D.C. Circuit Forces State Department’s Hand on Foreign Terrorist Organization Designation

In a per curiam opinion issued today [pdf], the D.C. Circuit ordered the Secretary of State to act within four months on a petition of the People’s Mojahedin Organization of Iran, which seeks the revocation of its designation as a Foreign Terrorist Organization.  If the State Department fails to act within that time, “the petition for a writ of mandamus setting aside the FTO designation will be granted.”

The primary basis for the court’s rare decision to force an agency’s hand was the State Department’s failure to act on the court’s remand order of two years ago.  But the court also suggested that the unreasonableness of the agency’s “egregious” delay may have also been sufficient where it “plainly frustrates the congressional intent” and insulates the State Department from judicial review.

This opinion may have implications for another noteworthy mandamus petition currently pending in the D.C. Circuit. The petitioners in In re: Aiken County seek to compel the Nuclear Regulatory Commission to act on the Department of Energy’s pending application for a license to construct a nuclear waste storage facility under Yucca Mountain in Nevada.  The case arises from a stand-off between Congress, the Department of Energy, and the NRC.  Although President Obama’s Energy Department now opposes storage of nuclear waste at Yucca Mountain, the independent Nuclear Regulatory Commission has failed to act on a prior Energy Department application for approval of the Yucca Mountain plan, while refusing to allow the Department to withdraw that plan.

The day after oral argument in the Yucca Mountain case, the D.C. Circuit invited the Department of Justice to weigh in on the mandamus petition. Lawrence Hurley reported that at the oral argument Judge Randolph was especially concerned about the failure of the DOJ and the Department of Energy to intervene in the matter.  The DOJ’s brief is due today.

From the opinion:

Since our July 2010 remand, the Secretary’s progress has been—to say the least—slow going. . . .

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. . . .

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. . . .

In light of the national security and foreign policy concerns underlying the designation, we decline, at this time, to revoke the FTO’s designation. Instead, we order the Secretary to either deny or grant PMOI’s petition not later than four months from the date this opinion issues. Once she makes her decision, it is, of course, entitled to great deference. . . . If she fails to take action within that period, the petition for a writ of mandamus setting aside the FTO designation will be granted.

In re: People’s Mojahedin Organization of Iran, No. 12-1118 (June 1, 2012) (per curiam, joined by Henderson & Tatel, JJ., & Williams, S.J.)

See also:

  • Mike Scarcella, D.C. Circuit Criticizes State Dept. in Dispute Over Iranian Group, Blog of Legal Times (June 1, 2012) (“The PMOI, which claims it has renounced violence, has long sought removal from the foreign terrorist organization list. Inclusion on the list imposes financial restrictions on the group, whose supporters say they advocate for a secular, democratic Iran.”)
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