 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.4 See 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) 8 to 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-yet-
evading-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).
