United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 14, 2002 Decided June 14, 2002

No. 01-1270

32 County Sovereignty Committee, et al.,
Petitioners

v.

Department of State and
Colin L. Powell, Secretary of State,
Respondents

On Petition for Review of an Order of the
Department of State

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.

Randolph, Circuit Judge: Petitioners are three Irish politi-
cal 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. s 1189.

We have decided two cases arising under the portion of the
Antiterrorism and Effective Death Penalty Act of 1996 con-
ferring upon the Secretary of State the power to designate
foreign terrorist organizations. See Nat'l Council of Resis-
tance 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. s 1189, and its
procedure for designation and for judicial review. See Peo-
ple'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 remand-
ing to the Secretary, see id. at 209. Five days later, 32
County and the Association jointly sent a letter to the Secre-
tary 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 orga-
nizations filed a petition for review with this court the next
day. After an exchange of letters between counsel for peti-
tioners and the Department of Justice attorney representing


the State Department concerning the presence of 32 County
and the Association within the United States, the govern-
ment's attorney notified petitioners by mail dated August 20,
2001, that the State Department "hereby denies [their] re-
quest 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 "incur-
ably premature." Tenn. Gas Pipeline Co. v. FERC, 9 F.3d
980, 980-81 (D.C. Cir. 1993). The matter is one of jurisdic-
tion. 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. Citi-
zens for a Better Env't, 523 U.S. 83, 101-02 (1998), and
ordered the parties to limit their oral argument to this issue.

A "party's pending request for agency reconsideration ren-
ders '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. Colum-
bia 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)). "A request for a new rulemaking, however, would not
pose any problem for our subject matter jurisdiction. See
American Mining Congress v. EPA, 907 F.2d 1179, 1185
(D.C. Cir. 1990). Once a rule is final, an agency can amend it
only through a new rulemaking." 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. s 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 s 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.
s 1189(a)(6)(B); id. s 1189(a)(2)(A)(2). Viewed in this man-
ner, 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 desig-
nation 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 designa-
tions after considering the evidence the designees offered.
See 251 F.3d at 209. In short, the final agency action--that
is, the Secretary's publication in the Federal Register--
remained final despite petitioners' request to reopen the
record. Our jurisdiction is therefore not in doubt.

Turning to the merits, we think it clear that People's
Mojahedin, rather than National Council, governs this case.
In People's Mojahedin we held that "[a] foreign entity with-
out property or presence in this country has no constitutional
rights, under the due process clause or otherwise." 182 F.3d
at 22. 32 County and the Association have demonstrated
neither a property interest nor a presence in this country.
They cannot "rightly lay claim to having come within the
United States and developed substantial connections with this
country." National Council, 251 F.3d at 202. Even the
unclassified record in National Council revealed that the
designated organizations had "an overt presence within the
National Press Building ... and ... claim[ed] an interest in a
small bank account." Id. at 201. In contrast, the affidavits
petitioners submitted in this case demonstrate only that some
of their American "members" personally rented post office
boxes and utilized a bank account to transmit funds and


information to 32 County and the Association in Ireland. The
affidavits do not aver that either organization possessed any
controlling interest in property located within the United
States, nor do they demonstrate any other form of presence
here. The Secretary therefore did not have to provide 32
County or the Association with any particular process before
designating them as foreign terrorist organizations.

With respect to the substance of the Secretary's action
against petitioners, the administrative record (including the
classified information relied upon by the Secretary) furnishes
substantial support for the Secretary's designation of 32
County and the Association as foreign terrorist organizations.
We are satisfied that "the Secretary, on the face of things,
had enough information before [him] to come to the conclu-
sion that [32 County and the Association] were foreign and
engaged in terrorism." People's Mojahedin, 182 F.3d at 25;
see National Council, 251 F.3d at 198-99. The petition for
judicial review is therefore denied.

` So ordered.