City New Orleans, et al v. SEC, No. 97-1264 (D.C. Cir. 1998)
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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 19, 1998 Decided March 10, 1998
No. 97-1264
City of New Orleans, et al.,
Petitioners
v.
United States Securities and Exchange Commission,
Respondent
Chemical Manufacturers Association,
Intervenor
On Petition for Review of an Order of the
Securities and Exchange Commission
Karen R. Carter argued the cause for the petitioners. Kenneth M. Carter was on brief. Robert S. Tongren entered an appearance.
Susan S. McDonald, Counsel, Securities & Exchange Com- mission, argued the cause for the respondent. Richard H.
Walker, General Counsel, Eric Summergrad, Principal Assis- tant General Counsel, and Paul Gonson, Solicitor, were on brief. Susan F. Wyderko, Counsel, entered an appearance.
Before: Edwards, Chief Judge; Williams and Henderson, Circuit Judges.
Opinion for the court filed Per Curiam.
Per Curiam: The petitioners challenge a rule that the Securities and Exchange Commission (SEC) recently promul- gated pursuant to subsection 9(c)(3) of the Public Utility Holding Company Act of 1935, codified as amended at 15 U.S.C. ss 79a et seq., (PUHCA). Because we lack jurisdic- tion to decide the challenges raised by the petitioners, we dismiss.
On February 14, 1997 the SEC issued an order adopting Rule 58 (codified at 17 C.F.R. s 250.58), which allows certain public utility holding companies to acquire interests in compa- nies that are engaged in certain "energy-related" businesses without first obtaining SEC approval for the acquisition pur- suant to sections 9-11 of PUHCA, 15 U.S.C. ss 79i-79k. On February 25, 1997 the petitioners filed a motion with the SEC, requesting that the agency reconsider its decision to promulgate Rule 58. The petitioners filed a supplemental reconsideration motion on March 4, 1997.
While these motions were pending and in accordance with subsection 24(a) of PUHCA, 15 U.S.C. s 79x(a), the petition- ers filed the instant petition for review on April 15, 1997.* The SEC denied the petitioners' motions for reconsideration
__________ * Subsection 24(a), in relevant part, recites:
Any person or party aggrieved by an order issued by the Commission under this chapter may obtain a review of such order ... in the United States Court of Appeals for the District of Columbia[ ] by filing in such court, within sixty days after the entry of such order, a written petition praying that the order of the Commission be modified or set aside in whole or in part.
15 U.S.C. s 79x(a).
on December 3, 1997. Because none of the parties briefed the matter of jurisdiction, on February 3, 1998 we issued an order directing them to be prepared to discuss the matter at oral argument.
"It is well-established that a party may not simultaneously seek both agency reconsideration and judicial review of an agency's order." Tennessee Gas Pipeline Co. v. FERC, 9 F.3d 980, 980 (D.C. Cir. 1993); accord Wade v. FCC, 986 F.2d 1433, 1433 (D.C. Cir. 1993). Instead, the party must choose between administrative relief and judicial relief. See Tennes- see Gas, 9 F.3d at 981 ("By filing its second request for agency rehearing, which was not required by the statute, [petitioner] chose between rehearing before the agency or immediate court review.") (emphasis original).
If a party pursues administrative and judicial relief concur- rently, its petition for judicial review "will be dismissed for lack of jurisdiction." Wade, 986 F.2d at 1433; accord United Transp. Union v. ICC, 871 F.2d 1114, 1118 (D.C. Cir. 1989) (similar). Dismissal is required regardless of the order in which the petitions are filed. Wade, 986 F.2d at 1434. Further, a request for administrative reconsideration of any portion of an agency rule renders the entire rule nonfinal. See Bellsouth Corp. v. FCC, 17 F.3d 1487, 1489-90 (D.C. Cir. 1994) ("[O]nce a party petitions the agency for reconsidera- tion of an order or any part thereof, the entire order is rendered nonfinal as to that party."). Moreover, even if the agency acts on the administrative reconsideration motion before argument is heard on the judicial review petition, the agency action does not cure the jurisdictional defect. See TeleSTAR, Inc. v. FCC, 888 F.2d 132, 134 (D.C. Cir. 1989) ("[T]he filing of a challenge to agency action before the agency has issued its decision on reconsideration is incurably premature.") (emphasis added).
In view of the well-established law of this circuit, we conclude that we are without jurisdiction to review the peti- tion because the SEC order to which it is addressed was rendered nonfinal by the petitioners' reconsideration motions.
While the SEC did not move for dismissal of the appeal on this ground, we may raise and decide questions of subject matter jurisdiction sua sponte. See Doe v. District of Colum- bia, 93 F.3d 861, 871 (D.C. Cir. 1996). Accordingly, the petition for review is
Dismissed.
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 19, 1998 Decided March 10, 1998
No. 97-1264
City of New Orleans, et al.,
Petitioners
v.
United States Securities and Exchange Commission,
Respondent
Chemical Manufacturers Association,
Intervenor
On Petition for Review of an Order of the
Securities and Exchange Commission
Karen R. Carter argued the cause for the petitioners. Kenneth M. Carter was on brief. Robert S. Tongren entered an appearance.
Susan S. McDonald, Counsel, Securities & Exchange Com- mission, argued the cause for the respondent. Richard H.
Walker, General Counsel, Eric Summergrad, Principal Assis- tant General Counsel, and Paul Gonson, Solicitor, were on brief. Susan F. Wyderko, Counsel, entered an appearance.
Before: Edwards, Chief Judge; Williams and Henderson, Circuit Judges.
Opinion for the court filed Per Curiam.
Per Curiam: The petitioners challenge a rule that the Securities and Exchange Commission (SEC) recently promul- gated pursuant to subsection 9(c)(3) of the Public Utility Holding Company Act of 1935, codified as amended at 15 U.S.C. ss 79a et seq., (PUHCA). Because we lack jurisdic- tion to decide the challenges raised by the petitioners, we dismiss.
On February 14, 1997 the SEC issued an order adopting Rule 58 (codified at 17 C.F.R. s 250.58), which allows certain public utility holding companies to acquire interests in compa- nies that are engaged in certain "energy-related" businesses without first obtaining SEC approval for the acquisition pur- suant to sections 9-11 of PUHCA, 15 U.S.C. ss 79i-79k. On February 25, 1997 the petitioners filed a motion with the SEC, requesting that the agency reconsider its decision to promulgate Rule 58. The petitioners filed a supplemental reconsideration motion on March 4, 1997.
While these motions were pending and in accordance with subsection 24(a) of PUHCA, 15 U.S.C. s 79x(a), the petition- ers filed the instant petition for review on April 15, 1997.* The SEC denied the petitioners' motions for reconsideration
__________ * Subsection 24(a), in relevant part, recites:
Any person or party aggrieved by an order issued by the Commission under this chapter may obtain a review of such order ... in the United States Court of Appeals for the District of Columbia[ ] by filing in such court, within sixty days after the entry of such order, a written petition praying that the order of the Commission be modified or set aside in whole or in part.
15 U.S.C. s 79x(a).
on December 3, 1997. Because none of the parties briefed the matter of jurisdiction, on February 3, 1998 we issued an order directing them to be prepared to discuss the matter at oral argument.
"It is well-established that a party may not simultaneously seek both agency reconsideration and judicial review of an agency's order." Tennessee Gas Pipeline Co. v. FERC, 9 F.3d 980, 980 (D.C. Cir. 1993); accord Wade v. FCC, 986 F.2d 1433, 1433 (D.C. Cir. 1993). Instead, the party must choose between administrative relief and judicial relief. See Tennes- see Gas, 9 F.3d at 981 ("By filing its second request for agency rehearing, which was not required by the statute, [petitioner] chose between rehearing before the agency or immediate court review.") (emphasis original).
If a party pursues administrative and judicial relief concur- rently, its petition for judicial review "will be dismissed for lack of jurisdiction." Wade, 986 F.2d at 1433; accord United Transp. Union v. ICC, 871 F.2d 1114, 1118 (D.C. Cir. 1989) (similar). Dismissal is required regardless of the order in which the petitions are filed. Wade, 986 F.2d at 1434. Further, a request for administrative reconsideration of any portion of an agency rule renders the entire rule nonfinal. See Bellsouth Corp. v. FCC, 17 F.3d 1487, 1489-90 (D.C. Cir. 1994) ("[O]nce a party petitions the agency for reconsidera- tion of an order or any part thereof, the entire order is rendered nonfinal as to that party."). Moreover, even if the agency acts on the administrative reconsideration motion before argument is heard on the judicial review petition, the agency action does not cure the jurisdictional defect. See TeleSTAR, Inc. v. FCC, 888 F.2d 132, 134 (D.C. Cir. 1989) ("[T]he filing of a challenge to agency action before the agency has issued its decision on reconsideration is incurably premature.") (emphasis added).
In view of the well-established law of this circuit, we conclude that we are without jurisdiction to review the peti- tion because the SEC order to which it is addressed was rendered nonfinal by the petitioners' reconsideration motions.
While the SEC did not move for dismissal of the appeal on this ground, we may raise and decide questions of subject matter jurisdiction sua sponte. See Doe v. District of Colum- bia, 93 F.3d 861, 871 (D.C. Cir. 1996). Accordingly, the petition for review is
Dismissed.
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