American Federation of Labor and Congress of Industrial Organizations v. National Labor Relations Board

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

)
AMERICAN FEDERATION OF )
LABOR AND CONGRESS OF )
INDUSTRIAL ORGANIZATIONS, )
)
Plaintiff, )
)
v. ) Civ. No. 20-cv-0675 (KBJ)
)
NATIONAL LABOR RELATIONS )
BOARD, )
)
Defendant. )
)

MEMORANDUM OPINION

Administrative agencies have a duty to both notify the public before

promulgating rules that potentially affect the substantive rights of regulated parties and

review the solicited public feedback before finally adopting such significant policy

changes. See Administrative Procedures , Pub. L. 79-404, 60 Stat. 237

(1946) (codified as amended at 5 U.S.C. §§ 551 559, 701 706). The law presumes that

an agency will engage in notice-and-comment rulemaking in nearly every instance in

which a final rule is adopted. Thus, if an agency promulgates a rule without providing

notice and receiving public comments, the agency must be prepared to demonstrate that

the rule it intends to enforce is not actually subject to those APA prescriptions, because

it satisfies one of the narrow exceptions to notice-and-comment rulemaking that are

specifically identified in the APA. The instant case involves one of th ose statutory

exceptions: notice-and-comment rulemaking is not required with respect to

agency organization, procedure, or practice[. 5 U.S.C § 553(b)(A). This is generally

1
and colloquially referred to as the APA rules. Mendoza v.

Perez, 754 F.3d 1002, 1023 (D.C. Cir. 2014).

ing a rule that prescribes certain procedures that

employers, employees, and labor unions have to implement with respect to the election

of employee representatives for collective bargaining purposes. See 84 Fed. Reg.

2019 Election Rule

behind the 2019 Election Rule was to rescind certain election-related regulations that

the Board had adopted in 2014: back then, the NLRB undertook notice -and-comment

rulemaking to promulgate a rule that was primarily designed

79

Fed. Reg. 74,308, 74,308 (Dec. 15, 2014), while the 2019 Election Rule sought to

implement various pre-election and pre-

efficiency and expeditious final

Reg. at 69,529 (emphasis in original).

Significantly for present purposes, when the NLRB reversed course and enacted

the 2019 Election Rule, the agency took the position that the rule it was adopting was

merely procedural in nature for the purpose of the APA , and as such, it promulgated the

rule amendments without notifying the public of the new provisions of law that

implemented this policy shift and without soliciting public comment about them. See

84 Fed. Reg. at 69,528. One of the labor organizations that has a significant interest in

NLRB rulemaking the American Federation of Labor and Congress of Industrial

- has filed the instant lawsuit to challenge the 2019

2
Election Rule violates the APA in several

respects. (See Compl., ECF No. 1, at 1.) The AFL-CIO primary argument is that

notice-and-comment rulemaking was required with respect to certain provisions of the

2019 Election Rule (see id. ¶¶ 43 50 (Count I)), and it further maintains that the 2019

Election Rule is both arbitrary and capricious (as a whole (see id. ¶¶ 51 59 (Count II))

and with respect to specific provisions (id. ¶¶ 60 69 (Count III))), and inconsistent with

151 69 (see id. ¶¶ 70 81

(Count IV)). Accordingly, the AFL-CIO seeks a declaration that the entire 2019

Election Rule violates the APA and a court order that vacates it. (See id.

-motions for summary judgment

(see , and

also a threshold motion that the NLRB has filed, which argues that this matter must be

transferred to the D.C. Circuit for lack of jurisdiction (see Mot. to Transfer to the

D.C. Cir. to Cure Want of Jurisdiction, ECF No. 15). Given the May 31, 2020,

effective date of the challenged rule, this Court held a telephonic motions hearing on

May 14, 2020, after which it took the motions under advisement, on an expedited basis.

(See Minute Entry of May 14, 2020.) The Court then issued an Order on May 30, 2020,

which GRANTED the AFL- DENIED

motion to transfer and cross-motion for summary judgment, and REMANDED the

(See Order of

May 30, 2020, ECF No. 34.)

3
In short, the Court has concluded that it has subject-matter jurisdiction to entertain the

AFL- challenges under 28 U.S.C. § 1331, and that the instant case need not be

transferred to the U.S. Court of Appeals for the District of Columbia Circuit, because

the direct-review provision of the NLRA that channels review of certain NLRB actions

directly to the courts of appeals does not apply to the agency action at issue here. With

respect to the merits of the AFL-

challenged parts of the 2019 Election Rule do not qualify as procedural rules within the

meaning o -and-comment rulemaking, and the Court thus

finds that those particular provisions were promulgated unlawfully and must be set

aside.

I. BACKGROUND

A. Regulate Labor Practices Under
The National Labor Relations Act

The NLRB is an administrative agency that Congress created in 1935, when it

enacted the National Labor Relations Act, 29 U.S.C. §§ 151 69, which is the primary

federal statute that regulates private sector labor-employer relations in the United

workers of full freedom of association, self-organization, and designation of

representatives of their own choosing[.] Id. § 151. In furtherance of these goals, the

statute expressly bestows upon the NLRB the power to engage in general and specific

rulemaking, see id. §§ 156, 159(c)(1), and to adjudicate certain disputes that commonly

arise between labor organizations, employees, and employers, see §§ 158, 159, 160.

4
 its powers

with respect to addressing alleged unfair labor practices, on the one hand, and

regulating collective bargaining practices (generally referred to

the oth -organization,

to form, join, or assist labor organizations, to bargain collectively . . . [and] to refrain

id. § 157, the NLRA enumerates the various

employees in one section of the statute, see id. § 158, and separately addresses

i.e., how representatives are chosen and representation

elections are conducted) for collective bargaining purposes in another, see id. § 159.

any person from engaging in any unfair l Id.

§ 160(a). Such unfair labor practices includ

formation or administration of any labor organization , id. § 158(a)(2), or the refusal on

the part of either an employer or a labor organization to engage in collective bargaining

with the other, id. §§ 158(a)(5), (b)(3). And with respect to selection of

their representatives for collective bargaining purposes, the NLRA confers upon the

NLRB, inter alia, the power to determine the unit appropriate for the purposes of

id. §

id. § 159(c)(1)(B); see also 29 C.F.R. § 102.64 (2019)

question of representation exists if a proper petition has been filed

concerning a unit appropriate for the purpose of collective bargaining or concerning a

5
unit in which an individual or labor organization has been certified or is being currently

recogni

For present purposes, it is important to understand that the NLRA addresses the

specific powers of the NLRB with respect to preventing unfair labor practices in section

160 of Title 29, which is e [p] See 29

U.S.C. § 160. The first four subsections of section 160 pertain to various aspects of the

with respect to responding to such practices. See, e.g., id. § 160(a)

(the Board has general authority

id. § 160(b) (the Board can issue a complaint and schedule a hearing when

someone is accused of engaging in unfair labor practices); id. § 160(c) (the Board can

take testimony, make findings, order the cessation of unfair labor practices, and take

affirmative actions to effectuate the policies of the statute); id. § 160(d) (the Board is

free to modify its orders concerning unfair labor practices until judicial review or

judicial enforcement is sought). Additionally, section 160 expressly provides that the

federal court. See id. §§ 160(e), (f). Pursuant to section

power to petition any court of appeals of the United States . . . wherein the unfair labor

practice in question occurred or wherein such person resides or transacts business, for

Id. § 160(e). Likewise, and importantly,

denying in whole or in part the relief sought may obtain a review of such order in any

United States court of appeals in the circuit wherein the unfair labor practice in

question was alleged to have been engaged in or wherein such person resides or

6
transacts business, or in the United States Court of Appeals for the District of

Id. § 160(f).

B. cent Rulemaking Concerning The
Procedures For Conducting Representation Elections

Although section 156 of the NLRA provides the NLRB with the general

. . such rules and regulations

as may be necess statute, 29 U.S.C. § 156, the

Board has seldom acted through notice-and-comment rulemaking on any subject, see

N.L.R.B. v. Curtin Matheson Sci., Inc., 494 U.S. 775, 818 (1990) (Scalia, J., dissenting)

act that the NLRB has explicit rulemaking authority, it has chosen

unlike any other major agency of the Federal Government to make almost all its

see also generally Cornelius

Peck, The Atrophied Rulemaking Powers of the National Labor Relations Board , 70

Yale L.J. 729 (1961). However, over the last decade, the Board has opted to regulate

the procedures that relate to the election of union representatives through a series of

rulemakings, see 29 U.S.C. § 159(c)(1), in addition to its adjudications.

First, in 2011, the NLRB issued a final rule that addressed certain representation-

election practices. See Representation Case Procedures, 76 Fed. Reg. 80,138 (Dec.

22, 2011). The final rule that the agency issued was unusual insofar as it was

promulgated through notice-and-comment rulemaking. See id. at 80,142 (explaining

ha[d] not held a public hearing attended b y all Board Members for at least half a

The 2011 rule was challenged in court and was ultimately invalidated on the

7
sole ground that the Board acted in the absence of a quorum. See Chamber of

Commerce v. N.L.R.B., 879 F. Supp. 2d 18, 20 21, 30 (D.D.C. 2012).

In 2014, the NLRB announced a proposed rule that was almost identical to the

2011 regulation it was likewise aimed at facilitating the expeditious certification of

d expeditious

-case procedures, among other things. 79

Fed. Reg. at 74,308; see also id. (asserting that the 2014 rule would allow the Board to

The agency subjected its

proposed regulation to notice-and-comment rulemaking, including holding at least one

public hearing, and eventually promulgated the rules over the dissent of two Board

members. See id. The 2014 rule survived a subsequent court challenge, see generally

Chamber of Commerce v. N.L.R.B., 118 F. Supp. 3d 171 (D.D.C. 2015); Associated

Builders & Contractors of Texas, Inc. v. N.L.R.B ., No. 1:15-CV-026, 2015 WL

3609116, at *1 (W.D. Tex. June 1, 2015), , 826 F.3d 215 (5th Cir. 2016), and was

implemented in full in 2015.

The 2014 rule made approximately twenty-five changes to the procedures that

had previously governed the election of union representatives for collective bargaining

purposes, 79 Fed. Reg. at 74,308 10 (summarizing the amendments) five of which are

relevant to the instant dispute

questions of individual eligibility and inclusion in the unit before the election of a

union representative (i.e., at the pre-election hearing); instead, the rule gave NLRB

8
Regional Directors discretion to permit disputed individuals to vote subject to

challenge, with the challenges being resolved (if necessary) after the election. See id.

at 74,385. 1 Second, the 2014 rule required the Regional Directors to set a

representation id. at 74,310, and eliminated

the . . be automatically stayed [for 25 to 30 calendar

id. at 74,309. Third, the 2014 rule

codified the requirement that employers provide a list of eligible voters to the union or

the petitioning employees, together with their contact information, and further provided

that employers should serve the list on the petitioners within two business days of the

direction of election. Id. at 74,310. Fourth, the 2014 rule stated that the task of

certifying the results of elections should be performed at the Regional Director level in

every case. Id.

request for Board review of a Regional Director certification of the election would not

stay the election, the counting of ballots, or the certification itself,

Id. at 74,309. 2

When it promulgated the 2014 rule, the NLRB specifically recognized that the

framework, charges the Board to promulgate rules and regulations in order that

accurately, efficiently and speedily. Id. at 74,314

1
Per section 153 of the NLRA, the NLRB may delegate to Regional Directors various powers of the
Board, including the authority
bargaining, to investigate and provide for hearings, and determine whether a question of representation
exists, and to direct an election or take a secret ballot . . . 29 U.S.C.
§ 153(b).
2

election under section 153(b) of the NLRA. See 29 U.S.C. § 153(b).

9
(emphasis added) (internal quotation marks and citation omitted). Accordingly, the

Associated

Builders & Contractors, 826 F.3d at 219, although timeline

reasons proffered for the amendments[,] .

C. The 2019 Election Rule

In December of

concerning how the 2014 rule was working. See Representation Case Procedures, 82

Fed. Reg. 58,783 (Dec. 14, 2017). 3 The NLRB posted that it will be helpful to solicit

and consider public responses to this request for information[,] id. at 58,783, and

sought public input with respect to the following questions:

1. Should the 2014 Election Rule be retained without change?
2. Should the 2014 Election Rule be retained with modifications? If so,
what should be modified?
3. Should the 2014 Election Rule be rescinded? If so, should the Board
revert to the Election Regulations that were in effect prior to the 2014
Election Rule
Election Regulations? If the Board should make changes to the prior
Election Regulations, what should be changed?

Id. at 58,784. The agency received nearly 7,000 submissions in response to its RFI (see

including

Directors. Among other things, these highly interested stakeholders observed that,

3
ly used when an
Adoption of
Recommendations, 84 Fed. Reg. 2,139, 2,146 47 (Feb. 6, 2019); see also &
Glen Staszewski, Final Report: Public Engagement with Agency Rulemaking , Admin. Conf. of the U.S.
at 50 n.234 (Nov. 19, 2018), https://perma.cc/2UGX -UCFE (explaining
comments early in the rule development process or retrospective review when the agency is still
considering whether to engage in a rulemaking project and is just beginning to consider potential

10
 ll the

the adoption of the rules[.] (Letter from Regional Director Committee to Marvin

Kaplan, Chairman, N.L.R.B., at 4 (Apr. 13, 2018), J.A., Doc. 21, ECF No. 33 -3, at

8721.)

Approximately 24 months after it issued the RFI, the NLRB promulgated the

final rule at issue in this case, over the dissent of one of its three Board members. See

Representation Case Procedures, 84 Fed. Reg. 69,524 (Dec. 18, 2019). The 2019

Election Rule, which was eventually slated to take effect on May 31, 2020, see

Representation Case Procedures, 85 Fed. Reg. 17,500 (Mar. 30, 2020), largely

repealed the election procedures that the agency had adopted in the 2014 rule, in order

final resolution of the question of

representation, even if the election itself is not conducted as quickly as it may have

been under the 2014 amendments[,] 84 Fed. Reg. at 69,529 (emphasis in original).

The 2019 Election Rule spans more than 70 pages in the Federal Register, and the

effective repeal of the 2014 rule is accomplished in a various ways. As relevant here,

certain provisions of the 2019 Election Rule directly impact the timing of many of the

required steps that lead up to the certification of an election for union representatives,

and the rule also provides directives concerning the selection of an

individual to serve as the election observer.

Specifically, while the 2014 rule had authorized post-election resolution of

questions of individual eligibility and unit -inclusion, see 29 C.F.R. § 102.64(a) (2019),

the 2019 Election Rule states that, normally, such questions are to be litigated during a

11
pre-election hearing and adjudicated prior to the election, see 84 Fed. Reg. at 69,539. 4

The 2014 rule had also

102.67(b)

(2019), but the 2019 Election Rule adds

schedule an election before the 20th business day after the date of the direction of

election, to permit the Board to rule on any request for review which may be filed

pursuant to p And instead of

requiring the Regional Director to issue a certification of the results of the election

(2019), the 2019

Election Rule provides that Regional Directors will issue certifications of election

results only after the Board had decided a request for review or after the time for filing

a request for review has passed, see 84 Fed. Reg. at 69,554, 69,597. 5

The 2019 Election Rule also

petitioner the voter list, which the Supreme Court has characterized as a record that

promotes . . by allowing unions

4
The text of 2014 rule says that
an appropriate unit ordinarily need not be litigated or resolved before an election is conducted[.]
C.F.R. § 102.64(a) (2019). On this same subject, the 2019 Election Rule
concerning unit scope, voter eligibility and supervisory status will normally be l itigated and resolved

disputed employees to vote subject to challenge, thereby deferring litigation concerning such disputes
until after the election. 84 Fed. Reg. at 69,593.
5
Under the 2014 rule the regional director shall forthwith
issue to the parties a certification of the results of the election, including certification of representative
where appropria
(2019). The 2019 Election Rule amended this provision by adding an additional requirement
request for review filed pursuant to § eg. at 69,597 so as to make

on that request[,] id. at 69,554.

12
the right of access to e NLRB v.

Wyman-Gordon Co., 394 U.S. 759, 767 (1969). Under the 2014 rule, the employer was

required to provide the voter list within 2 business days after issuance of the direction

of an election, 29 C.F.R. § 102.67(l) (2019), while the 2019 amendment gives

employers up to five business days to tender that record, 84 Fed. Reg. at 69,531.

Moreover, rather than allowing parties to choose an election observer of their choice

without restriction (except for various limitations that

manifest, see, e.g., Embassy Suites Hotel, Inc., 313 N.L.R.B. 302, 302 (1993)), the 2019

Election Rule provides that, whenever possible, a party will select as its election

observer either a current member of the voting unit or a current nonsupervisory

employee, see 84 Fed. Reg. at 69,597.

In the Federal Register notice that announces the 2019 Election Rule , the NLRB

states that the agency did not need to undertake notice-and-comment rulemaking,

§ 553(b)(A), and is therefore

exempt from notice and comment. 84 Fed. Reg. at 69,528. The Board further

explained that, the process used

because,

-and-comment rulemaking [in 2014], the explanation for the

2014 amendments was at pains to emphasize that this process was not required by

law[,] and

were adopted after notice-and-comment rulemaking in no way requires notice-and-

comment rulemaking now. Id. The NLRB took care to clarify of the

procedural changes . . . ma[d]e today are premised on the responses to the Request for

13
Information; indeed, [the Board] would make each of these changes irrespective of the

Id. at 69,528 n.12.

D. Procedural History

The AFL-CIO filed the complaint in the instant case on March 6, 2020. (See

Compl., ECF No. 1.) The labor organization alleges 2019 Election

Rule violated the APA because certain provisions are not merely procedural for APA

purposes, as the NLRB claims, and are thus not exempt from the notice-and-

comment requirement. (See id. ¶¶ 43 50 (Count I).) The AFL- complaint also

claims that the 2019 Election Rule is arbitrary and capricious, both as a whole (see id.

¶¶ 51 59 (Count II)), and with respect to specific parts (see id. ¶¶ 60 69 (Count III)),

and the union further maintains that the 2019 Election Rule is inconsistent with the

NLRA (see id. ¶¶ 70 81 (Count IV)).

Three days after filing the complaint, the AFL-CIO filed a motion for

preliminary injunction, requesting preliminary relief in light of the then -impending

April 16, 2020, effective date of the 2019 Election Rule. (See Mot. for Prelim. Inj.,

ECF No. 3.) This Court held a telephonic status conferen ce on March 18, 2020, during

which an extension of the effective date of the rule was discussed, in order to permit

full briefing and fair consideration of the issues in the context of proposed cross-

motions for summary judgment that the Court would review on an expedited basis. (See

Min. Entry of Mar. 18, 2020.) The following day, the NLRB notified the Court that the

effective date of its rule would be postponed until May 31, 2020. (See Notice, ECF No.

18.)

The parties then filed cross-motions for summary judgment (see

14
 and their respective

responses followed (see Summ. J.

In its motion, the NLRB argues that the agency is entitled to

summary judgment because the 2019 Election Rule is a procedural rule, such that it is

exempted from notice-and-comment rulemaking, and that it is neither arbitrary and

capricious nor a

the broad authority granted by Congress to make, amend, and rescind rules necessary to

See at 16). For its part, the AFL-CIO

reiterates its view that certain parts of the 2019 Election Rule are unlawful because they

were not promulgated after the required notice-and-comment rulemaking (see

for Summ. J. at 20), and also maintains that the entire r basic

standard[s] of reasoned decision-making id. at 39), and is otherwise in violation of the

law (id. at 49).

The NLRB has also filed a motion to transfer the case to the U.S. Court of

Appeals for the D.C. Circuit pursuant to section 160(f) of Title 29 of the United States

Code. (See ; see also

.) The motion argues, for the first

time in history, that this direct-review provision vests the jurisdiction to

review the instant exercise of rulemaking authority by the NLRB in the court of appeals

rather than in the district court. (See 4.) In opposition to

the transfer motion, the AFL-CIO argues that section 160(f) is limited to NLRB orders

that concern unfair labor practice disputes, and that this Court has subject -matter

15
jurisdiction under 28 U.S.C. § 1331 to review its challenge to the 2019 Election Rule,

which pertains to the election of union representatives for collective bargaining

purposes. (See

20.)

This Court held a telephonic motions hearing on May 14, 2020, and at the end of

the hearing the Court took the motion to transfer and cross -motions for summary

judgment, now ripe for review, under advisement. (See Minute Entry of May 14, 2020.)

II. LEGAL STANDARD

A. Motions To Transfer Cases To The Court Of Appeals Pursuant To A
Direct-Review Statute

Although Congress certainly

Five Flags Pipe Line Co. v. of

Transp., 854 F.2d 1438, 1439 (D.C. Cir. 1988) (internal quotation marks, alterations,

and citation omitted n this circuit, the normal default rule is that persons seeking

review of agency action go first to district court rather than to a court of appeals [,] Am.

Petroleum Inst. v. S.E.C., 714 F.3d 1329, 1332 (D.C. Cir. 2013) (internal quotation

marks and citation T]he APA neither confers nor restricts jurisdiction, so

general federal-question statute, 28 U.S.C. § 1331

authority for district courts to review claims brought under the APA. Trudeau v.

F.T.C., 456 F.3d 178, 185 (D.C. Cir. 2006). And

otherwise, APA review takes place first in the federal district courts, not the courts of

Rodriguez v. Penrod, 857 F.3d 902, 906 (D.C. Cir. 2017). Indeed, it is by

now clear beyond cavil that, where the district court has subject -matter jurisdiction

under section 1331, -

16
review statute specifically gives the court of appeals subject-matter jurisdiction to

Watts v. S.E.C., 482 F.3d 501, 505 (D.C. Cir. 2007).

With respect to interpreting such direct-

subject-matter jurisdiction lies initially in the court of appeals must of course be

governed by the intent of Congress and not by any views we may have about sound

Florida Power & Light Co. v. Lorion, 470 U.S. 729, 745 (1985). Because

ourts have just so much jurisdiction as Congress has provided by statute[,] Sierra

Club v. Thomas, 828 F.2d 783, 792 (D.C. Cir. 1987), they

intent with respect to jurisdictional provisions, including direct review provisions, Am.

Petroleum Inst., 714 F.3d at 1337. However, if a particular direct-review provision is

it will likely be read to confer direct-review authority to the

court of appeals, for the Supreme Court has specifically

indication that Congress intended to locate initial APA review of agency action in the

district courts, we will not presume that Congress intended to depart from the sound

policy of placin Lorion, 470 U.S. at 737.

Thus, as relevant here, the D.C. Circuit has adopted a presumption with respect to

ambiguous direct-review provisions, which holds that a statutory provision

right of di

authorizes such review of any agency action that is otherwise susceptible of review on

N.Y. Republican State Comm. v. S.E.C.

, 799 F.3d 1126, 1131 (D.C. Cir. 2015) (emphasis added).

B. Summary Judgment In The APA Context

As a general matter, summary judgment may be granted in favor of a party

17
pursuant to Federal Rule of Civil Procedure 56

disclosure materials on file, and any affidavits [or declarations] show that there is no

genuine issue as to any material fact and that the movant is entitled to a judgment as

., 719 F. Supp. 2d

26, 31 32 (D.D.C. 2010), , 663 F.3d 476 (D.C. Cir. 2011) (alteration in original)

(quoting Fed. R. Civ. P. 56(c)). In the instant case, however, the parties have sought

summary judgment with respect to an action of an administrative agency that allegedly

violates the APA; as a result, the typical legal standard articulated in Federal Rule of

Civil Procedure 56 does not apply. See Wilhelmus v. Geren, 796 F. Supp. 2d 157, 160

(D.D.C. 2011) (internal citation omitted).

Instead

& Human Servs., 313 F. Supp. 3d 62, 74 (D.D.C. 2018) (internal quotation marks,

alterations, and citation omitted). Thus, in the instant context, it is the role of the

agency to resolve factual issues to arrive at a decision that is supported by the

administrative

not as a matter of law the evidence in the administrative record permitted the agency to

Zemeka v. Holder, 963 F. Supp. 2d 22, 24 (D.D.C. 2013)

(intern

the mechanism for deciding, as a matter of law, whether the agency action is supported

by the administrative record and otherwise consistent with the APA standard of

Wilhelmus, 796 F. Supp. 2d at 160 (citation omitted).

18
III. ANALYSIS

The NLRB vigorously maintains, as a threshold matter, that the instant APA

dispute concerning its newly promulgated election-procedures rule must be transferred

to the court of appeals forthwith, because the direct-review provision in section 160(f)

of the NLRA divests this Court of jurisdiction over the claims that the AFL -CIO brings

here. (See -

filed in a court which lacks subject-

further that, if this Court addresses the AFL-

regulatory provisions are procedural rules that did not require pre-promulgation notice-

and-comment rulemaking, and none of them is arbitrary and capricious or otherwise

violative of the NLRA. (See -CIO responds

-review provision is inapposite (see to Transfer

at 1), and that the union is entitled to summary judgment on its APA claims, because

-procedures provisions required

notice-and-comment rulemaking, and not only against

arbitrary and capricious rules, but also transgressed the NLRA (see

Summ. J. at 9 10).

As explained below, this Court has concluded -review

provision does not divest the district court of subject -matter jurisdiction over the instant

dispute, and it has further found that no fair assessment of the regulatory provisions

leads to the conclusion that the challenged parts of the 2019 Election Rule are mere

procedural rules. Consequently, the APA required that the challenged parts of the 2019

19
Election Rule be promulgated through notice-and-comment rulemaking, and given that

the NLRB did not actually engage in such a pre-promulgation process, the provisions

that the AFL-CIO has challenged on notice-and-comments grounds must be set aside.

But this Court will not invalidate the entire rule to remedy the notice -and-comment

defect, in accordance with well-established legal norms that require deference to agency

decision- w of administrative action.

Instead, the Court will remand the matter to the agency for further consideration in light

A. The Court Has Jurisdiction To Consider The Parties Cross-Motions
For Summary Judgment, Notwithstanding The NLRA -Review
Provision

There is no question that

thus any

over the claim presented. Salazar ex rel. Salazar v. District of Columbia, 671 F.3d

1258, 1261 (D.C. Cir. 2012). The parties here disagree on whether district courts have

subject-matter jurisdiction to entertain any APA challenge to a rule promulgated by the

NLRB (see Transfer at 2), and this dispute

arises because section 160(f) of the NLRA provides, in relevant part, that

[a]ny person aggrieved by a final order of the Board granting or
denying in whole or in part the relief sought may obtain a review of
such order in any United States court of appeals in the circuit wherein
the unfair labor practice in question was alleged to have been engaged
in or wherein such person resides or transacts business, or in the
United States Court of Appeals for the District of Columbi a[.]

29 U.S.C. § 160(f). This Court easily concludes that the text, structure, and legislative

history of section 160(f) make it unambiguously clear that section 160(f) does not

20
channel to the courts of appeals direct-review jurisdiction over challenges to NLRB

rules governing the election of union representatives for collective bargaining purposes,

as explained below.

1. Section 160(f) Pertains Solely To Claims That Relate To Agency
Actions Concerning Unfair Labor Practices

Beginning, as this Court must, with the text of section 160(f), it is clear that this

statutory provision is directed to [s] of the NLRB

the

Thus, by its terms, the direct-review provision is quite

specific and relatively narrow, insofar as it provides for direct judicial review in the

court of a

entity that the NLRA governs. Id. Setting aside for the moment whether or not the

here, there is no reasonable argument that credibly casts the 2019 Election Rule as an

agency action that grants or denies any relief to a regulated party, and this problem

alone is sufficient to cast doubt on the section 160(f) applies to

the AFL- . 6 But what clinches the conclusion that sectio n 160(f) does not

6
The NLRB
asserts and granted relief when
Reply to Transfer at 7 n.3.) It further maintains that section 160(f)
must be read to encompass instances in which the Board seeks relief from itself in this manner,

its own initiative must be challenged in district court, but rules issued in response to a petition must be
(Id.) Of course, this odd argument is a strawman, for it demands an
entirely unnatural reading of what it means to seek relief from the NLRB, and simultaneously sidesteps
the fact that, regardless of who initiates the rule, section 160(f) only conceivably applies to agency
actions that pertain to unfair labor practices. See infra Section III.A.2.

21
divest the district court of the subject-matter jurisdiction that it would otherwise have to

address the AFL- under 28 U.S.C. § 1331 is the very simple fact that what

is being directed to the court of appeals for direct-review per the text of the statute is

NLRB actions unfair labor practice in question a textual reference

that strongly suggests that the provision is only triggered when some kind of unfair

labor practice is at issue. Cf. Am. Fed n of Labor v. N.L.R.B., 308 U.S. 401, 409 (1940)

(holding that section 160(f) authorizes judicial review of NLRA section 158 unfair

labor practice orders, but it does not authorize judicial review of NLRA section 159

representation adjudications).

The structure of section 160 of the NLRA confirms that this interpretation is the

only possible reading of this direct-review provision. In this regard, as the Court

previously explained, subsection (f) appears as an integral part id. at

407 revention of unfair labor practices § 160

ll the other subdivisions relate exclusively to proceedings for the prevention of

unfair labor practices , 308 U.S. at 407. 7 The NLRB provides no

explanation for its suggestion that Congress intended to place section 160(f) in the heart

of a section solely governing unfair labor practices, and yet somehow meant for this

7
See also 29 U.S.C. § 160(a) (author
unfair labor practice . . id. §

id. §
opinion that any person named in the complaint has engaged in . . . any such unfair labor practice, then
the Board shall state its findings of fact and sh all issue . . . an order requiring such person to cease and
id. §
in a court, as hereinafter provided, the Board may at any time upon reasonable notice and in such
manner as it shall deem proper, modify or set aside, in whole or in part, any finding or order made or
id. §
States . . . for the enforcement of suc .

22
particular provision alone to apply more broadly. Cf. Almendarez-Torres v. United

States, 523 U.S. 224, 234 (1998) he title of a statute and the heading

of a section are tools available for the resolution of a doubt about the meaning of a

statute (internal quotation marks and citation omitted)). And because the entirety of

section 160 solely focuses on NLRB orders on unfair labor practice disputes, the only

reasonable construction of subdivision (f) takes into account that it only concerns

NLRB orders on unfair labor practice disputes as well.

The structure of the NLRA itself

160(f) mandates direct review of NLRB actions that pertain to unfair labor practices.

Cf. Massachusetts v. Morash, 490 U.S. 107, 115 (1989) n expounding a statute, we

are not guided by a single sentence or member of a sentence, but look to the provisions

(internal quotation marks, alterations,

and citation omitted)). As explained in Section I.A above, the NLRA draws a clear

distinction between unfair labor practices and union elections in the collective

bargaining context, and provides the NLRB with the power to adjudicate disputes and to

promulgate rules with respect to both spheres of labor - Separate and

distinct e NLRA govern the procedure in unfair labor practice cases

and in representation cases he procedure to be followed in the unfair labor

practice cases is outlined in some detail 160 which deal[s] with unfair

labor practices only and do[es] not deal with the area of representation elections [,]

which are addressed in section 159 of the statute. Dep t & Specialty Store Emp. Union,

Local 1265 v. Brown, 284 F.2d 619, 626 (9th Cir. 1960); see also ,

308 U.S. at 406 (n

23
 so consistent with the scant legislative

history pertaining to this statutory provision. The House Report on the draft bill that

prevent any person from engaging in any unfair

the federal courts to get involved in two circumstances. H.R. Rep. No. 74 -969 at 21 22

(1935). The Report says, first

at the Board shall be empowered to petition any

appropriate Circuit Court of Appeals of the United States for the enforcement of such

Id. at 22. And, s

aggrieved by a final order of the Board granting or denying in whole or in part the relief

sought may obtain a review of such order in the appropriate circuit court of appeals, or

Id. This same source explains

that the provision that allows an aggrieved person to solicit the intervention of the

such final order is made

Id.

section 160 and section 160(f), and also the text and structure of the statute that

Congress crafted to convey that intent, leave no doubt as to the limited scope of the

24
direct review created by the NLRA: it concerns the enforcement and review of NLRB

orders that pertain to unfair labor practice charges.

2. That Ambiguous Direct-Review Provisions Pertaining To Agency
Presumptively
Of No Moment

The NLRB points out that the D.C. Circuit has long maintained, as a general

matter, that where there is ambiguity with respect to the scope of a direct -review

statute, should [.] NYRSC,

799 F.3d at 1131; see also Inv. Co. Inst. v. Bd. of Governors of Fed. Reserve Sys. , 551

F.2d 1270, 1273 78 (D.C. Cir. 1977) (interpreting Section 9 of the Bank Holding Act,

which a

obtain a review of such order . . . in the Court of Appeals in the District of

that

is interpreted to mean any agency action capable of review on the basis of the

agency regulations). Given this binding authority, the

Board here takes the unprecedent step of arguing that the text of section 160(f) must be

read to mandate direct-review authority to the courts of appeals with respect to both any

order of the NLRB and any rule that the NLRB promulgates (with the exception of

orders certifying the election of union representatives), and as such, section 160(f)

applies to divest this Court of jurisdiction over the AFL- . (See

to Transfer at 3 5 (acknowledging that the Board never made this argument in prior

challenges to its rules).) But this entirely novel contention is also entirely

unpersuasive, because section 160(f) is not at all ambiguous in scope, as demonstrated

above and, indeed, it makes crystal clear that the challenged agency action that is

25
 that involves unfair labor

practices, while the election rule at issue here indisputably concerns collective

bargaining procedures. See Pub. Citizen, Inc. v. Nat l Highway Traffic Safety Admin.,

489 F.3d 1279, 1287 (D.C. Cir. 2007) (noting that, when interpreting a direct-review

ambiguous in any sense relevant

Not to belabor the point, the Court merely reiterates that Congress intentionally

designed subsection (f) of section 160

ractice in question was

29 U.S.C. § 160(f), in the same

way that Board can seek court enforcement of any agency order concerning an alleged

unfair labor practice pursuant to subsection (e), see id. § 160(e). See generally supra

Section III.A.1. To be sure, subsection (f) is also

which of the

courts of appeals such aggrieved persons can petition to obtain judicial review. But the

text, structure, and legislative history of this direct -review provision unequivocally

establishes that, at bottom, the subject of a petition for review that is filed with the

court of appeals under section 160(f) must be an NLRB action that pertains to unfair

labor practices as opposed to any other topic that the agency might have acted to

address.

reliance on that the D.C. Circuit for

direct-review-statute purposes presumptively in see

Transfer at 3) is entirely beside the point. That is, regardless of whether,

26
contrary congressional intent, an ambiguous statutory review provision creating a

[also]

authorizes such review of any agency rule, NYRSC, 799 F.3d at 1131, Congress

intent with respect to section 160(f) is not absent; instead, Congress has unambiguously

made it crystal clear that, to trigger the direct-review directive, any NLRB order (or,

perhaps, any NLRB rule) must, as a threshold matter, relate to unfair labor practices.

This critical prerequisite manifestly distinguishes the instant direct-review

provision from those in each of the cases that NLRB points to as precedents for the

(See

Transfer at 3 4 2 13.) 8 And the NLRB does not appear to

dispute that the 2019 Election Rule concerns collective bargaining practices, not unfair

labor practice determinations. Therefore, it is clear to this Court that it retains

jurisdiction over the instant challenge t

action regulates representation rather than unfair labor practices, such that subsection

-review provision does not apply. 9 Consequently, the Court will proceed to

8
For example, in Investment Co. Institute v. Board of Governors of Federal Reserve System , 551 F.2d
1270, 1278 (D.C. Cir. 1977), the D.C. Circuit interpreted a direct-review provision that authorizes
order
... id. at 1273 n.3, and held
underlying [that provision]
cluding agency regulations, id. at 1278.
See also, e.g., N.Y. Republican State Comm. v. S.E.C., 799 F.3d 1126, 1129 31 (D.C. Cir. 2015); CTIA-
.C.C., 466 F.3d 105, 108 12 (D.C. Cir. 2006). Moreover, none of the cited
authorities addresses a direct-review provision that plainly channels to the court of appeals direct-
review authority only with respect to a certain specified category of agency decisions . (See
30 31 (admitting that the provisions at issue in the cited cases are not as specific as section 160(f) in
terms of applicability).)
9

unfair labor practice

27
review the merits of the AFL- -matter

jurisdiction that Congress has conferred to it under 28 U.S.C. §1331.

B. 2019 Election Rule Required Notice-And-Comment
Rulemaking Under The APA Because It Is Not A Procedural Rule

separates legislative [or substantive] rules, which have the force and

effect of law, from three types of rules that do not: interpretive rules, general statements

of policy, and procedural rules Planned Parenthood of Wisconsin, Inc. v. Azar, 316

F. Supp. 3d 291, 304 (D.D.C. 2018), vacated as moot, 942 F.3d 512 (D.C. Cir. 2019)

(internal quotation marks and citations omitted), and as relevant here, the APA also

provides that interpretive rules, policy statements, and procedural rules are exempted

from the notice-and-comment requirement, see 5 U.S.C. § 553(b)(A). The

Batterton v. Marshall, 648

F.2d 694, 707 (D.C. Cir. 1980); however, the APA states that Congress intended to

permit agencies to promulgate

without first submitting rules of that nature to public scrutiny, 5 U.S.C. § 553(b)(A).

The nub of th parts of its

2019 Election Rule into this narrow classification. But for the reasons explained below,

this Court finds that the challenged provisions of the 2019 Election Rule are not

procedu otherwise

mandatory notice-and-comment requirements.

practices, pursuant to
NYRSC, 799 F.3d at 31. The claims at issue here concern

presumption to rules on unfair labor practices is not before this Court.

28
 1. The Challenged Provisions Are Not Procedural Rules Because They
Are Not Rules Of Agency Organization, Procedure, Or Practice

The first s

recognize that the parties have framed this issue as a quest to ascertain whether or not

the 2019 Election Rule is a substantive rule for which notice-and-comment rulemaking

is required a subject upon which they vehemently disagree. (Compare

amendments are substantive

with Summ. J. at 7 (contending that the challenged provisions are not

none of the changes challenged by AFL-CIO in the 2019

[Election Rule] is so burdensome that they either foreclose fair consideration of the

underlying controversy or have the intent or effect of changing the substantive outcome

of the elections The parties appear to agree that the 2019 Election Rule is, in fact, a

the APA, see 5 U.S.C. § 551(4); therefore, it is puzzling that

the parties have framed the applicable legal standards in a manner that seems to lose

track of the central question i.e., whether the 2019 Election Rule provisions are

procedural rules and thus exempt from required notice-and-comment rulemaking and

have instead primarily engaged in a debate over whether the challenged parts of the

2019 Election Rule qualify as substantive and, as such, were entitled to notice-and-

comment rulemaking in the first place.

the D.C.

ha[s] struggled with the distinction between substantive and

procedural rules JEM Broad. Co. v. F.C.C., 22 F.3d 320, 326 (D.C. Cir. 1994), and

he distinction between substantive and procedural rules

is one of degree , Elec. Privacy Info. Ctr. v.

29
( , 653 F.3d 1, 5 (D.C. Cir. 2011). The Circuit has also indicated that the

relevant analysis Chamber of Commerce v. Dep t of

Labor, 174 F.3d 206, 212 (D.C. Cir. 1999), but it has not further expounded upon how

one is expected to draw that line, as a practical matter, with respect to any particular

rule formulation. Cf. ing , 758 F.3d 243, 251 (D.C. Cir.

Yet, the seemingly inscrutable task of discerning which agency rules function in

a sufficiently substantive manner to qualify for notice-and-comment rulemaking is

made substantially easier when one revisits the text of the APA, which helpfully

establishes that an agency rule is essentially presumed to be substantive for the purpose

of the notice-and-comment requirement, and that notice-and-comment rulemaking is

thus generally required unless a rule satisfies one of the listed exceptions. See 5 U.S.C.

§ 553(b). Therefore, this Court has initially focused its attention on identifying the

contours of the exception that the NLRB relies upon in this case rather than on defining

the limits of the general rule, so as to determine whether the challenged parts of the

2019 Election Rule qualify as procedural rules. Cf. Am. Hosp. Ass n v. Bowen, 834

F.2d 1037, 1044 (D.C. Cir. 1987) (warning of the risks of allow[ing] the exceptions

itemized in § 553 to swallow the APA s well-intentioned directiv

eliminating the possibility that th

there were only those two options in the universe of possible rule classifications, and if

each was equally likely to occur. However, as noted above, the APA carves out and

exempts from notice-and-comment rulemaking three different kinds of agency rules

30
 553(b)(A),

id. And even more

importantly, notice-and-comment rulemaking is the default when an agency

promulgates a rule, while

.P.A., 626 F.2d 1038,

1045 (D.C. Cir. 1980); see also Mendoza, 754 F.3d at 1023. This means that, if the task

at hand is to determine when notice-and-comment is not required, than doing so is most

effectively and efficiently accomplished by demarcating the boundaries of the limited

exception at issue, and determining whether, in light of those parameters, the agency

has satisfied its burden of establishing that the rule it promulgated meets that mark.

Here, the NLRB argues that the challenged provisions of the 2019 Election Rule are

exempt from notice-and-comment rulemaking under the procedural-rule exception;

therefore, this Court has primarily undertaken to examine whether or not the provisions

at issue qualify as such.

Put another way, in order to prevent veering off course in this very murky area of

administrative law, this Court begins its analysis of the nature of the challenged

provisions of the 2019 Election Rule for APA purposes by establishing the scope of the

intended target: the procedural-rule exception. In this regard, the D.C. Circuit has

instructed that -rule exception

but it has also noted that

. . . internal agency practices affect parties outside the agency often in significant

Batterton, 648 F.2d at 707. The D.C. Circuit has provided few other insights

into the proper method for identifying procedural rules, but it is helpful to recall that

31
 shorthand for the

that are expressly exempted from the

notice-and-comment requirement under section 553(b) of the APA.

The Supreme Court has described the procedural rules provision as, essentially, a

Chrysler Corp. v. Brown, 441 U.S. 281, 310 (1979), and the

with respect to this provision by explaining

Congress provided this exemption from the normal rulemaking procedures to

ensure that agencies retain latitude in organizing their internal operations[,] Mendoza,

754 F.3d at 1023 (internal quotation marks and citation omitted) (emphasis added).

Thus, rules that are properly characterized as procedural in nature for APA purposes,

and are thus exempted from notice-and-comment rulemaking,

toward improving the efficient and effective operations of an agency [,] Batterton, 648

F.2d at 702 n.34; that is,

id. at 708 n.70 (citation omitted), although they can sometimes set

Lamoille Valley

R.R. Co. v. Inte , 711 F.2d 295, 328 (D.C. Cir. 1983) alter

the manner in which the parties present themselves or their viewpoints to the agency [,]

Nat l Mining Ass n, 758 F.3d at 250. Importantly, the D.C. Circuit has also warned that

the procedural-rule exception

Pickus v. U.S. Bd. of Parole, 507 F.2d 1107, 1113 (D.C. Cir.

1974), because procedural rules are

Kessler v. F.C.C.,

326 F.2d 673, 680 (D.C. Cir. 1963) (citation omitted).

32
 It is instructive to consider a few examples of agency rules that the D.C. Circuit

has found to be procedural in nature. For example, the circuit has concluded that rules

that create or modify deadlines for regulated entities to notify the agency of their choice

to exercise certain substantive rights are procedural rules. See, e.g., Lamoille Valley,

711 F.2d at 328; Ranger v. F.C.C., 294 F.2d 240, 244 (D.C. Cir. 1961). Similarly,

regulations regarding how the agency is going to receive petitions from regulated

entities, or the internal steps that the agency will take to screen such applications, have

been considered procedural. See, e.g., ing , 758 F.3d at 250; James V.

Hurson Assocs., Inc. v. Glickman, 229 F.3d 277, 282 (D.C. Cir. 2000). The circuit has

also

to its processing of incomplete or objected -to petitions filed by regulated entities satisfy

the procedural-rule exception. See, e.g., JEM Broad. Co., 22 F.3d at 327 28;

Neighborhood TV Co. v. F.C.C., 742 F.2d 629, 637 (D.C. Cir. 1984). And, lastly,

to meet its own legal duties. See, e.g., , 276 F.3d 634, 638

(D.C. Cir. 2002).

Thus, it is fair to say that D.C. Circuit precedents, as well as its more general

pronouncements regarding the scope and meaning of the procedural-rule exception,

suggest that procedural rules primarily l operations, even if

such rules also occasionally create expectations for regulated entities with respect to the

timeframe, means, and methods by which those entities assert their substantive rights

vis-à-vis the agency. Moreover, where (as here) a plaintiff challenges a rule provision

that is plainly not directed to internal agency processes, the APA seemingly requires the

33
agency to demonstrate that its rulemaking action nevertheless relates to agency

organization, procedure, or practice 5 U.S.C. § 553(b)(A), to such a degree that it

cannot be fairly characterized as having a substantive impact on the parties. In other

f the agency cannot show that the default assumptions of

the APA have been properly displaced because the rule at issue is, in fact, directed at

, then the rule

cannot be characterized as fitting within the narrow procedural exemption, and

notice-and-comment is required. Cf. EPIC, 653 F.3d at 5 6 (

substantive and procedural rules is one of degree depending upon whether the

substantive effect is sufficiently grave so that notice and comment are needed to

safeguard the policies underlying the APA serv[ing] the need for

public participation in agency decisionmaking the agency has all

pertinent information before it when making a decision

citations omitted)).

Applying these principles to the instant case, this Court concludes that each of

the provisions of the 2019 Election Rule that the AFL-CIO challenges as a notice-and-

comment violation reaches

has failed to show that each provision nonetheless still fits within the narrow scope of

the procedural-rule exception

schedule an election before the 20th business

day after the d , and also the

extension of the window of time within which employers must compile the list of

eligible voters and disclose it to the Board and the employees, see id. at 69,531. By

34
lengthening the timeframes wherein the agency (through its Regional Directors) and

employers who presumably oppose unionization are supposed to unde rtake certain

significant actions with respect to aspects of the representation -elections process, the

NLRB is doing much more than merely and ministerially altering deadlines for parties

to express their intentions to the agency. See, e.g., Lamoille Valley, 711 F.2d at 328;

Ranger, 294 F.2d at 244. Rather, the NLRB has delayed the timeframe within which

duties that are owed to the regulated entities will be carried out. To be sure, these rules

can be characterized as procedural at a certain lev el of abstraction, because they

generally relate to the procedures that must be followed to conduct representation

elections. But rule provisions that dictate when the Regional Directors will take certain

necessary actions on behalf of the agency in respo

employers must disclose certain information once the employees have already asserted

their substantive rights,

yet they do have a significant impact on the empl

campaign for unionization, as is their right under the NLRA.

Likewise, when the 2019 Election Rule provides that

scope, voter eligibility and supervisory status will normally be litigated and resolved by

the [R]egional [D]irector before 84 Fed. Reg. at 69,539; or

a current member of

the voting unit a current nonsupervisory employee id. at 69,597; or mandates

that

id. at 69,554, the Board is manifestly outward facing, and is

unquestionably guiding the conduct of regulated entities in a manner that primarily

35
impacts matters outside its own internal operations. To put a finer point on this

particular assessment, by requiring pre-election litigation of potential voter eligibility

problems, the NLRB is causing employees to wait for issues concerning the scope of the

collective bargaining unit to be sorted out prior to an election, with the distinct

possibility that such a

sufficient number of peers to unionize the workplace, and with no apparent

corresponding benefit with respect to the internal workings of the agency. And the

election-observer provision, which plainly directs whom the employees can choose to

protect their interests while the election is underwa y, might well be a significant

constraint for employees who are seeking to unionize, but appears to make not one whit

internal operations. Finally, to the extent that

the 2019 Election Rule delays certification, it likewise forestalls the benefits that

employees are seeking when they campaign for unionization, see, e.g., 29 U.S.C.

§ 158(b)(7)

than 30 days an bargain with a labor

), while the beneficial effect of this

prescribed delay on any internal practice or process of the NLRB has yet to be

established.

2019 Election Rule

qualify as procedural rules regardless

Mot. for Summ. J. at 21 (quoting

Ctr. v. Nuclear Regulatory Comm n, 208 F.3d 256, 262 (D.C. Cir. 2000))), and/or

when [certain] issues are presented to, and decided by, the Board (id.

36
at 17). Boiled to bare essence, this contention suggests that the NLRB considers any

rule that merely relates to procedures as opposed to substantive rights as a procedural

rule for the purpose of the APA (see 59) a misconception that appears

to be fueled, first and foremost, by a misunderstanding of the intended scope of the

procedural-rule exception. Indeed, as explained above, section 553(b)(A) of the

APA does not encompass any and all rules that relate to procedures that an agency says

a regulated entity must follow; instead, procedural rules are properly understood as

agen -keeping measures organizing

Batterton, 648 F.2d at 702, which is precisely why they need not

be subjected to notice and public comment.

The NLRB also presents an ount

provisions of the 2019 Election Rule

EPIC, 653 F.3d at 2 3, and thereby ignores the actual impact of the

challenged provisions of this rule on parties other than the agency itself. The Board

may say Mot.

for Summ. J. at 20), but its own Federal Register notice belies its underst anding that

these rule changes will significantly impact representation-election processes, which

appears to be the very reason why the NLRB adopted these reforms. See, e.g., 84 Fed.

Reg. at 69,529 (stating, in reference to elections undertaken prior t o the 2019 rule

he mere fact that elections are taking place quickly does not

necessarily mean that this speed is promoting finality or the most efficient resolution of

37
 Thus, it is clear to this Court that each of the challenged provisions of the 2019

Election Rule

representation elections are to be conducted, 5 U.S.C. § 553(b)(A), in a manner that

actually (and, apparently, intentionally) impacts the substantive rights of parties .

Therefore, these provisions transcend the narrow scope of the procedural-rule

exception.

2. Even If Identifying Procedural Rules Requires Determining If A
t In Nature, The Challenged Provisions
Are Substantive And, Thus, Notice-And-Comment Rulemaking
Was Required

Despite the fact that the text of the APA appears to require courts to determine

whether an agency rule is procedural and therefore exempt from notice-and-comment

rulemaking, the D.C. Circuit has, at times, suggested that in order to evaluate properly

whether or not the APA requires notice-and-comment rulemaking, courts must ask

whether the rule at issue is not substantive. See, e.g., Bowen, 834 F.2d at 1045

(asserting

adopting the APA is to construe [the procedural-rule exception] as an attempt to

preserve agency flexibility in dealing with limited situations where substantive rights

In the discussion that follows, this Court considers whether the

challenged parts of the 2019 Election Rule are, or are not, substantive rules as the D.C.

Circuit has defined them; it mirrors much of what has already been said, because,

unfortunately for the NLRB, even under that framing of the relevant legal standards, the

challenged provisions of the 2019 Election Rule are plainly substantive in nature, such

that notice-and-comment rulemaking should have been implemented.

38
 In Batterton v. Marshall an oft-cited case concerning the distinction between

substantive and procedural rules the D.C. Circuit defines substantive rules as those

rights, impose obligations, [] produce other significant effects on private interests[,] . . .

narrowly constrict the discretion of agency officials by largely determining the i ssue

Batterton, 648 F.2d at 701

id. the agency, the

id. at 704, or where the agency is changing the

Glickman, 229 F.3d at 280, the exception for

procedural rules cannot be applied to relieve the agency of its notic e-and-comment

rulemaking obligations. In deciding whether or not a claimed procedural rule is

actually substantive

Chamber of Commerce, 174

F.3d at 212 (internal quotation marks and citation omitted). The D.C. Circuit has also

at times undertaken to identify a rule as substantive by seeking to determine whether or

not Id. Cf. Chrysler Corp., 441 U.S. at 308 (explaining

that an agency pronouncement that has is one that is

courts unless [it is] arbitrary or not promulgated pursuant to A

Chamber of Commerce, 174 F.3d at 212. 10

10
Of course, part of the confusion in this area o f the law is that it is exceedingly difficult to keep in
failure to meet any of these marks, much less the degree to which a rule falls short of

39
 Applying this alternative framework to the provisions of the 2019 Election Rule

that the AFL-CIO is challenging on notice-and-comment grounds, this Court concludes

that the rules at issue are certainly more substantive than procedural, because they

plainly impose obligations, alter substantive rights, and have substantive effects on

private interests. See Batterton, 648 F.2d at 701 02; see also EPIC, 653 F.3d at 5 6

internal quotation marks omitted)). For example, as the Court previously

explained, the provision that requires Regional Directors to decline to certify the

election results until any request for review has been decided by the Board, see 84 Fed.

Reg. at 6

, see, e.g., 29 U.S.C. § 158(b)(7); see also EPIC,

to a degree sufficient to implicate the policy interests animating notice -and-comment

impactful, the imposition of restrictions regarding whom the employees can choose as

their election observer, see 84 Fed. Reg. at 69,587, not only alters the employees right

to choose their own observer, but it also plainly appears to have the force of law,

..

affec Batterton, 648 F.2d at 702.

The other challenged provisions of the 2019 Election Rule i.e., the increase in

the number of challenges that can be raised and must be resolved before the election,

these specific targets, is not, in itself, the hallmark of a procedural rule, as the APA def ines that
exception. To think otherwise is, effectively, to make no -notice-and-comment (procedural-rule status)
the default rule, rather than a narrow exception, as suggested supra, in Section III.B.1.

40
see 84 Fed. Reg. at 69,539; the mandatory delay of the election date, see id. at 69,595;

and the extention of time for releasing see id. at 69,531 may,

or may not, have a substantial impact on a particular unionization effort (one could

imagine that the degree of impact each of these provisions has might vary widely,

s]

could conceivably

Batterton, 648 F.2d at 701 02. Thus, each of those

provisions, too, qualify -and-

comment prescriptions.

In this regard, and in conclusion, this Court has found it helpful to consider the

relatively recent pronouncements of the D.C. Circuit in two cases in which the court of

appeals found that agencies had sidestepped their duties to undertake notice-and-

comment rulemaking with respect to substantive rules, and had thus committed an APA

violation. In Electronic Privacy Information Center v. Department of Homeland

Security, the D.C. Circuit reviewed a Transportation Security Administration

decision to screen airline passengers using advanced imaging technology rather than

magnetometers, which the agency itself described as a change in its own procedures to

process passengers through the checkpoint. See 653 F.3d at 2 3, 5. The D.C. Circuit

noted that the view was a

id.

sufficient to implicate the policy interests animating notice-and-comment

id.

41
 Similarly, in Mendoza v. Perez, the D.C. Circuit considered two Department of

Labor guidance letters concerning applications for temporary work visas for immigrants

employed in the herding industry. 754 F.3d at 1003. The circuit

seem procedural indeed, they

applicable immigration laws, and described how employers seeking a certification that

the requirements to petition for such work visas were met should present themselves to

the agency ]

create substantive requirements by, inter alia, setting the minimum wage an employer

Id. at 1024.

So it is here. The NLRB apparently conceives of its 2019 Election Rule at a

pertains the steps that must be followed to conduct a representation election, and the

agency argues that the rule is not substantive insofar as it does not bar, or otherwise

substantially impede, the conduct of that election. (See

-keeping

Batterton, 648 F.2d at 702, nor do these

provisions merely Lamoille Valley,

r their

ing , 758 F.3d at 250. Instead, the

challenged provisions carry many of the indicia of substantive rules i.e., they grant

rights and impose obligations; they sts

42
and they . . affected

private parties. Batterton, 648 F.2d at 701 02, 704. Therefore, this Court finds that

otice-and-

comment rulemaking violated the APA

C. The Court Will Vacate The Challenged Provisions Of The 2019
Election Rule And Remand This Matter To The Board

Finally, the Court will briefly address next steps, including the appropriate scope

of the remedy, given its conclusion that

have been unlawfully promulgated. The ALF-CIO asserted in its briefing and during

the motions hearing that, if the Court concludes that the provisions of the 2019 Election

Rule that are challenged on notice-and-comment grounds have to be set aside as

unlawful, then the Court should end its analysis there and not proceed to consider the

other legal claims in the complaint. (See

agrees w

-and-comment requirement, the Court may grant

alternative grounds see also 39.) Notably,

the AFL-CIO maintains that the entire 2019 Election Rule should be vacated and sent

back to the agency if based on a finding that some of the rule provisions were

improperly adopted because, according to the AFL-CIO,

the 2019 Election Rule] are not discrete and it would be illogical to adopt some reforms

NLRB strongly objects to the AFL- (see

Summ. J. at 50 53); in this regard, the Board points to the text of 2019 Election Rule

43
(id. at 50 51), which specifically

amendments individually, or in any combination, regardless of whether any of the other

amendments were made[,] ,

84 Fed. Reg. at 69,525 n.5.

This Court is of the view that the standard severability analysis is not warranted

in a case such as this one i.e., where the plaintiff specifically challenges only certain

parts of a

procedural requirements because the APA plainly authorizes this Court to vaca te

unlawful parts of a rule, and the agency itself will have ample opportunity to decide

how to treat the remainder of its policy prescription when the Court remands the matter

back for re his Court

must nevertheless consider severability in the instant circumstances as a matter of law,

it finds, in the alternative, that the provisions of the 2019 Election Rule that the AFL -

CIO has challenged on notice-and-comment grounds can, and should be, severed from

the rest of the rule.

1. Severability Analysis Is Neither Warranted Nor Clearly Authorized
Under The Circumstances Presented In This Case

In the ordinary case, it would make eminent sense to inquire whether or not the

whole of a congressional enactment that carries the force of law must be invalidated if

one or more of its provisions are struck down by the courts, especially if the law itself

is silent as to the effect of such partial invalidation. Cf. Alaska Airlines, Inc. v. Brock,

480 U.S. 678, 684 (1987) ( the invalid part [of a statute] may be

dropped if what is left is fully operative

as a law [u]nless it is evident that the Legislature would not have enacted those

44
[remaining] provisions[,] which are within its power, independently of that which is

Indeed, in some circumstances, it might

even be necessary to address whether the remaining parts of a partially invalidate la w

can be allowed to stand in order to avoid further violations of the rights of the regulated

parties. See Michael D. Shumsky, Severability, Inseverability, and the Rule of Law , 41

Harv. J. on Legis. 227, 256 (2004) the [severability] standard seems to

recognize something constitutionally troubling about a residual statutory scheme that

cannot function

I however, the conceptual question of the legal status of a

partly invalidated law seldom arises

rulemaking, for the APA itself provides the answer to what happens after a regulation is

found to be unlawful: courts [such] agency action[,]

U.S.C. § 706(2), and the that the court sets aside

whole or a part id. § 551(13) (emphasis added).

Moreover, once an unlawful agency rule is set aside in whole or in part, the court

remands the matter to the agency so that the agency can reconsider the rule in light of

See, e.g., Envtl. Def. Fund v. Reilly, 909 F.2d 1497, 1506 (D.C. Cir.

1990) ( should a district court on APA review find agency action

defective, either substantively or procedurally, it ordinarily must remand to the agency

for further proceedings

This means that the APA clearly contemplates a circumstance in which a court

will find that part of an agency rule is unlawful, and nothing in the text of the APA

suggests that a court has to proceed to invalidate the entire rule on the basis of the

45
unlawfulness of any of its parts

e, in

violation of the statute. 5 U.S.C. § 706(2). Binding precedents have also clearly

established that the agency decides what happens next when all or part of a challenged

action has been invalidated. See ., 843 F.2d

engage (at least in the arena of judicial review of agency action) in substantive

a court to proceed to speculate as to how the agency might

, if it had known that a certain part of its

rule would be vacated, seems both unnecessary and imprudent.

What is more, because an agency in the s to decide what

happens next in any event, it is unlikely this Court effort to engage in the sometimes

tricky exercise of analyzing severability will make any practical difference. To

understand why this is so, imagine that the Court determines that the 2019 Election

Rule is severable and vacates only the challenged provisions before remanding the

matter back to the agency. Upon receipt, the agency will still have to determine

whether or not, as a policy matter, it intends to enforce the parts of the rule that have

not been invalidated, and, presumably, the agency is free to make that non-justiciable

determination either immediately or after curing the notice-and-comment defect (or
11
The same result appears to follow if the Court were to

11
This Court is not aware of any legal standard that
determination regarding whether or not to proceed to enforce a rule that it has previously promulgated
and that has not been deemed unlawful, no matter how swiftly the agency undertakes to make that
decision. Cf. Ctr. for Biological Diversity v. Zinke do
not, and cannot, police agency deliberations as a general matter; indeed, it is only when the agency
. Thus, the AFL-

46
find that the remaining parts of the rule are so intertwined with the unlawful provisions

that the entire rule must be vacated. Nothing prevents the agency from issuing a new

rule concerning the subject of the vacated regulation, and presum ably that new rule

could reiterate the policies that were not previously found to be violative of the APA in

and of themselves, and it could do so immediately, or wait to cure the established

notice- ). 12

Thus, it is hard for this Court to appreciate why there is any need to speculate as

to what the NLRB would have wanted in terms of the remainder of the 2019 Election

Rule, when the NLRB will decide how to move forward regardless. Cf. S.E.C. v.

Chenery Corp., 332 U.S. 194, 196

. And simply

remanding to the agency for reconsideration in light of the C

commenting on what should happen with respect to the remainder of the rule) not only

faithfully recognizes the

Constitution, but it also underscores the fact that agencies, not courts, determine the

recent motion suggesting that the NLRB has not affor ded sufficient deliberation to the decision of

(see 6) raises an issue that is plainly non-justiciable.
12
The argument that the agency could not immediately re-promulgate the unchallenged rule provisions
(cf. 6) seems dubious, because the Court would not have made any
determination that the remaining portions of the rule are themselves unlawful absent the severability
finding. To be sure, severability analysis nevertheless permits a court to strike otherwise lawful rule
provisions on the grounds that they are too integral to the unlawful parts to be allowed to stand, but,
again, unless there are clear constitutional implications, the logic of enforcing the residual parts of a
partially invalidated rule is the kind of policy judgment call that courts have consistently said belongs
to the agency. Thus, no matter how illogical it might seem to this Court for the NLRB to proceed to
enforce the remaining portions of the 2019 Election Rule, it is up to the agency to determine which
otherwise lawful policy prescriptions it wishes to adopt and enforce, and a simple remand of the m atter
gives the agency the best opportunity to make that determination in the first instance.

47
logic of their own duly enacted policies, so long as their rulemaking is otherwise

consistent with the law. This Court also fails to discern any prejudice to plaintiffs, for

non-severability is not the only means of securing vacatur of an entire agency rule, and

plaintiffs are always free to press an independent basis for setting aside the remainder

of the rule and to ask the court to do so despite any finding that a part of the rule is

unlawful. 13

The bottom line is this: at this point, the AFL-CIO has only successfully

established that certain parts of the 2019 Election Rule should be struck down as

unlawful on notice-and-comment grounds, and, ultimately, it will be up to the agency to

decide wheth

., 236 F.3d 13, 22 (D.C. Cir. 2001)).) Thus,

the most prudent course of action is for the Court to follow the remedial path that hews

most closely to the well-accepted and limited role of the federal courts with respect to

actions of regulatory authorities, by merely holding unlawful and setting aside those

parts of the rule that cannot be maintained due to the established APA violation.

13
In the instant case, the AFL-CIO might well have argued that, even if this Court agreed that the
challenged provisions of the 2019 Election Rule are unlawful on notice-and-comment grounds, the
Court should nonetheless proceed to reach the merits of its alternative claims that the 2019 Election
Rule must be vacated in its entirety because it is arbitrary and capricious or violates the NLRA. ( See
Compl. ¶¶ 51 81.) But, for whatever reason, the AFL-CIO maintained that this Court need not reach
its other claims, apparently assuming that the Court would agree with its severability analysis. (See
Pl ; 39.)

48
 2. In Any Event, The Parts Of The 2019 Election Rule That The AFL-
CIO Has Successfully Challenged On Notice-And-Comment
Grounds Are Severable

That all said, to the extent that binding precedent suggests that a standard

severability analysis must be undertaken in the context of APA challenges with respect

to partially invalidated rules, see, e.g., Carlson v. Postal Regulatory Comm n, 938 F.3d

from the remainder of an agency rule,

have adopted the same disposition regarding the unchallenged portion of the regulation

can

citations, and alternation omitted)), this Court will merely add that it has no doubt that

the challenged provisions of the 2019 Election Rule are severable, for the following

reasons.

.C.C., 885 F.3d 687, 708 (D.C.

Cir. 2018) (quotation marks and citation omitted). As repeatedly referenced above, the

2019 Election Rule contains an express severability provision, see 84 Fed. Reg. at

69,525 n.5, which plainly demonstrates actual intent regarding partial

invalidation. Cf. Alaska Airlines, 480 U.S. at 686 (noting that a severability clause

in question to depend on the validity of the . See

also Am. Petroleum Inst. v. E.P.A., 862 F.3d 50, 71 72 (D.C. Cir. 2017) (explaining

49
 ose keeping the [one provision] and repealing

. Furthermore, even if severability rule statement is

-

Mot. for Summ. J. at 35), the AFL- memoranda do not explain the conflict, and

regardless, the Court concludes that the NLRB has made it unmistakably clear that the

Board made an intentional determination

including the parts that the AFL-CIO challenges as notice-and-comment violations,

should be treated as severable. See 84 Fed. Reg. at 69,533 n.40 (expressly asserting

that certain other provisions of the 2019 Election Rule are not to be deemed severable);

see also MD/DC/DE, 236 F.3d at 22 (explaining that, where the agency

that the regulation be treated as severable, to the extent possible, for it said so in

of the rule can function indep

Second, and

Rule i.e., those that this Court has not yet addressed, much less determined to be

unlawful

, Inc. v. F.C.C., 755 F.3d 702, 710 (D.C. Cir. 2014). Under

only if severing the

strikingly different from any the [agency] has ever considered or promulgated in the

MD/DC/DE, 236 F.3d at 23. And this Court

perceives little risk of such severe distortion here. While some of the residual does

relate back to the unlawfully promulgated provisions that expand the issues that must be

50
litigated at the pre-election hearing, including the extension of the delay between the

announcement of a pre-election hearing and the actual hearing (see Summ. J.

at 16), the Court is persuaded that the remaining provisions can

Sorenson, 755 F.3d at

changes is

the filing of a petition and to better prepare for the hearing, thus promoting orderly

, and both the stricken provisions and the residual

parts reflect various means of achieving the same goals .

In sum, it is clear beyond cavil that, when remedying an APA violation, courts

Nat. Res. Def. Council v.

Wheeler, 955 F.3d 68, 82 (D.C. Cir. 2020) (quoting Ayotte v. Planned Parenthood of N.

New England, 546 U.S. 320, 328 29 (2006)). Here, the AFL-CIO has chosen to press

its notice-and-comment challenge with respect to only certain prov isions of the 2019

Election Rule, and it has also requested that the Court not proceed to adjudicate its

other claims with respect the remainder of the rule. (See Pl ;

39.) Thus, this Court has only assessed the alleged procedural propriety

of the five rule provisions that the AFL-CIO has successfully challenged as a violation

-and-comment requirement, and it is only those provisions that this

Court is plainly authorized to hold unlawful and set aside. Consistent with

view that courts should not substitute their own judgment about the logic of an

otherwise lawful policy prescription for that of the agency, th e Court will not vacate the

entire 2019 Election Rule; it opts instead to remand this matter back to the Board for

51
consideration of how to proceed with respect to both the invalidated and as -yet

.

IV. CONCLUSION

Section 160(f) of the NLRA is a direct-review provision that plainly governs

only NLRB actions that pertain to unfair labor practice disputes ; therefore, this Court

retains subject-

Election Rule that the AFL-CIO has brought under the APA. Moreover, having

exercised its jurisdiction to address whether or not certain portions of the 2019 Election

Rule violate the APA because they required notice -and-comment rulemaking, this Court

has concluded that the challenged portions of the 2019 Election Rule are not procedural

rules that are exempt from that rulemaking requirement, and thus those provisions must

be held unlawful and set aside. At the AFL- request, the Court has not proceeded

further to consider the AFL- . Instead, as

set forth in the Order dated May 30, 2020, the Court has DENIED

motion to transfer the case to the D.C. Circuit and its motion for summary judgment,

and has GRANTED the AFL-

Count One of the Complaint. The provisions of the rule that are challenged in Count

One have now been deemed invalid, and this matter is remanded to the Board for

DATE: June 7, 2020 Ketanji Brown Jackson
KETANJI BROWN JACKSON
United States District Judge

52