American Federation of Labor and Congress of Industrial Organizations v. Sonderling

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA AMERICAN FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS, Plaintiff, v. Civil Action No. 26-2061 (JEB) KEITH E. SONDERLING & ELISABETH MESSENGER, Defendants. MEMORANDUM OPINION As any writer, innovator, or composer knows, there is a difference between shelving an idea and junking it entirely. One leaves open the possibility that a creative spark may prompt a later revisit; the other shuts the door on that potential altogether. On what side of that line does an administrative agency fall when it purports to withdraw a notice of proposed rulemaking that went through notice and comment? And does the Administrative Procedure Act have any qualms about an agency doing so and then reviving the proposal later without beginning the notice-and- comment process anew? In 2020, the Department of Labor proposed making numerous substantive changes to the financial reporting obligations of the country’s largest unions under the Labor-Management Reporting and Disclosure Act. A few months after notice and comment closed, however, DOL announced in a regulatory publication called the Unified Agenda that the proposal had been withdrawn. Nearly six years later, the agency reversed course, finalizing the proposal without further notice and comment alongside a more recently proposed change. The AFL-CIO, one of 1 the country’s largest unions, then sued, challenging the propriety of the rule under the APA. The parties have now cross-moved for summary judgment. The union contends that this regulatory volte-face violated the APA’s notice-and-comment requirements, that various aspects of the rule exceed the Secretary’s statutory authority, and that others are arbitrary and capricious. Although Plaintiff’s challenge poses interesting questions of first impression, the Court ultimately concludes that it does not succeed on any of its positions. The Court will thus grant the Government’s Motion for Summary Judgment. I. Background A. Legal Background During the 1950s, at the apex of their power, labor unions fell under public scrutiny for “corrupt and unethical practices,” Int’l Union, United Auto., Aerospace & Agr. Implement Workers of Am. v. Brock, 783 F.2d 237, 239 (D.C. Cir. 1986), including “financial abuse [and] mismanagement of labor organization funds.” See Labor Organization Annual Financial Reports, 91 Fed. Reg. 32556, 32557 (June 1, 2026). That scrutiny culminated in the passage of the Labor-Management Reporting and Disclosure Act of 1959, which aimed to “put an end to [those] shocking abuses,” Shelley v. Brock, 793 F.2d 1368, 1371 (D.C. Cir. 1986) (quotation marks and citation omitted), to “create effective democracy within labor unions[,] and to make accountable previously untouchable union leaders.” Lamb v. Miller, 660 F.2d 792, 794 (D.C. Cir. 1981); see 29 U.S.C. § 401 (describing Act’s purpose); Finnegan v. Leu, 456 U.S. 431, 435 (1982) (noting that LMRDA was “the product of congressional concern with widespread abuses of power by union leadership”). To that end, the Act requires unions to pull back the curtains on their finances. They must “file annually with the Secretary [of Labor] a financial report” containing information such as 2 their assets and liabilities, revenues and sources of income, and the salaries paid to their employees, “in such detail as may be necessary accurately to disclose [the union’s] financial condition and operations for its preceding fiscal year.” 29 U.S.C. § 431(b). The statute vests the Secretary with the authority to fill in the details of that scheme. It specifies that the statutorily required information shall be reported in “such categories as the Secretary may prescribe.” Id. It also gives him authority to make regulations “prescribing the form and publication” of those reports, as well “as other reasonable rules and regulations . . . as he may find necessary to prevent the circumvention or evasion of such reporting requirements.” Id. § 438. Exercising that regulatory power, the Secretary has long determined that a union’s size and resources should dictate how much it must disclose. See Am. Fed’n of Lab. & Cong. of Indust. Organizations v. Chao, 297 F. Supp. 2d 155, 157 (D.D.C. 2003) (Chao I). Unions with gross annual receipts under certain thresholds may file the simpler Forms LM-3 and LM-4. See 29 C.F.R. § 403.4(a)(1)–(2). America’s biggest unions, in contrast, have been required to file the complex Form LM-2, which requires a litany of disclosures. Id. § 403.3. Although the Secretary adjusted the dollar thresholds for each form over time (presumably to account for inflation), the rules governing reporting otherwise persisted “with only minor modifications” for more than forty years. Chao I, 297 F. Supp. 2d at 157. Then, in 2003, the Secretary promulgated a rule that made “several significant changes to the financial reporting requirements.” Am. Fed’n of Lab. & Cong. of Indus. Organizations v. Chao, 409 F.3d 377, 380 (D.C. Cir. 2005) (Chao III); see Labor Organization Annual Financial Reports, 68 Fed. Reg. 58374 (Oct. 9, 2003). As relevant here, the 2003 rule required Form LM-2 filers to report the amount of union funds spent on broad “functional categories” like “organizing,” “general overhead,” “political activities,” and “lobbying.” 68 Fed. Reg. at 58391–92. The Department 3 reasoned that doing so would “enhance union democracy” by giving members insights into how their union spends its resources across practical categories that would matter most to them. Id. at 58392–93. Noting that a “union’s own labor costs represent a substantial portion of its yearly disbursements,” id. at 58405, DOL also imposed the requirement that unions “estimat[e] the portion of work time spent” by union officers in each of those categories, listing such time as a cost akin to rent or supplies. Chao III, 409 F.3d at 380. The Department would refer to this latter requirement as “functional time reporting.” 91 Fed. Reg. at 32587. The new rule also required these unions to itemize certain receipts and disbursements exceeding $5,000. See 68 Fed. Reg. at 58388–90. The agency gave unions that fell within Form LM-2’s ambit about seven weeks to come into compliance. Id. at 58374 (establishing effective date of January 1, 2004, following publication in Federal Register on October 9, 2003). The AFL-CIO is one of the largest unions in the country and has long filed Form LM-2. See ECF No. 1 (Compl.), ¶¶ 8–9. When DOL promulgated the 2003 rule, that union sued under the APA, asserting that the effective date was arbitrary and capricious and the rule substantively infirm because it exceeded the Secretary’s authority under the LMRDA. See Am. Fed’n of Lab. & Cong. of Indus. Organizations v. Chao, 298 F. Supp. 2d 104, 106 (D.D.C. 2004) (Chao II). The district court agreed with the AFL-CIO’s assessment as to the effective date. Judge Gladys Kessler of this district concluded that “a little less than two months to develop the new accounting systems, purchase . . . new computers and software, and train . . . staff to comply” with new requirements was not reasonable. Id. at 126–27. On the substance, however, the union was not successful. Its statutory challenge was rooted in the premise that the terms “financial condition” and “operations” are terms of art in the accounting field. Chao III, 409 F.3d at 381. As a result, it argued that, by requiring unions to report their “financial condition and 4 operations,” 29 U.S.C. § 431(b), the statute “vest[ed] a limited authority in the Secretary” to require a report reflecting only a “corporate balance sheet and income statement” — not the more detailed itemization that the Secretary required instead. Chao III, 409 F.3d at 381. Judge Kessler disagreed, concluding that the Secretary had acted well within her authority under the LMRDA in requiring unions to itemize receipts and disbursements in categories and at thresholds prescribed by DOL, see Chao II, 298 F. Supp. 2d at 111–16 — a decision that the D.C. Circuit affirmed on appeal. Chao III, 409 F.3d at 380–86. Proceeding under the now-interred two-step framework from Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), the D.C. Circuit concluded that it was not clear from the plain text of the LMRDA or its legislative history what level of detail the statute authorized the Secretary to require for unions’ financial reports. See Chao III, 409 F.3d at 384. So the court moved on to step two of Chevron, where it concluded that the Secretary’s new requirements reflected a reasonable construction of the statute. Id. at 384–86. The 2003 rule thus remained in effect, and from 2003 to 2026, Form LM-2 stood largely unaltered. B. Procedural History That all changed on June 1, 2026, when the Department promulgated a new final rule — the one at issue here — modifying the reporting requirements under the LMRDA. See 91 Fed. Reg. at 32556, 32557. That rule has its roots in a 2020 notice of proposed rulemaking that floated several changes to Form LM-2 in particular. See Labor Organization Annual Financial Reports: LM Form Revisions, 85 Fed. Reg. 64726, 64728 (Oct. 13, 2020). The Department proposed raising the threshold for filing Form LM-2 from $250,000 to $300,000 to account for inflation. Id. at 64747. It also proposed cleaving off some of Form LM-2’s filers, creating a fourth tier for unions whose gross annual receipts exceed $8 million. Id. at 64734–45. Those 5 unions would be required to file a new form, the Form LM-2 Long Form, which would differ in several substantive ways from the old Form LM-2. Id. First, the Department indicated that Form LM-2 Long would no longer include “functional reporting of union officer time.” Id. at 64739. It explained that it had found the unions’ own estimations of their employees’ time spent on a particular category to be “difficult to audit” and of “little value” in ferreting out criminal conduct. Id. at 64740. Labor also proposed that the form would split certain functional-reporting categories into subcategories, reasoning that a more granular breakdown would provide union members a better glimpse into how their union spent their dues and what it prioritized. Id. at 64742. Finally, the agency floated requiring Form LM-2 Long filers to separately report the name of each individual or entity “from which the labor organization had received $5,000 or more” within a category of receipts, such as taxes, rents, supplies, and even dues — information that Form LM-2 filers previously reported only in their aggregate sums across the categories listed. Id. at 64743–44. The agency reasoned that embezzlement and other wrongdoing is much easier to hide when the union must report only bulk sums, which can total in the millions. Id. at 64744. The NPRM stated that these changes would go into effect 30 days after the final rule’s publication. Id. at 64747. Publication never came, however. In the spring of 2021, three months after the comment period had closed, the Department announced in a regulatory publication called the Unified Agenda that the proposed rule had been “[w]ithdrawn,” labeling the action as “[c]ompleted.” View Rule, Off. of Info. & Regul. Affs., https://perma.cc/BU5L-96TM; see Compl., ¶ 18. The legal effect of this withdrawal plays a pivotal role here. In any event, there matters stood — for a time. Then in July 2025, the Department issued a new notice of proposed rulemaking on the financial-reporting requirements. Its sole proposal 6 was to raise the dollar thresholds at which unions would have to file Forms LM-2, LM-3, and LM-4 to account for inflation. See Filing Thresholds for Forms LM-2, LM-3, and LM-4 Labor Organization Annual Reports, 90 Fed. Reg. 28251, 28251 (July 1, 2025). After the comment period closed, the Department announced on June 1, 2026, that it would finalize the proposed rule — but with a catch. It would also finalize the rule proposed in the 2020 NPRM. See 91 Fed. Reg. at 32556–57. DOL acknowledged that what it dubbed the “combined final rule” addressed two “distinct regulatory proposals.” Id. But it explained that the 2020 and 2025 proposals “operate in the same reporting framework” and “will function in coordination once effective,” so it concluded that it would finalize both “for efficiency[’s]” sake. Id. DOL maintained that the notice-and-comment record from 2020 remained adequate, as “no new evidence . . . warrant[ed] altering the proposed rule,” and the “core circumstances” justifying the rule had “not materially changed” since 2020. Id. at 32561. In the alternative, the agency invoked the “good cause” exception to justify its failure to conduct a new notice-and-comment period before finalizing the proposal. Id. at 32561 n.3. In sum, the 2026 rule implemented the inflation adjustments proposed in 2025 and otherwise adopted many of the substantive aspects of the 2020 proposal. Of significance here, the rule created the LM-2 Long Form category — just with a threshold of $40 million in annual receipts, rather than the $8 million proposed in 2020. Id. at 32574. It also eliminated functional- time reporting— i.e., the requirement that unions report labor costs across the functional categories. Id. at 32586–87. The rule also split a couple of the prior functional-reporting categories in two: “Political Activities and Lobbying” became “Political Activities” and “Lobbying,” while “Representational Activities” became “Contract Negotiation and Administration” and “Organizing.” Id. at 32588–89. And — true to the 2020 proposal — the 7 rule required Form LM-2 Long filers to list in a new schedule the names of “each individual or entity from which the labor organization has received $5,000 or more” across a category of receipts, including union dues. Id. at 32601. The final rule was set to take effect July 1 — in other words, 30 days after its publication. Id. at 32606. The Department emphasized that the rule would apply only to fiscal years that began after its announcement. Id. Under the statute, each union must hand over its disclosures “within ninety days after the end of . . . its fiscal year[ ].” 29 U.S.C. § 437(b). As such, any union affected would not be required to produce a filing under the new requirements until over a year after the effective date. Still, that filing would have to reflect data from that fiscal year, a particular problem for unions with fiscal years starting July 1. The rule forced them to begin tracking their financial data in new ways only 30 days after first learning that such a proposal was even in the offing. See Compl., ¶¶ 21, 25. One such affected union was Plaintiff AFL-CIO, which takes in more than $40 million a year and has a fiscal year starting July 1. Id., ¶¶ 9, 21; see also ECF Nos. 15-1 (Declaration of Sibyl Ketcham), ¶ 11 (establishing that one of Plaintiff’s affiliate unions is subject to new rule); 15-2 (Declaration of Salma Yousefi), ¶ 5 (same for other affiliate union). Nine days after the rule was announced, the AFL-CIO sued, raising four counts under the APA. The Complaint maintains that the rule was issued without proper notice and comment, imposes an effective date that is arbitrary and capricious, contains substantive provisions that are themselves arbitrary and capricious, and is contrary to law because it exceeds the Secretary’s rulemaking authority under the LMRDA. See Compl., ¶¶ 32–54. The AFL-CIO then filed a motion for a preliminary injunction solely on its claim that the rule’s effective date was arbitrarily soon. See ECF No. 7-1 (Mot.) at 3–4. It asked the Court to 8 “postpone the Rule’s effective date until at least January 1, 2027,” id. at 30, either by issuing a preliminary injunction or by staying the rule under § 705 of the Administrative Procedure Act. See 5 U.S.C. § 705 (authorizing courts to “postpone the effective date of an agency action . . . to preserve status or rights pending conclusion of the review proceedings” “to the extent necessary to prevent irreparable injury”). The Court denied the motion, concluding that “the harms that the union would suffer from that date alone are not irreparable.” Am. Fed’n of Lab. & Cong. of Indus. Orgs. v. Sonderling, 2026 WL 1906727, at *1 (D.D.C. July 2, 2026). It reasoned that the union had not “met its demanding burden to prove great costs” and, in any case, had not demonstrated that the harm was likely to arrive “before the Court decides the merits.” Id. at *5– 6. That is because the union admitted that it would not recode any transactions — even those currently piling up — to comply with the new rule until after the Court had ruled on its propriety. Id. at *5–6. The parties then filed expedited Cross Motions for Summary Judgment, which the Court now considers. See ECF Nos. 26-1 (Pl. MSJ), 30 (Def. MSJ). II. Legal Standard When reviewing agency action under the APA, the court “sits as an appellate tribunal” and the “entire case on review is a question of law.” Marshall Cnty. Health Care Auth. v. Shalala, 988 F.2d 1221, 1225–26 (D.C. Cir. 1993). The parties’ motions for summary judgment thus serve “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.” Cemex Inc. v. Dep’t of the Interior, 560 F. Supp. 3d 268, 277 (D.D.C. 2021); see Ctr. for Biological Diversity v. Zeldin, 171 F.4th 356, 376 (D.C. Cir. 2026) (“The question of whether 9 agency action is arbitrary and capricious is a legal one generally made on the administrative record and resolved on summary judgment.”). The APA directs courts to “hold unlawful and set aside agency action, findings, and conclusions” that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). “In determining whether an agency’s interpretation of its governing statute is contrary to law,” the court must exercise its “‘independent judgment’ and ‘apply all relevant interpretive tools’ to reach ‘the best reading of the statute.’” Env’t Def. Fund v. EPA, 124 F.4th 1, 11 (D.C. Cir. 2024) (quoting Loper Bright Enters. v. Raimondo, 603 U.S. 369, 394 (2024)) (cleaned up). In determining whether an agency action is arbitrary and capricious, conversely, the court’s review is more “deferential.” Loper Bright, 603 U.S. at 392. The court cannot “substitute its judgment for that of the agency”; it may only ensure that the agency acted “within a zone of reasonableness” — in other words, that it “reasonably considered the relevant issues” and reached a “reasonably explained” decision. FCC v. Prometheus Radio Project, 592 U.S. 414, 423 (2021). That means that “[a] party seeking to have a court declare an agency action to be arbitrary and capricious carries a heavy burden indeed.” Wisconsin Valley Improvement v. FERC, 236 F.3d 738, 745 (D.C. Cir. 2001) (quotation marks and citation omitted). If the agency “examine[d] the relevant data and articulate[d] a satisfactory explanation for its action including a rational connection between the facts found and the choice made,” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quotation marks and citation omitted), it will satisfy the “minimal standards of rationality” required under the APA. Nat’l Env’t. Dev. Ass’n’s Clean Air Project v. EPA, 686 F.3d 803, 810 (D.C. Cir. 2012) (citation omitted). Additionally, while the court “may not supply a reasoned basis for the agency’s action 10 that the agency itself has not given, [it] will uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned.” Bowman Transp., Inc. v. Ark.-Best Freight Sys., Inc., 419 U.S. 281, 286 (1974) (citation omitted). Finally, the court must “set aside a rule if the agency failed to provide the requisite notice and comment and the petitioner has shown prejudice.” Chamber of Com. of United States v. EPA, 187 F.4th 636, 649 (D.C. Cir. 2026); see 5 U.S.C. § 553(b). III. Analysis In considering the parties’ dueling Motions for Summary Judgment, the Court follows their structural lead. It will first address Plaintiff’s procedural objection to the final rule before assessing how it fares on its substantive challenges. A. Notice and Comment Under the APA, see 5 U.S.C. § 553, an agency must provide “notice and opportunity for comment,” Dep’t of Educ. v. Brown, 600 U.S. 551, 558 (2023), “prior to a rule’s promulgation, amendment, modification, or repeal.” American Hospital Association v. Bowen, 834 F.2d 1037, 1044 (D.C. Cir. 1987). Plaintiff asserts that DOL violated Section 553 when, after stating in the Unified Agenda that the 2020 NPRM had been “withdrawn,” it nonetheless revived its proposals in a 2026 final rule without first going through a fresh round of notice and comment. See Pl. MSJ at 14. To preview its analysis, the Court concludes that Defendant did not violate the plain text of the APA’s notice-and-comment procedures, nor did the agency violate its spirit. The “central purpose” of those procedures “is to subject agency decisionmaking to public input and to obligate the agency to consider and respond to the material comments and concerns that are voiced.” Make The Rd. New York v. Wolf, 962 F.3d 612, 634 (D.C. Cir. 2020); see also Int’l 11 Union, United Mine Workers v. Mine Safety & Health Admin., 407 F.3d 1250, 1259 (D.C. Cir. 2005) (explaining that notice-and-comment procedures are “designed” in part to “ensure that agency regulations are tested via exposure to diverse public comment”). Here, the agency undertook a full notice-and-comment period that gave the regulated public, including the AFL- CIO, the opportunity to weigh in on the rule before it took effect, and the agency considered and responded to those comments. Nothing in the APA or D.C. Circuit caselaw suggests that the agency’s decision to withdraw the rule in the Unified Agenda wiped the legal effect of that process away, or that the lag between the close of comment and the rule’s ultimate promulgation undermined the policy behind notice and comment. That is especially true given that Plaintiff has not pointed to any material intervening events that retroactively rendered its opportunity to comment inadequate. As explained below, therefore, the Court finds no violation of the APA under the circumstances at issue here. 1. DOL’s Compliance with Notice-and-Comment Requirements As the AFL-CIO appears to implicitly accept by rooting this argument in the APA itself, that statute prescribes the “maximum procedural requirements that an agency must follow in order to promulgate a rule.” Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania, 591 U.S. 657, 685 (2020) (quotation marks and citation omitted). It also “sets forth the full extent of judicial authority to review executive agency action for procedural correctness.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 513 (2009). As relevant here, Section 553 of the APA makes an agency jump through three notice-and-comment hoops before it can promulgate a final rule. First, an agency must provide notice of the proposal by publishing it in the Federal Register. See 5 U.S.C. § 553(b). That notice must apprise the public of “the terms or substance of the proposed rule or a description of the subjects and issues involved.” Id. Second, the 12 agency must give interested parties the opportunity to weigh in on the proposal “through submission of written data, views, or arguments.” Id. § 553(c). Third and finally, it must consider those comments and then, in its final rule, include a “concise general statement” of the rule’s “basis and purpose.” 5 U.S.C. § 553(c). DOL plainly jumped through each hoop here. As discussed above, it put out a notice in the Federal Register, communicating to the public that it proposed making substantive revisions to “the Form LM-2 and establish[ing] a Form LM-2 Long Form (LF).” 85 Fed. Reg. at 64726. That notice invited the public to provide comments, see id., and the Department ultimately received 99 of them. See 91 Fed. Reg. at 32556. Finally, it “reviewed [that] record in its entirety,” id. at 32561, and then promulgated the 2026 final rule, which explained the legal basis for the rule and the reasons for the ultimate revisions to the reporting requirements. Id. at 32556- 605. To be sure, approximately five years passed between when DOL put out the notice of proposed rulemaking and when it finalized the rule. But the mere passage of time does not violate the notice-and-comment requirement, as the APA sets no “‘useful life’ for a notice and comment record.” Action on Smoking & Health v. C.A.B., 713 F.2d 795, 800 (D.C. Cir. 1983). Indeed, the D.C. Circuit routinely confronts and upholds final rules promulgated years after the agency issued the notice of proposed rulemaking and sought comment. See, e.g., Transp. Div. of the Int’l Ass’n of Sheet Metal, Air, Rail & Transp. Workers v. Fed. R.R. Admin., 10 F.4th 869, 873 (D.C. Cir. 2021) (five years); Competitive Enter. Inst. v. U.S. Dep’t of Transp., 863 F.3d 911, 913–14 (D.C. Cir. 2017) (five years). The agency therefore did all it needed to do under Section 553 in promulgating this rule. This Court is “not free to impose upon [DOL]” any further 13 “procedural requirements that have no basis in the APA.” Pension Ben. Guar. Corp. v. LTV Corp., 496 U.S. 633, 654 (1990). 2. Effect of “Withdrawal” in Unified Agenda Does it somehow change the calculus that DOL decided to mark the proposed rule “withdrawn” and “completed action” in the Unified Agenda? View Rule, Off. of Info. & Regul. Affs., https://perma.cc/BU5L-96TM. The D.C. Circuit has held that “[i]f one rulemaking proceeding has culminated and another has begun, then new notice and comment procedures are required.” Action on Smoking, 713 F.2d at 800; see Pl. MSJ at 17. But it has never held that an agency “culminates” a rulemaking proceeding, triggering new notice-and-comment obligations, by announcing the withdrawal of a proposed rule. Two strands of caselaw in this area, moreover, give reason to doubt that withdrawal of an NPRM has such legal effect. First, the D.C. Circuit has held that Section 553 does not require agencies to undergo “an additional notice and comment period” if they wish to revive a rule that was “withdraw[n]” years earlier, so long as the rule had previously gone through a “full period of notice and comment.” Am. Min. Cong. v. EPA, 907 F.2d 1179, 1191–92 (D.C. Cir. 1990); see Def. MSJ at 15–16 (invoking this case); see also Sprint Corp. v. FCC, 315 F.3d 369, 375 (D.C. Cir. 2003) (reiterating that American Mining Congress held that agency does not violate APA’s notice-and- comment requirements where it “simply reinstate[s] a previously withdrawn rule,” even after “eight years” had passed since notice and comment); Ctr. for Biological Diversity v. U.S. Fish & Wildlife Serv., 698 F. Supp. 3d 39, 61 (D.D.C. 2023) (“[T]he D.C. Circuit has held that an agency need not open a comment period at all when it reinstates a rule that was previously withdrawn.”). Consider American Federation of Government Employees v. Office of Personnel Management, 821 F.2d 761 (D.C. Cir. 1987). There, the agency “suspended a set of final agency 14 regulations”; two years later, they went back into effect “without a new period of notice and comment.” Am. Min. Cong, 907 F.2d at 1192 (discussing American Federation of Government Employees, 821 F.2d at 764). The D.C. Circuit concluded that the “APA required no new notice and comment period.” Id. American Mining Congress is similar. There, the agency revived a rule it had withdrawn eight years prior. See 907 F.2d at 1191. During the intervening period, the agency promulgated a proposal to revive the rule, seeking notice and comment, but ultimately reversed course and never acted on the proposal. See id. at 1183, 1191. Three years later, it reversed course again and, without any further notice and comment, revived the rule. Id. at 1191. The D.C. Circuit concluded that the “APA imposed on [the agency] no obligation to hold a new period of notice and comment before promulgating the 1988 Rule.” Id. And the Circuit found it perfectly permissible that, in so doing, “the agency relied on the data acquired in the full-fledged notice and comment process” that it initially undertook when promulgating the original rule. Id. Those cases strongly suggest that an agency does not need to start from scratch if it wishes to promulgate a final rule after initially announcing that the proposed rulemaking was withdrawn — so long as the proposal had gone through a full round of notice and comment. The logic is straightforward: if the act of formally withdrawing a final rule does not wipe away the legal vitality of an original notice-and-comment process — thereby triggering new notice-and- comment requirements if an agency wishes to revive the rule — it is hard to conclude that the act of withdrawing a proposed rule has a different legal effect under Section 553. Second, and in contrast, the D.C. Circuit has held that an agency ordinarily does need to start the notice-and-comment process anew if it wishes to reinstate a rule that was vacated by a court order for failure to comply with the APA’s requirements. See Mobil Oil Corp. v. EPA, 35 F.3d 579, 584–85 (D.C. Cir. 1994); Action on Smoking, 713 F.2d at 797, 800. That is because 15 vacatur turns the rule — and the process underlying its creation — into one that never existed. Mobil Oil Corp., 35 F.3d at 584 (“[T]o vacate means to annul; to cancel or rescind; to declare, to make, or to render, void; to defeat; to set aside.”) (cleaned up). That, too, strongly suggests that volitional withdrawal of a notice of proposed rulemaking does not, standing alone, trigger new notice-and-comment obligations if an agency wishes to reverse course and finalize the rule. After all, in such circumstances, the agency is simply thawing an NPRM — which, again, had gone through notice and comment — that it had originally put on ice. It is not attempting to revive a rule that was legally wiped away as infirm. In any case, even if an agency could culminate a rulemaking proceeding by unmistakably and formally communicating that it had abandoned a proposed rule, DOL did not do so here when it marked the proposed rule “withdrawn” and “completed” in the Unified Agenda. The Unified Agenda was created to help agencies fulfill their obligation under the Regulatory Flexibility Act, see 5 U.S.C. § 602, and several Executive Orders, see, e.g., Exec. Order No. 12,866, 3 C.F.R. § 638 (1994), reprinted as amended in 5 U.S.C. § 601, to compile “all regulations under development or review.” Exec. Order No. 12,866. It is a vehicle by which agencies convey to the public each proposed rule’s potential economic impact and the estimated rulemaking schedule, while helping the Office of Information and Regulatory Affairs evaluate economically significant proposals through its inter-agency review process. See Introduction to the Unified Agenda of Federal Regulatory and Deregulatory Actions, 86 Fed. Reg. 41166, 41167–69 (July 30, 2021); Jennifer Nou & Edward H. Stiglitz, Strategic Rulemaking Disclosure, 89 S. Cal. L. Rev. 733, 749–50 (2016). As such, when an agency reports in the Unified Agenda that a proposal is “withdrawn,” at most it has “withdraw[n] [the] rule” from the “OIRA review process,” unless and until the agency chooses to “resubmit it after further consideration,” and 16 signals to the public that the rule has been shelved. OIRA, Off. of Info. & Regul. Affs., https://perma.cc/RP57-UK9E. The same goes for marking an action “completed,” a label that the Agenda uses to simply capture that the agency has “completed or withdrawn” a proposal “since publishing its last agenda.” 86 Fed. Reg. at 41168. Those labels have no legal significance under the APA — let alone legal significance under the RFA itself, which plainly caveats that an agency is not required to act in a manner consistent with the agenda or its listings. See 5 U.S.C. § 602(d); 86 Fed. Reg. at 41167. “It would be odd if agencies could nullify past steps taken to comply with the APA in a publication that has little if anything to do with the APA,” using labels that have no legal import even outside the APA to boot. Sanofi Aventis U.S. LLC v. United States Dep’t of Health & Hum. Servs., 58 F.4th 696, 706–07 (3d Cir. 2023). This Court thus agrees with the Third Circuit that merely classifying a proposal as “withdrawn” in the Unified Agenda does not terminate a rulemaking proceeding, requiring an agency to “start over” if it “later changes its mind.” Id. at 706. Accordingly, DOL’s “failure to offer a new comment period after withdrawing th[e] [2020] proposal does not, by itself, require invalidation of [its] final regulations.” State of Tex. v. Lyng, 868 F.2d 795, 797 (5th Cir. 1989). 3. Plaintiff’s Counterpoints Not ready to throw in the towel, Plaintiff raises a bevy of counterpoints. It first insists that logic dictates that “[a]n agency’s decision to withdraw a rulemaking concludes the rulemaking process” — “reset[ting] its notice-and-comment obligations” — because an agency’s decision to “terminate its rulemaking proceedings” is “final agency action” subject to judicial review. See Pl. MSJ at 16–17 (quoting Ctr. for Auto Safety v. Nat’l Highway Traffic Safety Admin., 710 F.2d 842, 846 (D.C. Cir. 1983)) (emphasis omitted). That argument has multiple cracks in its foundation. As an initial matter, whether an agency action is final for purposes of 17 judicial review is distinct from whether it violates the APA’s notice-and-comment requirements. Cf. Lyng, 868 F.2d at 797 (failing to find this argument dispositive). Even if the two bore some logical relation, the union wrongly assumes that DOL’s withdrawing the proposed rule in the Unified Agenda also terminated it in a manner sufficiently formal to trigger judicial review. Whether an agency’s decision to terminate a rulemaking is ripe for judicial review turns on the following distinction: does it represent a “final, binding decision” not to move forward with a rule, or can the agency be better understood as having made a “preliminary decision” not to do so, leaving open the “chance” to change course “on its own initiative?” Ctr. For Auto Safety, 710 F.2d at 847, 848. For instance, in Professional Drivers Council v. Bureau of Motor Carrier Safety, 706 F.2d 1216 (D.C. Cir. 1983), the Circuit concluded that it was appropriate to review an agency’s decision to “close its rulemaking proceedings” without adopting a final rule. Id. at 1221. There, the agency had issued a formal notice in the Federal Register that it was “terminat[ing] . . . rulemaking,” Limits on Hours of Service of Commercial Vehicle Drivers; Termination of Rulemaking, 46 Fed. Reg. 44198 (Sept. 3, 1981), and “clearly articulated the factual and policy bases for its decision” not to forge ahead. Pro. Drivers Council, 706 F.2d at 1221; see also Int’l Union, United Mine Workers of Am. v. U.S. Dep’t of Lab., 358 F.3d 40, 42 (D.C. Cir. 2004) (reviewing agency decision to withdraw proposed rule in formal Federal Register notice with explanation); see also, e.g., Withdrawal of Proposed Rule “Health Care Programs: Fraud and Abuse; Civil Money Penalties for Hospital Physician Incentive Plans”, 84 Fed. Reg. 37821-02, 37821 (Aug. 2, 2019) (“This document informs the public that OIG has determined not to pursue a proposed rule published in the Federal Register and, as a result, is withdrawing it.”); Administrative Law Judges; Withdrawal, 91 Fed. Reg. 16584-01 (Apr. 2, 2026) (similar). 18  The withdrawal notice here is a far cry from that. The Unified Agenda entry offered no explanation or context for the agency’s decision to mark the proposal “withdrawn” and “completed.” It simply explained that the entry — not even the rule — was “no longer necessary.” View Rule, Off. of Info. & Regul. Affs., https://perma.cc/BU5L-96TM. Nor did the entry suggest that the agency had formally determined that the proposed course of action was permanently off the table. See, e.g., Attorney Fees and Personnel Action Coverage Under the Back Pay Act, 90 Fed. Reg. 31594 (July 15, 2025) (withdrawing proposed rule on ground that comments suggested regulatory approach was wrong and explaining that agency planned to issue new proposal and go through fresh round of notice and comment). As such, even if final agency action were relevant to the question of whether rulemaking was terminated, the Court doubts that the entry at issue here represents final agency action. Having found no traction there, Plaintiff tries another route, invoking the purpose behind notice and comment. It principally makes three different types of purpose arguments. First, it contends that DOL lulled the public into a false sense of security that there would be no regulatory change when it marked the rule withdrawn, violating the fair-notice principles behind Section 553. See Pl. MSJ at 17–19, 23. It may be true that the regulatory community did not expect — based on DOL’s conduct — that the rule would ever come to fruition, but that alone is not sufficient for the Court to find the rule procedurally infirm. Recall that agencies may revive withdrawn final rules without notice and comment. Am. Min. Cong., 907 F.2d at 1191–92. Certainly such action would blindside the regulated community just as much as, if not more than, withdrawing a proposed rule. Yet such revivals are permissible under the APA. So too here. To check the notice box, then, DOL needed only to “expressly ask[] for comments on a particular issue or otherwise ma[k]e clear that the agency was contemplating a particular 19 change,” Brennan v. Dickson, 45 F.4th 48, 69 (D.C. Cir. 2022), and ensure that its final rule was a “logical outgrowth” of the proposal. Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 174 (2007). Those requirements are easily satisfi