United States District Court, District of Columbia
For Ralls Corporation, Plaintiff (1:12cv1513): Brian J. Field, George W. Hicks, Jr., Howard Christopher Bartolomucci, Nathan Alexander Sales, Paul Clement, LEAD ATTORNEYS, BANCROFT PLLC, Washington, DC USA; Viet D. Dinh, LEAD ATTORNEY, BANCROFT PLLC, Washington, DC USA; Tingkang Xia, PRO HAC VICE, MORRIS, MANNING & MARTIN, LLP, Atlanta, GA USA.
For Committee on Foreign Investment in The United States, Timothy F. Geithner, in his official capacity as Secretary of the Treasury and Chairperson of the Committee on Foreign Investment in the United States, Barack Hussein Obama, II, in his official capacity as President of the United States, Defendants (1:12cv1513): Joel L. McElvain, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Civil Division, Washington, DC USA.
For Oregon Windfarms, Llc, Kent Madison, William J. Doherty, Ivar Christensen, Amicus (1:12cv1513): Amber Dale Abbasi, LEAD ATTORNEY, CAUSE OF ACTION, Washington, DC USA; Reed D. Rubinstein, LEAD ATTORNEY, DINSMORE & SHOHL LLP, Washington, DC USA.
For United States of America, Plaintiff (1:13cv2026): Joel L. McElvain, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Civil Division, Washington, DC USA.
For Ralls Corporation, Defendant (1:13cv2026): George W. Hicks, Jr., Paul Clement, Viet D. Dinh, LEAD ATTORNEYS, BANCROFT PLLC, Washington, DC USA.
AMY BERMAN JACKSON, United States District Judge.
The judgment of the United States Court of Appeals for the District of Columbia Circuit was docketed in Ralls Corp. v. Committee on Foreign Investment in the United States, 12-cv-1513-ABJ, on October 2, 2014, when the mandate was returned. See Judgment [Dkt. # 64]. In that case, Ralls challenged both the Amended Order Establishing Interim Mitigation Measures issued by the Committee on Foreign Investment (" CFIUS") on August 2, 2012 (the " CFIUS Order"), and the September 28, 2012 Order issued by the President of the United States (the " Presidential Order"). The matter is now before this Court for further proceedings consistent with the decision on appeal. Also pending before this Court is defendant Ralls's motion to dismiss a related case, United States v. Ralls Corp., 13-cv-2026-ABJ, on mootness grounds. Def. Ralls Corp.'s Mot. to Dismiss for Mootness [Dkt. # 23]. In that case, the government seeks to enforce the Presidential Order that is the subject of the Ralls Corp. v. CFIUS action, and the case has been stayed since July 16, 2014 pending the outcome of the Ralls appeal. Therefore, it is necessary for the Court to address several matters: the remand of its decision concerning the Presidential Order, the remand of its decision concerning the CFIUS Order, and the status of the government's enforcement action.
I. Remand Concerning the Presidential Order
In the portion of its opinion addressing the Presidential Order, the Court of Appeals concluded that " the Presidential Order deprived Ralls of constitutionally protected property interests without due process of law." Ralls Corp. v. CFIUS, 758 F.3d 296, 319 (D.C. Cir. 2014). It therefore remanded the matter to this Court " with instructions that Ralls be provided the requisite process set forth herein, which should include access to the unclassified evidence on which the President relied and an opportunity to respond thereto." Id. at 325. The Court of Appeals then specifically directed this Court to the opinion in National Council of Resistance of Iran v. Department of State, 251 F.3d 192, 346 U.S.App.D.C. 131 (D.C. Cir. 2001) (" NCRI"):
See NCRI, 251 F.3d at 209 ( leaving FTO designation in place and ordering Secretary of State to provide designated entity with access to unclassified evidence supporting designation and opportunity to respond).
Ralls Corp. v. CFIUS, 758 F.3d at 325 (emphasis added).
The Circuit Court further stated:
Our conclusion that the procedure followed in issuing the Presidential Order violates due process does not mean the President must, in the future, disclose his thinking on sensitive questions related to national security in reviewing a covered transaction. We hold only that Ralls must receive the procedural protections we have spelled out before the Presidential Order prohibits the transaction. The DPA expressly provides that CFIUS acts on behalf of the President in reviewing covered transactions . . . and the procedure makes clear that the President acts only after reviewing the record compiled ...