl. ¶ 89. At the end of the investigation, CFIUS transmitted a report to the President. Am. Compl. ¶ 90. On September 28, 2012, the President issued an order entitled, "Order Regarding the Acquisition of Four U.S. Wind Farm Project Companies by Ralls Corporation." Order Regarding the Acquisition of Four U.S. Wind Farm Project Companies by Ralls Corp., Ex. 6 to Am. Compl. ("President's Order") [Dkt. #20-6]. The President's Order, which expressly revoked the CFIUS Amended Order, stated that there is credible evidence that leads the President to believe that Ralls, through exercising control of the four Project Companies "might take action that threatens to impair the national security of the United States...." President's Order at 1. On that basis, the Order decrees:

• The Terna-Ralls transaction is prohibited, and ownership of the Project Companies by Ralls is prohibited, whether directly or indirectly through owners, subsidiaries, or affiliates;
• In order to effectuate the order, within ninety days, Ralls shall divest all interests in the Butter Creek project companies, their assets, and any operations developed, held, or controlled by them;
• Within fourteen calendar days of the order, the companies are required to remove all structures or other physical objects or installations from the ...

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