"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 Tennessee 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).

Tenn. Gas Pipeline Co. v. FERC, 9 F.3d 980, 980 (D.C. Cir. 1993) (per curiam) (citing Wade v. FCC, 986 F.2d 1433, 1433 (D.C. Cir. 1993) (per curiam)).

The policy supporting the nonfinality rule — that "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," Outland, 284 F.2d, at 227 — applies with equal force where the party seeks agency rehearing after filing a petition for judicial review. Indeed, the Court of Appeals for the District of Columbia Circuit, whose decision in Outland we cited in support of our construction in Locomotive Engineers, has so held in the years following our decision. See Wade v. FCC, 986 F.2d 1433, 1434 (1993) (per curiam) ("The danger of wasted judicial effort . . . arises whether a party seeks agency reconsideration before, simultaneous with, or after filing an appeal or petition for judicial review") (citations omitted).

The cases on which our colleague relies are inapposite. Petitioners did not file a petition for Commission reconsideration, as occurred in Melcher v. FCC, 134 F.3d 1143 (D.C. Cir. 1998), and Wade v. FCC, 986 F.2d 1433 (D.C. Cir. 1993). Neither have Petitioners filed a new petition on which the Commission has yet to act, as was true in Friends of Keeseville, Inc. v. FERC, 859 F.2d 230, 236 (D.C. Cir. 1988).

See Act of August 8, 1958, Pub.L. No. 85-791, 72 Stat. 941 § 16 (1958) (amending § 313 and judicial review provisions of 37 other statutes to allow agencies to exercise concurrent jurisdiction). It is the petitioner's request for administrative rehearing, not the agency's authority to reconsider a decision, that renders the agency's decision non-final as to the petitioner and renders the previously-filed petition for judicial review incurably premature. See Wade v. FCC, 986 F.2d 1433, 1434 (D.C. Cir. 1993) ("Wade's request for agency reconsideration rendered the underlying action nonfinal, regardless of the order of filing"). On the eve of oral argument, counsel for the Commission advised the court that because Clifton seeks review of a penalty assessment, § 31 of the FPA, 16 U.S.C. § 823b(d)(2)(B), "may govern the procedures for petitioning for review instead of the review provisions of section 313."

This court consolidated these two petitions into the present case on September 8, 1997. The FCC argues that TeleSTAR, Inc. v. FCC, 888 F.2d 132 (D.C. Cir. 1989) (per curiam), and Wade v. FCC, 986 F.2d 1433 (D.C. Cir. 1993) (per curiam), establish that the filing of a petition for reconsideration before the FCC makes the challenged FCC order nonfinal, and therefore nonreviewable by this court, as to the petitioning party. The Commission asserts that the rejected waiver applicants' petitions for review before this court should accordingly be dismissed as incurably premature.

It is well-established that a party may not simultaneously seek both agency reconsideration and judicial review of an agency's order. See Wade v. FCC, 986 F.2d 1433 (D.C. Cir. 1993) (per curiam) (citing cases). Moreover, the court has characterized a petition for review filed while a request for agency reconsideration is pending as "incurably premature."

Under this Circuit's “incurably premature” doctrine, “a party may not simultaneously seek both agency reconsideration and judicial review of an agency's order.” Tenn. Gas Pipeline Co. v. FERC, 9 F.3d 980, 980 (D.C. Cir. 1993) (per curiam) (citing Wade v. FCC, 986 F.2d 1433 (D.C. Cir. 1993) (per curiam)). If a party asks an agency to reconsider its prior decision, the request “renders an agency's otherwise final action non-final with respect to the requesting party,” and therefore unreviewable.

This is the case even if the petition for reconsideration is filed after the party has filed for judicial review. Wade v. FCC, 986 F.2d 1433, 1434 (D.C. Cir. 1993) ("The danger of wasted judicial effort that attends the simultaneous exercise of judicial and agency jurisdiction . . . arises whether a party seeks agency reconsideration before, simultaneous with, or after filing an appeal or petition for judicial review." (citations omitted)).

The usual rule that the filing of a timely request for reconsideration tolls finality, see Stone v. Immigration & Naturalization Serv., 514 U.S. 386, 392-93 (1995), applies even where, as here, the request is made subsequent to the filing of the petition for judicial review. See Wade v. Fed. Commc'ns Comm'n, 986 F.2d 1433, 1434 (D.C. Cir. 1993) (holding that the appellant's "request for agency reconsideration rendered the underlying action nonfinal, regardless of the order of filing"). This order does not prevent Mr. Nelson from seeking this court's review by filing a timely petition for review after the MSPB enters a final decision.