32 County Sovereignty Committee v. Dept. of State
| Decision Date | 14 June 2002 |
| Docket Number | No. 01-1270.,01-1270. |
| Citation | 292 F.3d 797 |
| Parties | 32 COUNTY SOVEREIGNTY COMMITTEE, et al., Petitioners, v. DEPARTMENT OF STATE and Colin L. Powell, Secretary of State, Respondents. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Lynne Bernabei argued the cause for petitioners. With her on the briefs were Alan R. Kabat and Debra S. Katz.
Douglas N. Letter, Litigation Counsel, U.S. Department of Justice, argued the cause for respondents. With him on the brief were Roscoe C. Howard, Jr., U.S Attorney, and Linda Jacobson, Assistant Legal Adviser, U.S. Department of State.
Before: GINSBURG, Chief Judge, RANDOLPH and TATEL, Circuit Judges.
Opinion for the Court filed by Circuit Judge RANDOLPH.
Petitioners are three Irish political organizations: the 32 County Sovereignty Committee and its successor entity, the 32 County Sovereignty Movement (collectively, "32 County") and the Irish Republican Prisoners Welfare Association. They seek review of their designation as "foreign terrorist organizations." 8 U.S.C. § 1189.
We have decided two cases arising under the portion of the Antiterrorism and Effective Death Penalty Act of 1996 conferring upon the Secretary of State the power to designate foreign terrorist organizations. See Nat'l Council of Resistance of Iran v. Dep't of State, 251 F.3d 192 (D.C.Cir.2001); People's Mojahedin Org. of Iran v. Dep't of State, 182 F.3d 17 (D.C.Cir.1999). We assume familiarity with those opinions, and with the unique operation of 8 U.S.C. § 1189, and its procedure for designation and for judicial review. See People's Mojahedin, 182 F.3d at 21-22.
On May 16, 2002, the Secretary designated the "Real IRA," a militant group that seeks to end British rule in Northern Ireland, as a foreign terrorist organization; the Secretary's publication of the designation in the Federal Register also listed petitioners as aliases of the Real IRA. See 66 Fed. Reg. 27,442. On June 8, 2001, we issued our decision in National Council, holding that two Iranian organizations the Secretary had listed as foreign terrorist organizations were entitled to the protection of the Due Process Clause of the Fifth Amendment because they had "developed substantial connections with this country," 251 F.3d at 202, and remanding to the Secretary, see id. at 209. Five days later, 32 County and the Association jointly sent a letter to the Secretary of State requesting that he "reopen the administrative record" pertaining to their designations so that they could receive the process ordered in National Council. The organizations filed a petition for review with this court the next day. After an exchange of letters between counsel for petitioners and the Department of Justice attorney representing the State Department concerning the presence of 32 County and the Association within the United States, the government's attorney notified petitioners by mail dated August 20, 2001, that the State Department "hereby denies [their] request for the procedures described by the D.C. Circuit in National Council of Resistance."
When a party seeks agency reconsideration and then files a petition for judicial review, we dismiss the petition as "incurably premature." Tenn. Gas Pipeline Co. v. FERC, 9 F.3d 980, 980-81 (D.C.Cir.1993). The matter is one of jurisdiction. Because petitioners requested the Secretary of State to reopen the record and, while the request was pending, sought judicial review of the Secretary's designation, we sua sponte raised the question of our jurisdiction, see Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 101-02, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998), and ordered the parties to limit their oral argument to this issue.
A "party's pending request for agency reconsideration renders `the underlying action nonfinal, regardless of the order of filing' with respect to that party," thereby preventing a court from exercising jurisdiction over the petition. Columbia Falls Aluminum Co. v. EPA, 139 F.3d 914, 919 (D.C.Cir.1998) (quoting Wade v. FCC, 986 F.2d 1433, 1434 (D.C.Cir.1993)). Columbia Falls, 139 F.3d at 919.
Section 1189, a statute that is "unique, procedurally and substantively," People's Mojahedin, 182 F.3d at 19, nowhere mentions requests for reconsideration. But it does provide that the Secretary may revoke a designation on the basis of changed circumstances by publishing the revocation in the Federal Register. See 8 U.S.C. § 1189(a)(6) & (a)(2)(A)(ii). Petitioners' ultimate claim in this case is that the Secretary of State unlawfully considered them alter egos of the Real IRA. When petitioners requested the Secretary to "reopen" the record, they were seeking to have their designation revoked. Although the analogy is not perfect, petitioners' request appears to us to be similar to a request for a new rulemaking. Their designation was itself forward-looking, as a rule would have been, and under § 1189, the Secretary could have revoked the designation only by again publishing a notice to that effect in the Federal Register. See 8 U.S.C. § 1189(a)(6)(B); id. § 1189(a)(2)(A)(2). Viewed in this manner, the letters petitioners sent to the State Department did not render the designation "nonfinal." See Am. Mining Cong., 907 F.2d at 1185.
This analysis is consistent with our decision in National Council, which petitioners invoked when they sought to have the record reopened. Although we said there that the designation without a hearing violated the due process rights of the Iranian organizations, we did not vacate the designation, but instead remanded for further proceedings, presumably on the issue whether the Secretary should revoke the designations after considering the evidence the designees offered. See 251 F.3d at 209. In short, the final agency action — that is, the Secretary's...
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