At page 1489 Agency reconsideration rendering action nonfinal28 citing casesEven a modicum of concern for judicial economy militates strongly against concurrent review in this recurring situation.
- McGough v. United States, No. 2023-3628 (D.D.C. Sept. 29, 2025).published (Even a modicum of concern for judicial economy militates strongly against concurrent review in this recurring situation.)
- Nostrum Pharm. LLC v. FDA, 35 F.4th 820 (D.C. Cir. 2022).published([A]n agency action cannot be considered nonfinal for one purpose and final for another.)
- Acura of Bellevue v. Reich, 90 F.3d 1403 (9th Cir. 1996).published (Even a modicum of concern for judicial economy militates strongly against concurrent [agency and judicial review].)
- Vanda Pharm. Inc. v. Food & Drug Admin., No. 2023-2812 (D.D.C. Sept. 10, 2024).published“Even a modicum of concern for judicial economy militates strongly against concurrent review in this [] situation”
- William R. Young v. Eric K. Shinseki, 25 Vet. App. 201 (Vet. App. 2012).published As the Court noted in Wachter v. Brown, “[a] party cannot be in ‘two places at the same time.’ ” 7 Vet.App. 396, 397 (1995) (quoting Bellsouth Corp. v. FCC, 17 F.3d 1487, 1489 (D.C.Cir.1994)).
- Blue Ridge Env't Def. League v. Nuclear Regulatory Comm'n, 668 F.3d 747 (D.C. Cir. 2012).published“petitions [an] agency for reconsideration of an order or any part thereof, the entire order is rendered nonfinal as to that party”
- City of Arlington v. Fed. Commc'ns Comm'n, 668 F.3d 229 (5th Cir. 2012).published Co. v. FCC, 116 F.3d 593, 596-97 (D.C.Cir. 1997); BellSouth Corp. v. FCC, 17 F.3d 1487, 1489-90 (D.C.Cir.1994) ("[0]nce a party petitions the agency for reconsideration of an order or any part thereof, the entire order is rendered nonfinal…
- Robert J. May v. R. James Nicholson, 19 Vet. App. 310 (Vet. App. 2005).published A party cannot be in “two places at the same time.” Id. at 1489.
- California Dep't of Water Resources v. Fed. Energy Regulatory Comm'n, 361 F.3d 517 (9th Cir. 2004).published Circuit case which held that “once a party petitions[an] agency for reconsideration of an order, or any part thereof, the entire order is rendered nonfi-nal as to that party.” BellSouth Corp. v. FCC, 17 F.3d 1487, 1489-90 (D.C.Cir.1994).
- Pub. Citizen Inc. v. Mineta, 343 F.3d 1159 (9th Cir. 2003).published “finality with respect to agency action is a party-based concept”
Show 15 more citing cases
- Can Assn Petro v. FERC, No. 96-1336 (D.C. Cir. July 13, 2001).publishedCf. Bellsouth Corp. v. FCC, 17 F.3d 1487, 1489-90 (D.C.
- Canadian Ass'n of Petroleum Producers v. Fed. Energy Regulatory Comm'n, 254 F.3d 289 (D.C. Cir. 2001).publishedCf. BellSouth Corp. v. FCC, 17 F.3d 1487, 1489-90 (D.C.Cir.1994).
- Canadian Ass'n of Petroleum Producers v. Fed. Energy Regulatory Comm'n, Inland Pac. Energy Servs. Corp., Intervenors Canadian Ass'n of Petroleum Producers v. Fed. Energy Regulatory Comm'n, Nw. Pipeline Corp., Intervenors, 254 F.3d 289 (D.C. Cir. 2001).publishedCf. Bellsouth Corp. v. FCC, 17 F.3d 1487, 1489-90 (D.C.
- Small Bus. in Telecomm. v. Fed. Commc'ns Comm'n, 251 F.3d 1015 (D.C. Cir. 2001).published“Therefore, a party that stays before an agency to seek reconsideration of an order cannot at the same time appear before a court to seek review of that same order, any more than the party could literally be. in two places at the same time…
- Sm Bus Telecom v. FCC, 251 F.3d 1015 (D.C. Cir. 2001).published"Therefore, a party that stays before an agency to seek reconsideration of an order cannot at the same time appear before a court to seek review of that same order, any more than the party could literally be in two places at the same time.…
- Beverly Enter., Inc. v. Herman, 50 F. Supp. 2d 7 (D.D.C. 1999).published“When completion of an agency’s processes may obviate the need for judicial review, it is a good sign that an intermediate agency decision is not final.” DRG Funding Corp. v. Secretary of Hous. & Urban Dev., 76 F.3d 1212, 1215 (D.C.Cir.199…
- Stone v. Immigr. & Naturalization Serv., 514 U.S. 386 (1995).published Davis, Administrative Law Treatise § 26:12 (2d ed. 1988); United Transportation Union v. ICC, 871 F. 2d 1114 , 1118 (CADC 1989); Bellsouth Corp. v. FCC, 17 F. 3d 1487, 1489-1490 (CADC 1994).
- Wachter v. Brown, 7 Vet. App. 396 (Vet. App. 1995).published A party cannot be in “two places at the same time.” Id. at 1489.
- Kcs Energy Mktg., Inc. v. Fed. Energy Regulatory Comm'n, 28 F.3d 1295 (D.C. Cir. 1994).unpublishedCf. Bellsouth Corp. v. FCC, 17 F.3d 1487, 1489-90 (D.C.Cir.1994) ("[A]n agency action cannot be considered nonfinal for one purpose and final for another.
- Beehive Tel. Co. v. Fed. Commc'ns Comm'n, 180 F.3d 314 (D.C. Cir. 1999).published ([A] party that stays before an agency to seek reconsideration of an order cannot at the same time appear before a court to seek review of that same order, any more than the party could literally be in two places at the…)
- City of New Orleans v. United States Sec. & Exch. Comm'n, 137 F.3d 638 (D.C. Cir. 1998).publishedSee BellSouth Corp. v. FCC, 17 F.3d 1487, 1489-90 (D.C.Cir.1994) (“[0]nce a party petitions the agency for reconsideration of an order or any part thereof, the entire order is rendered nonfinal as to that party.”).
- Graceba Total Commc'ns, Inc. v. Fed. Commc'ns Comm'n & United States, 115 F.3d 1038 (D.C. Cir. 1997).published(party that remains before agency cannot also bring challenge in court)
- Blackburn v. Brown, 8 Vet. App. 97 (Vet. App. 1995).published(where party petitions agency for reconsideration, agency order becomes nonfinal with respect to that party)
- Petroleum Commc'ns, Inc. v. Fed. Commc'ns Comm'n, 22 F.3d 1164 (D.C. Cir. 1994).publishedUnion v. ICC, 871 F.2d 1114 , 1116 (D.C.Cir.1989); see also BellSouth Corp. v. FCC, 17 F.3d at 1489 (D.C.Cir.1994), TeleSTAR, Inc. v. FCC, 888 F.2d 132, 134 (D.C.Cir.1989).
- Petroleum Commc'ns, Inc. v. Fed. Commc'ns Comm'n United States of Am., McCaw Cellular Commc'ns, Inc., Intervenor. RVC Servs., Inc., D/B/A Coastel Commc'ns Co. v. Fed. Commc'ns Comm'n United States of Am., Ameritech Mobile Commc'ns, Inc. Houston Cellular Tel. Co. Galveston Cellular Tel. Co. Alltel Mobile Commc'ns, Inc. McCaw Cellular Commc'ns, Inc., Intervenors, 22 F.3d 1164 (D.C. Cir. 1994).publishedUnion v. ICC, 871 F.2d 1114 , 1116 (D.C.Cir.1989); see also Bellsouth Corp. v. FCC, 17 F.3d at 1489 (D.C.Cir.1994), TeleSTAR, Inc. v. FCC, 888 F.2d 132, 134 (D.C.Cir.1989).
At page 1490 while party’s request for agency reconsideration remains pending, petition for judicial review incurably premature2 citing cases
- Rural Cellular Ass'n v. Fed. Commc'ns Comm'n, 685 F.3d 1083 (D.C. Cir. 2012).published“Because [that] petition ... is currently pending before the agency, [an] appeal from and petition for review in this court of the [the Corr Wireless Order ] ... [would be] incurably premature.” BellSouth Corp. v. FCC, 17 F.3d 1487, 1490 (…
- Int'l Telecard Ass'n. v. Fed. Commc'ns Comm'n, 166 F.3d 387 (D.C. Cir. 1999).published(while party’s request for agency reconsideration remains pending, petition for judicial review incurably premature)
v.
FEDERAL COMMUNICATIONS COMMISSION, Respondent FREEMAN ENGINEERING ASSOCIATES, INC. v. FEDERAL COMMUNICATIONS COMMISSION, Respondent FREEMAN ENGINEERING ASSOCIATES, INC. v. FEDERAL COMMUNICATIONS COMMISSION
Opinion for the Court filed by Circuit Judge GINSBURG.
GINSBURG, Circuit Judge:Freeman Engineering Associates, Inc., a disappointed applicant for a pioneer’s preference in a Federal Communications Commission licensing proceeding, both appealed from and petitioned for review of an FCC order granting Mobile Telecommunications Technologies Corporation (Mtel) a pioneer’s preference for a variety of two-way services in a single 50 Khz channel. We consolidated those two cases with a petition filed by Bell-south Corporation, and as explained below, we now dismiss both Freeman’s appeal and its petition as incurably premature.
I. Background
Freeman Engineering Associates, Inc. sought a pioneer’s preference with the FCC for the provision of communications services to hearing impaired subscribers in the 930-931 MHz band in the New Orleans and Baton[*1489] Rouge, Louisiana markets. The FCC denied that request in the same order in which it granted a pioneer’s preference to Mtel. See Amendment of the Commission’s Rules to Establish New Narrowband Personal Communications Services, First Report and Order, Gen. Docket No. 93-329, 8 FCC Red. 7162 (released July 23, 1993).
Freeman simultaneously asked the FCC to reconsider the decision denying it a pioneer’s preference and asked this court to review the FCC’s decision granting a pioneer’s preference to Mtel. The FCC now moves for dismissal of Freeman’s appeal and petition in this court on the ground that they are premature because Freeman’s request for reconsideration is pending before the agency.
II. Analysis
The FCC’s motion to dismiss Freeman’s cases is based upon our decision in United Transportation Union v. ICC, 871 F.2d 1114, 1116 (D.C.Cir.1989), in which we held that a party’s filing a petition for reconsideration before an agency “render[s] the underlying agency action nonfinal (and hence unreviewable) with respect to th[at] party.” In opposition Freeman argues that although its requests for FCC reconsideration and for judicial review arise from the same agency order, the petition for reconsideration does not deprive this court of jurisdiction because the grant of a preference to Mtel and the denial of a preference to Freeman are “separate adjudications.” Freeman’s petition for reconsideration, that is, “does not encompass the ‘challenged action’ ... which is the subject matter of the proceedings in this Court.” More simply put, Freeman does not think that it should have to wait to get judicial review merely because the FCC chose to resolve in one order two independent requests for preferential treatment.
Freeman’s attempt to place its cases outside the rule against simultaneous judicial review and agency reconsideration is initially attractive but ultimately unavailing. Even a modicum of concern for judicial economy militates strongly against concurrent review in this recurring situation. See Outland v. CAB, 284 F.2d 224, 227-28 (D.C.Cir.1960) (“When the party elects to seek a rehearing there is always a possibility that the order complained of will be modified in a way which renders judicial review unnecessary.”). Indeed this case is the very model of an invitation to waste judicial resources: if the FCC were upon reconsideration to grant Freeman the pioneer’s preference it seeks, then Freeman would have no, or a substantially diminished, interest in appealing the FCC’s grant of a preference to Mtel.
As the FCC explained in the order that Freeman seeks to challenge, a license applicant that is granted a pioneer’s preference “will be placed on a pioneer’s preference track, not subject to competing applications, and if otherwise qualified will receive a license. Other applicants will compete for remaining licenses in the normal licensing process.” 8 FCC Red. at 7172. As we understand that, if the FCC were upon reconsideration to grant Freeman a pioneer’s preference, and both Mtel and Freeman are otherwise qualified (and there are allocations enough to accommodate two pioneers), then both applications will be granted. Mtel’s application for a license would no longer have a competitive advantage over Freeman’s in the scramble for a scarce resource, and Freeman would have no interest in (and perhaps no standing to pursue) judicial review of the grant to Mtel.
It is widely accepted that “finality with respect to agency action is a party-based concept.” See United Transportation Union, 871 F.2d at 1118 (quoting West Penn Power Co. v. EPA, 860 F.2d 581, 586 (3d Cir.1988)); Wade v. FCC, 986 F.2d 1433 (D.C.Cir.1993); Winter v. ICC, 851 F.2d 1056, 1062 (8th Cir.1988). Therefore, a party that stays before an agency to seek reconsideration of an order cannot at the same time appear before a court to seek review of that same order, any more than the party could literally be in two places at the same time. Or from another perspective, an agency action cannot be considered nonfinal for one purpose and final for another. See United Transportation Union, 871 F.2d at 1117—1118; West Penn Power, 860 F.2d at 585; Winter, 851 F.2d at 1062. Thus, once a party petitions the agency for reconsideration of an order or any part thereof, the[*1490] entire order is rendered nonfinal as to that party. The alternative presents too great a risk of wasting judicial resources without creating any significant benefit.
Freeman also argues that if it were to wait for the FCC to act upon its petition for rehearing before seeking review of the FCC’s grant of a pioneer’s preference to Mtel, then its petition for review would be dismissed as untimely as to the Mtel issue. Not so. For, as we have said, Freeman’s petition for reconsideration in part rendered the agency order nonfinal in its entirety (as to Freeman). When the agency acts upon the petition for reconsideration, Freeman may timely seek judicial review of any part of its final order.
III. Conclusion
Because Freeman’s petition for reconsideration of the FCC’s order denying Freeman a pioneer’s preference is currently pending before the agency, its appeal from and petition for review in this court of the same order insofar as it grants a pioneer’s preference to Mtel are incurably premature. Freeman’s appeal and petition, therefore, are
Dismissed.