City of New Orleans v. United States Securities & Exchange Commission

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.