FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERT D. THORNE; BARBARA J.

DENNYSSCHEN; DAVE SHEER GUNS;

DIPLOPOINT; SOUTHERN ARMS;

PRETORIA ARMS PTY LTD; G AND D

GROUP,

Plaintiffs-Appellants,

v.

UNITED STATES DEPARTMENT OF 

STATE; MICHAEL POMPEO;

DIRECTORATE OF DEFENSE TRADE 

CONTROLS; MIKE MILLER,

Defendants-Appellees.

No.19-17606 

D.C. No.

2:19-cv-01982-

JCM-EJY 

OPINION

Appeal from the United States District Court

for the District of Nevada

James C. Mahan, District Judge, Presiding

Argued and Submitted September 1, 2020

Pasadena, California

Filed October 26, 2020

Before: Eugene E. Siler,* Marsha S. Berzon, and 

Kenneth K. Lee, Circuit Judges.

Opinion by Judge Siler

* The Honorable Eugene E. Siler, United States Circuit Judge for the 

U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
2 THORNE V. DOS

SUMMARY**

Arms Export Control Act

The panel affirmed the district court’s order denying the 

motion of plaintiff exporters and resellers of United States 

armaments for a preliminary injunction seeking to force the 

federal government to abide by procedural protections 

before debarring plaintiffs under 22 C.F.R. § 127.7 from 

engaging in their business.

The Arms Export Control Act (AECA) authorizes the 

President to “control the import and the export of defense 

articles and defense services.” 22 U.S.C. § 2778(a)(1). 

Pursuant to that authority, the Department of State 

promulgated the International Traffic in Arms Regulations 

(ITAR). One of those regulations, 22 C.F.R. § 127.7, allows 

for the “debarment” of an individual or entity who wishes to 

act under ITAR and AECA. Plaintiffs claimed that they 

were de facto debarred from engaging in their business.

To establish a de facto debarment under § 127.7, 

plaintiffs need to show that the Directorate of Defense Trade 

Councils (DDTC) has completely prohibited them from 

legally engaging in all ITAR and AECA activities. The 

panel held that plaintiffs did not meet their burden. The 

panel further held that plaintiffs presented facts and evidence 

that established, at best, the denial of some license 

applications to export arms, not a complete prohibition to act 

under ITAR and AECA. The panel also held that plaintiffs 

did not sufficiently establish that the DDTC improperly 

** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
THORNE V. DOS 3

imposed a presumption of denial on their license 

applications. The panel concluded that the district court did 

not abuse its discretion in denying plaintiffs’ motion for a 

preliminary injunction.

COUNSEL

Matthew A. Goldstein (argued) and Robert A. Bernheim, 

Farhang & Medcoff PLLC, Tucson, Arizona; Jordan T. 

Smith, Pisanelli Bice PLLC, Las Vegas, Nevada; for 

Plaintiffs-Appellants.

Christopher A. Bates (argued), Sharon Swingle, and 

Matthew J. Glover, Attorneys; Joseph H. Hunt, Assistant 

Attorney General; Nicholas A. Trutanich, United States 

Attorney; United States Department of Justice, Civil 

Division, Washington, D.C.; for Defendants-Appellees.

OPINION

SILER, Circuit Judge: 

In passing the Arms Export Control Act (AECA), 

Congress authorized the President to “control the import and 

the export of defense articles and defense services.” 

22 U.S.C. § 2778(a)(1). The President delegated such 

authority to the Secretary of State and State Department, 

who promulgated the International Traffic in Arms 

Regulations (ITAR). Exec. Order No. 13,637 § 1(n), 78 Fed. 

Reg. 16,129, 16,130 (Mar. 8, 2013). One of these 

regulations, 22 C.F.R. § 127.7, allows for the “debarment” 

of an individual or entity who wishes to act under ITAR and 

AECA. “Debarment” constitutes a “prohibit[ion on] . . . 
4 THORNE V. DOS

participating directly or indirectly in any [ITAR and AECA] 

activities . . . .” 22 C.F.R. § 127.7(a)–(b).

Plaintiffs, exporters and resellers of United States 

armaments, claim they have been “de facto debarred” under 

22 C.F.R. § 127.7 from engaging in their business. In other 

words, plaintiffs claim that they have been completely 

prohibited from engaging in all ITAR and AECA activities 

without being afforded the requisite procedural protections. 

Plaintiffs brought suit and sought a preliminary injunction to 

force the government to abide by those procedural 

protections before debarring them. The district court denied 

plaintiffs’ request for a preliminary injunction, and we 

affirm that denial, as plaintiffs have insufficiently pleaded 

facts and submitted evidence to support their assertion that 

they have been de facto debarred.

I. Background

Plaintiff Robert D. Thorne (Thorne) is in the business of 

exporting firearms, ammunition, and security equipment 

from the United States to the other plaintiffs in this case, i.e., 

the Dave Sheer entities and their beneficial owners, who are 

based in South Africa and sell those armaments. To lawfully 

export such goods under ITAR and AECA, Thorne is 

required to obtain a license from the Directorate of Defense 

Trade Controls (DDTC). See generally 22 C.F.R. § 123.1; 

22 U.S.C. § 2778. Thorne’s license applications for export 

to the Dave Sheer entities were regularly approved.

In 2018, the DDTC denied Thorne’s 14 then-pending 

license applications, two of them for “administrative 

deficiencies” and 12 of them because “the foreign consignee 

and end-user on each of these license applications,” i.e., one 

of the Dave Sheer entities, “was an unreliable recipient of 

U.S. origin defense articles.” The DDTC also told Thorne 
THORNE V. DOS 5

that “[p]ursuant to 22 CFR 126.7 . . . U.S. persons are 

accorded an opportunity to present additional information 

requesting reconsideration of an adverse decision; however 

we have determined that new permits would not overcome 

the presumption of denial for these transactions.” The 

DDTC then, through provisos, instructed some third parties 

to refrain from selling arms to the Dave Sheer entities, and 

also “flagged” some of the Dave Sheer entities in its 

database.

Plaintiffs brought the instant action, alleging four claims 

and requesting a preliminary injunction. Plaintiffs’ claims 

and preliminary injunction request rest on two 

presuppositions: (1) that the DDTC has de facto debarred 

plaintiffs, under 22 C.F.R. § 127.7, from engaging in their 

business; and (2) that the DDTC has improperly instituted a 

presumption of denial, under 22 C.F.R. § 127.11, on 

Thorne’s license applications listing the Dave Sheer entities 

and owners as “foreign consignee[s] and end-user[s.]” 

Because plaintiffs have not sufficiently pleaded or shown 

that the DDTC has done either of these things, they have not 

shown that the district court abused its discretion in finding 

that they did not meet the necessary requisites to obtain a 

preliminary injunction. See California v. Azar, 911 F.3d 

558, 568, 575 (9th Cir. 2018); Arc of Cal. v. Douglas, 757 

F.3d 975, 983–84 (9th Cir. 2014); Johnson v. Couturier, 572 

F.3d 1067, 1083 (9th Cir. 2009).

II. Discussion

To establish a de facto debarment under § 127.7, 

plaintiffs must show that they have been “prohibit[ed] . . . 

from participating directly or indirectly in any [ITAR and 

AECA] activities that are subject to this subchapter.” 

22 C.F.R. § 127.7(a)–(b). Although it is possible to read 
6 THORNE V. DOS

“any” in § 127.7 to mean “less than all,” the better reading 

of “any” is to read it synonymously with “total.” If the 

regulation’s drafters truly meant for “any” to mean “less than 

all,” the clearer way to indicate such a meaning would be to 

state, “prohibit[ed] . . . from participating directly or 

indirectly in any [ITAR and AECA] activity that is subject 

to this subchapter.” (emphasis added). Such a reading is 

also more in line with the general concept of a debarment in 

other contexts. Cf., e.g., 22 C.F.R. § 513.200; 48 C.F.R. 

§ 9.405; 29 C.F.R. § 503.24; 2 C.F.R. § 417.625. So, to 

establish a de facto debarment under § 127.7, plaintiffs need 

to show that the DDTC has completely prohibited them from 

legally engaging in all ITAR and AECA activities.

Plaintiffs have not met their burden in that regard. The 

facts and evidence Thorne points to establish, at best, the 

denial of some license applications to export arms to the 

Dave Sheer entities, not a complete prohibition to act under 

ITAR and AECA. The denial of a license pertaining to a 

specific transaction only is not tantamount to a debarment. 

See U.S. Ordnance, Inc. v. U.S. Dep’t of State, 432 

F. Supp. 2d 94, 99 (D.D.C. 2006) (“Debarment . . . would 

permanently deprive plaintiff of any chance to obtain a 

license under the AECA. Whereas, a decision to deny an 

export license is not an enforcement action, but rather is an 

exercise of the broad discretion[] granted to the Department. 

Thus, a denial of a license is only a preliminary action 

. . . .”), vacated as moot by U.S. Ordnance, Inc. v. Dep’t of 

State, 231 F. App’x 2, 2007 WL 141656, at *1 (D.C. Cir. 

2007).1 A decision to deny an export license is not an 

1 Ordnance is the only case to have addressed debarment under 

§ 127.7 and interpreted a previous version of that regulation, which 

defined debarment as “prohibit[ing] any person from participating 

directly or indirectly in the export of defense articles.” Ordnance, 432 

F. Supp. 2d at 99; 22 C.F.R. § 127.7(a) (2006). 
THORNE V. DOS 7

enforcement action, but rather an exercise of the broad 

discretion granted to the DDTC. Indeed, as Thorne was 

merely denied a license, the DDTC suggested to Thorne the 

reconsideration process offered by § 126.7, not the 

reinstatement and appeal process of § 127.7, i.e., the only 

process available for debarred individuals and entities. See

22 C.F.R. § 127.7(a), (b), (d). Thorne’s claim of a 

government ruse in that regard is uncompelling when he 

never formally attempted to avail himself of any of the 

aforementioned review processes, which would probably 

have shed greater light on his ITAR and AECA status. See 

Nat’l Archives & Recs. Admin. v. Favish, 541 U.S. 157, 174 

(2004) (“[T]here is a presumption of legitimacy accorded to 

the Government’s official conduct. . . . [C]lear evidence is 

usually required to displace it.” (citations omitted)).

As for the Dave Sheer entities and owners, it is true that 

the DDTC termed them unreliable end users, “flagged” them 

in its internal database, and sent provisos to some third 

parties instructing them not to engage in business with those 

entities. That being said, the harshest result of these actions 

has been the Thorne license denials and DDTC’s instruction 

to some third parties to refrain from engaging in business 

with the Dave Sheer entities and owners. The license 

denials, however, pertained to a singular group of

transactions with Thorne only. Additionally, plaintiffs point 

to nothing in the record challenging the DDTC’s assertion 

that it “did not add [the] provisos [plaintiffs complain of] to 

licenses for . . . end-use in South Africa, where the risk of 

diversion [of arms to the Dave Sheer entities] was 

determined to be low,” not non-existent. The Dave Sheer 

entities and owners cannot claim a de facto § 127.7 

debarment when the DDTC has only prohibited some third 

parties from engaging in transactions with those plaintiffs. 

Moreover, as with Thorne, those plaintiffs have never 
8 THORNE V. DOS

directly availed themselves of the ITAR and AECA process 

in a way that establishes pretext or an actual, consequential 

change in their legal status—they have only ever been listed 

as “foreign consignees or end-users” on Thorne’s license 

applications.

By essentially only informally requesting further 

clarification regarding Thorne’s license denials, plaintiffs 

have not pleaded sufficient facts or provided sufficient 

evidence of a nefariously imposed complete prohibition on 

their legal engagement in ITAR and AECA activities so as 

to overcome the “presumption of legitimacy” that is 

“accord[ed to] Government records and official conduct.” 

U.S. Dep’t of State v. Ray, 502 U.S. 164, 179 (1991). 

Because plaintiffs never engaged in the ITAR and AECA 

processes after Thorne’s license application denials, 

seemingly unrefuted is the DDTC’s assertion that “none of 

the Plaintiffs have been deemed ineligible by DDTC or are 

the subject of . . . a . . . debarment” and that it “will continue 

to review any license applications submitted where Robert 

Thorne is the exporter or the [Dave Sheer] entities . . . are 

the foreign consignees or end-users on a case-by-case basis.”

As for the purported institution of a presumption of 

denial on license applications, plaintiffs have read too much 

into a DDTC email to Thorne, that email being the basis for 

that argument. The DDTC has explained that its use of the 

phrase “presumption of denial” was merely meant to convey 

that a resubmission of license applications unresponsive to 

the DDTC’s reasons for denial would be pointless. The 

DDTC has also explained that when it stated in its email that 

“new permits would not overcome the presumption of denial 

for these transactions,” the permits referred to were the Dave 

Sheer entities’ and owners’ South African permits, not ITAR 

and AECA licenses. In other words, when Thorne emailed 
THORNE V. DOS 9

the DDTC and asked if “it [would] do any good to resubmit 

the permits,” the DDTC thought Thorne was referring to 

permits plaintiffs needed to obtain from the South African 

government to be able to import United States’ arms, not the 

licenses Thorne needed to export those arms. Plaintiffs 

never formally requested reconsideration or reapplied for 

licenses, so the DDTC’s assertion that no presumption of 

denial was actually applied to the licenses that were denied 

or that such a presumption would be applied to future license 

applications is not refuted by clear facts or evidence.

In sum, the entirety of plaintiffs’ action, including its 

request for a preliminary injunction, rests on two 

presuppositions—that they have been de facto debarred and 

that the DDTC has improperly imposed a presumption of 

denial on their license applications. Because plaintiffs have 

not sufficiently established that either of these things 

happened, however, the district court did not abuse its 

discretion in denying plaintiffs’ motion for a preliminary 

injunction.

AFFIRMED.