UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) AMERICAN FEDERATION OF ) LABOR AND CONGRESS OF ) INDUSTRIAL ORGANIZATIONS, ) ) Plaintiff, ) ) v. ) Civ. No. 20-cv-0675 (KBJ) ) NATIONAL LABOR RELATIONS ) BOARD, ) ) Defendant. ) ) MEMORANDUM OPINION Administrative agencies have a duty to both notify the public before promulgating rules that potentially affect the substantive rights of regulated parties and review the solicited public feedback before finally adopting such significant policy changes. See Administrative Procedures , Pub. L. 79-404, 60 Stat. 237 (1946) (codified as amended at 5 U.S.C. §§ 551 559, 701 706). The law presumes that an agency will engage in notice-and-comment rulemaking in nearly every instance in which a final rule is adopted. Thus, if an agency promulgates a rule without providing notice and receiving public comments, the agency must be prepared to demonstrate that the rule it intends to enforce is not actually subject to those APA prescriptions, because it satisfies one of the narrow exceptions to notice-and-comment rulemaking that are specifically identified in the APA. The instant case involves one of th ose statutory exceptions: notice-and-comment rulemaking is not required with respect to agency organization, procedure, or practice[. 5 U.S.C § 553(b)(A). This is generally 1 and colloquially referred to as the APA rules. Mendoza v. Perez, 754 F.3d 1002, 1023 (D.C. Cir. 2014). ing a rule that prescribes certain procedures that employers, employees, and labor unions have to implement with respect to the election of employee representatives for collective bargaining purposes. See 84 Fed. Reg. 2019 Election Rule behind the 2019 Election Rule was to rescind certain election-related regulations that the Board had adopted in 2014: back then, the NLRB undertook notice -and-comment rulemaking to promulgate a rule that was primarily designed 79 Fed. Reg. 74,308, 74,308 (Dec. 15, 2014), while the 2019 Election Rule sought to implement various pre-election and pre- efficiency and expeditious final Reg. at 69,529 (emphasis in original). Significantly for present purposes, when the NLRB reversed course and enacted the 2019 Election Rule, the agency took the position that the rule it was adopting was merely procedural in nature for the purpose of the APA , and as such, it promulgated the rule amendments without notifying the public of the new provisions of law that implemented this policy shift and without soliciting public comment about them. See 84 Fed. Reg. at 69,528. One of the labor organizations that has a significant interest in NLRB rulemaking the American Federation of Labor and Congress of Industrial - has filed the instant lawsuit to challenge the 2019 2 Election Rule violates the APA in several respects. (See Compl., ECF No. 1, at 1.) The AFL-CIO primary argument is that notice-and-comment rulemaking was required with respect to certain provisions of the 2019 Election Rule (see id. ¶¶ 43 50 (Count I)), and it further maintains that the 2019 Election Rule is both arbitrary and capricious (as a whole (see id. ¶¶ 51 59 (Count II)) and ...
Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals