United States: U.S. Court Rejects Challenge To CFIUS National Security Review

Last Updated: November 1 2013
Article by John J. Burke

This blog previously reported in July 2013 on a lawsuit that Ralls Corporation brought against the President of the United States and the Committee on Foreign Investment in the United States challenging the President's order for Ralls to divest its interest in four wind farm projects in Oregon. The United States District Court for the District of Columbia, on February 26, 2013, dismissed most of Ralls' claims on the grounds that the merits of the President's decision were not subject to judicial review, but allowed to proceed Ralls's claim that the divestiture order was an unconstitutional deprivation of property without due process. On October 10, 2013, U.S. District Judge Amy Berman Jackson issued an opinion dismissing the constitutional claim.

Ralls alleged that the President's Order violated the due process clause of the Fifth Amendment to the United States Constitution because it deprived Ralls of property without giving it an adequate opportunity to be heard or providing the reasons behind the President's decision. In effect, Ralls claimed it had a Constitutional right to a detailed explanation of why the President ordered divestiture. The U.S. Government filed a motion under Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss Ralls's remaining claim for failure to state a plausible claim for relief. Both sides submitted briefs and participated in oral argument before the Court on the motion to dismiss.

Judge Jackson dismissed the case based on her findings that Ralls failed to allege that: (1) it had a protected property interest; and (2) the government did not afford it sufficient procedure. The Court found that Ralls did not have a protected property interest because it acquired the wind farm projects subject to the known risk of a Presidential veto. Ralls also waived the opportunity provided in the Foreign Investment National Security Act to obtain a determination from CFIUS before the acquisition.

Judge Jackson found that Ralls received sufficient process because it had notice and an opportunity for a hearing appropriate to the nature of the case. CFIUS informed Ralls in June of 2012 that if it were not to file the voluntary notice, the Department of Defense would file an agency notice that would trigger committee review.

Ralls then filed a "voluntary" notice of the transaction with CFIUS in which it set forth its reasons why the acquisition did not raise national security concerns. Ralls also attended a meeting with CFIUS and made a presentation on July 11, 2012.

CFIUS informed Ralls that, if it were not to divest voluntarily, CFIUS would recommend that the President order divestiture. Judge Jackson, therefore, determined that Ralls's constitutional claim was based solely on its assertion that it was entitled to know the President's reasons for prohibiting the transaction and to have an opportunity to rebut those reasons specifically.

Judge Jackson disposed of Ralls' constitutional claim as follows:

In this case, involving the application of this particular statutory scheme, the President has a valid interest, grounded in the national security of the United States, to withhold the particular evidence that gave rise to his concern about a national security threat from the entity that he believes might pose the threat. And that conclusion is bolstered by the fact that Congress specified that the President's determination would not be subject to review.

The key take-away from this case is that foreign companies, particularly Chinese, seeking to acquire U.S. businesses, should take advantage of the opportunity to obtain a CFIUS determination in advance of the acquisition. We have recommended in prior articles on this blog published in December 2009, January 2010 and February 2011 that companies take advantage of this opportunity. Ralls did not do so, and was forced to divest. Detailed information that can help companies decide whether to file a CFIUS notification and on the process can be found in Chapter 14 of MERGERS & ACQUISITIONS IN THE UNITED STATES A Practical Guide for Non-U.S. Buyers.

Ralls undoubtedly lost money in this transaction, not only because of its investment in the deal, but because it had to remove wind towers whose value surely was diminished when they no longer could be installed in a nearby location. The land, which a domestic company might have been able to use for a wind farm, became limited in its potential use and therefore its value. Yet, Ralls made no claim about just compensation under the Fifth Amendment to the Constitution, and so the legal case was concluded on a procedural dispute where Ralls was unable to hold the President accountable to explain a national security decision.

Other recent Chinese acquisitions have been able to go forward with careful attention in advance to the CFIUS process. For example, this blog also reported in July 2013 about congressional and other opposition to the proposed Chinese acquisition of Smithfield Foods. The parties to that transaction made a voluntary notification to CFIUS before the transaction was completed and received CFIUS's blessing. Even Chinese acquisitions in the sensitive energy sector have received CFIUS approval. Sinopec received CFIUS approval for its $1 billion purchase of a 50 percent share of Chesapeake Energy Corp.'s natural gas shale operations in Oklahoma. Similarly, when CNOOC Ltd. sought to acquire Nexen Inc., a Canadian company with substantial U.S. assets, it was able to receive CFIUS approval by structuring the deal to alleviate concerns that some of those assets were in areas of the Gulf of Mexico that were close to sensitive military installations and subsea telecommunications cables.

Had Ralls taken the same approach as Sinopec and CNOOC, a voluntary notification in advance of its transaction, it might have been able to work with CFIUS to structure the deal in such a way as to mitigate the national security concerns short of a full divestment. We may never know, but at a minimum, by failing to make a voluntary disclosure in advance of the transaction, Ralls found itself in the middle of an expensive failure that might have been avoided.

Ralls appealed Judge Jackson's decision on October 16, 2013 by filing a notice of appeal to the U.S. Court of Appeals for the District of Columbia Circuit. The appellate court proceedings are likely to last well into next year. Should Ralls be successful on any of the issues on which it appeals, the case would likely be returned to Judge Jackson for further proceedings in accordance with the appellate court's decision. Should the appellate court uphold Judge Jackson on all issues, then Ralls's challenge to the President's divestment order would end then. Ralls could petition the U.S. Supreme Court to issue a Writ of Certiorari to review the appellate court's decision, but the Supreme Court would not have to take the case. The Court only takes only a very small percentage of the cases brought to it each year.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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