Stone v. INS, 514 U.S. 386, 7 (1995)

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392

STONE v. INS

Opinion of the Court

(1970); CAB v. Delta Air Lines, Inc., 367 U. S. 316, 326-327 (1961), and the holding in Outland v. CAB, 284 F. 2d 224, 227 (CADC 1960), a decision cited with approval in both Black Ball and Delta. Outland justified treating orders as nonfinal for purposes of review during the pendency of a motion for reconsideration in terms of judicial economy: "[W]hen 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, supra, at 227.

As construed in Locomotive Engineers both the APA and the Hobbs Act embrace a tolling rule: The timely filing of a motion to reconsider renders the underlying order nonfinal for purposes of judicial review. In consequence, pendency of reconsideration renders the underlying decision not yet final, and it is implicit in the tolling rule that a party who has sought rehearing cannot seek judicial review until the rehearing has concluded. 4 K. Davis, Administrative Law Treatise 26:12 (2d ed. 1988); United Transportation Union v. ICC, 871 F. 2d 1114, 1118 (CADC 1989); Bellsouth Corp. v. FCC, 17 F. 3d 1487, 1489-1490 (CADC 1994). Indeed, those Circuits that apply the tolling rule have so held. See Fleary, 950 F. 2d, at 711-712 (deportation order not reviewable during pendency of motion to reopen); Hyun Joon Chung v. INS, 720 F. 2d 1471, 1474 (CA9 1984) (same).

Section 106 of the INA provides that "[t]he procedure prescribed by, and all the provisions of chapter 158 of title 28, shall apply to, and shall be the sole and exclusive procedure for, the judicial review of all final orders of deportation . . . ." 8 U. S. C. 1105a(a) (1988 ed. and Supp. V). The reference to chapter 158 of Title 28 is a reference to the Hobbs Act. In light of our construction of the Hobbs Act in Locomotive Engineers, had Congress used that Act to govern review of deportation orders without further qualification, it would follow that the so-called tolling rule applied.

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