1

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 Act (“APA”), 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 those statutory 

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

agency organization, procedure, or practice[.]” 5 U.S.C § 553(b)(A). This is generally 
2

and colloquially referred to as the APA exception for “procedural” rules. Mendoza v. 

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

On December 18, 2019, the National Labor Relations Board (“NLRB” or “the 

Board”) took the rare step of promulgating 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. 

69,524 (Dec. 18, 2019) (hereinafter “2019 Election Rule”). The undisputed purpose 

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 to effectuate “the essential 

principle that [union] representation cases should be resolved quickly and fairly[,]” 79 

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

implement various pre-election and pre-certification safeguards in order to “promote[]

efficiency and expeditious final resolution of the question of representation,” 84 Fed. 

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

Organizations (“AFL-CIO”)—has filed the instant lawsuit to challenge the 2019 
3

Election Rule, and argues that the NLRB’s rulemaking violates the APA in several 

respects. (See Compl., ECF No. 1, at 1.) The AFL-CIO’s 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 

the National Labor Relations Act (“NLRA”), 29 U.S.C. §§ 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. at 15 (“Prayer 

for Relief”).) 

Before this Court at present are the parties’ cross-motions for summary judgment 

(see Def.’s Mot. for Summ. J., ECF No. 22; Pl.’s Mot. for Summ. J., ECF No. 23), 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 Def.’s 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-CIO’s motion for summary judgment, DENIED the Board’s 

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

matter to the agency for reconsideration in light of this Court’s ruling. (See Order of 

May 30, 2020, ECF No. 34.) 
4

The present Memorandum Opinion explains the reasons for this Court’s Order. 

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

AFL-CIO’s 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-CIO’s APA claims, this Court agrees that the 

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

meaning of the APA’s exception to notice-and-comment rulemaking, and the Court thus 

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

aside. 

I. BACKGROUND

A. The NLRB’s General Authority To 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 

States. The text of the NLRA makes clear that Congress intended to “encourag[e] the 

practice and procedure of collective bargaining” and to “protect[] the exercise by 

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.
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The NLRA also plainly distinguishes between the NLRB’s exercise of its powers

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

regulating collective bargaining practices (generally referred to as “representation”), on 

the other. Indeed, after establishing that employees have “the right to self-organization, 

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

from any or all of such activities[,]” id. § 157, the NLRA enumerates the various 

actions that constitute “unfair labor practices” on the part of both employers and 

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

“representatives and elections” (i.e., how representatives are chosen and representation 

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

In the unfair labor practice realm, the NLRA empowers the NLRB “to prevent 

any person from engaging in any unfair labor practice affecting commerce.” Id. 

§ 160(a). Such unfair labor practices include an employer’s “interfere[nce] with the 

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 the employees’ 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 

collective bargaining[,]” id. § 159(b), and to adjudicate any “question of representation 

affecting commerce[,]” id. § 159(c)(1)(B); see also 29 C.F.R. § 102.64 (2019) 

(explaining that “[a] question of representation exists if a proper petition has been filed 

concerning a unit appropriate for the purpose of collective bargaining or concerning a 
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unit in which an individual or labor organization has been certified or is being currently 

recognized by the employer as the bargaining representative”). 

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 entitled “[p]revention of unfair labor practices.” See 29 

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

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

(the Board has general authority to address unfair labor practices “affecting 

commerce”); 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 

Board’s orders concerning unfair labor practices may be enforced or challenged in 

federal court. See id. §§ 160(e), (f). Pursuant to section 160(e), “[t]he Board shall have 

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 

the enforcement of [the Board’s] order[.]” Id. § 160(e). Likewise, and importantly, 

under section 160(f), “[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 
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transacts business, or in the United States Court of Appeals for the District of 

Columbia[.]” Id. § 160(f). 

B. The NLRB’s Relatively Recent Rulemaking Concerning The 

Procedures For Conducting Representation Elections

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

“authority from time to time to make, amend, and rescind . . . such rules and regulations 

as may be necessary to carry out the provisions” of the 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) 

(“Despite the fact that the NLRB has explicit rulemaking authority, it has chosen—

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

policy through adjudication.” (internal citation omitted)); 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 representationelection 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 

that “[a] review of prior Board rulemaking procedures” had “reveal[ed] that the Board 

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

century”). The 2011 rule was challenged in court and was ultimately invalidated on the 
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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 

new labor organizations by “remov[ing] unnecessary barriers to the fair an d expeditious 

resolution of representation cases[,]” eliminating “[d]uplicative and unnecessary 

litigation,” and “simplify[ing] representation-case procedures,” among other things. 79 

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

“better fulfill its duty to protect employees’ rights by fairly, efficiently, and 

expeditiously resolving questions of representation”). 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), aff’d, 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. First, the 2014 rule eliminated parties’ right to litigate 

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 
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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 election for “the earliest date practicable,” id. at 74,310, and eliminated 

the requirement that “[e]lections . . . be automatically stayed [for 25 to 30 calendar 

days] in anticipation of requests for review[,]” 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. Fifth, and finally, the 2014 rule provided that a party’s filing of a 

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

stay the election, the counting of ballots, or the certification itself, “unless specifically 

ordered by the Board[.]” Id. at 74,309.2

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

NLRA “enshrines a democratic framework for employee choice and, within that 

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

employees’ votes may be recorded 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 “to determine the unit appropriate for the purpose of collective 

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 . . . and certify the results thereof.” 29 U.S.C.

§ 153(b).

2 Parties are authorized to seek Board review of a Regional Director’s certification of a representation 

election under section 153(b) of the NLRA. See 29 U.S.C. § 153(b).
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(emphasis added) (internal quotation marks and citation omitted). Accordingly, the 

2014 rule was “[i]ntended to decrease the time preceding union elections,” Associated 

Builders & Contractors, 826 F.3d at 219, although timeliness was just “one of many 

reasons proffered for the amendments[,]” 79 Fed. Reg. at 74,315.

C. The 2019 Election Rule

In December of 2017, the NLRB issued a request for information (“RFI”) 

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’s adoption, or should the Board make changes to the prior 

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 

Pl.’s Mot. for Summ. J. at 17), including a response from the NLRB’s own Regional 

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

 

3 According to the Administrative Conference of the United States, “RFIs are general ly used when an 

agency is determining whether to proceed at all and, if so, what general approach to take.” Adoption of 

Recommendations, 84 Fed. Reg. 2,139, 2,146–47 (Feb. 6, 2019); see also Michael Sant’Ambrogio & 

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 that RFIs are “requests for 

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 

approaches to a problem”). 
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“[w]hile parties initially voiced great concerns about the 2014 Election Rule, to a ll the 

parties’ credit, after the initial learning curve, there have been very few difficulties in 

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 

to “promote[] efficiency and expeditious 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 employees’ 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
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pre-election hearing and adjudicated prior to the election, see 84 Fed. Reg. at 69,539.

4

 

The 2014 rule had also provided that “[t]he regional director shall schedule the election 

for the earliest date practicable consistent with these rules[,]” 29 C.F.R. § 102.67(b)

(2019), but the 2019 Election Rule adds that “the Regional Director will normally not 

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 paragraph (c) of this section[,]” 84 Fed. Reg. at 69,595. And instead of 

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

“forthwith” (with some narrow exceptions), 29 C.F.R. § 102.69(b) (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 delays the employer’s deadline to provide to the 

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

promotes “the fair and free choice of bargaining representatives . . . by allowing unions 

 

4 The text of 2014 rule says that “[d]isputes concerning individuals’ eligibility to vote or inclusion in 

an appropriate unit ordinarily need not be litigated or resolved before an election is conducted[.] ” 29 

C.F.R. § 102.64(a) (2019). On this same subject, the 2019 Election Rule provides that “[d]isputes 

concerning unit scope, voter eligibility and supervisory status will normally be l itigated and resolved 

by the Regional Director before an election is directed[,]” although “the parties may agree to permit 

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, once certain prerequisites are satisfied, “the regional director shall forthwith 

issue to the parties a certification of the results of the election, including certification of representative 

where appropriate with the same force and effect as if issued by the Board.” 29 C.F.R. § 102.69(b)

(2019). The 2019 Election Rule amended this provision by adding an additional requirement—that “no 

request for review filed pursuant to § 102.67(c) is pending,” 84 Fed. Reg. at 69,597—so as to make 

clear that, “[i]f any request for review is filed, the certification will issue only after the Board’s ruling 

on that request[,]” id. at 69,554.
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the right of access to employees that management already possesses[.]” 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 the Board’s adjudications

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, 

because “the final rule is procedural as defined in 5 U.S.C. § 553(b)(A), and is therefore 

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

explained that, “although foregoing notice and comment deviates from the process used 

in 2014, it is consistent with the Board’s general approach in this area ” because, 

“despite having used notice-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 “the fact that the final rule modifies certain of the 2014 amendments that 

were adopted after notice-and-comment rulemaking in no way requires notice-andcomment rulemaking now.” Id. The NLRB took care to clarify that “[n]one of the 

procedural changes . . . ma[d]e today are premised on the responses to the Request for 
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Information; indeed, [the Board] would make each of these changes irrespective of the 

existence of the Request for Information.” 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 that the Board’s 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 APA’s notice-andcomment requirement. (See id. ¶¶ 43–50 (Count I).) The AFL-CIO’s 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 conference 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 crossmotions 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 Def.’s Mot. for 
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Summ. J., ECF No. 22; Pl.’s Mot. for Summ. J., ECF No. 23), and their respective 

responses followed (see Def.’s Opp’n to Pl.’s Mot. for Summ. J. (“Def.’s Summ. J.

Opp’n”), ECF No. 28; Pl.’s Opp’n to Def.’s Mot. for Summ. J. (“Pl.’s Summ. J. 

Opp’n”), ECF No. 29). 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 violation of the NLRA, given that the Board “acted within the scope of 

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

carry out the Act.” (See Def.’s Mot. for Summ. J. 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 Pl.’s Mot. 

for Summ. J. at 20), and also maintains that the entire rule fails to meet “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 Def.’s Mot. to Transfer, ECF No. 15; see also Def.’s Reply to Pl.’s Opp’n 

to Transfer (“Def.’s Reply to Transfer”), ECF No. 26.) The motion argues, for the first 

time in the NLRB’s 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 Def.’s Mot. to Transfer at 3–4.) 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 
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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 Pl.’s Opp’n to Mot. to Transfer (“Pl’s Opp’n to Transfer”), ECF No. 

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 has the prerogative to “choose the court in which 

judicial review of agency decisions may occur[,]” Five Flags Pipe Line Co. v. Dep’t of 

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

and citation omitted), “[i]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 omitted). “[T]he APA neither confers nor restricts jurisdiction,” so

it is “the general federal-question statute, 28 U.S.C. § 1331[,]” that is the font of 

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, “unless Congress expressly says 

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

appeals.” 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, “[i]nitial review occurs at the appellate level only when a direct-
17

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

directly review agency action.” Watts v. S.E.C., 482 F.3d 501, 505 (D.C. Cir. 2007). 

With respect to interpreting such direct-review statutes, “[w]hether initial 

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 

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

“courts 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 must “act on the basis of 

statutory language and probative legislative history” in order to discern congressional 

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 

“ambiguous on its face,” it will likely be read to confer direct-review authority to the 

court of appeals, for the Supreme Court has specifically instructed that, “[a]bsent a firm 

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 placing initial APA review in the courts of appeals.” 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 “creating a 

right of direct judicial review in the court of appeals of an administrative ‘order’ 

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

the basis of the administrative record alone.” N.Y. Republican State Comm. v. S.E.C. 

(“NYRSC”), 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
18

pursuant to Federal Rule of Civil Procedure 56 “if the pleadings, the discovery and 

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 

matter of law.” Air Transp. Ass’n. of Am., Inc. v. Nat’l Mediation Bd., 719 F. Supp. 2d 

26, 31–32 (D.D.C. 2010), aff’d, 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, “in APA cases, the summary judgment standard functions slightly 

differently, because the reviewing court generally reviews the agency’s decision as an 

appellate court addressing issues of law.” Policy & Research, LLC v. Dep’t of Health 

& 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 record,” and “the function of the district court is to determine whether or 

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

make the decision it did.” Zemeka v. Holder, 963 F. Supp. 2d 22, 24 (D.D.C. 2013)

(internal quotation marks and citations omitted). “Summary judgment thus serves as 

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 

review.” Wilhelmus, 796 F. Supp. 2d at 160 (citation omitted). 
19

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 Def.’s Mot. to Transfer at 5 (arguing that “the AFL-CIO’s Complaint was 

filed in a court which lacks subject-matter jurisdiction to hear it”).) The Board argues 

further that, if this Court addresses the AFL-CIO’s challenges to the 2019 Election 

Rule, summary judgment must be granted in the NLRB’s favor, because the challenged 

regulatory provisions are procedural rules that did not require pre-promulgation noticeand-comment rulemaking, and none of them is arbitrary and capricious or otherwise 

violative of the NLRA. (See Def.’s Mot. for Summ. J. at 16.) The AFL-CIO responds

that section 160(f)’s direct-review provision is inapposite (see Pl.’s Opp’n to Transfer 

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

the NLRB’s promulgation of the challenged election-procedures provisions required 

notice-and-comment rulemaking, and not only violated the APA’s prohibitions against 

arbitrary and capricious rules, but also transgressed the NLRA (see Pl.’s Mot. for 

Summ. J. at 9–10). 

As explained below, this Court has concluded that section 160(f)’s direct-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 
20

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-making in the wake of a district court’s review of administrative action. 

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

of this Court’s ruling.

A. The Court Has Jurisdiction To Consider The Parties’ Cross-Motions

For Summary Judgment, Notwithstanding The NLRA’s Direct-Review 

Provision 

There is no question that federal courts are courts “of limited jurisdiction,” and 

thus any “inquiry must always begin by asking whether [the courts] have jurisdiction” 

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 Def.’s Mot. to Transfer at 3; Pl.’s Opp’n to 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 
21

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 “final order[s]” of the NLRB that “grant[] or deny[] in 

whole or in part the relief sought” in the context of the “unfair labor practice in 

question.” 29 U.S.C. § 160(f). 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 appeals of only those “orders” of the NLRB that are “final,” and such final 

orders must “grant[] or deny[]” some type of “relief” that has been “sought” by an 

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

“final order” requirement is broad enough to cover an NLRB “rule” like the one at issue 

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 NLRB’s contention that section 160(f) applies to 

the AFL-CIO’s claims.

6

 But what clinches the conclusion that section 160(f) does not 

 

6 The NLRB acknowledges that “no outside party specifically ‘sought’ relief in the form of a 

rulemaking petition,” but it nonetheless asserts that “the Board itself sought—and granted—relief when 

it entered the Final Rule.” (Def.’s 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, 

because, otherwise, “[i]t would be hypertechnical and illogical to hold that rules issued by an agency on 

its own initiative must be challenged in district court, but rules issued in response to a petition must be 

challenged in circuit court.” (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. 
22

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

address the AFL-CIO’s claims 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 concerning the “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” of section 160, id. at 

407—which is itself entitled “prevention of unfair labor practices[,]” 29 U.S.C. § 160—

and “[a]ll the other subdivisions relate exclusively to proceedings for the prevention of 

unfair labor practices[,]” Am. Fed’n of Labor, 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) (authorizing the Board “to prevent any person from engaging in any 

unfair labor practice . . . affecting commerce”); id. § 160(b) (setting out the Board’s procedures 

“[w]henever it is charged that any person has engaged in or is engaging in any such unfair labor 

practice”); id. § 160(c) (“If upon the preponderance of the testimony taken the Board shall be of the 

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 shall issue . . . an order requiring such person to cease and 

desist from such unfair labor practice”); id. § 160(d) (“Until the record in a case shall have been filed 

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 

issued by it.”); id. § 160(e) (“The Board shall have power to petition any court of appeals of the United 

States . . . for the enforcement of such order[.]”).
23

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

States, 523 U.S. 224, 234 (1998) (explaining that “the 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 further solidifies this Court’s view that section 

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

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

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

of the whole law, and to its object and policy.” (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-related conduct. “Separate and 

distinct” provisions of the NLRA “govern the procedure in unfair labor practice cases 

and in representation cases[,]” and “[t]he procedure to be followed in the unfair labor 

practice cases is outlined in some detail” in section 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 Am. Fed’n of Labor, 

308 U.S. at 406 (noting that section 160, “which as its heading indicates relates to the 
24

prevention of unfair labor practices[,]” includes no “mention of investigations or 

certifications authorized and defined by” section 159). 

This Court’s reading of section 160(f) is also consistent with the scant legislative 

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

became the NLRA clarifies that section 160 is intended to empower the NLRB “to 

prevent any person from engaging in any unfair labor practice[,]” and that it authorizes 

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

(1935). The Report says, first, “[i]f the person complained of fails or neglects to obey 

the Board’s order, it is provided that the Board shall be empowered to petition any 

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

order.” Id. at 22. And, second, “[a]ccording to a similar procedure, any 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 the appropriate circuit court of appeals, or 

in the Court of Appeals of the District of Columbia.” Id. This same source explains 

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

circuit court “is intended here to give the party aggrieved a full, expeditious, and 

exclusive method of review in one proceeding after a final order is made[,]” and “[u]ntil 

such final order is made the party is not injured, and cannot be heard to complain[.]” 

Id. 

This all means that both Congress’s own description of the intended purpose of 

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 
25

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 

“Orders” Presumptively Must Also Be Read To Include “Rules” Is 

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, the term “order” should be interpreted to include an agency “rule[.]” 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 authorizes “[a]ny party aggrieved by an order of the Board under this chapter [to] 

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

Columbia[,]” and holding that “the purposes underlying Section 9 will best be served if 

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

administrative record,” including 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-CIO’s claims. (See Def.’s Mot. 

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 
26

subject to the courts of appeals’ direct review must be one that involves unfair labor 

practices, while the elections 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 

provision, the question is whether the provision is “ambiguous in any sense relevant”).

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

designed subsection (f) of section 160 to provide “aggrieved parties” with the right to 

seek review of a “final order” of the NLRB pertaining to such an unfair labor practice 

in the court of appeals “in the circuit wherein the unfair labor practice in question was 

alleged to have been engaged in[,]” among other places, 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 in the nature of “a venue clause” 

(Def.’s Reply to Transfer at 8 (emphasis omitted)) insofar as it specifies 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.

Thus, the NLRB’s reliance on that the D.C. Circuit’s holding that an “order” for 

direct-review-statute purposes presumptively includes “rules” (see Def.’s Mot. to 

Transfer at 3) is entirely beside the point. That is, regardless of whether, “absent 
27

contrary congressional intent,” an ambiguous “statutory review provision creating a 

right of direct judicial review in the court of appeals of an administrative ‘order’ [also] 

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

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 

application of the presumption that “orders” includes “rules.” (See Def.’s Mot. to 

Transfer at 3–4; Def.’s Reply to Transfer at 12–13.)

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 to the NLRB’s rulemaking, not because the 

NLRB has promulgated a rule rather than issuing an order, but because the NLRB’s 

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

(f)’s direct-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 

“[a]ny party aggrieved by an order of the Board under this chapter [to] obtain a review of such order 

. . . in the Court of Appeals in the District of Columbia[,]” id. at 1273 n.3, and held that “the purposes 

underlying [that provision] will best be served if ‘order’ is interpreted to mean any agency action 

capable of review on the basis of the administrative record,” including 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); CTIAWireless Ass’n v. F.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 directreview authority only with respect to a certain specified category of agency decisions. (See Hr’g Tr. at 

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 This Court expresses no view as to whether section 160(f)’s reference to “orders” in the context of 

unfair labor practice disputes should be interpreted to include “rules” that pertain to unfair labor 
28

review the merits of the AFL-CIO’s claims pursuant to the general subject-matter 

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

B. The Board’s 2019 Election Rule Required Notice-And-Comment 

Rulemaking Under The APA Because It Is Not A Procedural Rule

The APA “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 statute’s notice-and-comment requirement, see 5 U.S.C. § 553(b)(A). The 

exception for “procedural rules” is “the hardest to define[,]” Batterton v. Marshall, 648 

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

permit agencies to promulgate “rules of agency organization, procedure, or practice”

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

The nub of the instant dispute is the NLRB’s valiant effort to shoehorn five 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 

procedural rules, and as a result, their promulgation violated the APA’s otherwise 

mandatory notice-and-comment requirements. 

 

practices, pursuant to “the presumption [] that statutory authorization of direct federal judicial review 

of agency ‘order[s]’ encompasses rules[.]” NYRSC, 799 F.3d at 31. The claims at issue here concern 

solely the NLRB’s rulemaking practices on representation elections, therefore the applicability of the 

presumption to rules on unfair labor practices is not before this Court. 
29

1. The Challenged Provisions Are Not Procedural Rules Because They 

Are Not Rules Of Agency Organization, Procedure, Or Practice

The first step in understanding this Court’s evaluation of the instant dispute is to 

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 Pl.’s Mot. for 

Summ. J. at 21 (arguing that the 2019 “amendments are substantive” (emphasis added)) 

with Def.’s Summ. J. Opp’n at 7 (contending that the challenged provisions are not 

substantive rules, because “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 

“rule” for the purpose of 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 Elections rule qualify as substantive and, as such, were entitled to notice-andcomment rulemaking in the first place.

The parties’ struggle to keep their eyes on the ball is not surprising: the D.C. 

Circuit, too, “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 

has repeatedly suggested that “the distinction between substantive and procedural rules 

is one of degree[,]” rather than kind, Elec. Privacy Info. Ctr. v. Dep’t of Homeland Sec.
30

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

relevant analysis “is functional, not formal[,]” 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. Nat’l Mining Ass’n v. McCarthy, 758 F.3d 243, 251 (D.C. Cir. 

2014) (noting that this “inquiry turns out to be quite difficult and confused”).

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 directive”). 

To be clear, attempting to ascertain the “procedural” nature of an agency rule by 

eliminating the possibility that the rule is “substantive” would be a rational approach if 

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—
31

not only “rules of agency organization, procedure, or practice,” 5 U.S.C. § 553(b)(A), 

but also “interpretive rules” and “general statements of policy,” id. And even more

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

promulgates a rule, while “the various exceptions” are to “be narrowly construed and 

only reluctantly countenanced.” N.J. Dep’t of Envtl. Prot. v. E.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 the APA’s procedural-rule exception exists “to ensure that agencies 

retain latitude in organizing their internal operations,” but it has also noted that “many 

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

ways.” 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 
32

the term “procedural rule” is itself general nomenclature that is shorthand for the “rules 

of agency organization, procedure, or practice” 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 

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

D.C. Circuit has clarified Congress’s intent with respect to this provision by explaining 

that “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, are “primarily directed 

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

F.2d at 702 n.34; that is, they generally “relate to the method of operation of the 

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

“timetable[s] for [regulated entities] asserting substantive rights[,]” Lamoille Valley 

R.R. Co. v. Interstate Commerce Comm’n, 711 F.2d 295, 328 (D.C. Cir. 1983), or “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 “should not be deemed to include any action which goes 

beyond formality[,]” Pickus v. U.S. Bd. of Parole, 507 F.2d 1107, 1113 (D.C. Cir. 

1974), because procedural rules are intended simply to “deal[] with the method of 

operation utilized by the [agency] in the dispatch of its business[,]” Kessler v. F.C.C., 

326 F.2d 673, 680 (D.C. Cir. 1963) (citation omitted). 
33

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., Nat’l Mining Ass’n, 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 concluded that regulations that govern an agency’s internal procedures with respect 

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, 

procedural rules include agency regulations organizing the agency’s internal procedures 

to meet its own legal duties. See, e.g., Pub. Citizen v. Dep’t of State, 276 F.3d 634, 638

(D.C. Cir. 2002).

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

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

suggest that procedural rules primarily concern the agency’s internal 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 
34

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 

words, in this Court’s view, if 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 

the agency’s internal processes despite the incidental effect on the parties, then the rule 

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

notice-and-comment is required. Cf. EPIC, 653 F.3d at 5–6 (“[T]he distinction between 

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[,]” which include “serv[ing] the need for 

public participation in agency decisionmaking” and “ensur[ing] the agency has all 

pertinent information before it when making a decision[.]” (internal quotation marks 

and 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-andcomment violation reaches far outside the Board’s internal operations, and the NLRB 

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

the procedural-rule exception. Take, for instance, the 2019 Election Rule’s mandate 

that Regional Directors “will normally not schedule an election before the 20th business 

day after the date of the direction of election,” 84 Fed. Reg. at 69,595, and also the 

rule’s 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 
35

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

employers who presumably oppose unionization are supposed to undertake 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 level 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 response to employees’ filings, or when 

employers must disclose certain information once the employees have already asserted 

their substantive rights, do not bear meaningfully on the agency’s internal processes, 

yet they do have a significant impact on the employees’ ability to mount a successful 

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

Likewise, when the 2019 Election Rule provides that “[d]isputes concerning unit 

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

the [R]egional [D]irector before an election is directed[,]” 84 Fed. Reg. at 69,539; or

requires the employees to choose as their election observer either “a current member of 

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

that, “the certification [of the election results] will issue only after the Board’s ruling 

on [any] request” for review, id. at 69,554, the Board is manifestly outward facing, and 

is unquestionably guiding the conduct of regulated entities in a manner that primarily 
36

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 delay will hinder the employees’ prospects of mobilizing 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 underway, might well be a significant 

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

of difference with respect to the agency’s 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) (allowing only “currently certified” labor organizations to picket for longer 

than 30 days an employer who refuses to “recognize or bargain with a labor 

organization as the representative of his employees”), while the beneficial effect of this 

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

established. 

The Board’s response is that the challenged provisions of the 2019 Election Rule

qualify as procedural rules regardless, because they only “govern[] the content and 

timing of case filings” (Def.’s Mot. for Summ. J. at 21 (quoting Nat’l Whistleblower 

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

merely change “when [certain] issues are presented to, and decided by, the Board” (id. 
37

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 Hr’g Tr. at 58–59)—a misconception that appears 

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

APA’s 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 

agency rules that relate primarily to “internal house-keeping measures organizing 

agency activities[,]” 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 “overly abstract account” of the challenged 

provisions of the 2019 Election Rule—one that casts their implications at a high “level 

of generality[,]” 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 that these provisions have only “an incidental effect on parties” (Def.’s 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 is 

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 to the 2019 rule 

changes, that “[t]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 

the question of representation”). 
38

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

Election Rule actually (and, apparently, intentionally) reaches beyond the agency’s own 

“organization, procedure[s], or practice[s]” to direct regulated entities concerning how 

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 

Rule Is “Not Substantive” 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 that the reading “that seems most consonant with Congress’ purposes in 

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 

are not at stake”). 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. 
39

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 

that “effectuate statutory purposes[,]” and emphasizes that, “[i]n so doing, they grant 

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

narrowly constrict the discretion of agency officials by largely determining the issue 

addressed[,]” or otherwise “have substantive legal effect.” Batterton, 648 F.2d at 701–

02. In other words, “where the agency action trenches on substantial private rights and 

interests[,]” id. at 708, or where the agency action “conclusively bind[s] the agency, the 

court, or affected private parties[,]” id. at 704, or where the agency is changing the 

applicable “substantive standards[,]” Glickman, 229 F.3d at 280, the exception for 

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

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

actually substantive, the D.C. Circuit has “examine[d] how the rule affects not only the 

rights of aggrieved parties, but their interests as well.” 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 the rule has “the force of law.” Id. Cf. Chrysler Corp., 441 U.S. at 308 (explaining 

that an agency pronouncement that has “the force of law” is one that is “binding on the 

courts unless [it is] arbitrary or not promulgated pursuant to prescribed procedures”). A 

“force of law” finding “will not necessarily be controlling,” but “whether a rule has the 

force of law often will bear upon its proper classification as substantive or procedural.” 

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

 

10 Of course, part of the confusion in this area of the law is that it is exceedingly difficult to keep in 

mind that a rule’s failure to meet any of these marks, much less the degree to which a rule falls short of 
40

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 

(explaining that “the distinction between substantive and procedural rules is one of 

degree” (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 69,554, delays employees’ procurement of significant statutory rights that 

depend on the NLRB’s certification, see, e.g., 29 U.S.C. § 158(b)(7); see also EPIC, 

653 F.3d at 6 (suggesting that, where a policy change “substantively affects the public 

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

rulemaking[,]” the new rule qualifies as “substantive”). While perhaps less directly 

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, 

because it “forecloses alternate courses of action” and “conclusively binds the . . . 

affected private parties[,]” 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 defines 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.
41

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 the eligible voters’ list, 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, 

depending on the circumstances presented); however, each of these rules “grant[s] 

rights” and “impose[s] obligations[,]” and could conceivably produce “significant 

effects on private interests[,]” Batterton, 648 F.2d at 701–02. Thus, each of those 

provisions too, qualify as substantive for the purpose of the APA’s notice-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-andcomment 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 (“TSA”) 

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 TSA’s view was an “overly abstract account of the change in procedure at 

the checkpoint[,] elid[ing] the privacy interests at the heart of the petitioners’ 

concern[,]” id. at 6, because the change “substantively affects the public to a degree 

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

rulemaking[,]” id. 
42

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 found that, if “stated 

at a high enough level of generality,” those letters might seem procedural—indeed, they 

set forth the agency’s enforcement plan for determining employer compliance with the 

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—“[b]ut a more practical account of the rules makes it clear the [letters] 

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

must offer American workers before it can obtain [the work visa] certification” and by 

“set[ting] the bar for what employers must do to obtain approval.” Id. at 1024. 

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

level of abstraction that qualifies it as a “procedural” rule insofar as it generally 

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 Def.’s Mot. for Summ. J. at 22.) 

But none of the challenged provisions is actually addressed to “internal house -keeping 

measures organizing agency activities[,]” Batterton, 648 F.2d at 702, nor do these 

provisions merely set “timetable[s] for asserting substantive rights,” Lamoille Valley, 

711 F.2d at 328, or “alter the manner in which the parties present themselves o r their 

viewpoints to the agency[,]” Nat’l Mining Ass’n, 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 produce “significant effects on private interests”; 
43

and they “foreclose alternate courses of action” or “conclusively bind the . . . affected 

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

the NLRB’s promulgation of these particular rules without engaging in notice-andcomment 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 some of the 2019 Election Rule’s provisions

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 Pl.’s Mot. for Summ. J. at 4 (“If the Court 

agrees with Plaintiff’s primary claim that the NLRB promulgated the 2019 election rule 

in violation of the APA’s notice-and-comment requirement, the Court may grant 

summary judgment and remand the rule to the Board without reaching Plaintiff’s 

alternative grounds for invalidating the rule.”); see also Hr’g Tr. at 38–39.) 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 [challenged provisions of 

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

without regard to whether others are adopted.” (Pl.’s Mot. for Summ. J. at 35.) The 

NLRB strongly objects to the AFL-CIO’s severability argument (see Def.’s Mot. for 

Summ. J. at 50–53); in this regard, the Board points to the text of 2019 Election Rule 
44

(id. at 50–51), which specifically states that the NLRB “would adopt each of these 

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

amendments were made[,]” and that, “[f]or this reason, the amendments are 

severable[,]” 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 regulation on the grounds that the defendant has violated the APA’s 

procedural requirements—because the APA plainly authorizes this Court to vacate 

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 reconsideration in light of the Court’s opinion. To the extent that this 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 AFLCIO 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) (reasoning that “the invalid part [of a statute] may be 

dropped” and the rest of the law allowed to take effect “if what is left is fully operative 

as a law” “[u]nless it is evident that the Legislature would not have enacted those 
45

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

not” (quotation marks and citation omitted)). Indeed, in some circumstances, it might 

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

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) (observing that “the [severability] standard seems to 

recognize something constitutionally troubling about a residual statutory scheme that 

cannot function” (emphasis in original)). 

In this Court’s view, however, the conceptual question of the legal status of a 

partly invalidated law seldom arises in the context of a challenge to an agency’s 

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

found to be unlawful: courts “hold unlawful and set aside [such] agency action[,]” 5 

U.S.C. § 706(2), and the “agency action” that the court sets aside may be either “the 

whole or a part of an agency rule [or] order[,]” 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 

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

1990) (explaining that, “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 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 unlawfulness 
46

of any of its parts; indeed, the court’s “scope of review” under the APA is plainly 

limited to the “agency action” that is challenged as, and found to be, 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 Cont’l Air Lines, Inc. v. Dep’t of Transp., 843 F.2d 1444, 1451 (D.C. 

Cir. 1988) (“[I]f one thing should be clear, it is that courts are not to engage (at least in 

the arena of judicial review of agency action) in substantive policymaking.”). Thus, for 

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

court’s partial vacatur, 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 NLRB’s position gets to decide what 

happens next in any event, it is unlikely this Court’s 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 

appealing this Court’s order).11 The same result appears to follow if the Court were to 

 

11 This Court is not aware of any legal standard that would permit it to review an agency’s discretionary 

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, 260 F. Supp. 3d 11, 29 (D.D.C. 2017) (“[C]ourts do 

not, and cannot, police agency deliberations as a general matter; indeed, it is only when the agency 

actually takes some final action that review under the APA is appropriate.”). Thus, the AFL-CIO’s 
47

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 presumably 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-and comment defect (or appeal the district court’s ruling).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, 196–97 (1947) (“It will not do for a court to be 

compelled to guess at the theory underlying the agency’s action.”). And simply 

remanding to the agency for reconsideration in light of the Court’s opinion (without 

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

faithfully recognizes the district court’s limited authority under both the APA and the 

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

 

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

whether or not to enforce parts of the 2019 Election Rule that are not addressed in this Court’s order 

(see Pl.’s Mot. for Clarification, ECF No. 35, at 3–6) raises an issue that is plainly non-justiciable. 

12 The argument that the agency could not immediately re-promulgate the unchallenged rule provisions 

(cf. Pl.’s Mot. for Clarification at 5–6) 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. 
48

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 whether and to what extent “the remainder of the regulation could function 

sensibly without the stricken provision.” (Pl.’s Mot. for Summ. J. at 35 (quoting 

MD/DC/DE Broadcasters Ass’n v. F.C.C., 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.’s Mot. for Summ. J. at 4; Hr’g Tr. at 38–39.)
49

2. In Any Event, The Parts Of The 2019 Election Rule That The AFLCIO 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 

337, 351 (D.C. Cir. 2019) (asking “whether” a challenged provision could be severed 

from the remainder of an agency rule, based on a finding that (1) “the agency would 

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

if the challenged portion were subtracted” and (2) the parts of the regulation that remain 

can “function sensibly without the stricken provision” (internal quotation marks, 

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.

First, this Court is “without any substantial doubt that the agency would have 

adopted the severed portion on its own.” ACA Int’l v. F.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 the agency’s actual intent regarding partial 

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

creates a rebuttable “presumption that Congress did not intend the validity of the statute 

in question to depend on the validity of the constitutionally offensive provision.”). See 

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

that the court could not find that two provisions were “wholly independent” because 
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“[a]t no point in the record does EPA propose keeping the [one provision] and repealing 

[the other]”). Furthermore, even if the NLRB’s severability rule statement is 

“contradicted by other statements in the preamble[,]” as the AFL-CIO claims (Pl.’s 

Mot. for Summ. J. at 35), the AFL-CIO’s 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 that nearly all of the rule’s provisions, 

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 “clearly intends 

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

adopting the regulation[,]” the only “question for the court, then, is whether the balance 

of the rule can function independently if shorn of its [unlawful] aspects”). 

Second, and for what it’s worth, the remaining provisions of 2019 Election 

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

unlawful—can most likely “function sensibly without the stricken provision[s].” 

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

standard severability analysis, an “entire rule must be vacated” only if severing the 

unlawful aspects “would severely distort the [agency’s] program and produce a rule 

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

lengthy course of these proceedings.” 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 
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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 Pl.’s Summ. J. 

Opp’n at 16), the Court is persuaded that the remaining provisions can still “function 

sensibly without the [underlying and now] stricken provision[,]” Sorenson, 755 F.3d at 

710, especially given that the Board’s overarching purpose for many of these rule 

changes is to “permit parties to more easily manage the obligations imposed on them by 

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

litigation[,]” 84 Fed. Reg. at 69,525, 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 

should ordinarily “limit the solution to the problem[.]” 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 provisions 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.’s Mot. for Summ. J. at 4;

Hr’g Tr. at 38–39.) 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 

of the APA’s notice-and-comment requirement, and it is only those provisions that this 

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

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

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

entire 2019 Election Rule; it opts instead to remand this matter back to the Board for 
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consideration of how to proceed with respect to both the invalidated and as-yet 

unchallenged parts of rule in light of this Court’s ruling.

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-matter jurisdiction to entertain the challenges to the NLRB’s 2019 

Elections 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 

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

this Court has concluded that the challenged portions of the 2019 Elections 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-CIO’s request, the Court 

has not proceeded further to consider the AFL-CIO’s remaining substantive APA 

challenges. Instead, as set forth in the Order dated May 30, 2020, the Court has 

DENIED both the Board’s motion to transfer the case to the D.C. Circuit and its motion 

for summary judgment, and has GRANTED the AFL-CIO’s motion for summary 

judgment with respect to 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 consideration in light of this Court’s Memorandum Opinion 

and Order.

DATE: June 7, 2020 Ketanji Brown Jackson

KETANJI BROWN JACKSON

United States District Judge