National Association of Immigration Judges , International Federation of Professional v. Federal Labor Relations Authority

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 17, 2022 Decided August 11, 2023
No. 22-1028
NATIONAL ASSOCIATION OF I MMIGRATION J UDGES ,
I NTERNATIONAL FEDERATION OF PROFESSIONAL AND
TECHNICAL ENGINEERS J UDICIAL COUNCIL 2,
PETITIONER
v.
FEDERAL LABOR RELATIONS AUTHORITY,
RESPONDENT
On Petition for Review of Decisions
of the Federal Labor Relations Authority
Abiel Garcia argued the cause for petitioner. With him on
the briefs was Majed Dakak.
Rebecca J. Osborne, Deputy Solicitor, Federal Labor
Relations Authority, argued the cause and filed the brief for
respondent.
Before: S RINIVASAN , Chief Judge, W ILKINS, Circuit
Judge, and RANDOLPH , Senior Circuit Judge.
Opinion for the Court filed PER CURIAM .

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Concurring opinion filed by Senior Circuit Judge
RANDOLPH.
PER CURIAM : For over four decades, immigration judges
employed by the Executive Office for Immigration Review
have collectively bargained through a certified union. Four
years ago, that office asked the Federal Labor Relations
Authority to determine that immigration judges are
management officials barred from inclusion in a bargaining
unit. The Authority agreed. Following an unsuccessful
reconsideration motion, and with a second reconsideration
motion still pending before the Authority, the union petitioned
this court for review of both the Authority’s initial decision and
its decision denying reconsideration. The union contends that,
in issuing those decisions, the Authority violated the union’s
substantive and procedural due process rights.
We do not reach the merits of those arguments. Because
the union filed its petition for review in our court at a time when
its second reconsideration motion remained pending before the
Authority, the union’s petition was incurably premature. We
therefore dismiss the petition for lack of jurisdiction.
I.
A.
The Federal Service Labor-Management Relations Statute
(FSLMRS) governs collective bargaining between certain
federal agencies and labor organizations representing agency
employees. 5 U.S.C. §§ 7101–7135; see Nat’l Treasury Emps.
Union v. FLRA, 943 F.3d 486, 489 (D.C. Cir. 2019). Under the
FSLMRS, the Federal Labor Relations Authority determines
whether a group of employees may bargain together as a unit.
5 U.S.C. § 7112(a). The FSLMRS generally prohibits the

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Authority from authorizing a unit that includes “any
management official,” id. § 7112(b)(1), defined as any
employee whose position “require[s] or authorize[s] the
individual to formulate, determine, or influence the policies of
the agency,” id. § 7103(a)(11).
An agency or labor organization may file a representation
petition with the Authority seeking clarification on whether a
previously certified unit remains appropriate. 5 C.F.R.
§§ 2422.1(b)(1), 2422.2(c). The petitioning party must
“demonstrate that substantial changes have altered the scope or
character of the unit since the last certification” so as to warrant
reexamining the unit’s appropriateness. U.S. Dep’t of the Air
Force, Air Force Materiel Command, Wright-Patterson Air
Force Base, Ohio, 70 F.L.R.A. 327, 328 (2017).
When a party files a petition with the Authority, a Regional
Director investigates it and may issue a decision. 5 C.F.R.
§ 2422.30(a)–(c). If the Regional Director issues a decision,
either party may file an application for review of that decision
with the Authority. Id. § 2422.30(d). After the Authority
resolves an application for review, a party may move for
reconsideration within ten days. Id. § 2429.17. The Authority
can grant reconsideration if “extraordinary circumstances”
warrant it. Id.
A party aggrieved by “any final order of the Authority”
may seek judicial review within sixty days either in our court
or in the court of appeals for the circuit in which the party
resides or transacts business. 5 U.S.C. § 7123(a). A party need
not seek agency reconsideration before petitioning for judicial
review, see 5 C.F.R. § 2429.17, but if it chooses to seek
reconsideration, “the reconsideration request ordinarily tolls
the running of the time limit for judicial review,” Collins v.
Nat’l Transp. Safety Bd., 351 F.3d 1246, 1250 (D.C. Cir. 2003).

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B.
Immigration judges are employees of the Department of
Justice’s Executive Office for Immigration Review (EOIR).
For over four decades, immigration judges have been
represented in collective bargaining by the National
Association of Immigration Judges, International Federation of
Professional and Technical Engineers Judicial Council 2 (the
Union). The Authority certified the Union in 1979 and
reaffirmed the unit’s appropriateness in 2000. See U.S. Dep’t
of Just., Exec. Off. of Immigr. Rev., 56 F.L.R.A. 616, 616, 623
(2000).
In August 2019, EOIR filed a representation petition
asking the Authority to determine that immigration judges
cannot participate in a bargaining unit because they are
“management officials.” EOIR contended that factual and
legal developments since 2000 warranted reconsideration of
the unit’s appropriateness. A Regional Director denied EOIR’s
representation petition. U.S. Dep’t of Just., Exec. Off. for
Immigr. Rev., 71 F.L.R.A. 1046, 1053–68 (2020) (Initial
Order).
EOIR filed an application for review with the Authority.
On November 2, 2020, the Authority issued the first order
challenged here: an Initial Order granting EOIR’s application,
vacating the Regional Director’s decision, and directing the
Regional Director to exclude immigration judges from the
bargaining unit. Id. at 1046–49. The Authority concluded that
immigration judges influence EOIR policy and thus are
“management officials.” Id. at 1048–49.
Later that month, the Union filed its first reconsideration
motion with the Authority. The Union later moved for a

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remand and a stay, citing changes in the duties of immigration
judges since the closing of the record in the Initial Order. EOIR
stated that it did not oppose the Union’s motion for a remand
and a stay and moved to withdraw its 2019 representation
petition on the ground that the petition was no longer
supportable in light of the new Administration’s policy views.
The Union joined in EOIR’s motion to withdraw the
representation petition.
On January 21, 2022, the Authority issued the second
order challenged here, denying the Union’s first
reconsideration motion and dismissing EOIR’s motion to
withdraw its representation petition. U.S. Dep’t of Just., Exec.
Off. for Immigr. Rev., 72 F.L.R.A. 622 (2022) (First
Reconsideration Order). The Authority determined that the
Union’s arguments for reconsidering the Initial Order were
“insufficient to establish extraordinary circumstances.” Id. at
624–25. And the Authority dismissed EOIR’s motion to
withdraw its representation petition as untimely, reasoning that
the motion was, “in effect, a motion for reconsideration,”
which is permitted only within ten days of a decision. Id. at
623 n.15.
On February 7, 2022, the Union filed a second
reconsideration motion with the Authority. The Union asked
the Authority to reconsider its First Reconsideration Order and
contended, among other things, that the Authority had violated
the Union’s due process rights.
On February 23, 2022, while its second reconsideration
motion was pending before the Authority, the Union filed a
petition in our court seeking review of both the Initial Order
and the First Reconsideration Order based on alleged
procedural and substantive due process violations. We
consider that petition in this decision.

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On April 12, 2022, the Authority denied the Union’s
second reconsideration motion. U.S. Dep’t of Just., Exec. Off.
for Immigr. Rev., 72 F.L.R.A. 733 (2022) (Second
Reconsideration Order). In that motion, the Union asserted that
it sought reconsideration of the First Reconsideration Order.
But the Authority believed the Union in fact raised some
arguments concerning the Initial Order. Id. at 734. Because
the Initial Order had issued over a year before the Union’s
second reconsideration motion, and a reconsideration motion
must be filed within ten days of a decision, the Authority
dismissed those challenges as untimely. Id. The Authority
denied the remainder of the Union’s second reconsideration
motion on the ground that the Union had failed to establish
extraordinary circumstances warranting reconsideration of the
First Reconsideration Order. Id. at 734–36.
The Authority then moved in our court to dismiss the
Union’s petition for review for lack of jurisdiction. The Union
filed an emergency motion for a stay of the Second
Reconsideration Order pending resolution of the Union’s
petition for review. A panel of our court denied the Union’s
stay motion and referred the Authority’s motion to dismiss for
lack of jurisdiction to this panel. Per Curiam Order, Nat’l Ass’n
of Immigr. Judges v. FLRA, No. 22-1028 (D.C. Cir. Apr. 26,
2022), ECF No. 1944413.
II.
The Authority asserts that we lack jurisdiction for two
independent reasons: (i) the Union’s second reconsideration
motion, which was pending before the Authority when the
Union filed the petition for review that we consider here,
rendered the petition incurably premature; and (ii) the Initial
Order and the First Reconsideration Order are orders

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“involving an appropriate unit determination” and thus are not
directly reviewable by this court, see 5 U.S.C. § 7123(a)(2).
We agree with the Authority’s first argument and thus have no
need to consider the second.
The Union contends that the Authority failed to preserve
its incurable prematurity objection. But regardless of the
specific arguments made (or preserved) by a party, “we have
an independent obligation to be sure of our jurisdiction.”
Grocery Mfrs. Ass’n v. EPA, 693 F.3d 169, 174 (D.C. Cir.
2012) (quotation marks and citation omitted). We lack
jurisdiction here.
The FSLMRS grants us jurisdiction “[u]pon the filing of a
petition under [section 7123(a)] for judicial review.” 5 U.S.C.
§ 7123(c). Section 7123(a), in turn, authorizes “[a]ny person
aggrieved by any final order of the Authority” to file a petition
challenging the order within sixty days. Id. § 7123(a). We thus
have jurisdiction “[u]pon the filing of a petition” for review
only if it challenges a “final order of the Authority.” Id.
§ 7123(a), (c).
It is well-established that “a pending request for
administrative reconsideration renders an agency action
nonfinal and unreviewable with respect to the party who made
the request.” Flat Wireless, LLC v. FCC, 944 F.3d 927, 933
(D.C. Cir. 2019). A party who seeks agency reconsideration
therefore may not petition this court for review until the agency
resolves the reconsideration request. See id.; Snohomish Cnty.
v. Surface Transp. Bd., 954 F.3d 290, 298–99 (D.C. Cir. 2020).
If a “petitioner who has sought agency reconsideration” also
seeks “judicial review of the same underlying order” before the
agency decides the reconsideration request, the petition for
review is “incurably premature” in challenging nonfinal
agency action. Flat Wireless, 944 F.3d at 933; see, e.g.,

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Snohomish Cnty., 954 F.3d at 298–99; Am. Rivers v. FERC,
895 F.3d 32, 43 (D.C. Cir. 2018). In that situation, the petition
for review must be dismissed for lack of jurisdiction. See Am.
Rivers, 895 F.3d at 43; Flat Wireless, 944 F.3d at 933.
Here, the Union’s petition was incurably premature. The
Union’s second reconsideration motion remained pending
before the Authority when the Union filed the petition for
review, rendering the challenged orders nonfinal at the time of
the Union’s petition. By filing a motion for agency
reconsideration of the First Reconsideration Order before filing
its petition for review in our court, the Union chose agency
reconsideration over immediate judicial review. The Union
could have petitioned for review of the Initial Order, the First
Reconsideration Order, and the Second Reconsideration Order
after the Authority issued the Second Reconsideration Order.
But because the Union filed its petition before the Second
Reconsideration Order was issued, the petition must be
dismissed.
It is of no moment that the Union’s second reconsideration
motion requested agency reconsideration of an order denying
reconsideration (i.e., the First Reconsideration Order), as
opposed to the underlying order (i.e., the Initial Order). When
a party requests agency reconsideration of an order denying
reconsideration, the party’s request renders both that order and
the underlying order nonfinal.
In Tennessee Gas Pipeline Co. v. FERC, 9 F.3d 980 (D.C.
Cir. 1993) (per curiam), for instance, Tennessee Gas sought
agency rehearing of an order that denied Tennessee Gas’s
request to impose a “reconciliation surcharge” on its
customers. Id. at 980. The agency denied rehearing. Id.
Tennessee Gas then sought rehearing of the order denying
rehearing and, less than a month later, filed a petition in this

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court seeking review of both the order denying rehearing and
the underlying “reconciliation surcharge” order. Id. Applying
the principle that “a party may not simultaneously seek both
agency reconsideration and judicial review of an agency’s
order,” we held that Tennessee Gas’s petition for review was
incurably premature, including with respect to the underlying
“reconciliation surcharge” order. Id. at 980–81. That was so
even though Tennessee Gas’s second rehearing motion sought
rehearing of only the order denying rehearing, not the
underlying “reconciliation surcharge” order. Id.
The same reasoning applies here. The Union’s petition for
review was incurably premature—including with respect to the
Initial Order—even though the Union’s second reconsideration
motion sought reconsideration of only the First
Reconsideration Order, not the Initial Order. A contrary
conclusion would disserve the central purpose of the incurable
prematurity doctrine. “There is good reason to prohibit any
litigant from pressing its cause concurrently upon both the
judicial and the administrative fronts: a favorable decision
from the agency might yet obviate the need for review by the
court.” Clifton Power Corp. v. FERC, 294 F.3d 108, 111–12
(D.C. Cir. 2002). And here, as in Tennessee Gas, a favorable
agency decision on the second reconsideration motion pending
before it could have obviated the need for judicial review of
both the order initially denying reconsideration and the
underlying order.
To be sure, the result might be different if the Union’s
second reconsideration motion had been untimely and the
Authority had declined to consider the motion for that reason.
We have held that “the filing of an untimely petition for agency
reconsideration does not render incurably premature an
otherwise valid petition for judicial review,” at least if “the
agency does not consider the merits of the tardy request.”

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Gorman v. Nat’l Transp. Safety Bd., 558 F.3d 580, 587 (D.C.
Cir. 2009) (emphasis added); cf. Snohomish Cnty., 954 F.3d at
299. But here, even if the Authority considered several of the
Union’s arguments in its second reconsideration motion to be
“untimely” challenges to the Initial Order, no party disputes
that the Union’s motion timely sought reconsideration of the
First Reconsideration Order. Indeed, the Union itself embraces
that notion, and the Authority denied the Union’s motion in
part because of a failure to show extraordinary circumstances
warranting reconsideration of the First Reconsideration Order.
Second Reconsideration Order, 72 F.L.R.A. at 734–36.
Nor does the Authority’s ultimate denial of the Union’s
second reconsideration motion cure the prematurity of the
Union’s petition. When a party petitions this court for review
while its request for agency reconsideration remains pending,
the petition is not just “premature,” but “incurably” so. Clifton
Power Corp., 294 F.3d at 110. That is, “subsequent action by
the agency on a motion for reconsideration does not ripen the
[earlier-filed] petition for review or secure appellate
jurisdiction.” Snohomish Cnty., 954 F.3d at 298 (alteration in
original) (quoting TeleSTAR, Inc. v. FCC, 888 F.2d 132, 134
(D.C. Cir. 1989) (per curiam)). The Authority’s issuance of the
Second Reconsideration Order thus did not “ripen” the Union’s
premature petition. Rather, “in order to cure the defect, the
challenging party must file a new . . . petition for review from
the now-final agency order.” Id. (quotation marks and citation
omitted).
Perhaps recognizing that the Second Reconsideration
Order cannot cure prematurity, the Union offers to
“immediately file a new petition” if the court “deems it
necessary.” Union Br. 7 n.2; see Union Reply Br. 16–17. The
Union indeed could have filed a new petition within sixty days
of the Authority’s April 12, 2022 issuance of the Second

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Reconsideration Order—i.e., by June 11, 2022, which was
during the briefing in this case. See Tenn. Gas Pipeline Corp.,
9 F.3d at 981; see also Clifton Power Corp., 294 F.3d at 110
(“The time for filing the petition for review is tolled until all
proceedings before the agency have been completed.”). But
the Union did not file a new petition for review at that time.
And regardless, the Union’s filing of a new petition would give
rise to a new proceeding—it would not cure a jurisdictional
defect as to a pending petition.
* * * * *
For the foregoing reasons, we dismiss the petition for
review for lack of jurisdiction.
So ordered.

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RANDOLPH, Senior Circuit Judge, concurring: I agree that
the law of our circuit requires dismissal of the National
Association of Immigration Judges’ (NAIJ’s) petition for review
because it was “incurably premature,” and because NAIJ failed
to file a new petition for judicial review after the agency denied
its request for reconsideration.
I write because the “incurably premature” doctrine,
announced in TeleSTAR, Inc. v. FCC, 888 F.2d 132 (D.C. Cir.
1989) (per curiam), deserves reconsideration, either by our court
en banc or through an amendment to Rule 15 of the Federal
Rules of Appellate Procedure.
TeleSTAR announced a new rule for administrative law
cases on direct review, a rule it made prospective only. After
TeleSTAR, if a petition for judicial review of agency action is
rendered non-final by the filing of a motion for agency
reconsideration, the petition will be deemed “incurably1
premature.” That is, the petition will not ripen or become valid
to confer appellate jurisdiction even after the agency disposes of
the reconsideration motion. See id. at 134. If the party
aggrieved by agency action fails to file another petition for
review after the agency acts on the reconsideration motion, our
court must dismiss the party’s original petition for judicial
review. See, e.g., Snohomish Cnty., Washington v. Surface
Transp. Bd., 954 F.3d 290, 298 (D.C. Cir. 2020); Flat Wireless,
LLC v. FCC, 944 F.3d 927, 933 (D.C. Cir. 2019); Clifton Power
Corp. v. FERC, 294 F.3d 108, 111 (D.C. Cir. 2002).
The theory is that the agency’s action will turn into a “final”
action subject to judicial review only at the moment the agency
decides the reconsideration motion and starts the clock running
See, e.g., United Transportation Union v. ICC, 871 F.2d 1
1114, 1118 (D.C. Cir. 1989).

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for the filing a new petition for review.2
In the past, a similar regime controlled appeals from
judgments of the district courts. Like petitions seeking judicial
review of agency action, appeals from district court judgments
– with a few exceptions – had to be from “final decisions.” 28
U.S.C. § 1291. Rule 4(a) of the Federal Rules of Appellate
Procedure had provided that if a litigant files a notice of appeal
before a post-judgment motion was made or while a post-
judgment motion was pending, the court of appeals lacked
jurisdiction unless the litigant timely filed a new notice of
appeal after the district court acted on the post-judgment motion.
See Fed. R. App. P. 4(a) (1979); Fed. R. App. P. 4(a) advisory
committee’s note to 1993 amendment.
In a typically forceful opinion, Judge Richard Posner wrote
that “this particular wrinkle in the appellate rules is a trap for the
unwary into which many appellants . . . have fallen, with dire
consequences since there is no way they can reinstate their
appeal if the second notice of appeal is untimely. The mistake
these litigants make is thoroughly understandable. . . . The idea
that the first notice of appeal lapses rather than merely being
suspended is not intuitive.” Averhart v. Arrendondo, 773 F.2d
919, 920 (7th Cir. 1985); see also Harcon Barge Co. v. D & G
Boat Rentals, Inc., 746 F.2d 278, 281 (5th Cir. 1984) (“The
harsh result of this mandated rigid application of this seemingly
functionless provision of the rule is, in our view, that we must
dismiss this appeal.”).
In 1993, appellate Rule 4(a)(4) was amended to eliminate
Another twist is that “the filing of an untimely petition for 2
agency reconsideration does not render incurably premature an
otherwise valid petition for judicial review.” Gorman v. Nat’l
Transp. Safety Bd., 558 F.3d 580, 587 (D.C. Cir. 2009).

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this “particular wrinkle.” Since then, if “a party files a notice of
appeal” before the district court disposes of a post-judgment
motion, “the notice becomes effective to appeal a judgment or
order, in whole or in part, when the order disposing of the last
such remaining motion is entered.” Fed. R. App. P.
4(a)(4)(B)(I).
The case for reform of our “incurably premature” doctrine
is even stronger than reasons for amending Rule 4(a)(4) in 1993.
Both dealt with “final decisions” and both set a “trap for the
unwary.” But at least the pre-1993 requirement that a new
notice of appeal had to be filed was set forth in the Federal
Rules of Appellate Procedure, although the rule was
“complicated” and “buried in Rule 4 of the appellate rules,
which anyway are less familiar than the rules of [civil]
procedure.” Averhart, 773 F.2d at 920. In contrast, the
“incurably premature” doctrine is nowhere to be found in the
appellate rules, including where one would expect to find such
a requirement – that is, in either Rule 15 itself, which is entitled
“Petition for Review or Appeal of Agency Action; Docketing
Statement,” or in our Circuit Rule 15.
It is no answer to say that the incurably premature doctrine
saves the court from the “pointless waste of judicial energy”
required “to process any petition for review before the agency
has acted on the request for reconsideration.” TeleSTAR, 888
F.2d at 134. If this is a concern, there is a far simpler solution.
A petition for review filed during the pendency of a motion for
reconsideration could automatically be stayed, and then
automatically become effective after – but only after – the
agency rules on the pending reconsideration motion. That is the
approach now embodied in Rule 4 of the Federal Rules of
Appellate Procedure. As the First Circuit has acknowledged,
“holding [a] petition in abeyance serve[s] equally the interests
of judicial economy” as does dismissing premature petitions

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outright. Craker v. DEA, 714 F.3d 17, 25–26 (1st Cir. 2013).

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