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 IMMIGRATION JUDGES,

INTERNATIONAL FEDERATION OF PROFESSIONAL AND 

TECHNICAL ENGINEERS JUDICIAL 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: SRINIVASAN, Chief Judge, WILKINS, Circuit 

Judge, and RANDOLPH, Senior Circuit Judge. 

Opinion for the Court filed PER CURIAM. 
2 

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 
3 

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). 
4 

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 
5 

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. 
6 

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., 
8 

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 
9 

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.” 
10 

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 
11 

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. 
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 “incurably 1

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). 
2

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 postjudgment 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).
3

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 strongerthan reasons for amendingRule 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
4

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