United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 5, 2014 Decided July 15, 2014

No. 13-5315

RALLS CORPORATION,

APPELLANT

v.

COMMITTEE ON FOREIGN INVESTMENT IN THE UNITED STATES,

ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:12-cv-01513)

Paul D. Clement argued the cause for the appellant. Viet 

D. Dinh, H. Christopher Bartolomucci and George W. Hicks,

Jr., were on brief.

Douglas N. Letter, Attorney, United States Department of 

Justice, argued the cause for the appellees. Stuart F. Delery, 

Assistant Attorney General, Ronald C. Machen, Jr., United 

States Attorney, and Sonia K. McNeil, Attorney, were on brief.

Before: HENDERSON, BROWN and WILKINS, Circuit 

Judges.

Opinion for the Court filed by Circuit Judge HENDERSON.
2

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 
3

failure to state a claim. For the reasons set forth below, we 

reverse.

I. BACKGROUND

A. STATUTORY AND REGULATORY FRAMEWORK

This case involves Executive Branch review of a business 

transaction under section 721 of the DPA, also known as the 

“Exon-Florio Amendment.”1 As amended, section 721 of the 

DPA directs “the President, acting through [CFIUS],” to 

review a “covered transaction to determine the effects of the 

transaction on the national security of the United States.” 50 

U.S.C. app. § 2170(b)(1)(A). Section 721 defines a covered 

transaction 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.” Id. § 2170(a)(3).

Review of covered transactions under section 721 begins 

with CFIUS. As noted, CFIUS is chaired by the Treasury 

Secretary and its members include the heads of various federal 

agencies and other high-ranking Government officials with 

foreign policy, national security and economic 

responsibilities.2 See id. § 2170(k)(2), (3). CFIUS review is 

 

1 The name comes from its co-sponsors, former Senator James 

Exon (D-Neb.) and former Representative James Florio (D-N.J.).

2 CFIUS includes the Secretaries of Treasury, Homeland 

Security, Commerce, Defense, State and Energy; the Secretary of 

Labor and the Director of National Intelligence, who participate as 

non-voting, ex officio members; the United States Attorney General; 

and other officials as the President deems appropriate. 50 U.S.C. 

app. § 2170(k)(2). The President also appointed the United States 

Trade Representative and the Director of the Office of Science and 

Technology Policy to CFIUS and directed several White House 
4

initiated in one of two ways. First, any party to a covered 

transaction may initiate review, either before or after the 

transaction is completed, by submitting a written notice to the 

CFIUS chairman. See id. § 2170(b)(1)(C)(i); 31 C.F.R. 

§ 800.401(a) (“A party or parties to a proposed or completed

transaction may file a voluntary notice of the transaction with 

the Committee.” (emphases added)); id. § 800.402(c)(1)(vii) 

(voluntary notice must include “expected date for completion 

of the transaction, or the date it was completed”); id. § 800.224 

(“The term transaction means a proposed or completed merger, 

acquisition, or takeover.”). 3 Alternatively, CFIUS may 

initiate review sua sponte. See 50 U.S.C. app. 

§ 2170(b)(1)(D). The CFIUS review period lasts thirty days, 

during which CFIUS considers the eleven factors set forth in 

50 U.S.C. app. § 2170(f) to assess the transaction’s effect on 

national security.4See id. § 2170(b)(1)(A)(ii), (E). 

 

officials, among others, to participate as observers. See Exec. Order 

No. 13,456, § 3(b), (c), 73 Fed. Reg. 4677, 4677 (2008).

3 The DPA directs the President to “direct . . . the issuance of 

regulations to carry out this section.” 50 U.S.C. app. § 2170(h)(1), 

which duty the President delegated to the Treasury Secretary. Exec. 

Order 13,456, § 4.1(b), 73 Fed. Reg. at 4678.

4 The eleven factors include “(1) domestic production needed 

for projected national defense requirements, (2) the capability and 

capacity of domestic industries to meet national defense 

requirements, including the availability of human resources, 

products, technology, materials, and other supplies and services, (3)

the control of domestic industries and commercial activity by foreign 

citizens as it affects the capability and capacity of the United States 

to meet the requirements of national security, (4) the potential effects 

of the proposed or pending transaction on sales of military goods, 

equipment, or technology to [certain] countr[ies] . . . (5) the potential 

effects of the proposed or pending transaction on United States 

international technological leadership in areas affecting United 
5

During its review, if CFIUS determines that “the 

transaction threatens to impair the national security of the 

United States and that threat has not been mitigated,” it must 

“immediately conduct an investigation of the effects of [the] 

covered transaction on the national security . . . and take any 

necessary actions in connection with the transaction to protect 

the national security.” Id. § 2170(b)(2)(A), (B). CFIUS is 

given express 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 period lasts no more than forty-five days. See 

id. § 2170(b)(2)(C). If CFIUS determines at the end of an 

investigation that the national security effects of the transaction 

have been mitigated and that the transaction need not be 

prohibited, action under section 721 terminates and CFIUS 

submits a final investigation report to the Congress. See id. 

§ 2170(b)(3)(B); 31 C.F.R. § 800.506(d). 

 

States national security; (6) the potential national security-related 

effects on United States critical infrastructure, including major 

energy assets; (7) the potential national security-related effects on 

United States critical technologies; (8) whether the covered 

transaction is a foreign government-controlled transaction, as 

determined under subsection (b)(1)(B) of this section; (9) as 

appropriate, and particularly with respect to transactions requiring an 

investigation under subsection (b)(1)(B) of this section, a review of 

the current assessment of [the foreign country’s relationship and 

cooperation with the United States]; (10) the long-term projection of 

United States requirements for sources of energy and other critical 

resources and material; and (11) such other factors as the President 

or [CFIUS] may determine to be appropriate, generally or in 

connection with a specific review or investigation.” 50 U.S.C. app. 

§ 2170(f).
6

If CFIUS concludes at the end of its investigation that a 

covered transaction should be suspended or prohibited, it must 

“send a report to the President requesting the President’s 

decision,” which report includes, inter alia, information 

regarding the transaction’s effect on national security and 

CFIUS’s recommendation. 31 C.F.R. § 800.506(b), (c). 

Once CFIUS’s report is submitted to the President, he has 

fifteen days 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.” 50 U.S.C. app. § 2170(d)(1), (2). The 

President may exercise his authority under section 721 only if 

he finds that

there is credible evidence that leads [him] to believe that 

the foreign interest exercising control might take action

that threatens to impair the national security; and . . . 

provisions of law, other than [section 721] and the 

International Emergency Economic Powers Act, do not, 

in the judgment of the President, provide adequate and 

appropriate authority for the President to protect the 

national security in the matter before the President.

Id. § 2170(d)(4). Significantly, the statute provides that “[t]he 

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). In deciding 

whether to suspend or prohibit a transaction, the President is 

directed to consider, “among other factors[,] each of the factors 

described in subsection (f) of this section, as appropriate.” Id. 

§ 2170(d)(5); see supra note 4.

 
7

B. FACTUAL BACKGROUND

Ralls is an American company incorporated in Delaware 

with its principal place of business in Georgia. Ralls is owned 

by two Chinese nationals, Dawei Duan and Jialiang Wu. 

Duan is the chief financial officer of Sany Group (Sany), a 

Chinese manufacturing company, and, at the time of the 

transaction at issue, Wu was a Sany vice-president and the 

general manager of Sany Electric Company, Ltd. (Sany 

Electric). Ralls’s amended complaint asserts that “Ralls is in 

the business of identifying U.S. opportunities for the 

construction of windfarms in which the wind turbines of Sany 

Electric, its affiliate, can be used and their quality and 

reliability demonstrated to the U.S. wind industry in 

comparison to competitor products.” Am. Compl. ¶ 5, Ralls 

Corp. v. Comm. on Foreign Inv. in the U.S., No. 1:12-cv-01513 

(D.D.C. Oct. 1, 2012).

In March 2012, Ralls purchased the Project Companies, 

which are four American-owned, limited liability companies: 

Pine City Windfarm, LLC; Mule Hollow Windfarm, LLC; 

High Plateau Windfarm, LLC; and Lower Ridge Windfarm, 

LLC.5 The Project Companies were originally created by an 

Oregon entity (Oregon Windfarms, LLC) owned by American 

citizens to develop four windfarms in north-central Oregon 

(collectively, Butter Creek projects). Before Ralls acquired 

 

5 Ralls’s acquisition of the Project Companies resulted from a 

series of transactions. In 2010, Oregon Windfarms, LLC, sold its 

interest in the Project Companies to Terna Energy USA Holding 

Corporation (Terna), a Delaware corporation owned by a publicly 

traded Greek company. In 2012, Terna sold the Project Companies 

to Intelligent Wind Energy, LLC (IWE), a Delaware company 

owned by U.S. Innovative Renewable Energy, LLC (USIRE). 

USIRE sold IWE to Ralls.
8

them, each of the Project Companies had acquired assets 

necessary for windfarm development, including

easements 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 

five windfarm turbines at specific, approved locations.

Am. Compl. ¶ 37. 

The Butter Creek project sites are located in and around 

the eastern region of a restricted airspace and bombing zone 

maintained by the United States Navy (Navy). Three of the 

windfarm sites are located within seven miles of the restricted 

airspace while the fourth––Lower Ridge––is located within the 

restricted airspace. After the Navy urged Ralls to move the 

Lower Ridge site “to reduce airspace conflicts between the 

Lower Ridge wind turbines and low-level military aircraft 

training,” Am. Compl. ¶ 63 (quotation marks omitted), Ralls 

relocated the windfarm but it remains within the restricted 

airspace.

Ralls’s complaint alleges that Oregon Windfarms, LLC, 

has developed nine other windfarm projects (Echo Projects) in 

the same general vicinity as the Butter Creek projects and that 

all nine use foreign-made wind turbines. According to Ralls, 

seven turbines used by the Echo Projects are located within the 

restricted airspace and one of the nine Echo Projects––Pacific 

Canyon––is currently owned by foreign investors. In 

addition, Ralls claims that there are “dozens if not hundreds of 
9

existing turbines in or near the western region of the restricted 

airspace” that “are foreign-made and foreign-owned.” Am. 

Compl. ¶ 57. The Appellees conceded at oral argument that 

there are other foreign-owned wind turbines near the restricted 

airspace. See Recording of Oral Argument at 32:43.

On June 28, 2012,6 Ralls submitted a twenty-five-page 

notice to CFIUS informing it of Ralls’s March acquisition of 

the Project Companies. 7 The notice explained why Ralls 

believed the transaction did not pose a national security threat. 

CFIUS initiated its review pursuant to 50 U.S.C. app. 

§ 2170(b)(1). During the thirty-day review period, Ralls 

responded to several questions posed by CFIUS and gave a 

presentation to CFIUS officials. Ralls contends that CFIUS 

did not apprise Ralls of the gravamen of its concern with the 

transaction and did not, during the presentation or at any other 

time, disclose to Ralls the information it reviewed.

CFIUS determined that Ralls’s acquisition of the Project 

Companies posed a national security threat and on July 25 it 

issued an Order Establishing Interim Mitigation Measures 

(July Order) to mitigate the threat. The July Order required 

Ralls to (1) cease all construction and operations at the Butter 

Creek project sites, (2) “remove all stockpiled or stored items 

from the [project sites] no later than July 30, 2012, and shall 

not deposit, stockpile, or store any new items at the [project 

sites]” and (3) cease all access to the project sites. Joint 

Appendix (JA) 82-83, Ralls v. Comm. on Foreign Inv. in the 

U.S., No. 13-5315 (D.C. Cir. Feb. 7, 2014). Five days later, 

 

6 Unless otherwise indicated, all events occurred in 2012.

7 Ralls conceded in district court that it submitted the notice 

only after CFIUS informed it that the Defense Department intended 

to file a notice triggering CFIUS review if Ralls did not file first.
10

July 30, CFIUS launched an investigation under 50 U.S.C. app. 

§ 2170(b)(2).

Three days into its investigation, August 2, CFIUS issued 

an Amended Order Establishing Interim Mitigation Measures 

(CFIUS Order). In addition to the July Order restrictions, the 

CFIUS Order prohibited Ralls from completing any sale of the 

Project Companies or their assets without first removing all 

items (including concrete foundations) from the Butter Creek 

project sites, notifying CFIUS of the sale and giving CFIUS ten 

business days to object to the sale. The CFIUS Order 

remained in effect “until CFIUS concludes action or the 

President takes action under section 721” or until express 

“revocation by CFIUS or the President.” JA 88. Neither the 

July Order nor the CFIUS Order disclosed the nature of the 

national security threat the transaction posed or the evidence 

on which CFIUS relied in issuing the orders. On September 

13, the investigation period ended and CFIUS submitted its 

report (including its recommendation) 8to the President, 

requesting his decision.

On September 28, the President issued an “Order 

Regarding the Acquisition of Four U.S. Wind Farm Project 

Companies by Ralls Corporation” (Presidential Order). The 

Presidential Order stated that “[t]here is credible evidence that 

leads [the President] to believe that Ralls . . . might take action 

that threatens to impair the national security of the United 

States” and that “[p]rovisions of law, other than section 721 

and the International Emergency Economic Powers Act . . . do 

not, in [the President’s] judgment, provide adequate and 

appropriate authority for [the President] to protect the national 

security in this matter.” JA 89. In light of the findings, the 

 

8 Although the record includes copies of the two orders CFIUS 

issued in July and August, it does not contain the September report 

and recommendation CFIUS submitted to the President.
11

Presidential Order directed that the transaction be prohibited. 

“In order to effectuate” the prohibition, the Presidential Order 

required Ralls to, inter alia, (1) divest itself of all interests in 

the Project Companies, their assets and their operations within 

ninety days of the Order, (2) remove all items from the project 

sites “stockpiled, stored, deposited, installed, or affixed 

thereon,” (3) cease access to the project sites, (4) refrain from 

selling, transferring or facilitating the sale or transfer of “any 

items made or otherwise produced by the Sany Group to any 

third party for use or installation at the [project sites]” and (5) 

adhere to restrictions on the sale of the Project Companies and 

their assets to third parties. JA 89-91. The Presidential 

Order also “revoked” both orders issued by CFIUS. JA 91.

It is undisputed that neither CFIUS nor the President gave 

Ralls notice of the evidence on which they respectively relied 

nor an opportunity to rebut that evidence. See infra note 19.

C. DISTRICT COURT PROCEEDINGS

Approximately two weeks before the Presidential Order 

issued, Ralls filed suit against CFIUS and its then-chairman, 

Treasury Secretary Timothy Geithner, in district court. Ralls 

sought to invalidate the CFIUS Order and to enjoin its 

enforcement, claiming that CFIUS exceeded its statutory 

authority and acted arbitrarily and capriciously in issuing the 

Order in violation of the Administrative Procedure Act (APA), 

5 U.S.C. §§ 551 et seq., and that the Order deprived Ralls of its 

constitutionally protected property interests in violation of the 

Due Process Clause of the Fifth Amendment to the United 

States Constitution. The next day, September 13, Ralls 

moved for a temporary restraining order and preliminary 

injunction (TRO/PI). The hearing on the TRO/PI motion was 

set for September 20 but Ralls voluntarily withdrew the motion 

the day before the hearing.
12

After the President issued the Presidential Order on 

September 28, Ralls amended its complaint to add claims 

challenging the Presidential Order and naming the President as 

a defendant. The amended complaint included five counts: 

Counts I and II challenged the CFIUS Order under the APA; 

Count III attacked the actions of the Appellees as ultra vires; 

Counts IV and V challenged the constitutionality of both 

orders, under the Fifth Amendment Due Process Clause (Count 

IV) and the Equal Protection Clause (Count V).

CFIUS and the President moved to dismiss Ralls’s 

complaint for lack of subject-matter jurisdiction, which motion 

the district court granted in part and denied in part in February 

2013. The court first concluded that section 721 barred 

judicial review of Ralls’s ultra vires and equal protection 

challenges to the Presidential Order but not Ralls’s due process 

challenge thereto. It also concluded that Ralls’s claims 

regarding the CFIUS Order were mooted by the Presidential 

Order. It therefore dismissed Counts I, II, III and V in their 

entirety and the portion of Count IV challenging the CFIUS 

Order.

Shortly thereafter, the Appellees moved to dismiss Ralls’s 

due process claim attacking the Presidential Order for failure to 

state a claim under Federal Rule of Civil Procedure 12(b)(6). 

The district court eventually granted the motion in October 

2013. In dismissing Ralls’s remaining due process claim, it 

first determined that the Presidential Order did not deprive 

Ralls of a constitutionally protected property interest. 

Although the court acknowledged that Ralls had “entered into 

a transaction in March 2012 through which it obtained certain 

property rights under state law,” Ralls Corp. v. Comm. on 

Foreign Inv. in the United States, --- F. Supp. 2d ----, No. 

1:12-cv-01513, 2013 WL 5565499, at *6 (D.D.C. Oct. 9, 2013, 

as amended on Oct. 10, 2013), it nonetheless found that Ralls 
13

had no constitutionally protected interest because Ralls 

“voluntarily acquired those state property rights subject to the 

known risk of a Presidential veto” and “waived the opportunity 

. . . to obtain a determination from CFIUS and the President 

before it entered into the transaction,” id. at *7. The court 

then concluded that, even if Ralls had a constitutionally 

protected property interest, the Appellees provided Ralls with 

due process. According to the court, CFIUS informed Ralls in 

June 2012 that the transaction had to be reviewed and gave 

Ralls the opportunity to submit evidence in its favor in its 

notice filing and during follow-up conversations with––and a 

presentation to––CFIUS officials.

Ralls timely appealed the district court’s Rule 12(b)(6) 

dismissal of its due process challenge to the Presidential Order 

and the Rule 12(b)(1) dismissal of its five CFIUS Order 

claims.9 We first address the dismissal of Ralls’s due process 

claim against the Presidential Order (Count IV in part) and then 

turn to the dismissal of its CFIUS Order claims (Counts I and II 

in their entirety and Counts III, IV and V, in part).

II. DUE PROCESS CLAIM

Our first order of business is to satisfy ourselves that we 

have jurisdiction to review the dismissal of Ralls’s due process 

challenge to the Presidential Order. See Bancoult v. 

McNamara, 445 F.3d 427, 432 (D.C. Cir. 2006) (quoting Steel 

Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998)). 

“The requirement that jurisdiction be established as a threshold 

matter ‘springs from the nature and limits of the judicial power 

of the United States’ and is ‘inflexible and without exception.’ 

” Steel Co., 523 U.S. at 94-95 (quoting Mansfield, C. & 

 

9 Ralls does not appeal the dismissal of its ultra vires and equal 

protection challenges to the Presidential Order (Count III in part and 

Count V in part).
14

L.M.R. Co. v. Swan, 111 U.S. 379, 382 (1884)) (brackets 

omitted). The Appellees argue, first, that section 721 

expressly deprives us of jurisdiction of the due process claim 

and, second, that the claim is non-justiciable. Rejecting the 

Appellees’ two jurisdictional challenges, we then treat the 

merits.

A. STATUTORY BAR TO JUDICIAL REVIEW

As noted, the DPA provides that

[t]he 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.

50 U.S.C. app. § 2170(e). The “actions of the President” 

referred to are “such action[s] 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.” Id. § 2170(d)(1). The President’s “findings” 

under subsection (d) of paragraph (4) include his determination 

that (1) there is “credible evidence that leads [him] to believe 

that the foreign interest exercising control might take action 

that threatens to impair the national security” and (2) other 

provisions of law do not give him adequate authority to protect 

the national security. Id. § 2170(d)(4).

 

The Supreme Court has long held that a statutory bar to 

judicial review precludes review of constitutional claims only 

if there is “clear and convincing” evidence that the Congress so 

intended. See, e.g., Bowen v. Mich. Acad. of Family 

Physicians, 476 U.S. 667, 681 (1986); Califano v. Sanders,

430 U.S. 99, 109 (1977); Weinberger v. Salfi, 422 U.S. 749, 

762 (1975); Johnson v. Robison, 415 U.S. 361, 373-74 (1974). 

Our precedent makes clear that the “particularly rigorous” 
15

clear-and-convincing standard applies to both facial and 

as-applied constitutional claims. Griffith v. FLRA, 842 F.2d 

487, 494 (D.C. Cir. 1988) (quotation marks omitted); see also

Ungar v. Smith, 667 F.2d 188, 193 (D.C. Cir. 1981); Ralpho v. 

Bell, 569 F.2d 607, 619-20 (D.C. Cir. 1977). 10 As we 

 

10 Citing General Electric Co. v. EPA, 360 F.3d 188 (D.C. Cir. 

2004), the Appellees argue that clear and convincing evidence of 

congressional intent is not required to preclude judicial review of an 

as-applied constitutional claim. See Br. for the Appellees 26-27 & 

n.3, Ralls Corp. v. Comm. on Foreign Inv. in the U.S., No. 13-5315 

(D.C. Cir. Mar. 14, 2014). But General Electric Co. did not 

announce a different rule from Griffith, Ungar and Ralpho. In 

General Electric Co., we concluded that we did not need to “resort to 

the doctrine of constitutional avoidance to support our interpretation 

of the text” because it was clear that the text did not preclude the 

constitutional claim at issue. Id. at 194. In other words, there was 

no need to apply the clear-and-convincing evidence standard 

because the provision plainly allowed review. See id.

Moreover, we do not think application of the 

clear-and-convincing standard to as-applied constitutional claims is 

undermined by more recent decisions. In McBryde v. Committee to 

Review Circuit Council Conduct and Disability Orders of the 

Judicial Conference of the United States, 264 F.3d 52 (D.C. Cir. 

2001), we stated that “[w]e pretermit the possibility that the Supreme 

Court’s decision in Traynor v. Turnage, 485 U.S. 535, 542-44 

(1988), postdating the last of the circuit trilogy (Griffith), has

undermined” the reason for applying the clear-and-convincing 

standard to as-applied constitutional claims. McBryde, 264 F.3d at 

59. We noted that Traynor “may have done so by treating the 

Robison decision (source of the circuit trilogy) as deriving more 

from statutory language . . . and less from ideas of special status for 

constitutional claims.” Id. at 59-60. Although McBryde expressed 

some doubt as to the continued vitality of the clear-and-convincing 

standard, we nonetheless applied that standard in McBryde and we 

do not now read Traynor as requiring a different approach. In short, 

Griffith, Ungar and Ralpho remain good law and we are bound to 
16

recognized in Ungar, the Supreme Court and this Court have 

required “the clearest evocation of congressional intent to 

proscribe judicial review of constitutional claims” in light of 

the “constitutional dangers inherent in denying a forum in 

which to argue that government action has injured interests that 

are protected by the Constitution.” 667 F.2d at 193; see also 

Robison, 415 U.S. at 366-67. In applying the 

clear-and-convincing evidence standard, we examine both the 

text of the statute and the legislative history for evidence of 

congressional intent to bar judicial review of constitutional 

claims. See Robison, 415 U.S. at 367-71; Griffith, 842 F.2d at 

494; Ungar, 667 F.2d at 193; Ralpho, 569 F.2d at 617-22 & 

n.59.

Beginning with Ralpho, we determined that a broadly 

worded statutory bar did not preclude our consideration of a 

procedural due process claim. By the Micronesian Claims 

Act of 1971 (MCA), the Congress created the Micronesian 

Claims Commission (Commission) to administer a five million

dollar fund to Micronesians injured during World War II. 

Ralpho, 569 F.2d at 613. The MCA provided that the 

Commission’s settlement and disbursement actions “shall be 

final and conclusive for all purposes, notwithstanding any 

other provision of law to the contrary and not subject to 

review.” Id. (quoting 50 U.S.C. app. § 2020 (1972)). A 

claimant brought suit in district court alleging that “his right to 

a fair hearing” under the Due Process Clause “was abridged by 

the Commission’s reliance upon ‘secret’ extra-record 

evidence.” Id. at 611. Relying on the statutory bar, the 

district court dismissed the claim for lack of jurisdiction but we 

 

follow them. See United States v. Carson, 455 F.3d 336, 384 n.43 

(D.C. Cir. 2006) (“[W]e are, of course, bound to follow circuit 

precedent absent contrary authority from an en banc court or the 

Supreme Court.” (citing Brewster v. Comm’r, 607 F.2d 1369, 1373 

(D.C. Cir. 1979))).
17

reversed. We found no affirmative statement in the text of the 

statute or the legislative history addressing judicial review of 

constitutional claims and a fortiori no clear and convincing 

evidence that the Congress intended to bar judicial review of 

such claims. Id. at 621-22; see also Griffith, 842 F.2d at 494 

(“finding in the legislative history no affirmative statement 

addressed to preclusion of constitutional claims, we held there 

was no preclusion of such claims” in Ralpho (emphasis in 

Griffith)).

We reached a similar result in Ungar. There, individuals 

with interests in a Hungarian corporation filed claims with the 

then-functioning Office of Alien Property (OAP) for the return 

of property seized from them during World War II. See 

Ungar, 667 F.2d at 190. After the OAP denied their claims, 

they pressed a due process challenge to the claims process, 

alleging that the OAP had not given them sufficient time to 

prepare their case. Id. at 197. Although a statute rendered all 

OAP claims determinations “final” and “not . . . subject to 

review by any court,” id., we concluded that the statute did not 

bar our review of the constitutional claim. Specifically, we 

found that neither the text of the statute nor the legislative 

history––which history contained “no reference to the 

proscription of judicial review”––evinced a clear 

congressional intent to bar the due process claim. Id. at 

194-95. Notably, we were “not willing” to conclude from the 

Congress’s unexplained rejection of an “elaborate scheme for 

trial of just-compensation claims in the Court of Claims” set 

forth in an earlier bill that the Congress intended to bar judicial 

review of constitutional claims.11 Id. at 195 n.2. 

 

11 In Griffith, we declined a similar invitation to draw inferences 

from legislative history. See 842 F.2d at 494. There, we 

concluded that a conference committee’s “silent deletion” of a 

provision in the original Senate bill providing for judicial review of 

Federal Labor Relations Authority decisions involving a 
18

We took a somewhat different approach to legislative 

history in McBryde v. Committee to Review Circuit Council 

Conduct and Disability Orders of Judicial Conference of U.S., 

264 F.3d 52 (D.C. Cir. 2001). In McBryde, a Texas federal 

district judge raised a procedural due process challenge to a 

decision of the Judicial Council of the Fifth Circuit––affirmed 

by the Committee to Review Circuit Council Conduct and 

Disability Orders of the Judicial Conference of the United 

States (Review Committee)––sanctioning him for judicial 

misconduct. Id. at 54-55. In sanctioning McBryde, both the 

Judicial Council and the Review Committee acted under the 

authority of the Judicial Conduct and Disability Act of 1980,

which contained a review provision mandating that “all orders 

and determinations” made by a committee of the Judicial 

Conference “shall be final and conclusive and shall not be 

judicially reviewable on appeal or otherwise.” Id. at 58 

(quoting 28 U.S.C. § 372(c)(10) (2001)). In interpreting the 

preclusive effect of the review provision, we found the 

legislative history dispositive. Specifically, we determined 

that, by rejecting a Senate proposal to create a new Article III 

court to review judicial disciplinary proceedings, the Congress 

clearly expressed its intent to bar review of McBryde’s due 

process claim by a conventional Article III court. Id. at 62-63. 

Our conclusion hinged on the fact that a disciplined judge 

could obtain review of an as-applied constitutional claim by 

the Judicial Conference committee, which, like an Article III 

Court, was comprised of Article III judges. Id. at 63. To 

read the statute to also allow review of an as-applied 

constitutional claim by an Article III court, we concluded, 

“would generate substantial redundancy, an implausible 

legislative purpose.” Id. at 62.

 

constitutional question was “not enough . . . to support an inference 

of intent to preclude constitutional claims.” Id.
19

Notwithstanding the high hurdle this precedent has 

erected, the Appellees argue that section 2170(e) bars our 

review of Ralls’s due process claim. According to the 

Appellees, the text of the provision––which precludes judicial 

review of “actions of the President under paragraph (1) of 

subsection (d),” 50 U.S.C. app. § 2170(e)––bars judicial 

review of all actions taken by the President under the statute, 

including “the President’s choice not to provide Ralls with 

more notice than it had already received, his decision not to 

confide in Ralls his national security concerns, and his 

judgment about the appropriate level of detail with which to 

publicly articulate his reasoning.” Br. for the Appellees 27, 

Ralls Corp. v. Comm. on Foreign Inv. in the U.S., No. 13-5315 

(D.C. Cir. Mar. 14, 2014). 

Relying on McBryde, the Appellees also submit that we 

may infer from current and former congressional oversight 

provisions in the statute––and the portions of legislative 

history pertaining to them––that the Congress intended any 

review of the President’s actions under the DPA to occur in the 

halls of the Congress, not in the courtrooms of the judiciary. 

They first point to legislative history relating to a 

now-superseded provision of the DPA requiring the President 

to “immediately transmit” to the Congress “a written report of 

the President’s determination of whether or not to take action 

under subsection (d).” 50 U.S.C. app. § 2170(g) (1993). The 

legislative history indicates that this provision was intended to 

help the “Congress and the public develop an understanding of 

the policies underlying Presidential determinations, and hold 

the President accountable for actions under the Exon-Florio 

Amendment.” H.R. CONF. REP. 102-966, at 731-32 (1992). 

They also cite former section 2170(k), which required the 

President, “[i]n order to assist the Congress in its oversight 

responsibilities,” to furnish to the Congress a quadrennial 

report regarding foreign countries’ efforts to acquire U.S. 
20

companies involved in “critical technologies” or to “obtain[] 

commercial secrets related to critical technologies” therefrom. 

50 U.S.C. app. § 2170(k) (1993). Under the current DPA, the 

President’s suspension or prohibition of a covered transaction, 

as well as the President’s critical technology assessment, are 

memorialized in a single annual report that is submitted to the 

Congress. See 50 U.S.C. app. § 2170(m). Finally, the 

Appellees direct our attention to the Foreign Investment and 

National Security Act of 2007 (FINSA), Pub. L. No. 110-49, 

121 Stat. 246, which amended portions of section 721 of the 

DPA. According to a Senate report, the purpose of FINSA is 

“to strengthen Government review and oversight of foreign 

investment in the United States” and “to provide for enhanced 

Congressional oversight with respect thereto.” S. REP. No. 

109-264, at 1 (2006). FINSA purported to accomplish this 

objective by increasing oversight of CFIUS.12

 

We conclude that neither the text of the statutory bar nor 

the legislative history of the statute provides clear and 

convincing evidence that the Congress intended to preclude 

judicial review of Ralls’s procedural due process challenge to 

the Presidential Order. First, the text does not preclude 

judicial review of Ralls’s as-applied constitutional claim by 

barring review of all “actions of the President under paragraph 

(1) of subsection (d).” 50 U.S.C. app. § 2170(e). We think 

 

12 Among other changes, FINSA requires CFIUS to submit 

more detailed notices and reports to the Congress upon completion 

of individual reviews and investigations, see 50 U.S.C. app. 

§ 2170(b)(3), (m), and provide prompt notice of the results of its 

review or investigation to the parties to a covered transaction, see id. 

§ 2170(b)(6). FINSA also requires any agency acting on behalf of 

CFIUS to make detailed reports to CFIUS regarding “any agreement 

entered into or condition imposed” by the agency. See id.

§ 2170(l)(3)(B)(i).
21

the most natural reading, given its reference to subsection 

(d)(1), is that courts are barred from reviewing final “action[s]” 

the President takes “to suspend or prohibit any covered 

transaction that threatens to impair the national security of the 

United States.” Id. § 2170(d)(1) (emphasis added). The text 

does not, however, refer to the reviewability of a constitutional 

claim challenging the process preceding such presidential 

action. 13 This conclusion is consistent with Ralpho and 

Ungar, where we determined that similarly broad statutory 

language did not bar our review of constitutional claims 

challenging the process by which unreviewable determinations 

were reached. See Ungar, 667 F.2d at 193-96; Ralpho, 569 

F.2d at 620-22.

The Appellees’ reliance on legislative history and 

congressional oversight provisions is equally unavailing. To 

begin with, there is no legislative history expressly addressing 

judicial review of constitutional claims arising from the 

President’s implementation of section 721. Under Ungar and 

Ralpho, this gap may well be dispositive. See Ungar, 667 

F.2d at 195-96 (no clear and convincing evidence because “no 

reference to the proscription of judicial review” in legislative

history of statute or its “relatives”); Ralpho, 569 F.2d at 621-22 

(noting legislative history’s “marked silence” on preclusion of 

judicial review for constitutional claims); see also Griffith, 842 

F.2d at 494 (explaining that, in Ralpho, we concluded the

statute did not preclude constitutional claims because there was 

“no affirmative statement addressed to preclusion” in the 

legislative history). Although in McBryde we found clear and 

 

13 The legislative history of FINSA supports our reading. 

Specifically, Senate Report No. 109-264 notes that the bar-to-review 

provision precludes judicial review of “Presidential decisions 

resulting from exercise of the authorities” granted therein. S. REP.

NO. 109-264, at 11. This statement supports the reading that the 

provision applies to the President’s final decisions.
22

convincing evidence that the Congress intended to preclude 

review of constitutional claims without express legislative 

history to that effect, McBryde is sui generis. In McBryde, we 

were certain that the Congress intended to preclude our review 

of McBryde’s as-applied constitutional claim because the 

procedure it established provided for review of such claims by 

Article III judges, making additional review by an Article III 

court superfluous. See 264 F.3d at 62-63. This is quite 

different from Ralpho and Ungar (and here), where any review 

by Article III judges is entirely contingent on the scope of the 

judicial review bar. See Ungar, 667 F.2d at 193; Ralpho, 569 

F.2d at 616-17.

Even if the absence of express legislative history were not 

conclusive, the nature of congressional oversight currently 

provided for in the DPA does not demonstrate that the 

Congress intended to withhold a judicial forum for a due 

process claim challenging the procedure followed by the 

President. Congressional oversight of the President under the 

current version of the statute consists of an annual, ex post 

review of “decisions or actions by the President” taken under 

section 721 and the President’s assessment of foreign efforts to 

acquire critical technologies. 50 U.S.C. app. § 2170(m)(2),

(3). We hardly think that, by reserving to itself such limited 

review of presidential actions and critical technology 

assessments, the Congress intended to abrogate the courts’ 

traditional role of policing governmental procedure for 

constitutional infirmity and perform that function itself. See, 

e.g., Landon v. Plasencia, 459 U.S. 21, 34-35 (1982) (even 

where matters are “largely within the control of the executive 

and the legislature,” judiciary retains role in determining 

whether procedures employed by other branches “meet the 

essential standard of fairness under the Due Process Clause”). 

Indeed, the inferences to be drawn from the oversight 

provisions are unquestionably weaker than the inferences to be 
23

drawn from the Congress’s rejection of (1) a judicial review 

scheme for trial of just compensation claims, see Ungar, 667 

F.2d at 195 & n.2, or (2) a provision expressly providing for 

judicial review of FLRA decisions involving constitutional 

claims, see Griffith, 842 F.2d at 495. Yet in neither 

circumstance did we find clear and convincing evidence that 

the Congress intended to preclude judicial review of 

constitutional claims. See Griffith, 842 F.2d at 495; Ungar,

667 F.2d at 195 & n.2.

B. JUSTICIABILITY

The Appellees also argue that Ralls’s due process 

challenge to the Presidential Order raises a non-justiciable 

political question. See Br. for the Appellees 31 (due process 

challenge to Presidential Order “calls for non-judicial 

discretion, is constitutionally committed to the Executive 

Branch, and offers no judicially discoverable or manageable 

standards”). “The political question doctrine is essentially a 

function of the separation of powers and excludes from judicial 

review those controversies which revolve around policy 

choices and value determinations constitutionally committed 

for resolution to the halls of Congress or the confines of the 

Executive Branch.” El-Shifa Pharm. Indus. Co. v. United 

States, 607 F.3d 836, 840 (D.C. Cir. 2010) (en banc) (quotation 

marks and citation omitted); see also Schneider v. Kissinger, 

412 F.3d 190, 193 (D.C. Cir. 2005) (“[T]he courts lack 

jurisdiction over political decisions that are by their nature 

committed to the political branches to the exclusion of the 

judiciary . . . .” (quotation marks omitted)).

The framework to determine if a complaint presents a 

non-justiciable political question is set forth in Baker v. Carr, 

369 U.S. 186 (1962). Under Baker, the political question 

doctrine bars a court from considering a claim when
24

[p]rominent on the surface of [the] case . . . is found a [1] 

textually demonstrable constitutional commitment of the 

issue to a coordinate political department; or [2] a lack of 

judicially discoverable and manageable standards for 

resolving it; or [3] the impossibility of deciding without an 

initial policy determination of a kind clearly for 

nonjudicial discretion; or [4] the impossibility of a court’s 

undertaking independent resolution without expressing 

lack of the respect due coordinate branches of 

government; or [5] an unusual need for unquestioning 

adherence to a political decision already made; or [6] the 

potentiality of embarrassment from multifarious 

pronouncements by various departments on one question.

Id. at 217; see also Wilson v. Libby, 535 F.3d 697, 704 (D.C. 

Cir. 2008). Because “[t]he Baker analysis lists the six factors 

in the disjunctive, not the conjunctive,” the Court “need only 

conclude that one factor is present, not all,” to apply the 

political question doctrine. Schneider, 412 F.3d at 194. 

Although “[m]atters intimately related to foreign policy 

and national security are rarely proper subjects for judicial 

intervention,” Haig v. Agee, 453 U.S. 280, 292 (1981), “it is 

error to suppose that every case or controversy which touches 

foreign relations lies beyond judicial cognizance,” Baker, 369 

U.S. at 211; see also Japan Whaling Ass’n v. Am. Cetacean 

Soc’y, 478 U.S. 221, 230 (1986) (court may not decline to 

adjudicate dispute “merely because [a] decision may have 

significant political overtones”); accord Zivotofsky ex rel. 

Zivotofsky v. Clinton, 132 S. Ct. 1421, 1427-30 (2012). 

Indeed, “the judiciary is the ultimate interpreter of the 

Constitution [and,] in most instances[,] claims alleging its 

violation will rightly be heard by the courts.” El-Shifa, 607 

F.3d at 841-42 (quotation marks and citation omitted); see also 

id. at 841 (“Even in the context of military action, the courts 
25

may sometimes have a role.”). Thus, we do not automatically 

decline to adjudicate legal questions if they may implicate 

foreign policy or national security. Instead, we “must conduct 

‘a discriminating analysis of the particular question posed’ in 

the ‘specific case’ before the court to determine whether the 

political question doctrine prevents a claim from going 

forward.” Id. at 841 (quoting Baker, 369 U.S. at 211).

Our decisions reviewing Foreign Terrorist Organization 

(FTO) designations made by the Secretary of State illustrate, 

against a national security backdrop, the distinction between a 

justiciable legal challenge and a non-justiciable political 

question. Pursuant to 8 U.S.C. § 1189(a)(1),14 the Secretary 

of State may designate a foreign entity as a FTO if he finds 

three things: (1) the organization is foreign, (2) the 

organization engages in “terrorist activity” as that term is 

defined in AEDPA and (3) the terrorist activity of the 

organization threatens national security or U.S. nationals. 

Notwithstanding the foreign policy and national security 

interests implicated by a FTO designation, we concluded in 

People’s Mojahedin Organization of Iran v. Department of 

State (PMOI I), 182 F.3d 17 (D.C. Cir. 1999), that the 

Secretary’s compliance with the first two statutory criteria––

that is, whether the entity is (1) foreign and (2) engages in 

terrorist activity––is judicially reviewable. Id. at 23-25. 

What remains outside our review, we held, is the Secretary’s 

finding that the organization threatens national security. Id. at 

23. We concluded that we were “not competent to pass upon” 

this finding because it presented a political question involving 

 

14 This provision is included in the Antiterrorism and Effective 

Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 

1214, as amended by the Illegal Immigration Reform and Immigrant 

Responsibility Act of 1996, Pub. L. No. 104-208, Div. C., 110 Stat. 

3009, 3009-546.
26

“foreign policy decisions of the Executive Branch . . . for 

which the Judiciary has neither aptitude, facilities nor 

responsibility” to make. Id. (quotation marks omitted).

But the Appellees contend that Ralls’s procedural due 

process claim differs from the determinations we reviewed in 

PMOI I.

15

 Specifically, they claim that “Ralls asks this Court 

to decide whether and how the President must engage a 

would-be foreign investor in deliberations on the question of 

the national security risk a transaction poses, when and if the 

President must reveal his thinking, and in what level of detail.” 

Br. for the Appellees 31. “[S]uch a determination,” they 

argue, “calls for non-judicial discretion, is constitutionally 

committed to the Executive Branch, and offers no judicially 

discoverable or manageable standards.” Id.

We disagree. First, Ralls’s due process claim does not

challenge (1) the President’s determination that its acquisition 

of the Project Companies threatens the national security or (2) 

the President’s prohibition of the transaction in order to 

mitigate the national security threat. Much like the political 

question we declined to consider in PMOI I, reviewing these

determinations would require us to exercise judgment in the 

realm of foreign policy and national security. But Ralls does 

not request that we exercise such judgment. Instead, Ralls 

 

15 In addition to PMOI I, 182 F.3d 17, we also resolved due 

process challenges to FTO designations in National Council of 

Resistance of Iran v. Department of State (NCRI), 251 F.3d 192 

(D.C. Cir. 2001), and People’s Mojahedin Organization of Iran v. 

Department of State (PMOI II), 613 F.3d 220 (D.C. Cir. 2010) (per 

curiam). We do not rely on NCRI or PMOI II in the justiciability 

context, however, because neither addressed the political question 

doctrine. See, e.g., Defenders of Wildlife v. Perciasepe, 714 F.3d 

1317, 1325 (D.C. Cir. 2013) (sub silentio jurisdictional holding has 

no precedential effect).
27

asks us to decide whether the Due Process Clause entitles it to 

have notice of, and access to, the evidence on which the 

President relied and an opportunity to rebut that evidence 

before he reaches his non-justiciable (and statutorily 

unreviewable) determinations. See infra note 19. We think 

it clear, then, that Ralls’s due process claim does not encroach 

on the prerogative of the political branches, does not require 

the exercise of non-judicial discretion and is susceptible to 

judicially manageable standards. To the contrary, and as the 

Supreme Court recognized long ago, interpreting the 

provisions of the Constitution is the role the Framers entrusted 

to the judiciary. See Zivotfsky, 132 S. Ct. at 1427-28 (“It is 

emphatically the province and duty of the judicial department 

to say what the law is.” (quoting Marbury v. Madison, 5 U.S. (1 

Cranch) 137, 177 (1803))).16

C. THE MERITS

“We review the grant of a motion to dismiss de novo,” Cal. 

Valley Miwok Tribe v. United States, 515 F.3d 1262, 1266 

(D.C. Cir. 2008), “treat[ing] the complaint’s factual allegations 

as true and . . . grant[ing] plaintiff the benefit of all inferences 

that can be derived from the facts alleged,” Sparrow v. United 

Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000) 

(quotation marks and citation omitted). We do not accept as 

true, however, the plaintiff’s legal conclusions or inferences 

that are unsupported by the facts alleged. See Browning v. 

Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). “So long as the 

pleadings suggest a ‘plausible’ scenario to ‘show that the 

pleader is entitled to relief,’ a court may not dismiss.” 

Atherton v. D.C. Office of Mayor, 567 F.3d 672, 681 (D.C. Cir. 

 

16 For the foregoing reasons, we also conclude that justiciability 

does not present an obstacle to our consideration of the CFIUS Order 

claims.
28

2009) (quoting Bell Atl. v. Twombly, 550 U.S. 544, 557 (2007)) 

(brackets and quotation marks omitted). 

The gravamen of Ralls’s challenge to the Presidential 

Order is that the President deprived it of its constitutionally 

protected property interests in the Project Companies and their 

assets without due process of law. The Due Process Clause of 

the Fifth Amendment provides that “[n]o person shall be . . . 

deprived of life, liberty, or property, without due process of 

law.” U.S. CONST. amend. V. “The first inquiry in every due 

process challenge is whether the plaintiff has been deprived of 

a protected interest in ‘property’ or ‘liberty.’ ” Am. Mfrs. Mut. 

Ins. Co. v. Sullivan, 526 U.S. 40, 59 (1999). If the plaintiff

has been deprived of a protected interest, we then consider 

whether the procedures used by the Government in effecting 

the deprivation “comport with due process.” Id.

1. Constitutionally Protected Property Interest

“Because the Constitution protects rather than creates 

property interests, the existence of a property interest is 

determined by reference to ‘existing rules or understandings 

that stem from an independent source such as state law.’ ” 

Phillips v. Wash. Legal Found., 524 U.S. 156, 164 (1998) 

(quoting Bd. of Regents of State Colleges v. Roth, 408 U.S. 

564, 577 (1972)); see also Cleveland Bd. of Educ. v. 

Loudermill, 470 U.S. 532, 538 (1985). In other words, 

property interests “attain . . . constitutional status by virtue of 

the fact that they have been initially recognized and protected 

by state law.” Paul v. Davis, 424 U.S. 693, 710 (1976).

The district court found, and the Appellees do not dispute, 

that Ralls possessed state law property interests when it 

acquired 100% ownership of the Project Companies and their 

assets, including local easements permitting the construction of 

wind turbines, power purchase and generator interconnection 
29

agreements with the local utility, transmission interconnection 

and management agreements with nearby windfarms and the 

necessary permits and approvals to construct wind turbines. 

See Ralls Corp., 2013 WL 5565499, at *6 (“There is no dispute 

that plaintiff Ralls entered into a transaction in March 2012 

through which it obtained certain property rights under state 

law.”); Br. for the Appellees 37 (“It may be assumed that Ralls 

acquired some state property rights through its transaction . . . 

.”). We agree with the district court on this score––there can 

be no doubt that Ralls’s interests in the Project Companies and 

their assets constitute “property” under Oregon law. See, e.g., 

Or. Rev. Stat. Ann. § 63.239 (“A membership interest [in an 

Oregon LLC] is personal property.”); McQuaid v. Portland & 

V. Ry. Co., 22 P. 899, 906 (Or. 1889) (holder of easement has 

property interest); Bunnell v. Bernau, 865 P.2d 473, 473-74 

(Or. Ct. App. 1993) (same); see also Lynch v. United States, 

292 U.S. 571, 579 (1934) (“Valid contracts are property [under 

the Fifth Amendment], whether the obligor be a private 

individual, a municipality, a state, or the United States.”).

In the usual case, the fact that the property interest is 

recognized under state law is enough to trigger the protections 

of the Due Process Clause. See, e.g., Phillips, 524 U.S. at 

163-64; Loudermill, 470 U.S. at 538; Paul, 424 U.S. at 710. 

Yet here, the district court concluded that Ralls’s state law 

property interests were not constitutionally protected because 

Ralls (1) acquired its property interests “subject to the known 

risk of a Presidential veto” and (2) “waived the opportunity . . . 

to obtain a determination from CFIUS and the President before 

it entered into the transaction.” Ralls Corp., 2013 WL 

5565499, at *7. The Appellees take up this mantle on appeal, 

arguing that Ralls’s property interests are too contingent to 

merit constitutional protection and that Ralls effectively 

forfeited those interests by not seeking pre-approval of the 

transaction.
30

We reject the rationale used by the district court and 

advocated by the Appellees. First, we disagree with the 

notion that Ralls’s state-law property interests are too 

contingent for constitutional protection. Ralls’s state-law 

property rights fully vested upon the completion of the 

transaction, meaning due process protections necessarily 

attached. There is nothing “contingent” about the interests 

Ralls obtained under state law, and the Appellees offer no legal 

support––other than the district court order––for the 

proposition that the nature of a property interest recognized 

under state law is affected by potential federal deprivation. 

As Ralls aptly notes, the Federal Government cannot evade the 

due process protections afforded to state property by simply 

“announcing that future deprivations of property may be 

forthcoming.” Br. for Appellant 21, Ralls Corp. v. Comm. on 

Foreign Inv. in the U.S., No. 13-5315 (D.C. Cir. Feb. 7, 2014). 

This case is quite different from Dames & Moore v. 

Regan, 453 U.S. 654 (1981), relied upon by the Appellees. 

There, the Court concluded that petitioner Dames & Moore’s 

attachment of Iranian property was too contingent to “support a 

constitutional claim for compensation” under the Takings 

Clause of the Fifth Amendment, id. at 674 n.6, because, 

according to regulations promulgated by the Treasury 

Department’s Office of Foreign Assets Control, attachments of 

Iranian property were “null and void” unless licensed and all 

licenses could be “ ‘amended, modified, or revoked at any 

time’ ” by the President, id. at 672-73 (quoting 31 C.F.R. 

§ 535.805 (1980)). Thus, Dames & Moore obtained its right 

to attach only after it was licensed by the Government, which 

license was itself revocable at any time and, presumably, for 

any reason. We think there is a significant difference between 

Ralls’s fully-vested state property interests and an interest like 

the Dames & Moore attachment, which interest is contingent at 
31

best.17 There is no contingency built into the state law from 

which Ralls’s property interests derive and to which interests 

due process protections traditionally apply. See, e.g., Phillips, 

524 U.S. at 163-64; Loudermill, 470 U.S. at 538; Paul, 424 

U.S. at 710.

Nor do we think Ralls has waived its property interest by 

failing to seek pre-approval of the transaction. The district 

court found wavier based on two out-of-circuit cases: Alvin v. 

Suzuki, 227 F.3d 107 (3d Cir. 2000), and Parker v. Board of 

Regents of the Tulsa Junior College, 981 F.2d 1159 (10th Cir. 

1992). In those cases, our two sister circuits declared that 

there can be no claim of a due process violation if a plaintiff 

voluntary foregoes the due process procedures provided him. 

See Alvin, 227 F.3d at 116 (“[A] procedural due process 

violation cannot have occurred when the governmental actor 

provides apparently adequate procedural remedies and the 

plaintiff has not availed himself of those remedies.”); Parker, 

981 F.2d at 1163 (“There is no violation of due process, 

because plaintiff chose to end her employment without a 

hearing and not to avail herself of the available due process 

procedures.”). But those cases hold that a party who has 

foregone due process procedures may not then complain that 

he was accorded inadequate process, not that he loses his 

property interest by foregoing the procedures. See Alvin, 227 

F.3d at 116; Parker, 981 F.2d at 1163; see also Loudermill, 470 

U.S. at 541 (“ ‘Property’ cannot be defined by the procedures 

provided for its deprivation.”). Thus, to the extent the cases 

are relevant, their relevance is only at the second step of the 

 

17 Moreover, the Court in Dames & Moore went out of its way 

to stress that its holding has limited, if any, application beyond its 

particular facts. See Dames & Moore, 453 U.S. at 661 (“We 

attempt to lay down no general ‘guidelines’ covering other situations 

not involved here, and attempt to confine the opinion only to the very 

questions necessary to decision of the case.”).
32

due process inquiry; namely, what process is due?18 In any 

event, we do not think the failure to seek pre-approval works a 

waiver when the regulatory scheme expressly contemplates 

that a party to a covered transaction may request approval––if 

the party decides to submit a voluntary notice at all––either 

before or after the transaction is completed. See 31 C.F.R. 

§§ 800.401(a), 800.402(c)(1)(vii), 800.224.

2. What Process is Due?

“[U]nlike some legal rules,” due process “is not a 

technical conception with a fixed content unrelated to time, 

place and circumstances.” Nat’l Council of Resistance of Iran 

v. Dep’t of State (NCRI), 251 F.3d 192, 205 (D.C. Cir. 2001)

(quoting Gilbert v. Homar, 520 U.S. 924, 930 (1997)) 

(quotation marks omitted). To the contrary, “due process is 

flexible and calls for such procedural protections as the 

particular situation demands.” Id. (quoting Morrissey v. 

Brewer, 408 U.S. 471, 481 (1972)). In the seminal case of 

Mathews v. Eldridge, the United States Supreme Court 

established a three-factor balancing test to determine the 

“specific dictates of due process”:

 

18 But even at the second step of the due process inquiry, the 

cases do not support the Appellees’ position. We read them to say 

that a party “waives” a due process claim only if he foregoes 

constitutionally adequate procedures. See Alvin, 227 F.3d at 116 

(“[P]laintiff must have taken advantage of the processes that are 

available to him or her, unless those processes are unavailable or 

patently inadequate.” (emphasis added)); Parker, 981 F.2d at 1163 

(“There is no violation of due process, because plaintiff chose to end 

her employment without a hearing and not to avail herself of the 

available due process procedures.” (emphasis added)). There is no 

indication that the process Ralls received after the transaction was 

completed is different from the process it would have received had it 

sought pre-approval––and, as discussed infra, that process was 

inadequate.
33

First, the private interest that will be affected by the 

official action; second, the risk of an erroneous 

deprivation of such interest through the procedures used, 

and the probable value, if any, of additional or substitute 

procedural safeguards; and finally, the Government’s

interest, including the function involved and the fiscal and 

administrative burdens that the additional or substitute 

procedural requirement would entail.

424 U.S. 319, 335 (1976). Due process ordinarily requires 

that procedures provide notice of the proposed official action 

and “the opportunity to be heard at a meaningful time and in a 

meaningful manner.” Id. at 333 (quotation marks omitted); 

see also NCRI, 251 F.3d at 205 (“[T]hose procedures which 

have been held to satisfy the Due Process Clause have included 

notice of the action sought, along with the opportunity to 

effectively be heard.” (quotation marks omitted)). Both the 

Supreme Court and this Court have recognized that the right to 

know the factual basis for the action and the opportunity to 

rebut the evidence supporting that action are essential 

components of due process. See, e.g., Greene v. McElroy, 360 

U.S. 474, 496 (1959) (citing “immutable” principle in case 

involving revocation of security clearance that “the evidence 

used to prove the Government’s case must be disclosed to the 

individual so that he has an opportunity to show that it is 

untrue”); Gray Panthers v. Schweiker, 652 F.2d 146, 165 (D.C. 

Cir. 1980) (claimants with Medicare reimbursement claims 

under $100 dollars entitled to “core requirements of due 

process”––“adequate notice of why the benefit is being denied 

and a genuine opportunity to explain why it should not be”).

We believe our precedent involving the Secretary of 

State’s proposed FTO designations makes clear that the due 

process right to notice of the FTO designation as well as the 

unclassified support therefor and the opportunity to rebut the 
34

unclassified supporting evidence holds true for the procedural 

scheme set forth in the DPA. See, e.g., People’s Mojahedin 

Org. of Iran v. Dep’t of State (PMOI II), 613 F.3d 220 (2010) 

(D.C. Cir. 2010) (per curiam); Chai v. Dep’t of State, 466 F.3d 

125 (D.C. Cir. 2006); NCRI, 251 F.3d 192. Just as a 

mitigation order issued under the DPA may affect property 

interests of a party to a covered transaction, a FTO designation 

may also affect property interests: an entity so designated is 

prohibited from accessing its U.S. bank accounts. 18 U.S.C. 

§ 2339B(a)(1), (2). Notwithstanding the property interests 

potentially at stake, the statutory process by which the 

Secretary of State makes the FTO designation accords the FTO 

designee no procedural protections. See NCRI, 251 F.3d at 

196 (“The unique feature of th[e] statutory procedure is the 

dearth of procedural participation and protection afforded the 

designated entity.”); see also id. (“At no point in the 

proceedings establishing the administrative record is the 

alleged [FTO] afforded notice of the materials used against it, 

or a right to comment on such materials or the developing 

administrative record.”). 

Reviewing a due process challenge to the FTO designation 

process, we concluded in NCRI that NCRI could not be 

designated a FTO and thereby deprived of its interest in a 

“small bank account” without first receiving notice of the 

proposed designation, access to the unclassified evidence 

supporting the designation and an opportunity to rebut that 

evidence. 251 F.3d at 201, 208-09. These procedural 

protections are required by the Due Process Clause, we held, 

notwithstanding the Government’s “compelling” interest in 

national security, id. at 207, and despite our uncertainty that 

NCRI could effectively rebut the Secretary’s evidence, id. at 

209 (“We have no reason to presume that the petitioners . . . 

could have offered evidence which might have . . . changed the 

Secretary’s mind . . . . However, without the due process 
35

protections which we have outlined, we cannot presume the 

contrary either.”); see also PMOI II, 613 F.3d at 228

(following NCRI and rejecting State’s argument that “nothing 

the [FTO] would have offered . . . could have changed [the 

Secretary’s] mind”). At the same time, we made clear––and 

we iterate today––that due process does not require disclosure 

of classified information supporting official action. See 

NCRI, 251 F.3d at 209-10 (classified information “is within the 

privilege and prerogative of the executive, and we do not 

intend to compel a breach in the security which that branch is 

charged to protect”). We have consistently followed NCRI in 

subsequent FTO cases. See, e.g., PMOI II, 613 F.3d at 227;

Chai, supra.

Notwithstanding this precedent, the district court 

concluded that Ralls received adequate process because it was 

notified that the transaction was subject to review and was 

given an opportunity to present evidence in its favor in both its 

voluntary notice filing and during follow-up conversations 

with––and a presentation to––CFIUS officials. In light of the 

Appellees’ substantial interest in protecting national security, 

the court determined that no additional process was required. 

Notably, the district court found NCRI and its progeny 

inapplicable. NCRI was inapplicable, the court said, in that it 

mandated disclosure of unclassified information only because 

the information was eventually going to be publicly available. 

See Ralls Corp., 2013 WL 5565499, at *14 (quoting NCRI, 251 

F.3d at 209 (“[T]he Secretary has shown no reason not to offer 

the designated entities notice of the administrative record 

which will in any event be filed publicly . . . .”)). The court 

also suggested that NCRI and our other FTO decisions should 

not govern given the unique statutory scheme involved in those 

cases. According to the court, “AEDPA has a judicial review 

provision, and it requires the creation of an administrative 

record for the purpose of that review, and those circumstances 
36

clearly underlie the rulings of the Court of Appeals.” Id. at 

*13.

The Appellees make a similar argument in their brief, 

arguing that Ralls’s ability to submit written arguments, meet 

with CFIUS officials in person, answer follow-up questions 

and receive advance notice of the Appellees’ intended action 

constitutes sufficient process in light of the national security 

interests at stake. The Appellees similarly urge the 

inapplicability of the FTO cases, arguing that they do “not 

meaningfully resemble” this case because “the decision 

whether to prohibit Ralls’ transaction was committed to the 

President’s discretion.” Br. for the Appellees 42. Finally, 

the Appellees assert that Ralls cannot “utilize this Court to 

force disclosure of the President’s thinking on sensitive 

questions in discretionary areas and obtain otherwise forbidden 

judicial review.” Id. at 41. And, even if such process is 

required, the Appellees requested––for the first time during 

oral argument––that we remand so that the district court can 

consider whether disclosure of certain unclassified information 

is nonetheless shielded by executive privilege.

We conclude that the Presidential Order deprived Ralls of 

its constitutionally protected property interests without due 

process of law. As the preceding discussion makes plain, due 

process requires, at the least, that an affected party be informed 

of the official action, be given access to the unclassified 

evidence on which the official actor relied and be afforded an 

opportunity to rebut that evidence. See, e.g., McElroy, 360 

U.S. at 496; NCRI, 251 F.3d at 208-09; Schweiker, 652 F.2d at

165. Although the Presidential Order deprived Ralls of 

significant property interests––interests, according to the 

district court record, valued at $6 million––Ralls was not given 

any of these procedural protections at any point. Under our 

FTO precedent, this lack of process constitutes a clear 
37

constitutional violation, notwithstanding the Appellees’ 

substantial interest in national security and despite our 

uncertainty that more process would have led to a different 

presidential decision. See, e.g., PMOI II, 613 F.3d at 228; 

NCRI, 251 F.3d at 208-09. As the FTO cases make plain, a 

substantial interest in national security supports withholding 

only the classified information but does not excuse the failure 

to provide notice of, and access to, the unclassified information 

used to prohibit the transaction.19 See NCRI, 251 F.3d at

208-09. That Ralls had the opportunity to present evidence to 

CFIUS and to interact with it, then, is plainly not enough to 

satisfy due process because Ralls never had the opportunity to 

tailor its submission to the Appellees’ concerns or rebut the 

factual premises underlying the President’s action. See 

Greene, 360 U.S. at 496; NCRI, 251 F.3d at 205; Schweiker, 

716 F.2d at 32.

The Appellees’ arguments for distinguishing the FTO 

cases are unconvincing. First, and contrary to the district 

court, we read NCRI and its progeny to hold that disclosure of 

unclassified evidence is required by the Due Process Clause 

and not simply because the unclassified information is going to 

be disclosed in any event. Our decisions applying NCRI make 

this clear. See, e.g., PMOI II, 613 F.3d at 227 (“[D]ue process 

requires that the PMOI be notified of the unclassified material 

on which the Secretary proposes to rely and an opportunity to 

respond to that material before its redesignation [as an FTO].” 

(emphases added)). Nor does the uniqueness of the FTO 

 

19 Because the record did not reflect whether the evidence relied 

on was classified, unclassified or both, we issued an order before oral 

argument requesting that the Government be prepared to discuss the 

nature of the evidence reviewed by CFIUS and the President. 

Responding to our inquiry at oral argument, the Appellees’ counsel 

stated that CFIUS and the President relied on both classified and 

unclassified evidence.
38

context distinguish those decisions. As we noted in NCRI, 

what was “unique” about AEDPA was the “dearth of 

procedural participation and protection afforded the designated 

entity.” 251 F.3d at 196. Given the similar lack of 

procedural protection afforded by the Congress in the DPA, we 

find the FTO precedent precisely on point.

The Appellees’ argument that we should refrain from 

requiring disclosure of the President’s thinking on sensitive 

questions is off-base. 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, see 50 U.S.C. app. 

§ 2170(b)(1)(A) (review conducted by “President, acting 

through [CFIUS]”), and the procedure makes clear that the 

President acts only after reviewing the record compiled by 

CFIUS and CFIUS’s recommendation, see 31 C.F.R. 

§ 800.506(b), (c). Adequate process at the CFIUS stage, we 

believe, would also satisfy the President’s due process 

obligation. As for the Appellees’ belated assertion of 

executive privilege, this argument was not raised in the 

Appellees’ brief and we leave it to the district court on remand 

to consider whether the executive privilege shields the ordered 

disclosure. 

In sum, we conclude that Ralls possesses substantial 

property interests and that the Presidential Order deprives Ralls 

of its interests without due process of law.
39

III. CFIUS ORDER CLAIMS

We next consider the district court’s dismissal of Ralls’s 

CFIUS Order claims as moot inasmuch as the CFIUS Order 

was expressly revoked by the Presidential Order. 

Under Article III of the Constitution, a federal court “may 

only adjudicate actual, ongoing controversies.” Honig v. Doe, 

484 U.S. 305, 317 (1988). “This limitation gives rise to the 

doctrine[] of . . . mootness,” Foretich v. United States, 351 

F.3d 1198, 1210 (D.C. Cir. 2003), which precludes judicial 

review where “events have so transpired that [a judicial] 

decision will neither presently affect the parties’ rights nor 

have a more-than-speculative chance of affecting them in the 

future,” Clarke v. United States, 915 F.2d 699, 701 (D.C. Cir. 

1990) (en banc) (quotation marks omitted). “It is a basic 

constitutional requirement that a dispute before a federal court 

be ‘an actual controversy extant at all stages of review, and not 

merely at the time the complaint is filed.’ ” Newdow v. 

Roberts, 603 F.3d 1002, 1008 (D.C. Cir. 2010) (quoting Steffel 

v. Thompson, 415 U.S. 452, 459 n.10 (1974)) (brackets and 

ellipsis omitted). 

Both parties appear to acknowledge that Ralls’s CFIUS 

Order claims were mooted when the Presidential Order 

revoked the CFIUS Order and deprived it of any effect. Ralls 

contends, however, that we may nonetheless consider the 

claims under the “capable of repetition yet evading review” 

exception to mootness. To satisfy the exception, a party must 

demonstrate that “(1) the challenged action is in its duration too 

short to be fully litigated prior to its cessation or expiration, 

and (2) there [is] a reasonable expectation that the same 

complaining party [will] be subjected to the same action 

again.” Clarke, 915 F.2d at 704 (second alteration added). 

“When these two circumstances are simultaneously present,

the plaintiff has demonstrated an exceptional circumstance in 
40

which the exception will apply.” Del Monte Fresh Produce 

Co. v. United States, 570 F.3d 316, 322 (D.C. Cir. 2009) 

(quotation marks, citation and brackets omitted). We 

conclude that Ralls has established both prongs of the 

exception.

A. EVADING REVIEW

A challenged action evades review if it is too short in 

duration to be fully litigated in the United States Supreme 

Court before it expires. See Christian Knights of Ku Klux 

Klan Invisible Empire, Inc. v. District Columbia, 972 F.2d 365, 

369-70 (D.C. Cir. 1992) (citing Nebraska Press Ass’n v. Stuart, 

427 U.S. 539, 547 (1976)); Del Monte Fresh Produce Co., 570 

F.3d at 322. As a rule of thumb, “agency actions of less than 

two years’ duration cannot be ‘fully litigated’ prior to cessation 

or expiration, so long as the short duration is typical of the 

challenged action.” Del Monte Fresh Produce Co., 570 F.3d 

at 322; accord Performance Coal Co. v. Fed. Mine Safety & 

Health Review Comm’n, 642 F.3d 234, 237 (D.C. Cir. 2011);

Pub. Utilities Comm’n of Cal. v. FERC, 236 F.3d 708, 714 

(D.C. Cir. 2001); Burlington N. R.R. v. Surface Transp. Bd., 75 

F.3d 685, 690 (D.C. Cir. 1996). In addressing whether a 

matter can be fully litigated, we do not consider the availability 

of expedited review. See Washington Post v. Robinson, 935 

F.2d 282, 287 n.6 (D.C. Cir. 1991); In re Reporters Comm. for 

Freedom of the Press, 773 F.2d 1325, 1329 (D.C. Cir. 1985).

Notwithstanding the two-year rule of thumb, a party may

not assert that his claim evades review if his own dilatory 

conduct has prevented full consideration of the claim. See 

Armstrong v. FAA, 515 F.3d 1294, 1296 (D.C. Cir. 2008). In 

Armstrong, the Federal Aviation Administration (FAA) issued 

an order revoking the petitioner’s pilot’s license. Id. at 1295. 

In issuing the order, the FAA made an “emergency” 

determination, which permitted it to impose the order without 
41

first providing Armstrong an opportunity to respond. Id. 

Armstrong timely sought administrative review of the FAA 

order but sought judicial review of the separate emergency 

determination only after seventy-nine days had lapsed. Id. at 

1295-96. While his petition was pending here, Armstrong 

requested, and was granted, a two-week extension to file his 

reply brief. Id. at 1296. His challenge to the emergency 

determination was then mooted when the National 

Transportation Safety Board (NTSB) upheld the FAA 

revocation order. Id. We concluded that Armstrong could 

not satisfy the “evading review” prong of the mootness 

exception because his own “lassitude . . . allowed his case to 

become moot.” Id. By waiting seventy-nine days to seek 

review of the emergency determination and requesting a 

two-week extension to file his reply brief, he “made it 

impossible for us to say the [emergency determination] . . . was 

too short-lived to be reviewed.” Id. at 1297. We also relied 

on the fact that he made no effort to stay the administrative 

proceedings that mooted his challenge to the emergency 

determination. Id.; accord Newdow, 603 F.3d at 1008-09.

Relying on Armstrong, the district court concluded that, 

despite the short duration of the CFIUS Order, Ralls’s “claims 

d[id] not meet the ‘evading review’ component of the 

mootness exception.” Ralls Corp., 926 F. Supp. 2d at 97. It 

explained that “Ralls’s own decisions to delay filing its 

complaint” challenging the CFIUS Order for “forty-one (if not 

forty-two) days” and “to withdraw its motion for TRO/PI 

prevented the Court from considering its claims” before the 

order expired.20 Id. at 96-97. Although the Appellees do not 

defend the district court’s “evading review” holding on appeal, 

 

20 As noted earlier, see supra p. 11, Ralls’s TRO/PI motion was 

set to be heard on September 20, 2012, eight days before the 

Presidential Order revoking the CFIUS Order issued.
42

we nonetheless address this component of the mootness 

exception to satisfy our duty to establish jurisdiction.

We conclude that the CFIUS Order “evades review.” 

The CFIUS Order was in effect for only fifty-seven days––a 

typically short duration mandated by the DPA and 

implementing regulations, see supra pp. 3-6––before it was 

revoked by the Presidential Order. See Del Monte Fresh 

Produce Co., 570 F.3d at 322 (action with duration less than 

two years evades review “so long as the short duration is 

typical of the challenged action”). During the 

seventy-five-day window in which CFIUS acts––the thirty-day 

review period plus the forty-five-day investigation period, see 

50 U.S.C. app. § 2170(b)(1)(E), (2)(C)––it has broad authority 

to mitigate the security risks posed by covered transactions, see 

id. § 2170(l)(1)(A). But CFIUS may not, by itself, 

permanently suspend or prohibit a covered transaction. 

Instead, if CFIUS effectively freezes a transaction, as it did 

here, and believes the freeze should remain in place after its 

seventy-five-day action period concludes, it must submit the 

matter to the President. See 31 C.F.R. § 800.506(b)(1)

(“[T]he Committee shall send a report to the President 

requesting the President’s decision if . . . [t]he Committee 

recommends that the President suspend or prohibit the 

transaction.”). Because the President must issue a decision 

within fifteen days, see 50 U.S.C. app. § 2170(d)(2), no CFIUS 

order freezing a transaction can last for more than ninety days 

before it expires or is superseded by a presidential decision.21 

Absent an expedited appeal, which we do not consider in 

conducting the “evading review” analysis, see Robinson, 935 

F.2d at 287 n.6; In re Reporters Comm. for Freedom of the 

Press, 773 F.2d at 1329, a CFIUS order is too short-lived to 

 

21 The CFIUS Order acknowledges as much, stating that it lasts 

“until CFIUS concludes action or the President takes action . . . or 

upon revocation by CFIUS or the President.” JA 88. 
43

obtain Supreme Court review and therefore evades review. 

See, e.g., Del Monte Fresh Produce Co., 570 F.3d at 322.

Armstrong does not lead to a contrary conclusion. Even 

if Ralls had sought judicial review of the CFIUS Order on the 

day it issued, it could not have obtained review by the district 

court, this Court and the Supreme Court before the order was 

revoked. The same is true for CFIUS mitigation orders that 

last for the full ninety days as “trial and appellate proceedings 

routinely take more than twelve months to complete.” 

Christian Knights of Ku Klux Klan, 972 F.2d at 370. Not so in 

Armstrong: Had Armstrong acted with more alacrity, he 

might have been able to obtain review of the FAA emergency 

determination in this Court and the Supreme Court––just two 

levels of review––before the administrative proceeding 

mooted his claim. See Armstrong, 515 F.3d at 1295-96.

Moreover, we attach no significance to Ralls’s withdrawal 

of its TRO/PI motion. Although Ralls gave up the 

opportunity to obtain district court review of its CFIUS Order 

claims, the claims could not have been “fully litigated” through 

the Supreme Court in fifty-seven days. See Del Monte Fresh 

Produce Co., 570 F.3d at 322; Christian Knights of Ku Klux 

Klan, 972 F.2d at 369. Nor could Ralls have prevented its 

claims from becoming moot by pressing its motion a la 

Armstrong. Ralls’s motion asked the court to “enter a 

temporary restraining order enjoining enforcement of [the 

CFIUS Order], schedule a hearing on Ralls’s request for a 

preliminary injunction . . . [and] enter a preliminary injunction 

enjoining further enforcement of the order during the pendency 

of this litigation.” Mot. for TRO/PI 2, Ralls Corp. v. Comm. 

on Foreign Inv. in the U.S., No. 1:12-cv-01513 (D.D.C. Sept. 

13, 2012). Had Ralls’s motion been granted, enforcement of 

the CFIUS Order would have been enjoined but there is no 

indication that the CFIUS process would have stopped in its 
44

tracks. To the contrary, CFIUS likely would have submitted 

the matter to the President by the end of the seventy-five day 

period, as it is required to do, and the presidential decision 

would have mooted Ralls’s CFIUS Order claims. In 

Armstrong, had Armstrong successfully moved to enjoin the 

administrative proceeding, his claim most likely would not 

have been mooted. 515 F.3d at 1295-96; see also Nedow, 603 

F.3d at 1008-09.

B. CAPABLE OF REPETITION

Action is “capable of repetition” if there is “a reasonable 

expectation that the same complaining party [will] be subjected 

to the same action again.” Christian Knights of Ku Klux Klan, 

972 F.2d at 370 (quoting Weinstein v. Bradford, 423 U.S. 147, 

149 (1975) (per curiam)). The “same action” generally 

“refer[s] to particular agency policies, regulations, guidelines, 

or recurrent identical agency actions.” Pub. Utilities 

Comm’n, 236 F.3d at 715 (quotation marks omitted). The 

question is not “whether the precise historical facts that 

spawned the plaintiff’s claims are likely to recur” but “whether 

the legal wrong complained of by the plaintiff is reasonably 

likely to recur.” Del Monte Fresh Produce Co., 570 F.3d at 

324. The Supreme Court has instructed that the 

capable-of-repetition prong is not to be applied with excessive 

“stringency.” Honig, 484 U.S. at 318 n.6. In other words, a 

controversy need only be “capable of repetition,” not “more 

probable than not.” Id. (emphasis in original); accord Doe v. 

Sullivan, 938 F.2d 1370, 1378-79 (D.C. Cir. 1991) (“It is 

enough . . . that the litigant faces some likelihood of 

becoming involved in the same controversy in the future.”

(quotation marks omitted)).

Doe v. Sullivan demonstrates that a controversy is capable 

of repetition even if its recurrence is far from certain. There, a 

U.S. service member serving in Operation Desert Shield 
45

brought a putative class action challenging a Food and Drug 

Administration (FDA) regulation permitting it to “make the 

determination that obtaining informed consent from military 

personnel for the use of an investigational drug . . . is not 

feasible in certain battlefield or combat-related situations.” 

938 F.2d at 1373. The FDA determined that “obtaining 

informed consent was not feasible” for the use of two 

investigational drugs sought to be used to defend against a 

chemical weapons attack. Id. at 1374. By the time the case 

reached this Court, however, the military operation had ended, 

id. at 1375, and the service member’s claims were therefore 

mooted. We nevertheless concluded that the challenged 

action was capable of repetition, i.e., there was “some 

likelihood” it would recur, because of the challenger’s 

“continuing status as a member of our armed forces” and the 

FDA’s likely retention of the regulation. Id. at 1378-79. We 

reached this conclusion notwithstanding the fact that the “next 

conflict [was] not yet upon us.” Id. at 1379.

The district court concluded that Ralls “failed to 

demonstrate that there is a reasonable expectation that it will be 

subject to the same action again in the future.” Ralls Corp., 

926 F. Supp. 2d at 97. Although the court accepted Ralls’s 

claim that it intended to engage in covered transactions 

involving the acquisition of windfarms across the United 

States, the court decided there was not “a reasonable likelihood 

that Ralls’s purchase of a different windfarm in a different 

location will necessarily give rise to the same response.” Id. 

at 99. The Appellees similarly contend that CFIUS issued its 

Order “in response to the particular concerns that arose in the 

Committee’s review of the particular transaction, involving a 

particular geographic region” and therefore Ralls cannot show 

that such a context-specific decision is likely to recur. Br. for 

the Appellees 46.
46

We disagree. Ralls alleged in its amended complaint that 

it “intends to continue pursuing windfarm development 

opportunities in the United States and acquiring existing 

windfarm greenfield companies to do so, in the manner of its 

acquisition of the Project Companies.” Am. Compl. ¶ 71. 

Taking this allegation as true, as we must at the dismissal stage, 

see El-Shifa, 607 F.3d at 839; Tri-State Hosp. Supply Corp. v. 

United States, 341 F.3d 571, 572 n.1 (D.C. Cir. 2003), it is 

clear that Ralls intends to enter into covered transactions 

subject to CFIUS jurisdiction. The only uncertainty comes 

from assessing CFIUS’s response thereto. We think there is 

“some likelihood” CFIUS will again respond similarly in the 

future. Doe v. Sullivan, 938 F.2d at 1379. As Ralls’s 

amended complaint alleges, and as counsel for the Appellees 

conceded at oral argument, other foreign-owned windfarms 

using foreign-made wind turbines operate without 

governmental interference near the same restricted airspace as 

the Butter Creek projects. We can thus infer therefrom that 

mere proximity of the Project Companies to the restricted air 

space is not the only factor that precipitated the CFIUS Order. 

But even if proximity to restricted airspace is a prominent 

concern of CFIUS, there is some likelihood that Ralls will 

again acquire easements to project sites near security-sensitive

Government property and/or airspace given Ralls’s intention to 

continue its practice of pursuing windfarm projects 

“throughout the United States.” Am. Compl. ¶¶ 58, 71; see 

also Reply Br. 29 n.10, Ralls Corp. v. Comm. on Foreign Inv. 

in the U.S., No. 13-5315 (D.C. Cir. Apr. 1, 2014). Indeed, we 

think this contingency is at least as likely, if not more likely, 

than the likelihood in Doe that the service member would 

participate in an armed conflict in the future that also involved 

the use of chemical weapons.22 See id. Finally, CFIUS has 

 

22 To support their assertion that the CFIUS Order was 

precipitated by unique factual circumstances not likely to recur, the 
47

given no indication it will provide any more process in the 

future; the Appellees’ position is that Ralls was provided all the 

process it was due. Accordingly, we find that Ralls has 

satisfied both prongs of the capable-of-repetition-yetevading-review exception to mootness.

* * * * *

In sum, we conclude that the Presidential Order deprived 

Ralls of constitutionally protected property interests without 

due process of law. We remand to the district 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. 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). Should 

disputes arise on remand––such as an executive privilege

claim––the district court is well-positioned to resolve them. 

Finally, because the CFIUS Order claims were dismissed on a 

jurisdictional ground, and given the scant merits briefing, we 

leave it to the district court to address the merits of Ralls’s 

remaining claims in the first instance.23

So ordered.

 

Appellees argue that “Ralls has completed other transactions that 

have not caused CFIUS to issue mitigation orders.” Br. for the 

Appellees 46 (citing JA 36, 95-96). But those transactions are not 

“covered transactions” and are thus plainly distinguishable.

23 These claims include Ralls’s APA challenge to the CFIUS 

Order (Counts I and II), its ultra vires challenge (Count III) and its 

due process and equal protection challenges (Counts IV and V, in 

part).