Novedades Y Servicios, Inc. v. Financial Crimes Enforcement Network

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT NOVEDADES Y SERVICIOS, No. 25-4238 INC.; ESPERANZA GOMEZ D.C. No. ESCOBAR, 3:25-cv-00886- JLS-DDL Plaintiffs - Appellees, v. OPINION FINANCIAL CRIMES ENFORCEMENT NETWORK; ANDREA GACKI, in her official capacity as Director of the Financial Crimes Enforcement Network; UNITED STATES DEPARTMENT OF THE TREASURY; SCOTT BESSENT, in his official capacity as Secretary of the Treasury; TODD BLANCHE, Acting Attorney General, in his official capacity as the Acting Attorney General of the United States, Defendants - Appellants. Appeal from the United States District Court for the Southern District of California Janis L. Sammartino, District Judge, Presiding 2 NOVEDADES Y SERVICIOS, INC. V. FINCEN Argued and Submitted February 2, 2026 Pasadena, California Filed July 13, 2026 Before: Kenneth K. Lee, Lucy H. Koh, and Ana de Alba, Circuit Judges. Opinion by Judge Koh; Dissent by Judge Lee SUMMARY * Preliminary Injunction / Currency Transaction Reports The panel affirmed the district court’s preliminary injunction in favor of Novedades y Servicios, Inc., a money service business, and its owner enjoining the government from enforcing a Geographic Targeting Order (“GTO”) that requires all money services businesses in an area along the southwest border to file currency transaction reports for any cash transaction between $200 and $10,000—a reduction from the longstanding $10,000 reporting threshold. The Currency and Foreign Transactions Reporting Act (“Bank Secrecy Act”) authorizes the Treasury Secretary to require domestic financial institutions to file currency transaction reports with the Financial Crimes Enforcement Network (“FinCEN”), a bureau within the Treasury * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.  NOVEDADES Y SERVICIOS, INC. V. FINCEN 3 Department. In 1988, Congress enacted an additional provision within the Bank Secrecy Act, authorizing the Secretary to require certain reports by “order,” rather than by “regulation” (“Section 5326”), in response to concerns that launderers were dealing in transactions below the $10,000 reporting amount. Orders issued under Section 5326 are commonly referred to as GTOs. In March 2025, FinCEN issued a Border GTO requiring all money services businesses located in 30 specified ZIP codes within five Texas counties and two California counties along the southwest border of the United States to file currency transaction reports for any transaction of more than $200 and less than $10,000. Addressing the elements required to obtain a preliminary injunction, the panel held that plaintiffs demonstrated a likelihood of success on the merits of each of their following claims under the Administrative Procedure Act (“APA”). Specifically, the panel held that (1) the Border GTO was likely a rule, not an order, under the APA because the Border GTO applies to all unnamed and unspecified money services businesses in 30 ZIP codes with a total population of over one million instead of specific businesses; rests on general facts rather than the adjudication of a particular set of disputed facts; and determines policy issues rather than resolving a dispute between particular parties; (2) FinCEN was required to conduct notice and comment rulemaking before issuing the Border GTO because it was a de facto rule; and (3) the Border GTO was likely adopted in an arbitrary and capricious manner because FinCEN entirely failed to consider the cost of compliance to regulated parties, an important aspect of the problem. The panel held that the district court did not clearly err in finding that Novedades demonstrated a likelihood of 4 NOVEDADES Y SERVICIOS, INC. V. FINCEN irreparable harm because it faced a “threat of extinction” and the loss of its customers and goodwill. Novedades, which typically maintains one person on duty at a time, estimated that compliance would require an additional fourteen or more hours of reporting work per day and the hiring of a full- time employee it cannot afford. Novedades estimated the time it would take to comply with the Border GTO based on a conservative estimate that each currency transaction report would require around 25 minutes to complete, far below the currency transaction report’s estimate of 40 minutes. Additionally, during the single week the Border GTO was in effect, Novedades lost 50-60% of the customers in the store to whom its owner explained the new reporting requirements, as customers expressed skepticism and fear that providing their personal information would place them on a list of criminals or cause them to be mistaken for criminals and also stated their intent to take their business to money services businesses in unaffected ZIP codes, including a money services business that is only a 5 minute drive from Novedades. The panel held that the district court did not abuse its discretion in determining that the balance of equities and public interest favored plaintiffs when weighing the concrete threat the Border GTO posed to Novedades’s existence and its owner’s livelihood against the government’s speculative assertions that the Border GTO will keep the public safer. Finally, the panel held that the district court did not abuse its discretion in limiting the scope of the preliminary injunction to the Southern District of California. Dissenting, Judge Lee would hold that plaintiffs have not shown irreparable harm to merit the extraordinary remedy of a preliminary injunction. The district court erred by  NOVEDADES Y SERVICIOS, INC. V. FINCEN 5 assuming irreparable harm largely based on blanket assertions of financial burden. He would remand for the district court to further analyze irreparable harm before a preliminary injunction is granted. COUNSEL Robert E. Johnson (argued), Institute for Justice, Shaker Heights, Ohio; Andrew K. Ward and Elizabeth Sanz, Institute for Justice, Arlington, Virginia; Jeffrey Rowes, Institute for Justice, Austin, Texas; Katrin Marquez, Institute for Justice, Miami, Florida; Nilay U. Vora and Jeffrey A. Atteberry, Vora Law Firm PC, Santa Monica, California; for Plaintiffs-Appellees. Simon G. Jerome (argued) and Sharon Swingle, Attorneys, Appellate Staff; Brett A. Shumate, Assistant Attorney General; Civil Division, United States Department of Justice, Washington, D.C.; Stephanie A. Sotomayor, Assistant United States Attorney; Adam Gordon, United States Attorney; Office of the United States Attorney, United States Department of Justice, San Diego, California; for Defendants-Appellants. Daniel C. Silva and Ava Sadeghi, Buchalter APC, San Diego, California, for Amici Curiae MSBA, Inc. and INFiN Inc. 6 NOVEDADES Y SERVICIOS, INC. V. FINCEN OPINION KOH, Circuit Judge: On March 14, 2025, the Treasury Department’s Financial Crimes Enforcement Network issued a Geographic Targeting Order that requires all money services businesses in an area along the southwest border to file currency transaction reports for any cash transaction between $200 and $10,000—a reduction from the longstanding $10,000 reporting threshold. The covered area consists of 30 ZIP codes spread among five Texas counties and two California counties and covers a population of over one million people. The ZIP codes are non-contiguous and surrounded by non-covered ZIP codes. Plaintiffs Novedades y Servicios, Inc., a small money services business, and Esperanza Gomez Escobar, Novedades’s owner, filed a lawsuit seeking to enjoin the government from enforcing the Geographic Targeting Order. The district court granted Plaintiffs’ motion for a preliminary injunction. For the reasons stated below, we affirm. I. BACKGROUND AND PROCEDURAL HISTORY A. Statutory Background 1. Currency Transaction Reports Congress enacted the Currency and Foreign Transactions Reporting Act (“Bank Secrecy Act”) in 1970, “in response to increasing use of banks and other institutions as financial intermediaries by persons engaged in criminal activity.” Ratzlaf v. United States, 510 U.S. 135, 138 (1994); see Pub. L. No. 91-508, 84 Stat. 1114 (1970). The Bank  NOVEDADES Y SERVICIOS, INC. V. FINCEN 7 Secrecy Act authorizes the Treasury Secretary (“Secretary”) to require “a domestic financial institution” to file reports on cash transactions “in an amount, denomination, or amount and denomination, or under circumstances the Secretary prescribes by regulation” under 31 U.S.C. § 5313 (“Section 5313”). In 1972, after notice and comment rulemaking, the Treasury Department issued a rule that required financial institutions to file reports on cash transactions over $10,000. See 37 Fed. Reg. 6912 (Apr. 5, 1972) (codified at 31 C.F.R. § 1010.311). These reports are commonly referred to as “Currency Transaction Reports” or “CTRs.” The current version of the CTR form requests the name, address, Social Security number, and occupation of the transacting party, as well as the type of identification used to verify the transacting party’s identity. CTRs are filed with the Financial Crimes Enforcement Network (“FinCEN”), a bureau within the Treasury Department. See 31 C.F.R. § 1010.306(a)(3); 31 U.S.C. § 310. By statute, FinCEN “[a]nalyze[s] and disseminate[s] the available data” to “identify possible criminal activity” and to “support ongoing criminal financial investigations and prosecutions,” among other responsibilities. 31 U.S.C. § 310(b)(2)(C). FinCEN maintains a searchable database of CTRs, to which it provides access to local, state, federal, and foreign law enforcement. Pursuant to its obligations under the Paperwork Reduction Act, FinCEN has estimated how long it takes to file a CTR. See 85 Fed. Reg. 29022 (May 14, 2020); 44 U.S.C. § 3501, et seq. FinCEN estimated that it takes non- bank filers such as money services businesses around 22 to 24 minutes to file each CTR if they do not have automated 8 NOVEDADES Y SERVICIOS, INC. V. FINCEN processes. See 85 Fed. Reg. at 29029. The current version of the CTR form also states that the “[p]ublic reporting and recordkeeping burden for this collection of information is estimated to average 40 minutes per response.” 2. Geographic Targeting Orders In 1988, Congress enacted an additional provision within the Bank Secrecy Act that authorizes the Secretary to require certain reports by “order,” rather than by “regulation,” as authorized under Section 5313. Pub. L. 100-690, tit. VI, § 6185(c), 102 Stat. 4181, 4355 (1988). Congress added this provision, now codified at 31 U.S.C. § 5326 (“Section 5326”), in response to concerns that “launderers [were] dealing in transactions below the $10,000 reporting amount.” 134 Cong. Rec. H7078 (daily ed. Sep. 7, 1988) (statement of Rep. St. Germain). Orders issued under Section 5326 are commonly referred to as “geographic targeting orders” or “GTOs.” In its present form, Section 5326 authorizes the Secretary to issue an order requiring “any domestic financial institution or nonfinancial trade or business,” or any group of such entities, in a geographic area to obtain and report information concerning transactions, when the Secretary “finds . . . that reasonable grounds exist for concluding that additional recordkeeping and reporting requirements are necessary to carry out the purposes of [the Bank Secrecy Act] or to prevent evasions thereof.” 31 U.S.C. § 5326(a). The Secretary “may prescribe” the threshold above which transactions must be reported. Id. § 5326(a)(1)(A). GTOs issued under Section 5326 are limited to a maximum duration of 180 days, unless renewed. Id. § 5326(d). Section 5326 also provides that GTOs are presumptively confidential—entities “subject to an order under this  NOVEDADES Y SERVICIOS, INC. V. FINCEN 9 section” may not “disclose the existence of, or terms of, the order to any person except as prescribed by the Secretary.” Id. § 5326(c). In 1989, after notice and comment rulemaking, the Treasury Department issued a rule governing the issuance of GTOs. See 31 C.F.R. § 1010.370; 54 Fed. Reg. 33675. The rule provided that a GTO “shall be directed to the Chief Executive Officer” of the targeted business and should require reports of transactions “by, through or to such financial institution specified in the order.” 31 C.F.R. § 1010.370(b). The preamble to the rule described how FinCEN expected GTOs to work. After selecting a geographic area— which could range from “a few city blocks” to “a major metropolitan area”—the agency would “identify the affected financial institution or institutions in the geographic area that would receive the targeting order.” 54 Fed. Reg. at 33675- 76. “[G]eographic targeting orders would not be published in the Federal Register, but would be issued only to the affected financial institutions,” generally by “certified or registered mail, return receipt requested.” Id. at 33676-77. To ensure compliance, the agency would “contact the institution a few days after [the order] has been sent.” Id. at 33677. The agency also explained why GTOs are presumptively confidential: “[O]nce criminals learn of the enhanced reporting requirements and where they are applicable, criminals merely will move on to another non- targeted branch.” Id. at 33678. 3. Money Services Businesses In 1999, after notice and comment rulemaking, FinCEN issued a rule defining a category of businesses subject to the Bank Secrecy Act called “money services businesses” 10 NOVEDADES Y SERVICIOS, INC. V. FINCEN (“MSBs”). 64 Fed. Reg. 45438 (Aug. 20, 1999). MSBs are non-bank financial institutions that offer limited services, such as currency exchanges, money orders, check cashing, and money transfers. 31 C.F.R. § 1010.100(ff). Under this rule, MSBs are required to file CTRs for cash transactions over $10,000. See id. § 1010.311. MSBs are also subject to other obligations under the Bank Secrecy Act—i.e., they must register with FinCEN, see id. § 1022.380; maintain an effective anti-money laundering program, id. § 1022.210; and, like banks and other financial institutions, report suspicious transactions, including those structured to evade the CTR requirement, see id. § 1022.320. B. Factual Background 1. Border GTO On March 14, 2025, FinCEN issued a Geographic Targeting Order (“Border GTO”) applicable to “certain money services businesses along the southwest border of the United States.” 90 Fed. Reg. 12106, 12106 (Mar. 14, 2025). The Border GTO required all MSBs located in 30 specified ZIP codes within five Texas counties and two California counties to file CTRs for any transaction of more than $200 and less than $10,000. Id. at 12107. The targeted ZIP codes are not contiguous, and some are surrounded by untargeted ZIP codes. The Border GTO further stated that each MSB must “comply with the identification requirements set forth at 31 C.F.R. 1010.312,” id., which requires collecting the name, address, and Social Security or taxpayer identification number of the transacting party. The Border GTO stated that targeted MSBs “may be liable, without limitation, for civil or criminal penalties for violating any of the terms of this Order.” Id. at 12108. In a  NOVEDADES Y SERVICIOS, INC. V. FINCEN 11 Frequently Asked Questions document that FinCEN subsequently provided, FinCEN explained that penalties for willful violations may result in both civil and criminal penalties. Civil fines can be up to $71,545 per transaction and criminal penalties include fines of up to $250,000 and imprisonment of up to five years. FinCEN, Frequently Asked Questions (Mar. 24, 2025) (citing 31 C.F.R. §§ 1010.821, 1010.840), https://perma.cc/FWE2-KJBJ. Even negligent violations can trigger penalties of $1,430 per violation. See 31 C.F.R. § 1010.821. Contrary to the Treasury Department’s earlier stated expectation that GTOs “would not be published in the Federal Register,” 54 Fed. Reg. at 33676, and contrary to the statutory presumption that GTOs are confidential, see 31 U.S.C. § 5326(c), the Border GTO was published in the Federal Register. 90 Fed. Reg. at 12106. The Border GTO took effect on April 14, 2025. 2. Plaintiffs Plaintiff Novedades y Servicios, Inc., (“Novedades”) is a small MSB that provides money transfers, money orders, and check cashing services. Novedades is in San Diego and is covered by the Border GTO. Plaintiff Esperanza Gomez Escobar (“Escobar”) owns and manages Novedades. Many of Novedades’s customers are low income and do not use banks. A typical Novedades customer might cash a paycheck and go across the street to buy groceries. Novedades never filed a CTR before the Border GTO was issued because in “all the years that it has been in business, [Novedades] has never completed a cash transaction over $10,000.” Escobar estimated that Novedades usually processes 1,200-1,300 money transfers, cashes 800-900 checks, and sells 200-300 money orders per 12 NOVEDADES Y SERVICIOS, INC. V. FINCEN month; and that the “Border GTO applies to nearly all of Novedades’s transactions—at least 99%.” During the week that the Border GTO was in effect, Novedades reported losing approximately 50 to 60 percent of its customers in the store to whom Escobar explained the new reporting requirements imposed by the Border GTO. 1 According to Plaintiffs, the Border GTO imposed a burden of an additional 14-17 hours per day of reporting work, which “does not even include the time spent explaining to customers why Novedades now has to take their personal information.” Plaintiffs alleged that the time it took to ask for information from customers was “a huge burden,” and that “[c]ustomers [did] not understand the purpose of the Border GTO,” and “were worried that they [would] be put on a list with the names of criminals or be mistaken for criminals” if they provided their personal information. Further, Escobar stated that “customers were reluctant to give [her] their personal information and expressed skepticism and fear”; told her that they “planned to go to MSBs in unaffected zip codes”; and “one customer even told [her] that an MSB in an unaffected zip code had called him to convince him to go there instead.” At least one similar MSB that is not covered by the Border GTO operates just “a five-minute drive from Novedades.” C. Procedural Background Plaintiffs filed their complaint on April 15, 2025, seeking declaratory and injunctive relief on the basis that, as relevant to this appeal, the Border GTO violated the Administrative 1 A similarly situated San Diego MSB also reported losing 50 to 60 percent of its customers during the period the Border GTO was in effect. Comparable evidence from Texas businesses subject to the Border GTO showed similar declines.  NOVEDADES Y SERVICIOS, INC. V. FINCEN 13 Procedure Act (“APA”) and the Fourth Amendment. In their complaint, Plaintiffs stated that Novedades would “have to hire at least one full-time employee just to prepare CTRs” to face this paperwork burden, “assuming customers do not just take their business elsewhere.” Plaintiffs asserted that “Novedades expects to be put out of business by the Border GTO,” because it “cannot afford to hire an entire full-time employee just to prepare CTRs,” and that, alternatively, “Novedades also cannot survive if its customers stop coming to the business.” On April 16, 2025, Plaintiffs moved for a temporary restraining order (“TRO”) seeking to enjoin the government from enforcing the Border GTO, which was issued on March 14, 2025, and took effect on April 14, 2025. On April 18, 2025, the government opposed the motion for a TRO and submitted an internal FinCEN “Information Memorandum,” dated “March XX,” (“March XX Memo”) as evidence. The March XX Memo was subsequently entered as part of the administrative record. The rest of the administrative record consists of the documents cited in the March XX Memo. The March XX Memo appears to be in draft form. The document contains multiple redlined changes throughout. Additionally, a “Clearance Sheet” accompanying the memorandum shows that it was “[d]rafted” in February 2025, and the dates on which the memorandum was “[c]leared” by FinCEN’s “Principal Deputy Assistant General Coun[sel]” and “[a]pproved” by FinCEN Director Gacki are left blank. The March XX Memo is also heavily redacted. Every header and footer of the document is redacted, along with the entirety of the “Analytic Plan” section of the memorandum and most of the “Conclusion” section. 14 NOVEDADES Y SERVICIOS, INC. V. FINCEN At the TRO motion hearing on April 22, 2025, the district court expressed some concern regarding the March XX Memo and asked the government whether the memorandum was “ever put out,” because “[i]t doesn’t have a real date on it.” In response, the government stated that it “[didn’t] know the answer to that question.” On April 22, 2025, the district court granted Plaintiffs’ motion for a TRO and enjoined enforcement of the Border GTO within the Southern District of California. Subsequently, on April 29, 2025, Plaintiffs filed a motion for preliminary injunction. At the preliminary injunction hearing on May 15, 2025, the district court noted again its concern over the March XX Memo, asking the government whether the memorandum “could be an after- the-fact rationalization and quick job to justify what was done?” In response, the government referenced “the presumption of regularity,” but counsel again stated, “I don’t have any factual information about the reason for the xx” and stated that “I don’t know what that xx means.” At the hearing, the district court also asked Plaintiffs about the possibility of using software to automate the CTR filing process. Plaintiffs responded that such software is “typically not designed for small businesses,” and alleged that even if software could reduce the time it takes to file each CTR to merely four minutes, Novedades would still have to do “almost five hours per day of added paperwork.” Plaintiffs also reiterated that explaining the Border GTO’s requirements to customers and collecting customers’ information would remain time consuming even if the filing burden were minimized. On May 15, 2025, the district court entered a preliminary injunction in an oral ruling, supplemented by a written order on May 21, 2025. The court held that Plaintiffs were likely  NOVEDADES Y SERVICIOS, INC. V. FINCEN 15 to succeed on their claims under the APA that: (1) the Border GTO was promulgated in excess of statutory authority, see 5 U.S.C. § 706(2)(C); (2) FinCEN failed to conduct notice and comment rulemaking before issuing the Border GTO, see id. § 553; and (3) the Border GTO was adopted in an arbitrary and capricious manner, see id. § 706(2)(A). The district court also determined that Plaintiffs had demonstrated a likelihood of irreparable harm because Plaintiffs established that they faced a “threat of extinction” and the loss of customers and goodwill due to the Border GTO. Finally, the district court held that the balance of the equities and the public interest favored the grant of a preliminary injunction. The district court limited the scope of the preliminary injunction to “all covered businesses” defined in the Border GTO “that are located in the Southern District of California.” This appeal followed. D. Subsequent GTOs The Border GTO expired on September 9, 2025. On September 10, 2025, FinCEN issued a second GTO (“Second GTO”). See 90 Fed. Reg. 43557 (Sep. 10, 2025). The Second GTO imposes identity-verification and reporting requirements like those imposed by the Border GTO but sets a minimum reporting threshold of $1,000 rather than $200. Id. at 43557-58. The Second GTO also extends the reporting requirements to two Arizona counties and certain other areas in Texas, in addition to the California and Texas ZIP codes previously covered by the Border GTO. Id. at 43558. The Second GTO exempts “any money services business to which the government is enjoined by court order from applying the” Border GTO “for the period during which an applicable injunction remains in force.” Id. On 16 NOVEDADES Y SERVICIOS, INC. V. FINCEN appeal, the government asserts that the preliminary injunction at issue applies only to the Border GTO “published in the Federal Register on March 14, 2025,” not to the Second GTO. The Second GTO expired on March 6, 2026. On March 10, 2026, FinCEN issued a third GTO (“Third GTO”), effective through September 2, 2026. See 91 Fed. Reg. 11456 (March 10, 2026). This Third GTO also imposes identity-verification and reporting requirements like those imposed by the Border GTO and Second GTO. Like the Second GTO, it sets the minimum reporting threshold of $1,000, but it also extends those requirements to additional counties in Arizona and New Mexico. See id. at 11456-57. The Third GTO also continues to “exempt” MSBs to which the government is enjoined from applying the Border GTO “until that injunction is lifted.” Id. at 11457 n.8. The government continues to maintain that “only the merits of [the Border GTO] are before the Court in this appeal” and that this court “should reject plaintiffs’ attempts to inject the third order into the merits of this case.” II. JURISDICTION AND STANDARD OF REVIEW We have jurisdiction under 28 U.S.C. § 1292(a)(1). “We review for abuse of discretion a district court’s decision regarding preliminary injunctive relief. We review findings of fact for clear error and conclusions of law de novo.” BNSF Ry. Co. v. County of Alameda, 7 F.4th 874, 878-79 (9th Cir. 2021) (internal citation omitted). “A factual finding is clearly erroneous if it is illogical, implausible, or without support in inferences that may be drawn from the record.” Capistrano Unified Sch. Dist. v. S.W., 21 F.4th 1125, 1133 (9th Cir. 2021) (citation modified). Under this standard, we “will not reverse the district court’s [preliminary injunction]  NOVEDADES Y SERVICIOS, INC. V. FINCEN 17 decision simply because we would have arrived at a different result if we had applied the law to the facts of the case.” Doe v. Harris, 772 F.3d 563, 570 (9th Cir. 2014) (citation modified). “We review the scope of the district court’s preliminary injunction for abuse of discretion.” Nat’l Urb. League v. Ross, 977 F.3d 770, 776 (9th Cir. 2020) (citation omitted). III. DISCUSSION The government argues that the district court abused its discretion in granting the preliminary injunction and that the scope of the preliminary injunction is overbroad. We address each argument in turn, and we affirm. A. Grant of Preliminary Injunction To obtain a preliminary injunction, the moving party must show: (1) a likelihood of success on the merits; (2) a likelihood of irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in the moving party’s favor; and (4) that an injunction is in the public interest. Winter v. NRDC, Inc., 555 U.S. 7, 20 (2008). A preliminary injunction is “an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Id. at 22. The Ninth Circuit employs a “version of the sliding scale” approach where “a stronger showing of one element may offset a weaker showing of another.” All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). Under this approach, a court may issue a TRO or preliminary injunction where there are “serious questions going to the merits and a balance of hardships that tips sharply towards the plaintiff . . . , so long as the plaintiff also shows that there is a likelihood of irreparable injury and that the injunction is in the public interest.” Id. at 1135 18 NOVEDADES Y SERVICIOS, INC. V. FINCEN (citation modified). The moving party bears the burden of persuasion. Hill v. McDonough, 547 U.S. 573, 584 (2006). 1. Likelihood of Success on the Merits We begin with Plaintiffs’ likelihood of success on the merits. The district court held that Plaintiffs are likely to prevail on each of their following claims under the APA: (1) the Border GTO was an unlawful rule that was promulgated in excess of FinCEN’s statutory authority under Section 5326, which only authorizes FinCEN to act by order; (2) FinCEN was required to conduct notice and comment rulemaking before issuing the Border GTO because it was a de facto rule; and (3) the Border GTO was adopted in an arbitrary and capricious manner. 2 For the reasons stated below, we affirm the district court’s holding as to each of these three claims. a. Statutory Authority Under Section 5326 Plaintiffs are likely to succeed on the merits of their claim that the Border GTO is a de facto statutory rule and therefore violates Section 5326, which only authorizes FinCEN to act by “order.” 31 U.S.C. § 5326. Section 5326 provides that if FinCEN finds “reasonable grounds” under the statutory criteria, then FinCEN “may issue an order requiring” reports. Id. § 5326(a) (emphasis added). 2 Because the district court held that Plaintiffs were likely to succeed on their APA claims, the district court declined to address Plaintiffs’ claim that the Border GTO also violated the Fourth Amendment. We similarly decline to do so. See Camreta v. Greene, 563 U.S. 692, 705 (2011) (observing that a “longstanding principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them” (citation omitted)).  NOVEDADES Y SERVICIOS, INC. V. FINCEN 19 The U.S. Supreme Court has recognized that the APA distinguishes between rules, which result from rulemakings, and orders, which result from adjudications, on the basis that rulemakings are “proceedings for the purpose of promulgating policy-type rules or standards” and adjudications are “proceedings designed to adjudicate disputed facts in particular cases.” United States v. Fla. E. Coast Ry. Co., 410 U.S. 224, 245 (1973). Under the APA, rulemaking is the “agency process for formulating, amending, or repealing a rule.” 5 U.S.C. § 551(5). A “rule” is “the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy.” Id. § 551(4). An “adjudication,” by contrast, is the “agency process for the formulation of an order.” Id. § 551(7). An “order” is “the whole or a part of a final disposition, whether affirmative, negative, injunctive, or declaratory in form, of an agency in a matter other than rule making but including licensing.” Id. § 551(6). As a preliminary matter, and as both parties agree, the use of “order” within Section 5326 incorporates the meaning of “order” within the APA because “order” is a term of art within administrative law. See FDA v. R.J. Reynolds Vapor Co., 606 U.S. 226, 234-35 (2025) (holding that a “‘term of art’ across administrative law” “carries the same meaning outside the APA as in it”). Further, we may presume that Congress intentionally incorporated the meaning of “order” under the APA when Congress used the word “order” in Section 5326, because the distinction between rules and orders under the APA was well understood at the time that Section 5326 was enacted in 1988. See Fla. E. Coast Ry. Co, 410 U.S. at 244-45 (explaining the “basic distinction between rulemaking and adjudication”); Bowen v. 20 NOVEDADES Y SERVICIOS, INC. V. FINCEN Georgetown Univ. Hosp., 488 U.S. 204, 217 (1988) (Scalia, J., concurring) (noting that the “central distinction between rulemaking and adjudication” is that “rules have legal consequences only for the future”); Bartenwerfer v. Buckley, 598 U.S. 69, 80 (2023) (noting that the U.S. Supreme Court “generally assumes that, when Congress enacts statutes, it is aware of th[e] Court’s relevant precedents” (citation omitted)). The Ninth Circuit has set forth three main considerations in distinguishing between a rule and an order under the APA: “(1) whether the government action applies to specific individuals or to unnamed and unspecified persons; (2) whether the promulgating agency considers general facts or adjudicates a particular set of disputed facts; and (3) whether the action determines policy issues or resolves specific disputes between particular parties.” Gallo v. U.S. Dist. Ct. for the Dist. of Ariz., 349 F.3d 1169, 1182 (9th Cir. 2003) (citing Fla. E. Coast Ry. Co., 410 U.S. at 245). Each of these three considerations counsels in favor of holding that the Border GTO is a rule and not an order. First, the Border GTO applies to “unnamed and unspecified persons” rather than “specific individuals,” see id. at 1182: it applies to all MSBs who conduct cash transactions above $200 in a geographic area with a population of over a million people, see 90 Fed. Reg. at 12107. On this first consideration, the government argues that the Border GTO is specific rather than generally applicable because the Border GTO applies to “a particular type of business within certain ZIP codes” and is temporally limited. But the fact that the Border GTO applies to a regulatory category (i.e., MSBs), and not to specific, identified businesses, is precisely what makes it a rule. And it does not matter that the Border GTO targeted specific ZIP codes and lasted for  NOVEDADES Y SERVICIOS, INC. V. FINCEN 21 180 days, because rules can be geographically and temporally limited. See, e.g., Safari Club Int’l v. Zinke, 878 F.3d 316, 333 (D.C. Cir. 2017) (import restriction limited to Zimbabwe was a rule); Michigan v. EPA, 213 F.3d 663, 669 (D.C. Cir. 2000) (rule mandating that 22 states revise their implementation plans); NRDC v. EPA, 279 F.3d 1180, 1183, 1186 (9th Cir. 2002) (permit issued to “entire class of hypothetical dischargers in a given geographical region” was a rule requiring notice and comment); Billings Clinic v. Azar, 901 F.3d 301, 302 (D.C. Cir. 2018) (assessing HHS rulemakings that set reimbursement rates for specific fiscal years). Second, FinCEN considered “general facts” rather than “adjudicat[ing] a particular set of disputed facts” in issuing the Border GTO. See Gallo, 349 F.3d at 1182. Even though FinCEN “obviously relied on factual inferences as a basis for its order, the source of these factual inferences was apparent to anyone who read the order.” Fla. E. Coast Ry. Co., 410 U.S. at 246. For example, FinCEN found that “reasonable grounds exist for concluding that the additional recordkeeping and reporting requirements set forth in the [Border] GTO are necessary to carry out the purposes of the BSA or to prevent evasions thereof,” and that the Border GTO would further the “Treasury’s efforts to combat illicit finance by drug cartels and other illicit actors along the southwest border of United States.” 90 Fed. Reg. at 12107. These factual inferences are classic examples of “factual inferences [] used in the formulation of a basically legislative-type judgment, for prospective application only, rather than in adjudicating a particular set of disputed facts.” Fla. E. Coast Ry. Co., 410 U.S. at 246. Third, the Border GTO “determines policy issues” rather than “resolves specific disputes between particular parties.” 22 NOVEDADES Y SERVICIOS, INC. V. FINCEN See Gallo, 349 F.3d at 1182; see also Safari Club Int’l, 878 F.3d at 333 (a determination about importing ivory was a “rule” because it “applied to all potential imports of sport- hunted elephant trophies from Zimbabwe” and did not “adjudicate any dispute between specific parties”). The Border GTO does not resolve any dispute between particular parties and, in fact, the government characterizes the Border GTO as involving “policy decisions.” Relevant to this third consideration, the government contends that FinCEN did make particularized findings as to the thirty ZIP codes covered by the Border GTO, selecting the ZIP codes based on risk factors such as proximity to the border and historical per capita CTR filings. But the particularized findings of an adjudication—which results in an order—must be made with respect to the regulated parties, not merely the regulated geography. See Fla. E. Coast Ry., 410 U.S. at 246 (“No effort was made to single out any particular railroad for special consideration based on its own peculiar circumstances.”); cf. United States v. Oreira, 29 F.3d 185, 187 (5th Cir. 1994) (involving a 1991 GTO issued to a single money remitter after a government informant uncovered evidence of wrongdoing and the IRS had executed a search warrant on the remitter). The government’s remaining argument to the contrary is not persuasive. It makes a circular argument that if FinCEN finds “reasonable grounds” as required by Section 5326, then “the action that results is” definitionally “an ‘order.’” Under the government’s interpretation, so long as it labels its action an “order,” FinCEN can impose new reporting obligations for any category of regulated businesses in any part of the country. We decline to allow the government to use labels to avoid complying with the text of Section 5326, which  NOVEDADES Y SERVICIOS, INC. V. FINCEN 23 requires FinCEN to act by “order.” It is well established that in evaluating whether an agency action is an order or a rule, “courts have long looked to the contents of the agency’s action, not the agency’s self-serving label,” when deciding on the legal significance of any given administrative action. Azar v. Allina Health Servs., 587 U.S. 566, 575 (2019) (emphasis in original). An agency cannot circumvent the APA’s rulemaking procedures by, for example, using adjudication “to amend a recently amended rule” or “to bypass a pending rulemaking proceeding.” Union Flights, Inc. v. Adm’r, FAA, 957 F.2d 685, 689 (9th Cir. 1992). Additionally, the government’s preferred interpretation of Section 5326 renders FinCEN’s rulemaking power under Section 5313 essentially superfluous. Recall that Section 5313 allows the Treasury to pass a “regulation,” i.e., a “rule,” to broadly require businesses to file CTRs. See 31 U.S.C. § 5313(a); see also supra Section I.A.1. The government asks this court to bypass Section 5313 and allow FinCEN to promulgate a rule requiring CTRs under Section 5326 by merely labeling the action an “order,” thus dispensing with rulemaking requirements under Section 5313. This contradicts the basic canon of statutory interpretation that counsels that “[a] statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant.” Hibbs v. Winn, 542 U.S. 88, 101 (2004) (quoting 2A N. Singer, Statutes and Statutory Construction 24 NOVEDADES Y SERVICIOS, INC. V. FINCEN § 46.06, pp. 181-86 (rev. 6th ed. 2000)). 3 Thus, the Border GTO is likely a rule and not an order under the APA. 4 b. Notice and Comment Plaintiffs are likely to succeed on the merits of their claim that the Bo