A blog on practice in the Nation’s second-most powerful court

The D.C. Circuit’s jurisdictional trap in agency appeals

If you ever challenge federal agency actions, you’ll want to note a decision of the D.C. Circuit published last week.

Everybody knows that, in federal district court, post-judgment motions toll the time to appeal. But what if, to be extra-safe, you appeal before the last post-judgment motion is resolved? You’re good. The appeal springs to life once the last motion is resolved. This has been the rule for 30 years.

But it’s *not* the rule in the D.C. Circuit when you’re challenging *agency* actions.

In agency cases, if you petition for review while the agency’s weighing your motion to reconsider, you’re not good. The petition is considered “incurably premature.” No matter what the agency does after that—even if it denies reconsideration the next day—you must petition again, within the requisite time period. If you don’t, you’ll be out of luck when the “premature” petition gets dismissed.

This is just the trap for the unwary that triggered a change to the federal appellate rules three decades ago. It’s the trap that an unwary union fell into in the case the D.C. Circuit decided last week.

It’s also the trap Judge Randolph wrote separately to complain about. As Judge Randolph noted, the trap is particularly hidden in agency cases because, unlike the old rule governing premature district court appeals, the rule governing agency appeals doesn’t appear in the federal rules themselves. It’s a court-made rule.

So make a mental note—and ideally set an electronic reminder—when you start your agency challenge. If you need to move to reconsider, you can’t protect yourself by petitioning for review before the agency rules on your motion. That petition will be incurably premature.