nationalsecuritylaw In re People’s Mojahedin Organization of Iran (D.C. Cir. June 1, 2012)

June 3, 2012

* A DC Circuit panel has issued an opinion giving the State Department four months maximum to make a final decision on PMOI’s petition to revoke its status as a designated foreign terrorist organization. The issue has been somewhat high profile, as that status is the predicate for material support liability under 18 USC 2339B and various immigration-law constraints…and because PMOI is an entity hostile to the government of Iran, with a considerable amount of support in Congress for its delisting. The key passages:

The AEDPA provides that the Secretary “shall make a determination” on a petition of revocation “[n]ot later than 180 days after receiving [the] petition.”8 U.S.C. § 1189(a)(4)(B)(iv)(I). It has been twenty months (approximately 600 days) since our remand and the Secretary has yet to make a final, reviewable decision. While a violation of a statutory deadline “does not, alone, justify judicial intervention,” In re Barr Labs., Inc., 930 F.2d 72, 75 (D.C.Cir.1991), the Congress’s timetable “may supply content for th[e] rule of reason,” TRAC, 750 F.2d at 80–the “first and most important” of the TRAC factors. Core Commc’ns, 531 F.3d at 855. The specificity and relative brevity of the 180–day deadline manifests the Congress’s intent that the Secretary act promptly on a revocation petition and delist the organization if the criteria for the listing no longer exist. The Secretary’s twenty-month failure to act plainly frustrates the congressional intent and cuts strongly in favor of granting PMOI’s mandamus petition.FN4The Secretary argues that because she “must make a decision in this matter while carrying out duties of the most paramount importance, addressing nearly constant emergencies,” it would be “inappropriate” for us to rule that she “is not acting quickly enough on a single matter.”Opp’n to Mandamus Pet. 14. But the Congress undoubtedly knew the enormous demands placed upon the Secretary and nonetheless limited her time to act on a petition for revocation to 180 days, 8 U.S.C. § 1189(a)(4)(B)(iv)(I), and included explicit provisions for our review, id. § 1189(c)(3).

FN4. While the Act imposes a 180–day deadline to act, 8 U.S.C. § 1189(a)(4)(B)(iv)(I), that deadline is not directly applicable to this mandamus proceeding to enforce our own order of remand.

Additionally, the Secretary’s failure to act insulates her decision from our review under the AEDPA. As noted above, a FTO may, within thirty days, seek review of the Secretary’s denial of its petition for revocation in this Court. See id.§ 1189(c)(1) (“Not later than 30 days after publication in the Federal Register of a designation, an amended designation, or a determination in response to a petition for revocation, the designated organization may seek judicial review in the District of Columbia Circuit.”). By failing to make a final decision on PMOI’s petition, the Secretary is able to maintain PMOI’s designation while precluding PMOI from seeking judicial review. That is, because of the Secretary’s inaction, PMOI is stuck in administrative limbo; it enjoys neither a favorable ruling on its petition nor the opportunity to challenge an unfavorable one.

Decisive to us, however, is the fact that the Secretary has failed to heed our remand. In In re Core Communications, Inc., this Court highlighted the difference between an agency that simply fails to “respond[ ] to [a] request [ ] by [a] private part[y] to take administrative action” and one that fails to “respond to our own remand.” 531 F.3d at 856. In that case, we invalidated the Federal Communication Commission’s (FCC) inter-carrier compensation rules without vacating them because we “believ[ed] that there was a ‘non-trivial likelihood’ that the Commission would be able to state a valid legal basis for its rules” on remand. Id. at 861 (citation omitted). Six years later the rules remained in place and the FCC had yet to articulate a “valid legal basis.” Id. In response to the petitioners’ mandamus petition, we noted that, while the TRAC factors were “not unimportant,” id. at 855, our overriding concern was that the agency’s delay “effectively nullified our determination that [its] interim rules are invalid” and “insulated” the FCC’s rules from “further review” by making it impossible for the petitioners to “mount a challenge to the rules.” Id. at 856.We thus issued the writ vacating the rule, effective four months from the date of the opinion’s issuance “unless the court is notified that the [FCC] has complied with our direction before that date.” Id. at 861.

Here too, the Secretary has not merely failed to meet the AEDPA’s deadline or respond to the requests of the petitioner or a third party. She is failing to meet our remand mandate. And, here too, the delay has the effect of nullifying our decision while at the same time preventing PMOI from seeking judicial review. Although our remand opinion did not specify a deadline, neither did the remand order in Core Communications.We have been given no sufficient reason why the Secretary, in the last 600 days, has not been able to make a decision which the Congress gave her only 180 days to make. If the Secretary wishes to maintain PMOI’s FTO status, she can do so by simply denying PMOI’s petition.