American Federation of Labor & Congress of Industrial Organizations v. Chao

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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 8, 2004 Decided May 31, 2005

No. 04-5057

AMERICAN FEDERATION OF LABOR AND CONGRESS OF

INDUSTRIAL ORGANIZATIONS,

APPELLANT

v.

ELAINE L. CHAO, UNITED STATES SECRETARY OF LABOR,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 03cv02464)

Leon Dayan argued the cause for appellant. With him on

the briefs were Robert M. Weinberg, Laurence Gold, Jonathan

P. Hiatt, Deborah Greenfield, and James B. Coppess.

Jeffrey Clair, Attorney, U.S. Department of Justice, argued

the cause for appellee. With him on the brief were Peter D.

Keisler, Assistant Attorney General, Kenneth L. Wainstein, U.S.

Attorney, Michael J. Singer, Attorney, Nathaniel I. Spiller,

2

Acting Associate Solicitor, U.S. Department of Labor, Andrew

D. Auerbach, Counsel, and William J. Stone, Senior Attorney.

Raymond J. LaJeunesse, Jr. and Nathan Paul Mehrens were

on the brief for amici curiae National Right to Work Legal

Defense Foundation, Inc., et al. in support of appellee.

Before: EDWARDS, ROGERS and ROBERTS, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROGERS.

Opinion concurring in part and dissenting in part filed by

Circuit Judge ROBERTS.

ROGERS, Circuit Judge: The American Federation of Labor

and Congress of Industrial Organizations (“AFL-CIO”)

challenges the Secretary of Labor’s interpretation of her

authority under sections 201(b) and 208 of the Labor

Management Reporting and Disclosure Act of 1959

(“LMRDA”), 29 U.S.C. §§ 431(b), 438 (2000), in promulgating

the Labor Organization Annual Financial Reports (“final rule”),

68 Fed. Reg. 58,374 (Oct. 9, 2003) (to be codified at 29 C.F.R.

pts. 403, 408). Appealing the judgment of the district court

upholding the final rule, the AFL-CIO contends that the

Secretary exceeded her delegated authority in two respects:

First, by requiring labor organizations to include item-by-item

listings of ordinary receipts and disbursements in revised Form

LM-2, the Secretary ignored a limitation on her authority in

section 201(b). Second, by imposing a general trust reporting

requirement in new Form T-1 that is unrelated to preventing

circumvention or evasion of reporting requirements under

LMRDA Title II, the Secretary ignored a limitation on her

authority in section 208.

Neither the plain language of section 201(b), its legislative

3

history, nor prior administrative interpretation resolves the

ambiguity in section 201(b) regarding the level of detail that the

Secretary may require labor organizations to include in their

annual financial reports. In light of the Secretary’s explanation

for the changes to Form LM-2 in order to fulfill the purpose of

section 201(b), we hold that the Secretary’s promulgation of

revised Form LM-2 is a reasonable application of her authority

under section 201(b). We further hold that while the Secretary

has authority under section 208 to require labor organizations to

file reports on certain trusts where necessary to prevent

circumvention or evasion of reporting requirements under

LMRDA Title II, the Secretary’s promulgation of new Form T-1

has exceeded her authority by requiring general trust reporting.

Accordingly, we affirm the judgment of the district court in part,

reverse in part, and we vacate the provisions of the final rule

relating to Form T-1.

I.

Title II of the LMRDA, entitled “Reporting By Labor

Organizations, Officers and Employees of Labor Organizations,

and Employers,” requires labor organizations to report on a

number of activities. Section 201(b) of Title II requires each

covered labor organization (“union”) to file with the Secretary

an annual financial report “in such detail as may be necessary

accurately to disclose its financial condition and operations for

its preceding fiscal year” – “all in such categories as the

Secretary may prescribe.”1 29 U.S.C. § 431(b). Subparts (1),

1

Section 201(b) provides:

Every labor organization shall file annually with the

Secretary a financial report signed by its president and

treasurer or corresponding principal officers containing the

following information in such detail as may be necessary

accurately to disclose its financial condition and operations

4

(2), and (6) require reports of (1) “assets and liabilities,” (2)

“receipts” and their “sources,” and (6) “other disbursements”

and their “purposes.” Id. § 431(b)(1), (2), (6). Subparts (3), (4),

and (5) require more detailed reporting, subject to threshold

dollar amounts, of specific types of disbursements – including

salary and related payments to union officers and employees,

loans to union insiders, and loans to business enterprises. Id. §

431(b)(3)-(5). The financial report, upon filing with the

Secretary, becomes public information. Id. § 435. Section 208

of Title II authorizes the Secretary to prescribe the “form and

for its preceding fiscal year–

(1) assets and liabilities at the beginning and end of the

fiscal year;

(2) receipts of any kind and the sources thereof;

(3) salary, allowances, and other direct or indirect

disbursements (including reimbursed expenses) to each

officer and also to each employee who, during such fiscal

year, received more than $10,000 in the aggregate from such

labor organization and any other labor organization

affiliated with it or with which it is affiliated, or which is

affiliated with the same national or international labor

organization;

(4) direct and indirect loans made to any officer,

employee, or member, which aggregated more than $250

during the fiscal year, together with a statement of the

purpose, security, if any, and arrangements for repayment;

(5) direct and indirect loans to any business enterprise,

together with a statement of the purpose, security, if any,

and arrangements for repayment; and

(6) other disbursements made by it including the

purposes thereof;

all in such categories as the Secretary may prescribe.

29 U.S.C. § 431(b).

5

publication” of the various reports required under Title II.2 Id.

§ 438.

In promulgating the implementing regulations for section

201(b) in 1960, the Secretary of Labor required unions with

gross annual receipts equal to or greater than a certain dollar

threshold to file an annual financial report on Department of

Labor Form LM-2. See 25 Fed. Reg. 433 (Jan. 20, 1960)

(codified at 29 C.F.R. pt. 403). Unions with lower receipts filed

reports on simplified Forms LM-3 or LM-4. Id. at 433-34.

Form LM-2 called for reporting of assets and liabilities and

receipts and general disbursements in aggregate amounts. Form

LM-2 required unions to itemize their disbursements only with

respect to the transactions specified in subparts (3), (4), and (5)

of section 201(b). The 1960 regulations required unions to

retain, for a five-year period, vouchers, receipts, and other

underlying documentation in sufficient detail to permit these

reports to be “verified, explained or clarified, and checked for

accuracy and completeness.” Id. at 434; see also 29 U.S.C. §

436. With the exception of the dollar filing threshold, these

reporting requirements remained substantially unchanged for

more than four decades. See 57 Fed. Reg. 14,244 (Apr. 17,

1992). The Secretary periodically increased the filing threshold

for the Form LM-2 report so that, by 1994, only unions with

2

Section 208 provides that:

The Secretary shall have authority to issue . . . rules and

regulations prescribing the form and publication of reports

required to be filed under this subchapter and such other

reasonable rules and regulations . . . as he may find

necessary to prevent the circumvention or evasion of such

reporting requirements.

29 U.S.C. § 438.

6

annual receipts of $200,000 or more were required to complete

this longer form. See 67 Fed. Reg. 79,280, 79,293 (Dec. 27,

2002).

On October 9, 2003, the Secretary promulgated the final

rule now challenged, calling for several significant changes to

the financial reporting requirements under section 201(b). The

final rule amended Form LM-2 to require unions to itemize

their general receipts and disbursements. Unions must identify,

in six supporting schedules, individual receipts and (non-salary)

disbursements made to support a particular union function of

$5,000 or more, and specify the name, address, purpose, date,

and amount associated with each transaction. 68 Fed. Reg. at

58,429-30. In addition to reporting such “major” transactions,

see id. at 58,388-89, each union officer and employee must

provide a functional accounting, estimating the portion of work

time spent on the corresponding activities. Id. at 58,429.

Unions also must identify the vendors and other entities that

received union receipts and disbursements of $5,000 or more

during the fiscal year. Id. Unions must further itemize all

accounts receivable and payable of $5,000 or more at the end of

the fiscal year and include an “aging” schedule for each item

showing the amount of money owed to or by the union that is

either 90 to 180 days or more than 180 days past due. Id. at

58,429, 58,452-53, 58,485, 58,491. The final rule raised the

filing threshold to $250,000. Id. at 58,383. Each union filing a

Form LM-2 report must also file a separate Form T-1 report on

significant trusts in which the labor organization is interested, id.

at 58,477, disclosing the trust’s assets, liabilities, receipts, and

disbursements, as well as certain asset acquisitions or

dispositions, liability liquidations, and loans extended below

market rate or written off. Id. at 58,518, 58,531.

The AFL-CIO sued the Secretary, seeking injunctive and

declaratory relief that the final rule is unlawful under the

7

Administrative Procedure Act, 5 U.S.C. § 706(2)(C) (2000). In

relevant part, the complaint alleged that both the itemization

requirement in the revised Form LM-2 and the trust reporting

requirement in Form T-1 were in excess of the Secretary’s

authority under the LMRDA. Because the final rule would

become effective in a matter of weeks, the complaint also

alleged that its effective date was unworkable. The district court

denied the AFL-CIO relief, except with respect to the

implementation date, which the court stayed until the later of

July 1, 2004, or ninety days after the Secretary makes available

a fully tested electronic reporting software. The AFL-CIO

appeals, and our review of the judgment denying relief is de

novo. Gas Appliance Mfrs. Ass’n v. Dep’t of Energy, 998 F.2d

1041, 1045 (D.C. Cir. 1993).

II.

The AFL-CIO does not contest that Congress has delegated

authority to the Secretary to promulgate rules to enforce section

201(b). Rather it challenges the Secretary’s interpretation of her

authority to require itemization in the revised Form LM-2 under

section 201(b) for subparts (1) “assets and liabilities,” (2)

“receipts,” and (6) “other disbursements.” We therefore proceed

under the familiar two-step approach of Chevron U.S.A., Inc. v.

Natural Resources Defense Council, Inc., 467 U.S. 837 (1984),

to determine whether the Secretary’s interpretation is entitled to

deference. “[E]mploying traditional tools of statutory

construction” the court must determine whether “Congress has

an intention on the precise question at issue,” and if so “that

intention is the law and must be given effect.” Id. at 843 n. 9

(“Step 1”). If Congress has not directly spoken to the issue, the

court must defer to the Secretary’s interpretation of the statute

if it is reasonable and not “manifestly contrary to the statute.”

Id. at 844-45 (“Step 2”).

The AFL-CIO contends that the issue of itemization is

8

resolved under Chevron Step 1 because the accounting terms

“financial condition” and “operations” in section 201(b) have a

generally understood meaning in the accounting field, signaling

Congress’s intent to require an annual financial report similar to

those filed by corporations and nonprofits generally, and thus to

limit the Secretary’s authority to requiring aggregated financial

information in informative categories relevant to the unions that

are required to report the information. While acknowledging

that the operative statutory language of section 201(b) requires

a financial report containing information about assets, liabilities,

receipts, and disbursements “in such detail as may be necessary

accurately to disclose [a union’s] financial condition and

operations,” the AFL-CIO contends that the statute sets “a

concrete standard,” and, contrary to the Secretary’s view, does

not provide that the report shall be “at a minimum, in such detail

as may be necessary” or “ least in such detail as may be

at

necessary” to disclose financial condition and operations. Br. of

Appellant at 20. In the AFL-CIO’s view, section 201(b) vests

a limited authority in the Secretary to develop an annual report

modeled on a corporate balance sheet and income statement, and

to prescribe categories relevant to labor organizations for

reporting that information.

The Secretary, in response, maintains that the AFL-CIO’s

textual argument reads the statutory terms “financial condition”

and “operations” in section 201(b) too narrowly in light of the

broader purposes of the LMRDA disclosure provisions. If the

term “financial condition” referred only to a statement of assets

and liabilities, and “operations” to a statement of disbursements

and receipts, the Secretary maintains there would have been no

need for Congress to have included the phrase “in such detail as

may be necessary accurately to disclose” this information or

subparts 201(b)(1), (2), and (6) regarding “assets and liabilities,”

“receipts,” and “other disbursements.” The Secretary interprets

her rulemaking authority under section 208 to provide simplified

9

reporting requirements as necessarily presupposing general

authority to prescribe reporting detail in the first instance and

thus vesting “a broad legislative authority to determine the

appropriate form and the content of a required financial report.”

Br. of Appellee at 28-29.

While the AFL-CIO may be correct that the terms “financial

condition” and “operations” have a generally understood

meaning, in enacting section 201(b) Congress did not adopt the

precise terms of art – “statement of financial condition” and

“statement of operations” that connote the typical corporate

income statement and balance sheet, see American Institute of

Certified Public Accountants, Accounting Trends & Techniques

in Published Corporate Annual Reports 6-7 (11th ed. 1957) –

nor did it expressly provide, for example, that unions’ reports

should be made “in accordance with generally accepted

accounting principles,” cf. 12 U.S.C. § 1441a(k)(4)(B)(i) (2004).

These terms of art do not appear in the statutory text of the

LMRDA, and while there are references to “statements” in the

legislative history, specifically to “a statement of assets and

liabilities and a statement of receipts and expenditures,” S. Rep.

No. 86-187, at 8-9 (emphasis added), the word “statements”

itself does not define the required level of detail nor necessarily

preclude itemized reporting.

The AFL-CIO also purports to find support for its Chevron

Step 1 position in legislative history regarding the relationship

between the reporting requirements of the LMRDA and reporting

requirements of its predecessor, the Labor Management

Relations Act of 1947 (“Taft-Hartley Act”), ch. 120, § 9(f), 61

Stat. 136, 145 (1947). It maintains that section 201(b)’s

reporting requirements were intended to mirror the requirements

of section 9(f) of the Taft-Hartley Act, with three additional

requirements, in which specific detail was required, set forth in

subparts (3), (4) and (5). It points to legislative history which

10

states, “The information required to be filed by unions under this

title is similar to that required by section 9(f) of the [Taft-

Hartley] Act.” S. Rep. No. 86-187, at 8 (1959), reprinted in

1959 U.S.C.C.A.N. 2318, 2325; see H.R. Rep. No. 86-1147

(Conference), at 7, 31-32 (1959), reprinted in 1959

U.S.C.C.A.N. 2503, 2504. Section 9(f) of the Taft-Hartley Act

required a union that wished to use the facilities of the National

Labor Relations Board to file two reports, one addressing subject

matters similar to those listed in LMRDA section 201(a), and the

other reporting all receipts and their sources, total assets and

liabilities, and disbursements and their purposes. 61 Stat. at 145.

The LMRDA Senate Report stated, “The information to be

reported under the committee bill comprehends all the

information required to be reported under present law. The

committee bill, in addition, requires certain information to be

reported that does not have to be specifically detailed under

present law,” referencing the information required under the new

provisions, sections 201(b)(3), (4), (5), and 201(a). S. Rep. No.

86-187, at 36. The House Report called for repeal of section 9(f)

of the Taft-Hartley Act, in order to eliminate the filing of

duplicate reports, stating that its “bill will require labor

organizations to file substantially the same information with the

Secretary of Labor,” H.R. Rep. No. 86-741, at 33 (1959),

reprinted in 1959 U.S.C.C.A.N. 2424, 2456.

From this legislative history the AFL-CIO draws the

conclusion that the “present law” reference includes not only the

text of section 9(f) but also the implementing regulations

promulgated by the Secretary of Labor in 1948, which did not

require itemization and called only for aggregated reporting of

receipts and their sources, assets and liabilities, and

disbursements. See Registration Form for Labor Organizations,

22 Labor Relations Reference Manual 3002 (1948). For further

support of its position that in enacting the LMRDA Congress

intended unions to file reports similar to the aggregate income

11

statement/balance sheet reporting then required, the AFL-CIO

points to several statements in the legislative history of the Taft-

Hartley Act indicating that Congress contemplated a particular

kind of financial reporting by unions: (1) statements by Senator

Taft, a principal sponsor of the Taft-Hartley Act, that “financial

reports . . . are made in many unions today,” and explaining that

under the Taft-Hartley bill “the union must file statements as

corporations have had to file them,” see 2 National Labor

Relations Board, Legislative History of the Labor Management

Relations Act 1000, 1014, 1654 (1947); and (2) a statement in

the Taft-Hartley minority report by three Senators that

“[v]irtually all of the international unions of both the CIO and

the A.F. of L. already furnish regular financial reports and

accounts of their activities,” 1 National Labor Relations Board,

Legislative History of the Labor Management Relations Act 484

(1947).

Whatever persuasive force this legislative history of the

Taft-Hartley Act may have in devining congressional intent in

enacting the LMRDA, the AFL-CIO’s “present law” contention

fails because the revised 1957 Taft-Hartley regulations in effect

when Congress enacted the LMRDA required more detailed

reporting by unions, including certain itemized disclosures of

receipts and disbursements. See 22 Fed. Reg. 4,158, 4,158-60

(June 13, 1957). The 1957 regulations included several itemized

reporting schedules: Schedule A instructed unions to “[i]temize

any receipts from sale of assets,” and other schedules addressing

receipts from other sources and other disbursements required

unions to “[s]eparately identify each individual item representing

one or more transactions during the year with an individual or

organization if the total amount of such individual item is in

excess of 25 percent of the schedule total.” Id. at 4,160. The

isolated statements in the legislative history relied on by the

AFL-CIO do not contradict this reality.

12

Likewise, the AFL-CIO’s structural arguments do not

demonstrate a clear congressional intent. First, the AFL-CIO

would contrast the language in subparts (3), (4), and (5) of

section 201(b), in which Congress required specific details, with

that in subparts (1), (2), and (6), in which Congress did not, to

suggest that Congress intended that unions would report assets,

liabilities, receipts, and other disbursements only in aggregate

categories. However, the general provision providing that the

reports must contain “the following information in such detail as

may be necessary accurately to disclose” reasonably may be

interpreted to apply equally to the six specific subparts, including

assets and liabilities, receipts, and other disbursements. That

Congress required greater detail in subparts (3), (4), and (5) does

not necessarily mean that it intended to limit detail in reporting

under subparts (1), (2), and (6), particularly when it also granted

the Secretary discretionary authority to prescribe the required

“form” and “categories” for reporting. 29 U.S.C. §§ 431(c).

Section 208, in turn, by limiting the Secretary’s regulatory

authority to rules “necessary to prevent the circumvention or

evasion” of reporting requirements under LMRDA Title II, also

leaves undefined the level of detail that may be required. Id. §

438.

Second, the AFL-CIO contends that the Secretary’s

interpretation of subsection 201(b) puts that provision in an

irreconcilable tension with subsection 201(c). Subsection 201(c)

provides that any union member “for just cause” may examine

any books, records, and accounts necessary to verify the union’s

annual financial report. 29 U.S.C. § 431(c). In the AFL-CIO’s

view, requiring unions to reveal to the general public individual

item-by-item disbursement and receipt information that Congress

permitted unions to protect even from union members through

subsection 201(c)’s “just cause” provision renders that protection

meaningless. However, as the Secretary points out, there is no

necessary inconsistency between the itemization required by the

13

Form LM-2 under the final rule and subsection 201(c) because

subsection 201(c) simply requires disclosure of data underlying

subsection 201(b) reports, and additional detail in the subsection

201(b) reports would facilitate a union member’s right to probe

further pursuant to subsection 201(c).

Given the ambiguity in the statutory text and structure, and

the lack of clear intent in the legislative history regarding the

level of public financial reporting detail that the Secretary may

require, we agree with the Secretary that our inquiry should

proceed under Chevron Step 2. Under Chevron Step 2, courts

owe deference to an agency’s interpretation of a statute it is

entrusted to administer. Chevron, 467 U.S. at 844. At the same

time, when statutory language is ambiguous it is not a foregone

conclusion that an agency’s interpretation is a reasonable one to

which the court must defer. See Whitman v. Am. Trucking

Ass’ns, 531 U.S. 457, 480 (2001); Associated Gas Distribs. v .

FERC, 899 F.2d 1250, 1253 (D.C. Cir. 1990). Under Chevron

Step 2, “the question for the court is whether the agency's

interpretation is based on a permissible construction of the

statute,” Chevron, 467 U.S. at 843, in light of its “language,

structure, and purpose,” Int'l Alliance of Theatrical & Stage

Employees v. NLRB, 334 F.3d 27, 34 n.3 (D.C. Cir. 2003)

(citations omitted).

The Secretary contends that deference principles apply with

greater force here because Congress has empowered her to act to

prevent circumvention or evasion of the LMRDA. Citing

Mourning v. Family Publications Service, Inc., 411 U.S. 356

(1973), the Secretary maintains that absent an abuse of discretion

or an express statutory limitation on the broad delegation of

authority to the Secretary by Congress, the AFL-CIO cannot

show that the Secretary acted beyond her authority in

promulgating the final rule. However, the court is obligated not

only to construe the statute as a whole but to give meaning to

14

each word of the statute. See Alaska Dep’t of Envtl.

Conservation v. EPA, 540 U.S. 461, 489 n.13 (2004); Asiana

Airlines v. FAA, 134 F.3d 393, 398 (D.C. Cir. 1998). The

language of the LMRDA is more limited than that addressed in

Mourning. Sections 201(b) and 208 authorize the Secretary to

prescribe detail “necessary accurately to disclose [a union’s]

financial condition and operations” and “necessary to prevent the

circumvention or evasion of such reporting requirements,”

respectively, rather than more generally to act as is “necessary to

carry out the purposes” or “provisions” of a statute, as discussed

in Mourning. Cf. Mourning, 411 U.S. at 369-70. Therefore,

under Chevron Step 2, the court’s deference to the Secretary is

still limited by the particular language of sections 201(b) and

208. Even when Congress has stated that the agency may do

what is “necessary,” see AT & T Corp. v. Iowa Utils. Bd., 525

U.S. 366, 387-92 (1999); GTE Serv. Corp. v. FCC, 205 F.3d 416,

422-23 (D.C. Cir. 2000), whatever ambiguity may exist cannot

render nugatory restrictions that Congress has imposed. Cf. Am.

Trucking Ass’ns, 531 U.S. at 484.

In promulgating the final rule the Secretary justified the

revised Form LM-2 reporting requirements as follows:

The forms no longer serve their underlying purpose

because they fail to provide union members with

sufficient information to reasonably disclose to them

‘the financial condition and operation[s]’ of labor

organizations . . . . [I]t is impossible for union members

to evaluate in any meaningful way the operations or

management of their unions when the financial

disclosure reports filed . . . simply report large

expenditures for broad, general categories. The large

dollar amount and vague description of such entries

make it essentially impossible for anyone to determine

with any degree of specificity what union operations

15

their dues are spent on, without which the purposes of

the LMRDA are not met.

68 Fed. Reg. at 58,420 (emphasis added). Responding to

arguments that she lacked authority to require itemization, the

Secretary stated that the financial reporting requirements under

section 201(b) only set minimum standards because she may

require unions “to report every receipt and disbursement in any

amount.” Id. at 58,376. But, as the quotation from the preamble

indicates, the Secretary recognizes the limitation on her authority

to require greater detail only as “necessary accurately to disclose

[a union’s] financial condition and operations.” 29 U.S.C. §

431(b). The final rule limits the disclosures on Form LM-2 to

major transactions. To the extent the Secretary asserts she has

discretion over the “content” of a financial report, Br. of

Appellee at 29, this would be true only to the extent that she

means the authority to determine categories of data and level of

detail because, as the AFL-CIO points out, Congress

intentionally deleted the word “content” from an earlier version

of section 208. Compare 1 National Labor Relations Board,

Legislative History of the Labor-Management Reporting and

Disclosure Act 44 (1959) (text of S. 505), with 29 U.S.C. §

431(b).

In promulgating the revised Form LM-2, the Secretary

explained that the final rule promotes the two purposes of union

reporting: “to fully inform union members” about their union’s

“financial condition and operations” and “to deter union officials

and employees” from misusing union funds. 68 Fed. Reg. at

58,377. The Secretary reasoned that under current reporting

requirements, “[t]he large dollar amount and vague description

of . . . entries make it essentially impossible for members to

determine whether or not their dues were spent appropriately,

which is precisely the reason that the statute requires reporting.”

67 Fed. Reg. at 79,281-82. More detailed reporting would

16

“provid[e] union members with useful data that will enable them

to be responsible and effective participants in the democratic

governance of their unions.” Id. at 79,280-81. The AFL-CIO

has pointed to nothing in the contemporary understanding of the

LMRDA or its legislative history to suggest that the aggregate

reporting in the Form LM-2 required by the Secretaries, albeit

for four decades, represented the full exercise of the Secretary’s

authority. See 68 Fed. Reg. at 58,376-77. Rather, the “present

law” analysis, which the AFL-CIO contends informed

Congress’s intent with regard to the level of detail to be required

under section 201(b), supports the Secretary’s view that the

Taft-Hartley Act afforded the Secretary authority that

encompasses requiring itemized accounting of major

transactions. Although Congress intended to carry out its

prophylactic purposes through a multi-pronged approach,

including reporting, investigatory, and criminal provisions, see

29 U.S.C. §§ 432, 433, 453, 436, 439, 521; see United States v.

Budzanoski, 462 F.2d 443, 449-50, 452 (3d Cir. 1972); Int’l Bhd.

of Teamsters v. Wirtz, 346 F.2d 827, 831 (D.C. Cir. 1965); see

also Mallick v. Int’l Bhd. of Elec. Workers, 749 F.2d 771, 780

(D.C. Cir. 1984) (quoting H.R. Rep. No. 86-741, at 7), it

declined to specify what the balance should be among these

approaches, see Chevron, 467 U.S. at 865, and the Secretary

could reasonably conclude that “[p]roviding additional detail on

Form LM-2 . . . is necessary to give union members an accurate

picture of their labor organization’s financial condition and

operations,” 68 Fed. Reg. at 58,420.

In sum, section 201(b) authorizes the Secretary to require

certain information “in such detail” “in such categories,” but

only for the purpose of “accurately . . . disclos[ing] [a union’s]

financial conditions and operations.” 29 U.S.C. § 431(b). The

Secretary’s promulgation of revised Form LM-2 is a reasonable

application of this authority. Accordingly, we hold that the

Secretary’s revision of Form LM-2 is permissible and not

17

“manifestly contrary to the statute.” Chevron, 467 U.S. at 844-

45.

III.

The final rule also requires unions with annual receipts of

$250,000 or more to file a report on Department of Labor Form

T-1 regarding any “significant trust” “in which the labor

organization is interested.” 68 Fed. Reg. at 58,477. The

LMRDA defines a “trust in which the labor organization is

interested” as one that (1) was either “created or established by

a labor organization, or [where] one or more of the trustees or .

. . members of the governing body . . . is selected or appointed by

a labor organization,” and (2) “a primary purpose of which is to

provide benefits for the members of such labor organizations or

their beneficiaries.” 29 U.S.C. § 402(l). The final rule defines

a “significant trust” as one having annual receipts of $250,000 or

more during its most recent fiscal year, and for which the union’s

financial contribution to the trust, or the contribution made on

behalf of the union or as a result of a negotiated agreement to

which the union is a party, is $10,000 or more annually. 68 Fed.

Reg. at 58,478. Form T-1 requires a report on the financial

condition and operations of such union-related trusts, including

“the total value of all the trust assets,” “liabilities,” “receipts,”

and “disbursements,” and it requires itemization of receipts and

disbursements of $10,000 or more, similar to the revised Form

LM-2 requirement. See 68 Fed. Reg. at 58,531-32. A union is

excused from filing Form T-1 where the trust has made a similar

financial disclosure under other laws, such as the Internal

Revenue Code or the Employment Retirement Income Security

Act of 1974 (“ERISA”), 29 U.S.C. §§ 1023, 1024(a), 1030

(2000), or in an independent audit, 68 Fed. Reg. at 58,478.

There is no serious dispute over whether Congress delegated

authority to the Secretary to promulgate rules to enforce section

208. Indeed, section 208 provides that “[t]he Secretary shall

18

have authority to issue, amend, and rescind . . . such . . .

reasonable rules and regulations (including rules prescribing

reports concerning trusts in which a [union] is interested) as [s]he

may find necessary to prevent the circumvention or evasion of

[Title II’s] reporting requirements.” 29 U.S.C. § 438 (emphasis

added). Thus, the question presented by the AFL-CIO’s

contention that the Secretary lacks authority to require general

trust reporting is whether Form T-1 comports with the statutory

requirements that the Secretary “find [the rule] necessary to

prevent” evasion of LMRDA Title II reporting requirements. Id.

As the Secretary suggests, this question is properly resolved

under Chevron Step 2.

Under section 208, the Secretary may require reporting of

union-related trusts where a two-part nexus is met: A union must

have an interest in the trust as defined in 29 U.S.C. § 402(l), and

the required reporting must be “necessary” only for the purpose

of “prevent[ing] the circumvention or evasion of [union]

reporting requirements” under LMRDA Title II, id. § 438.

Given the ambiguity inherent in the word “necessary,” the

question remains whether, under Chevron Step 2, the Secretary’s

interpretation of what is “necessary,” as embodied in Form T-1,

is limited to preventing such circumvention or evasion, and thus

is a reasonable application of her authority, and therefore is

permissible and entitled to deference. See Chevron, 467 U.S. at

844-45. The AFL-CIO contends that the Secretary’s

interpretation is not permitted, contrasting the more restrictive

language in section 208 with broader rulemaking authority, such

as section 30 of the Securities and Exchange Act, 15 U.S.C.§

78dd (2000), and in Mourning, discussed supra Part II. Under

section 208, the AFL-CIO maintains, the Secretary must

determine that certain transactions are being rendered

unreportable by reason of the fact they are being carried out by

a trust in which a union is interested, and for those trusts the

Secretary is empowered to prescribe reports concerning such

19

trusts that disclose affected transactions. We conclude that

although the Secretary has identified circumstances where union

reporting requirements under Title II may be circumvented or

evaded, Form T-1 goes further to require general trust reporting,

and thus it is not a reasonable interpretation of her authority

under section 208.

The Secretary correctly points out that the statutory

definition of “trusts in which a union has an interest,” 29 U.S.C.

§ 402(l), is sufficiently broad to encompass trusts that are neither

financed nor controlled by unions. Its terms do not dictate a

narrow conception of union financial operations, such that, as the

AFL-CIO maintains, Taft-Hartley employee benefit plans funded

by employer rather than union contributions to an entity legally

separate from the union, whose funds are ordinarily disbursed to

third parties, would be beyond the reach of section 208. For such

trusts, the union has used its bargaining power to establish the

trust, to define the purposes for which funds may be used, to

appoint union representatives to the governing board in a number

equal to management representatives, and to obligate the

employer to direct funds to the trust’s account. See id. § 186 (c)

(5) (A) & (B). As the Secretary explained in proposing the final

rule:

Since the money an employer contributes to such a

“trust” for union members’ benefit might otherwise

have been paid directly to the workers in the form of

increased wages and benefits, the members on whose

behalf the financial transaction was negotiated have a

right to know what funds were contributed, how the

money is managed and how it is being spent.

67 Fed. Reg. at 79,283.

In “find[ing] necessary” the Form T-1 requirements, the

20

Secretary identified the types of union transactions rendered

unreportable by reason of the fact that a union has made a direct

or indirect contribution to a trust in which a union is interested.

In promulgating proposed Form T-1, the Secretary illustrated the

need for additional reporting on organizations that are not wholly

owned by unions by pointing to examples in which union

members could not obtain “detailed, reliable information on

significant trusts’ financial operations.” 67 Fed Reg. at 79,283.

The first example involved the use of joint training funds to host

extravagant parties for trustees and to pay union officials

supplementary salaries. Id. In a second example, twenty-nine

local unions made monthly contributions of $62,000 each to a

statewide strike fund that went unreported because no single

union wholly owned the fund. Id. The third example also

illustrated unreported union financial activity that involved a

building fund established by local union officials and financed

in part by union members’ pension funds. Id. Lastly, the

Secretary pointed to the example of a credit union that was 97%

financed by a local union and which made large loans to union

officials, employees, and their family members. Id.

The Secretary explained that such “separate organizations

pose the same transparency challenges as ‘off-the-books’

accounting procedures in the corporate setting: large-scale

potentially unattractive financial transactions can be shielded

from public disclosure and accountability through artificial

structures, classifications, and organizations.” 67 Fed. Reg. at

79,282. She concluded that reporting on such organizations that

meet the statutory definition of union-related trusts is necessary

to give union members an accurate picture of their union’s

financial condition and operations and to prevent the

circumvention or evasion of union reporting requirements on

their financial condition and operations. 68 Fed. Reg. at 58,420.

The examples illustrate that certain union transactions are being

rendered unreportable by reason of the fact they are being carried

21

out by organizations that are not wholly owned by the related

union.

The AFL-CIO concedes, as it must, that the Secretary is

empowered to prescribe reports concerning trusts that disclose

payments of salaries, compensation, other valuable perquisite to

a union officer or employee. Contrary to the AFL-CIO’s view,

however, neither the statutory definition of “trusts in which a

union is interested” nor section 208’s requirement that such

reporting be “necessary to prevent” limit the Secretary to

requiring reporting only after union members’ funds have been

misused where the trust has not been established or is not

controlled by a single union. Cf. Mourning, 411 U.S. at 373-74.

As the Secretary responds, the AFL-CIO’s “rigidly formalistic

interpretation” is inconsistent with section 208’s express

authorization of the Secretary “to require reporting on union-

related trusts whenever the Secretary determines such reporting

is necessary to effectuate the statute’s basic disclosure

obligation.” Br. of Appellee at 53. Section 208’s focus is not on

the independent legal status of the trust but on its control over

funds provided for the benefit of union members, even if those

funds are provided to a separately administered account rather

than directly to the union. 67 Fed. Reg. at 79,282. The trusts

that the Secretary has identified in her examples are established

by one or more unions or through collective bargaining

agreements calling for employer contributions, and the union has

retained a controlling management role in the organization. See

id. at 79,283. Their primary purpose is to benefit union members

or their beneficiaries. See id. They are financed by a union,

multiple unions, or employer contributions as a result of

collective bargaining agreements. See id. The Secretary

determined that previous reporting requirements allowed the

related union to circumvent or evade reporting on these trusts’

financial activities because the related union had not itself

established or did not alone control the trust. Id. at 79,282-83.

22

Form T-1 captures such trusts where the trust involves at least

$10,000 of union members’ funds and requires reporting on

those trusts’ use of the union members’ funds. Section 208 does

not limit the Secretary to requiring reporting only in order to

disclose transactions involving the misuse of union members’

funds because leaving the decision about disclosure to such trusts

illustrated by the Secretary’s examples would allow unions to

circumvent or evade reporting on the use of members’ funds

diverted to the trust.

However, the AFL-CIO contends that LMRDA Title II

reporting requirements, with which section 208 is solely

concerned, embodies Congress’s categorical legislative judgment

that it is in the public interest to require unions to file financial

reports disclosing union financial condition and operations and

to require union officers and employees to file more narrowly

focused financial reports. See 29 U.S.C. §§ 432(a), 433(a). The

AFL-CIO maintains that the Secretary, in promulgating Form T-

1, justified its requirements by reference to her determination

that it was in the public interest to enable union members to

“determine whether [trust] funds are being spent in ways that

benefit the members for whom they were created,” 67 Fed. Reg.

at 79,283, rather than by reference to whether the requirements

were “necessary to prevent” union circumvention or evasion of

Title II reporting requirements. In its view, the Secretary has

effectively established a new reporting requirement under section

201(b) for some trusts in which a union has an interest without

reference to the limitation in the “necessary to prevent” clause of

section 208.

There can be little doubt that some of the trust reporting the

Secretary has required on Form T-1 is tied to a union’s financial

reporting requirements under LMRDA Title II. Form T-1

includes reporting on trusts illustrated by the Secretary’s

examples: trusts funded by union members’ funds from one or

23

more unions and employers, and, although unions retain a

controlling management role, no individual union wholly owns

or dominates the trust, and therefore the use of the funds is not

reported by the related union under Title II. See 68 Fed. Reg. at

58,374. This includes trusts established by one or more unions

with union members’ funds because such establishment is a

reasonable indicium of union control of that trust. The AFL-CIO

does not dispute that Title II would otherwise require a union to

report its uses of such members’ funds. Rather, the AFL-CIO

contends that the actual requirements of the final rule are far

broader than suggested by the Secretary’s examples, and the

Secretary’s conclusion that additional reporting on significant

trusts was “necessary to prevent” was based merely on the fact

that the organizations met the statutory definition of “trusts in

which [a union] has an interest,” and not on the realization that,

as the examples illustrated, a union could circumvent or evade

Title II’s financial reporting requirements by directing union

members’ funds to such trusts.

Form T-1 requires reporting of all trust assets, liabilities,

disbursements, and receipts, and itemization of all major

disbursements and receipts. Where a union has directed

members’ funds to the trusts identified in the Secretary’s

examples, a union’s report on such trust’s use of the funds has no

less a direct nexus to the union’s reporting obligation under Title

II than the salary, compensation, and other valuable perquisite to

a union official or employee that the AFL-CIO concedes has a

direct nexus. The Form T-1 requirements, however, are not

limited to addressing only the types of union transactions the

Secretary offers to illustrate that additional trust reporting was

required to prevent circumvention or evasion of union Title II

reporting requirements. Form T-1 reaches information unrelated

to union reporting requirements and mandates reporting on trusts

even where there is no appearance that the union’s contribution

of funds to an independent organization could circumvent or

24

evade union reporting requirements by, for example, permitting

the union to maintain control of the funds. This is the salient

point our dissenting colleague misses, for the plain text of

section 208 itself limits the Secretary’s authority with respect to

trust reporting. See dissenting op. at 4-5. For example, where the

union’s management role is limited to selecting a single member

of a trust’s governing board, see 29 U.S.C. § 402(l)(1), and

neither the related union’s financial contribution nor that of other

unions to the trust dominates the trust’s revenues, Form T-1

nonetheless requires the union to report on the trust’s other

receipts over $10,000. Yet, absent circumstances involving

dominant union control over the trust’s use of union members’

funds or union members’ funds constituting the trust’s

predominant revenues, a report on the trust’s financial condition

and operations would not reflect on the related union’s financial

condition and operations, or at least the Secretary has not so

found, much less made a determination that such a report would

be necessary to prevent circumvention or evasion of union

reporting requirements. Our dissenting colleague acknowledges

the Secretary must make such findings. See dissenting op. at 4,

8.

At no point, for example, has the Secretary suggested that a

union’s role in selecting one member of the governing board of

an independent organization qualifying as a union-related trust

to which at least $10,000 in union members’ funds was

contributed – which, under the Form T-1 formulation, could

comprise infinitely less than 4% of the trust’s total revenues,

depending on how large the union’s total revenues are –

demonstrated sufficient union influence over those members’

funds, or any other connection that could give rise to

circumvention or evasion of a union’s Title II reporting

requirements. Form T-1, however, would require full financial

reporting by such organization. The Secretary’s determination

that union members would benefit from “more information about

25

the financial activities of a ‘fund in which [a union] has an

interest,’” 67 Fed. Reg. at 79,283, obviously is not the same as

the determination required by section 208 that reporting on such

a fund is necessary to prevent union circumvention or evasion of

Title II reporting requirements. Similarly, the Secretary also

misconstrued her authority under section 208 when she explained

that she was attempting to remedy a problem of existing

reporting requirements, namely that “if a union transfers funds

to another organization, but does not disclose disbursements

made by that organization, union members may have no way to

determine whether the funds in question were actually spent for

the benefit of members.” Id. at 79,282. While that may be true,

section 208 limits the Secretary’s authority to require reporting

on trusts to instances where necessary to avoid a union’s

circumvention or evasion of its Title II reporting requirements;

the statute does not provide general authority to require trusts to

demonstrate that they operate in a manner beneficial to union

members. Thus, although the Secretary’s examples illustrate the

type of transactions that pertain to the circumvention or evasion

of union Title II reporting requirements and therefore

permissibly could be included in Form T-1, the flaw in Form T-1

is that it also reaches information unconnected to the

circumvention or evasion of union Title II reporting

requirements.

That Form T-1 reaches information unrelated to a union’s

Title II reporting requirements is underscored by contrasting the

bright line $10,000 test with an alternative test explored by the

Secretary. In proposing Form T-1, the Secretary initially

considered use of a “single entity” test – defined in the notice of

proposed rulemaking as “an entity that is ‘dominated or

controlled by the labor organization to such a degree that assets,

liabilities, receipts, and disbursements of the entity effectively

are those of the union itself.’” 68 Fed. Reg. at 58,415 (quoting

67 Fed. Reg. at 79,285). The Secretary ultimately rejected this

26

test because it was “less effective than other criteria” inasmuch

as a union could conceal its relationship with the related

organization, and the test “might be difficult to apply” in some

cases. Id. at 58,415. Whatever may be the merits of the single

entity test, in opting for the bright line test for its ease of

application, the Secretary overstepped the limits of section 208.

While unambiguous and easy to apply, the $10,000 threshold in

Form T-1 is not tied, as the single entity test was, to a union’s

Title II reporting requirements, and it therefore is manifestly

contrary to the statute. Under Form T-1, the bright line test

reaches trusts in which a union has neither management control

nor financial domination nor any other characteristic found by

the Secretary that might give rise to circumvention or evasion of

reporting requirements. Where a union has minimal control over

trust fund spending and a union’s contribution is so small a part

of the trust’s revenues, and the trust is not otherwise controlled

by unions or dominated by union members’ funds, the trust

lacks the characteristics of the unreported union transactions in

the Secretary’s examples on which the Secretary based the final

rule, and the Secretary has made no other findings that union

contribution to such trusts could give rise to the circumvention

or evasion of union reporting requirements.

Because section 208 limits the Secretary’s authority to

promulgate rules requiring financial reporting to what she

determines is “necessary to prevent” circumvention or evasion

of a union’s Title II reporting requirements, we hold that to the

extent the Form T-1 requirements apply to union transactions

unteathered to that limitation, the promulgation of Form T-1

exceeds the Secretary’s authority by requiring general trust

reporting.

Accordingly, we affirm the judgment of the district court in

part and reverse in part, and we vacate the provisions of the final

rule relating to Form T-1.

ROBERTS, Circuit Judge, concurring in part and dissenting

in part: I concur in Parts I and II of the court’s opinion. I must

dissent, however, from the conclusion in Part III that the Secre-

tary’s interpretation of her trust reporting authority was unrea-

sonable under step two of Chevron.

I begin with the statutory language. The source of the

Secretary’s authority for requiring reporting by union-affiliated

trusts is section 208:

The Secretary shall have authority to issue, amend, and

rescind rules and regulations prescribing the form and

publication of reports required to be filed under this

subchapter and such other reasonable rules and regulations

(including rules prescribing reports concerning trusts in

which a labor organization is interested) as he may find

necessary to prevent the circumvention or evasion of such

reporting requirements.

LMRDA § 208, 29 U.S.C. § 438 (emphasis added).

We need not guess at what constitutes a “trust in which a

labor organization is interested,” for section 3(l) provides a

definition:

“Trust in which a labor organization is interested” means a

trust or other fund or organization (1) which was created or

established by a labor organization, or one or more of the

trustees or one or more members of the governing body of

which is selected or appointed by a labor organization, and

(2) a primary purpose of which is to provide benefits for the

members of such labor organization or their beneficiaries.

29 U.S.C. § 402(l).

The Secretary’s rule requires unions that meet the criteria

for LM-2 reporting to file an additional report for “any trust in

which the labor organization is interested, if the trust has

$250,000 or more in annual receipts and the labor organization

contributed $10,000 or more to the trust during the reporting

year, or that amount was contributed on the labor organization’s

2

behalf.” Labor Organization Annual Financial Reports; Final

Rule, 68 Fed. Reg. 58,374 (Oct. 9, 2003). The Secretary

considered other approaches to defining which trusts posed a

risk of being used to circumvent or evade required union

reporting, but rejected them “in favor of the statutory definition

of a trust in which a labor organization is interested,” adding

dollar thresholds “so that an undue reporting burden is not

imposed on unions with limited finances.” Id. at 58,413, 58,415.

The Secretary explained why such related entities pose a

danger of allowing unions to circumvent their reporting obliga-

tions. The Secretary’s proposed rulemaking notes that “labor

organizations have become more multifaceted and have created

hybrid structures for their various activities.” Labor Organiza-

tion Annual Financial Reports; Proposed Rule, 67 Fed. Reg.

79,280 (Dec. 27, 2002). Trusts in which unions have an interest

“pose the same transparency challenges as ‘off-the-books’

accounting procedures in the corporate setting: large-scale,

potentially unattractive financial transactions can be shielded

from public disclosure and accountability through artificial

structures, classification and organizations.” Id. at 79,282.

Under the earlier rules, union members may have had “no way

to determine whether the funds in question were actually spent

for [their] benefit.” Id.

The Secretary pointed to several cases in which union

members could not obtain information about a particular trust

because no union was required to file a report on its behalf. In

one instance, a credit union with 97 percent of deposits attribut-

able to one union local doled out more than half its loans to four

loan officers, three of whom were union officials. Id. at 79,283.

In another, transactions involving a strike fund to which 29

unions contributed went completely unreported because “no

single union wholly owned the fund.” Id. The Secretary

reasoned that trust reporting would “properly ensure union

democracy, fiscal integrity and transparency in a manner

3

consistent with the intent of Congress in enacting the LMRDA.”

Id.; see S. Rep. No. 86-187, at 41 (1959) (“The committee

expects that, in exercising his rulemaking power under [the

Senate version of LMRDA § 208], the Secretary of Labor will

be vigilant in making sure that all types of special funds shall be

reported.”). As the district court concluded, “the rulemaking

record shows clearly that the Secretary explained, in great detail,

her determination that the Form T-1 [trust reporting] is neces-

sary to prevent the circumvention of the LMRDA reporting

requirements.” AFL-CIO v. Chao, 298 F. Supp. 2d 104, 118

(D.D.C. 2004).

Under step two of Chevron, that determination is not to be

disturbed unless “arbitrary or capricious in substance, or

manifestly contrary to the statute.” Household Credit Servs.,

Inc. v. Pfennig, 124 S. Ct. 1741, 1748 (2004) (internal quotation

marks omitted). “We accord deference to agencies under

Chevron . . . because of a presumption that Congress, when it

left ambiguity in a statute meant for implementation by an

agency, understood that the ambiguity would be resolved, first

and foremost, by the agency, and desired the agency (rather than

the courts) to possess whatever degree of discretion the ambigu-

ity allows.” Smiley v. Citibank (South Dakota), N.A., 517 U.S.

735, 740-41 (1996). The usual deference is heightened in this

case, however, for several reasons:

First, the statute speaks in terms of what is “necessary” to

prevent circumvention or evasion of the reporting required under

the statute. This is an inherently discretionary standard that

clearly invites further definition by the Secretary. See

McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 413–15

(1819); see also Nat’l R.R. Passenger Corp. v. Boston & Maine

Corp., 503 U.S. 407, 419 (1992) (ICC interpretation of “re-

quired” to mean “useful and appropriate” was reasonable in

context of statute). Determining what is “necessary” unavoid-

4

ably calls for the exercise of the Secretary’s judgment and

expertise.

Second, Congress did not merely delegate to the Secretary

the authority to require such trust reporting as may be necessary

to prevent circumvention or evasion, but instead such reporting

“as [s]he may find” necessary to that end. 29 U.S.C. § 438

(emphasis added). We have noted in the past the “distinction

between the objective existence of certain conditions and the

Secretary’s determination that such conditions are present,”

stressing that a statute phrased in the latter terms “ ‘fairly exudes

deference’ to the Secretary.” Kreis v. Sec’y of the Air Force,

866 F.2d 1508, 1513 (D.C. Cir. 1989). While not foreclosing

review altogether, but cf. Drake v. FAA, 291 F.3d 59, 72 (D.C.

Cir. 2002) (“What may be thought necessary may not in fact be

necessary, but a court may pass judgment only on the latter, not

the former.”), section 208 by its terms “substantially restrict[s]

the authority of the reviewing court to upset the Secretary’s

determination,” Kreis, 866 F.2d at 1514.

Third, the delegation at issue here is to the Secretary to

promulgate rules she finds necessary “to prevent” a future

contingency — circumvention or evasion of required reporting.

29 U.S.C. § 438. The delegation necessitates a predictive

judgment about risk, and “an agency’s predictive judgment

regarding a matter within its sphere of expertise is entitled to

‘particularly deferential’ review.” Fresno Mobile Radio, Inc. v.

FCC, 165 F.3d 965, 971 (D.C. Cir. 1999). The trust reporting

rule represents the Secretary’s best judgment as to when union-

affiliated trusts are likely to pose a risk of being used to circum-

vent the reporting requirements. It is a prophylactic rule and,

as such, need not be crafted with “exacting precision.” Biloxi

Reg’l Med. Ctr. v. Bowen, 835 F.2d 345, 350 (D.C. Cir. 1987).

In the face of a statutory delegation freighted with defer-

ence, the majority applies the very antithesis of deferential

review. My colleagues fault the Secretary’s rule because they

5

believe that the level of trust reporting specified by the Secretary

would only be necessary to prevent evasion of the LMRDA

requirements in “circumstances involving dominant union

control over the trust’s use of union members’ funds or union

members’ funds constituting the trust’s predominant revenues,”

Op. at 24, and that the Secretary’s examples do not demonstrate

a risk of evasion where such circumstances are not present. But

nothing in either the LMRDA or the usual standards governing

review of agency action under Chevron step two demands that

the Secretary recite examples to support every possible applica-

tion of the rule. Rather, we require only that she provide a

reasoned explanation for her judgment that reporting is “neces-

sary to prevent . . . circumvention or evasion.” 29 U.S.C. § 438.

She has clearly done so here. See supra pp. 2–3.

The majority’s main objection is that the Secretary’s rule

“mandates reporting on trusts even where there is no appearance

that the union’s contribution of funds to an independent organi-

zation could circumvent or evade union reporting requirements

by, for example, permitting the union to maintain control of the

funds.” Op. at 23 (emphasis added). What the majority calls an

“independent organization” is, of course, defined in the statute

as a “[t]rust in which a labor organization is interested,” because

it “was created or established by a labor organization, or one or

more of the trustees or one or more members of [its] governing

body . . . is selected or appointed by a labor organization,” and

because “a primary purpose of [the organization] is to provide

benefits for the members of such labor organization or their

beneficiaries.” 29 U.S.C. § 402(l). The majority may be

perfectly comfortable that there is no risk that such an organiza-

tion may be used by a union to circumvent or evade reporting

requirements, but it is surely reasonable for the Secretary — to

whom the responsibility has been delegated — to reach a

different conclusion.

6

The majority’s reading, far from defining the “bounds of the

permissible” under Chevron step two, Barnhart v. Walton, 535

U.S. 212, 218 (2002), is itself rather implausible. First, it

renders largely superfluous the judgment made by Congress

when it specifically defined a “trust in which a labor organiza-

tion is interested.” If “circumvention or evasion” carries within

it an implicit requirement of union dominance or control beyond

the definition in section 3(l), there is no need for that definition

at all. The majority’s approach is akin to a court, presented with

a statute permitting the regulation of trucks weighing over ten

tons where “necessary to prevent damage to highways,”

nevertheless exempting trucks under twenty tons on the ground

that they present no such risk — as though Congress had made

no judgment on the matter. See Fed. Elec’n Comm’n v. Nat’l

Right to Work Comm., 459 U.S. 197, 210 (1982) (Court will not

“second-guess a legislative determination as to the need for

prophylactic measures where corruption is the evil feared”).

Second, the majority takes an exceedingly narrow view of

the purpose of the reporting requirements. It dismisses as

somehow irrelevant the Secretary’s concern that in the absence

of trust disclosure, “union members may have no way to

determine whether [union funds transferred to trusts] were

actually spent for the benefit of members.” 67 Fed. Reg. at

79,282; see Op. at 25. Yet, in making the definition of a “trust

in which a labor organization is interested” turn on whether one

of the primary purposes of the trust is “to provide benefits for

[union] members . . . or their beneficiaries,” Congress plainly

evinced the very same concern. See LMRDA § 3(l). Indeed, the

whole point of the LMRDA is to ensure, through broad financial

disclosure, that members’ funds are not being misappropriated

by those to whom the funds have been entrusted. See H.R. Rep.

No. 86-741, at 7 (1959) (“[t]he members of a labor organization

are the real owners of the money and property of such organiza-

tion and are entitled to a full accounting of all transactions

7

involving such money”). The statute does not prescribe

reporting merely for reporting’s sake.

It is a final strike against the plausibility of the majority’s

reading that it takes no account of the Secretary’s need for a

bright-line rule in managing what is, fundamentally, a reporting

and disclosure scheme. Unlike the express statutory criteria of

section 3(l) and the Secretary’s dollar threshold, the majority’s

“circumstances involving dominant union control” test, Op. at

24, “would be hard to apply, jettisoning relative predictability

for the open-ended rough-and-tumble of factors,” Jerome B.

Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527,

547 (1995). The circumstances of union control will come in

many varieties. Presumably, one union-appointed trustee will

normally not be enough; but if there are only three trustees, or

if one of the other trustees is affiliated with another union, it

might be. In deciding to incorporate the statutory definition into

her rule, the Secretary explained the difficulties of an alternative

approach along the lines endorsed by the majority. See Op. at

25–26. She specifically noted that looking to the degree of

union ownership and control “does not appear to be a workable

or appropriate approach. Union ownership and control in the

context of a union’s participation in a trust that provides benefits

to the union membership are very difficult concepts to quantify.”

68 Fed. Reg. at 58,415. The difficulties of such an approach,

with the likelihood of attendant litigation, are precisely why the

“single entity” test received zero favorable comments during

rulemaking and ultimately was rejected by the Secretary in favor

of the statute’s bright-line rule. See id. at 58,416.

Perhaps the Secretary was wrong in her assessment about

what degree of union involvement in the affairs of a trust poses

a danger of the trust being used to circumvent or evade reporting

requirements, but see Time Warner Entertainment Co. v. FCC,

240 F.3d 1126, 1141 (D.C. Cir. 2001) (FCC’s attribution of

influence based on control of 5% of company’s voting shares

8

was reasonable), and wrong in her judgment that a multi-factor

domination or control test would prove unworkable, and perhaps

the majority’s approach is right. That is not the question before

the court. The statute plainly delegates the authority to make

such policy-laden judgments to the Secretary — the question is

what “[s]he may find necessary to prevent the circumvention or

evasion of . . . reporting requirements,” 29 U.S.C. § 438

(emphasis added) — and the Secretary has reasonably exercised

that authority. I therefore respectfully dissent from Part III of

the court’s opinion.