United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 8, 2012 Decided June 1, 2012 

No. 12-1118 

IN RE: PEOPLE’S MOJAHEDIN ORGANIZATION 

OF IRAN, PETITIONER

On Petition For A Writ of Mandamus 

To Enforce This Court’s Mandate 

 Viet D. Dinh argued the cause for the petitioner. Nathan 

A. Sales, George W. Hicks, Jr., Andrew L. Frey, Miriam R. 

Nemetz and Steven M. Schneebaum were on brief. 

Alan M. Dershowitz was on brief for the amici curiae 

Michael B. Mukasey et al., in support of the petitioner. 

Robert M. Loeb, Attorney, United States Department of 

Justice, argued the cause for the respondent. Stuart F. Delery, 

Acting Assistant Attorney General, Douglas N. Letter and 

Matthew M. Collette, Attorneys, were on brief. 

 Before: HENDERSON and TATEL, Circuit Judges, and 

WILLIAMS, Senior Circuit Judge. 

 Opinion for the Court filed PER CURIAM. 

PER CURIAM: On July 16, 2010, we remanded this case to 

the Secretary (Secretary) of the United States Department of 
2 

State (State Department, State), concluding that the Secretary 

had violated the due process rights of the petitioner, the 

People’s Mojahedin Organization of Iran (PMOI), by 

maintaining its designation as a Foreign Terrorist 

Organization (FTO) under the Antiterrorism and Effective 

Death Penalty Act (AEDPA, Act), 8 U.S.C. § 1189. PMOI v. 

U.S. Dep’t of State, 613 F.3d 220, 230-31 (D.C. Cir. 2010) 

(PMOI III).1

 We instructed the Secretary to allow PMOI to 

“review and rebut the unclassified portions of the record on 

which [the Secretary] relied” in denying PMOI’s petition for 

revocation of its FTO listing and to “indicate in her 

administrative summary which sources she regards as 

sufficiently credible that she relies on them.” Id. at 230. It has 

been nearly two years since our remand and the Secretary has 

yet to issue a reviewable ruling on PMOI’s petition. PMOI 

now seeks a writ of mandamus ordering the delisting of PMOI 

or, alternatively, requiring the Secretary to make a decision on 

PMOI’s petition or our setting aside her FTO designation. For 

the reasons set forth below, we order the Secretary to act on 

PMOI’s petition not later than four months from the issuance 

of this opinion; failing that, the petition for a writ of 

mandamus setting aside the FTO designation will be granted. 

I. 

Under the AEDPA, the Secretary designates an entity a 

FTO if: (1) “the organization is a foreign organization;” (2) 

“the organization engages in terrorist activity . . . or terrorism 

. . . or retains the capability and intent to engage in terrorist 

activity or terrorism;” and (3) “the terrorist activity or 

terrorism of the organization threatens the security of United 

 

1

 Because PMOI is the petitioner, we refer to PMOI and its 

associated aliases and alter egos—including the National Council of 

Resistance of Iran and the Majahedin-e Khalq Organization—as 

PMOI. 
3 

States nationals or the national security of the United States.” 

8 U.S.C. § 1189(a)(1). A FTO designation results in several 

“dire consequences” for an organization, its members and 

other supporters. Nat’l Council of Resistance of Iran v. Dep’t 

of State, 251 F.3d 192, 200 (D.C. Cir. 2001). Specifically, the 

Secretary of the United States Treasury Department can 

freeze the FTO’s assets, 8 U.S.C. § 1189(a)(2)(C); FTO 

members are barred from entering the United States, id.

§ 1182(a)(3)(B)(i)(IV), (V); and anyone who knowingly 

provides “material support or resources” to a FTO is subject 

to a fine and/or imprisonment for up to fifteen years, 18 

U.S.C. § 2339B(a)(1). 

 As originally enacted, the AEDPA enabled the Secretary 

to maintain a FTO designation for two years. See 8 U.S.C. 

§ 1189(a)(4)(A) (2003). At the end of the two years, the 

Secretary either renewed the designation or allowed the 

designation to lapse. Id. §1189(a)(4)(B) (2003). In 2004, 

however, the Congress lessened the Secretary’s administrative 

burden and removed the two-year limitation. See Intelligence 

Reform and Terrorist Prevention Act of 2004, Pub. L. No. 

108-458, § 7119, 118 Stat. 3638, 3801 (2004). Today, the 

Secretary’s designation no longer lapses; instead, every two 

years, a FTO can file a petition for revocation with the 

Secretary to challenge its listing. See 8 U.S.C. 

§ 1189(a)(4)(B)(ii). To seek revocation, a FTO “must provide 

evidence in that petition that the relevant circumstances . . . 

are sufficiently different from the circumstances that were the 

basis for the designation such that a revocation with respect to 

the organization is warranted.” Id. § 1189(a)(4)(B)(iii). 

The Act gives the Secretary 180 days to take action on a 

petition for revocation. Id. § 1189(a)(4)(B)(iv)(I) (“Not later 

than 180 days after receiving a petition for revocation . . . , the 

Secretary shall make a determination as to such revocation.”). 

While the Secretary may revoke a designation at any time, the 
4 

Act directs that she “shall” revoke a designation if she finds 

either “the circumstances that were the basis for the 

designation have changed in such a manner as to warrant 

revocation” or the “national security of the United States 

warrants revocation.” Id. § 1189(a)(6)(A). In making her 

decision, the Secretary may rely on both classified and 

unclassified information; the classified information “shall not 

be subject to disclosure . . . except that such information may 

be disclosed to a court ex parte and in camera for purposes of 

judicial review.” Id. § 1189(a)(4)(B)(iv)(II). 

If the Secretary denies a FTO’s revocation petition, the 

organization can seek review in this Court within thirty days 

of the denial. See id. § 1189(c)(1). “In APA-like language,” 

PMOI v. U.S. Dep’t of State, 182 F.3d 17, 22 (D.C. Cir. 1999) 

(PMOI I), the Act instructs us to “hold unlawful and set aside 

a designation, amended designation, or determination in 

response to a petition for revocation” that we find: 

(A) arbitrary, capricious, an abuse of discretion, 

or otherwise not in accordance with law; 

(B) contrary to constitutional right, power, 

privilege, or immunity; 

(C) in excess of statutory jurisdiction, authority, 

or limitation, or short of statutory right; 

(D) lacking substantial support in the 

administrative record taken as a whole or in 

classified information submitted to the court 

under paragraph (2), or 

(E) not in accord with the procedures required by 

law. 

8 U.S.C. § 1189(c)(3). This standard applies only to the first 

and second FTO criteria—that the organization is foreign and 

that it engages in terrorism or terrorist activity or retains the 
5 

capability and intent to do so. PMOI III, 613 F.3d at 223. We 

have held that the third—that the organization’s activities 

threaten U.S. nationals or national security—presents an 

unreviewable political question. Id. (citing PMOI I, 182 F.3d 

at 23). 

Almost four years ago, on July 15, 2008, PMOI filed a 

petition for revocation of the Secretary’s 2003 designation.2

In its petition, PMOI argued that, although it had engaged in 

terrorist actions in the past, circumstances had changed 

dramatically since 2003. PMOI III, 613 F.3d at 225. PMOI 

asserted inter alia that it had ceased its military campaign 

against the Iranian regime, renounced violence, surrendered 

its arms to U.S. forces in Iraq, cooperated with U.S. officials 

at Camp Ashraf (where its members operating in Iraq were 

consolidated), shared intelligence with the U.S. government 

regarding Iran’s nuclear program and obtained “ ‘protected 

person’ status” for all PMOI members at Camp Ashraf under 

the Fourth Geneva Convention. Id.3

 

2

 The Secretary first designated the PMOI as a FTO in 1997 and 

made successive designations in 1999, 2001 and 2003. See 

Designation of Foreign Terrorist Organizations, 62 Fed. Reg. 

52,650 (Oct. 8, 1997); Designation of Foreign Terrorist 

Organizations, 64 Fed. Reg. 55,112 (Oct. 8, 1999); Redesignation 

of Foreign Terrorist Organizations, 66 Fed. Reg. 51,088, 51,089 

(Oct. 5, 2001); Redesignation of Foreign Terrorist Organizations, 

68 Fed. Reg. 56,860, 56,861 (Oct. 2, 2003). We have upheld the 

successive designations. See PMOI I, 182 F.3d 17, 25; PMOI v. 

Dep’t of State, 327 F.3d 1238, 1239 (D.C. Cir. 2003) (PMOI II); 

Nat’l Council of Resistance of Iran v. Dep’t of State, 373 F.3d 152, 

154 (D.C. Cir. 2004). 

3

 As a result of these changed circumstances, the United 

Kingdom removed PMOI from its list of terrorist organizations in 

2008 and the European Union followed suit in 2009. See PMOI III, 

613 F.3d at 225. 
6 

On January 7, 2009, Secretary Condoleezza Rice denied 

PMOI’s petition. See 74 Fed. Reg. 1273, 1273-74 (Jan. 12, 

2009). She found that: “In considering the evidence as a 

whole, . . . [PMOI] ha[d] not shown that the relevant 

circumstances [we]re sufficiently different from the 

circumstances that were the basis for the 2003 []designation” 

and that “[a]s a consequence, [PMOI] continues to be a 

foreign organization that engages in terrorist activity . . . or 

terrorism . . . or retains the capability and intent to” do so. 

PMOI III, 613 F.3d at 226 (quotation marks omitted). She 

noted, however, that changed circumstances since 2003 

warranted reconsidering PMOI’s FTO status in the future: “In 

light of the evidence submitted by [PMOI] that it has 

renounced terrorism and the uncertainty surrounding 

[PMOI’s] presence in Iraq, the continued designation of 

[PMOI] should be reexamined by the Secretary of State in the 

next two years even if [PMOI] does not file a petition for 

revocation.” Id. (quotation marks omitted). 

PMOI timely petitioned for review of the Secretary’s 

decision, arguing that the determination lacked substantial 

support in the administrative record and that the Secretary’s 

procedures did not provide it due process. On July 16, 2010, 

we granted the petition, concluding that “the Secretary failed 

to accord the PMOI the due process protections outlined in 

our previous decisions.” Id. at 222. Specifically, we held that 

“due process requires that the PMOI be notified of the 

unclassified material on which the Secretary proposes to rely 

and [be given] an opportunity to respond to that material 

before its re-designation.” Id. at 228 (emphasis in original). 

Because the Secretary had failed to allow PMOI access to the 

unclassified material before she made her decision, we 

remanded the case to the Secretary for her to provide PMOI 

that access. Id. at 230. We also instructed the Secretary to 

“indicate in her administrative summary which sources she 

regards as sufficiently credible that she relies on them” in 
7 

maintaining PMOI’s designation and to “explain to which part 

of section 1189(a)(1)(B) the information she relies on 

relates.” Id. 

 Since our July 2010 remand, the Secretary’s progress has 

been—to say the least—slow going. In an October 18, 2010 

letter, the United States Department of Justice (DOJ), acting 

on behalf of the Secretary, outlined its procedure for 

complying with our remand. Pet’r’s Ex. 1. DOJ explained that 

PMOI had “received all of the unclassified material contained 

in the administrative record to date” but that the State 

Department intended to “update that administrative record 

with additional material relevant to the designation” before 

the Secretary rendered her decision. Id. Any “[a]dditional 

unclassified material,” DOJ explained, was to be “provided to 

[PMOI] by October 29, 2010.” Id. On October 29, DOJ 

notified PMOI that State had “begun the process of updating 

the administrative record with additional material” relevant to 

PMOI’s petition but that, at that time, there were “no 

additional unclassified exhibits . . . to incorporate into the 

administrative record.” Pet’r’s Ex. 2. It then requested that 

PMOI “make any submission concerning the unclassified 

material previously provided . . . no later than December 29, 

2010.” Id. PMOI timely complied, submitting affidavits and 

other documentation supporting its delisting. Mandamus Pet. 

11. Five months later, in April 2011, counsel for PMOI met 

with officials from DOJ and State. Id. At that time, PMOI 

submitted additional information in support of its cause—

including a description of the allegedly deteriorating 

conditions at Camp Ashraf and letters and affidavits of 

support written by American and foreign leaders. Id. On May 

20, 2011 (nearly one year after our remand), DOJ sent 

PMOI’s counsel ten additional documents that it proposed to 

add to the administrative record. Pet’r’s Ex. 3. On June 6, 

2011, PMOI responded to each of the ten documents, 

maintaining that none provided information not already in the 
8 

administrative record. See Mandamus Pet. 12. 

On August 4, 2011, DOJ informed PMOI that “the 

process of declassifying information intended for use in the 

consideration of the delisting petition [was] complete” and 

that “State is working as quickly as possible on its review of 

the designation.” Pet’r’s Ex. 4. On September 27, 2011, DOJ 

added two documents to the record, Pet’r’s Ex. 5, and, one 

week later, PMOI again labeled the documents duplicative. 

Mandamus Pet. 12. Since October 2011, DOJ has not asked 

PMOI for additional information, PMOI has not submitted 

any and—most important—the Secretary has not taken final 

action on PMOI’s petition. 

On February 27, 2012, PMOI petitioned us for the 

issuance of a writ of mandamus. 

II. 

“Our consideration of any mandamus petition ‘starts from 

the premise that issuance of the writ is an extraordinary 

remedy, reserved only for the most transparent violations of a 

clear duty to act.’ ” In re Core Commc’ns, Inc., 531 F.3d 849, 

855 (D.C. Cir. 2008) (quoting In re Bluewater Network, 234 

F.3d 1305, 1315 (D.C. Cir. 2000)). It is, of course, undisputed 

that the Secretary has a “clear duty” to respond to this Court’s 

remand. See id. In the case of agency inaction, however, “we 

not only must satisfy ourselves that there indeed exists such a 

duty, but that the agency has unreasonably delayed the 

contemplated action.” Bluewater, 234 F.3d at 1315 (quotation 

marks omitted). “There is no per se rule as to how long is too 

long to wait for agency action.” In re Am. Rivers & Idaho 

Rivers United, 372 F.3d 413, 419 (D.C. Cir. 2004). Instead, 

we analyze a claim of unreasonable delay under the 

“hexagonal” standard outlined in Telecomms. Research & 

Action Ctr. v. FCC, 750 F.2d 70, 79 (D.C. Cir. 1984) (TRAC): 

(1) The time agencies take to make decisions must 
9 

be governed by a rule of reason; (2) where Congress 

has provided a timetable or other indication of the 

speed with which it expects the agency to proceed in 

the enabling statute, that statutory scheme may 

supply content for this rule of reason; (3) delays that 

might be reasonable in the sphere of economic 

regulation are less tolerable when human health and 

welfare are at stake; (4) the court should consider the 

effect of expediting delayed action on agency 

activities of a higher or competing priority; (5) the 

court should also take into account the nature and 

extent of the interests prejudiced by delay; and (6) 

the court need not find any impropriety lurking 

behind agency lassitude in order to hold that agency 

action is ‘unreasonably delayed.’ 

In re United Mine Workers of Am. Int’l Union, 190 F.3d 545, 

549 (D.C. Cir. 1999) (quoting TRAC, 750 F.2d at 80) 

(quotation marks omitted). In each case, the central question 

is “whether the agency’s delay is so egregious as to warrant 

mandamus.” Core Commc’ns, 531 F.3d at 855 (quotation 

marks and citation omitted). We believe the Secretary’s delay 

in acting on PMOI’s petition for revocation is egregious. 

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-
10 

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.4

 The 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). 

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 

 

4

 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. 
11 

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 
12 

to make. If the Secretary wishes to maintain PMOI’s FTO 

status, she can do so by simply denying PMOI’s petition. 

 What remains is the content of the writ to issue. PMOI 

asks us to “issue an order directing the Secretary to revoke 

PMOI’s FTO designation” or in the alternative “requiring the 

Secretary to decide its revocation petition within [thirty] days 

and specifying that, if she does not, the designation shall be 

revoked.” Mandamus Pet. 4. 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.5

Once she makes her decision, it is, of course, entitled to great 

deference. See Islamic Am. Relief Agency v. Gonzales, 477 

F.3d 728, 734 (D.C. Cir. 2007) (“[O]ur review—in [this] area 

at the intersection of national security, foreign policy, and 

administrative law—is extremely deferential.”); 

Humanitarian Law Project v. Reno, 205 F.3d 1130, 1137 (9th 

Cir. 2000) (where a “regulation involves the conduct of 

foreign affairs, we owe the executive branch even more 

latitude than in the domestic context”) (cited by Gonzales, 

477 F.3d at 734). If she fails to take action within that period, 

the petition for a writ of mandamus setting aside the FTO 

designation will be granted. 

 So ordered.

 

5

 Although PMOI urges us to impose a thirty-day deadline, it is 

clear that obtaining a deadline is its foremost concern. Oral Arg. Tr. 

at 51. We arrive at the four-month deadline in part because four 

months should allow enough time for the completion of PMOI’s 

move from Camp Ashraf, the monitoring of which the Secretary 

claims will be exceptionally useful for its determination, id. at 20-

21, as well as time to complete the process of analysis, judgment 

and explication.