 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued December 5, 2019            Decided August 28, 2020

                       No. 18-1235

BROTHERHOOD OF LOCOMOTIVE ENGINEERS AND TRAINMEN,
A DIVISION OF THE RAIL CONFERENCE OF THE INTERNATIONAL
   BROTHERHOOD OF TEAMSTERS, AND TRANSPORTATION
  DIVISION OF THE INTERNATIONAL A SSOCIATION OF SHEET
    METAL, A IR, RAIL AND TRANSPORTATION WORKERS,
                       PETITIONERS

                            v.

 FEDERAL RAILROAD ADMINISTRATION AND UNITED STATES
          DEPARTMENT OF TRANSPORTATION,
                   RESPONDENTS

  KANSAS CITY SOUTHERN RAILWAY COMPANY AND TEXAS
             MEXICAN RAILWAY COMPANY ,
                    INTERVENORS


       On Petition for Review of a Final Decision of
           the Federal Railroad Administration


    Kathy L. Krieger argued the cause for petitioners. With
her on the briefs were Michael S. Wolly and Lawrence M.
Mann.
                                2
    Jaynie Lilley, Attorney, U.S. Department of Justice,
argued the cause for respondents. With her on the briefs were
H. Thomas Byron III, Attorney, Steven G. Bradbury, General
Counsel, U.S. Department of Transportation, Paul M. Geier,
Assistant General Counsel for Litigation and Enforcement, Joy
K. Park, Senior Trial Attorney, and Rebecca S. Behravesh,
Senior Attorney, Federal Railroad Administration.

    Aaron S. Markel argued the cause for intervenors. With
him on the brief was Donald J. Munro.

    Before: TATEL , MILLETT, and PILLARD , Circuit Judges.

    Opinion for the Court filed by Circuit Judge MILLETT.

    Opinion concurring in part and dissenting in part filed by
Circuit Judge TATEL.

     MILLETT, Circuit Judge: By leave of the Federal Railroad
Administration, two United States railroads began allowing
engineers and conductors employed by their Mexican affiliate
to operate trains on their tracks in the United States. Labor
unions representing employees of the two railroads petition for
review of the Railroad Administration’s asserted approval of
the new rail operations.

     We grant the petition in part and vacate and remand in part
because of the Railroad Administration’s failure to provide a
reasoned explanation for its approval of the materially altered
engineer certification program administered by one of the
railroads. As to that program approval, we agree with the
Railroad Administration that it took final agency action and
entered its decision, as required for jurisdiction to attach under
the Hobbs Act, 28 U.S.C. §§ 2342(7), 2344. We also agree
with the labor unions that their challenge to the approval was
                               3
timely, and that the Railroad Administration’s wholly
unexplained approval of material decisions directly affecting
railroad safety was arbitrary and capricious. We dismiss the
petition’s remaining challenges for lack of jurisdiction.

                               I

                               A

                               1

     Title 49 of the United States Code governs
“Transportation.” Subtitle V of Title 49 deals specifically with
“Rail Programs[,]” and Part A of Subtitle V is dedicated to
“Safety[.]” We deal in this case with Chapter 201 of Part A,
which Congress enacted “to promote safety in every area of
railroad operations and reduce railroad-related accidents and
incidents.” 49 U.S.C. § 20101. To accomplish those goals,
Congress directed the Secretary of Transportation, “as
necessary,” to “prescribe regulations and issue orders for every
area of railroad safety[.]” Id. § 20103(a).

     Congress’s effort to increase rail safety included ensuring
that only those locomotive engineers and train conductors who
met federal training and safety standards could operate trains
in the United States. To that end, Chapter 201 obligates the
Secretary to “prescribe regulations and issue orders to establish
a program requiring the * * * certification * * * of any
operator of a locomotive,” 49 U.S.C. § 20135(a), and “the
certification of train conductors,” id. § 20163(a).

     Rather than charge the agency with certifying engineers
and conductors itself, Congress placed the onus on each
“railroad carrier[]” to develop and operate its own certification
programs for the engineers and conductors it employs. See 49
                               4
U.S.C. §§ 20135, 20163. Congress then mandated that each
railroad’s certification program comply with minimum
program requirements established by the Secretary, and that
each program be individually approved by the Secretary. See
id. §§ 20135, 20162–20163.

     Congress defined a covered “railroad carrier” subject to
those requirements as “a person providing railroad
transportation, except that, upon petition by a group of
commonly controlled railroad carriers that the Secretary
determines is operating within the United States as a single,
integrated rail system, the Secretary may by order treat the
group of railroad carriers as a single railroad carrier[.]” 49
U.S.C. § 20102(3).

                               2

    The Secretary has delegated to the Federal Railroad
Administration the authority to “[c]arry out the functions and
exercise the authority vested in the Secretary by * * *
Subtitle V,” 49 C.F.R. § 1.89, including the authority to
approve railroads’ engineer and conductor certification
programs.

     In exercising its delegated authority, the Railroad
Administration has promulgated regulations requiring “[e]ach
railroad” to “have in effect a written program for certifying the
qualifications of” both engineers and conductors. 49 C.F.R.
§ 240.101 (engineers); id. §§ 242.101–242.103 (conductors).
Those programs must be approved and in effect “prior to
commencing operations.” Id.

     A railroad’s certification programs must ensure that the
railroad’s engineers and conductors satisfy baseline
requirements set by the Railroad Administration in Part 240
                                5
(engineers) and Part 242 (conductors) of Title 49 of the Code
of Federal Regulations. See 49 C.F.R. §§ 240.1, 242.1. Those
regulatory requirements address such matters as the
“eligibility, training, testing, certification and monitoring” of
engineers and conductors. Id. For example, to be approved by
the Railroad Administration, a railroad’s engineer certification
program must evaluate, among other things, an engineer’s:
(i) prior safety conduct, id. § 240.109; (ii) prior compliance
with operating rules, id. § 240.117; (iii) history of substance
abuse disorders and alcohol/drug rules compliance, id.
§ 240.119; (iv) visual and hearing acuity, id. § 240.121;
(v) initial and continuing education, id. § 240.123; (vi) relevant
knowledge, id. § 240.125; (vii) skill performance, id.
§ 240.127; and (viii) ongoing operational performance, id.
§ 240.129. See id. §§ 240.101(c), 240.203; see also id.
§§ 242.101(a), 242.109 (requiring similar evaluations for
conductor certification programs).

    Each railroad must “submit its written certification
program and a description of how its program conforms to the
specific [regulatory] requirements” to the Railroad
Administration “for approval at least sixty days before
commencing operations.” 49 C.F.R. § 240.103(a); see id.
§ 242.103(b).

    The Railroad Administration does not issue any formal
documentation approving a railroad’s written certification
program. Rather, the Railroad Administration has adopted a
passive approval system. Under that scheme, if the Railroad
Administration does not notify the railroad—in writing and
within thirty days of submission—that the written certification
program fails to meet the minimum regulatory criteria, then the
program “is considered approved and may be implemented” by
the railroad. 49 C.F.R. §§ 240.103(c), 242.103(g). The
                               6
Railroad Administration’s regulations are explicit that “[n]o
formal approval document [regarding certification program
submissions] will be issued by the [Administration].” Id. § 240
App. B (engineer programs); id. § 242 App. B (conductor
programs).

     Any material modifications to a previously approved
certification program must also be submitted for the Railroad
Administration’s approval either thirty days (engineer
programs) or sixty days (conductor programs) before
implementation. See 49 C.F.R. §§ 240.103(e), 242.103(i).
Those modifications are likewise approved passively by the
Railroad Administration if not explicitly rejected within thirty
days after submission. See id. §§ 240.103(e)(3), 242.103(i)(3).

     When a railroad submits an original or modified conductor
certification program to the Railroad Administration, it must
simultaneously serve a copy of its submission on the president
of every labor organization that represents the railroad’s
employees who are subject to Part 242.              49 C.F.R.
§ 242.103(c)(1). There is no similar requirement for Part 240
engineer certification program submissions. Cf. 84 Fed. Reg.
20,472, 20,478 (May 9, 2019) (Notice of Proposed Rulemaking
announcing an intention to make the duty to serve equivalent
for engineer certification programs). Once the conductor
submission is shared with the labor organization, however,
there is no continuing duty on the railroad to notify the labor
organizations when (and if) the Railroad Administration either
approves or disapproves the conductor certification program.
Nor does anything in the Railroad Administration’s regulations
provide for the agency to “publish or give notice of [a]
certification [program] approval.” Oral Arg. Tr. 20:23–21:1
(counsel for Railroad Administration).
                               7
     To enforce compliance with the certification requirements,
Railroad Administration regulations prohibit any person from
operating a locomotive as an engineer or serving as a conductor
unless that person has been certified by a railroad under a
written program approved by the Administration. See 49
C.F.R. §§ 240.201(d), 242.105(f). Any certificate must,
among other things, “[i]dentify the railroad or parent company
that is issuing it[,]” and “[i]dentify the person to whom it is
being issued[.]” Id. §§ 240.223(a), 242.207(a). Any person
who violates Part 240 or Part 242 is subject to civil penalties
and potential disqualification from future railroad service. See
id. §§ 240.11, 242.11.

     Any person may petition the Railroad Administration for
a formal waiver of compliance with the engineer certification
requirements of Part 240 or the conductor certification
requirements of Part 242. See 49 C.F.R. §§ 211.7, 211.9,
240.9, 242.9; see also 49 U.S.C. § 20103(d)–(e). Such a
waiver may be issued, subject to any conditions the Railroad
Administration deems necessary, only upon a finding that a
waiver is “in the public interest” and “consistent with railroad
safety.” 49 U.S.C. § 20103(d); 49 C.F.R. §§ 240.9(c),
242.9(c). Generally, before granting a petition for a waiver,
the Railroad Administration must conduct a hearing that
affords interested parties an opportunity to submit comments
and to make an “oral presentation” of their views. 49 U.S.C.
§ 20103(e). If the Railroad Administration grants the waiver,
it “shall make public the reasons for” doing so. Id. § 20103(d);
see also 49 C.F.R. §§ 240.9, 242.9, 211.41.

                               3

    In certain circumstances, Railroad Administration
regulations permit a railroad’s certification program to certify
engineers or conductors who have not completed the railroad’s
                                  8
entire training regimen for new hires. As relevant here, 49
C.F.R. § 240.225 governs railroads’ “[r]eliance on
qualification determinations made by other railroads” of
engineers, and 49 C.F.R. § 242.125 governs “[c]ertification
determinations made by other railroads” of conductors.
Together, they provide in relevant part:

     A railroad that is considering certification of a person
     as a qualified engineer [or conductor] may rely on
     determinations made by another railroad concerning
     that person’s qualifications.          The railroad’s
     certification program shall address how the railroad
     will administer the training of previously uncertified
     engineers [or conductors] with extensive operating
     experience or previously certified engineers [or
     conductors] who have had their certification expire.
     If a railroad’s certification program fails to specify
     how to train a previously certified engineer [or
     conductor] hired from another railroad, then the
     railroad shall require the newly hired engineer [or
     conductor] to take the hiring railroad’s entire training
     program.

49 C.F.R. § 240.225(a); see id. § 242.125(a).

      For a railroad to rely on another railroad’s engineer
certification, it must first determine that (i) the prior
certification is still valid; (ii) the prior certification was for the
same classification of service as the certification being issued;
(iii) the person has received training on and visually observed
the physical characteristics of the new territory; (iv) the person
has demonstrated the necessary knowledge concerning the new
railroad’s operating rules; and (v) the person has demonstrated
the necessary performance skills concerning the new railroad’s
operating rules. See 49 C.F.R. § 240.225(a); see also id.
                               9
§ 242.125(b) (imposing similar requirements for relying on
another railroad’s conductor certifications).

    Other Railroad Administration regulations specifically
provide that if a United States railroad “conducts joint
operations with a Canadian railroad,” the United States railroad
may certify employees of the Canadian railroad based on those
employees’ satisfaction of Canadian regulatory requirements.
See 49 C.F.R. §§ 240.227, 242.127; see also id. § 240.229
(permitting similar reliance for railroads conducting joint
operations with other railroads); id. § 242.301 (similar).

    There is no similar reciprocity provision for joint
operations with Mexican railroads.

     Finally, in addition to requiring railroads to train and
certify the engineers and conductors whom they employ, the
Railroad Administration’s regulations also require railroads
and their employees, among other things, to comply with
standards for (i) the control of alcohol and drug use by
employees,      see    49    C.F.R.     pt. 219;    (ii) railroad
communications, see id. pt. 220; (iii) hours of service, see id.
pt. 228; and (iv) brake maintenance and testing, see id. pt. 232.

     The Railroad Administration may issue waivers of
compliance for any part of those regulations as well, subject to
the same procedures for waivers of certification requirements.
See, e.g., 49 U.S.C. § 20103(d)–(e).

                               B

     Kansas City Southern (“Southern Company”) is a holding
company that owns several railroads operating trains within
North America. Collectively, those railroads operate rail lines
that run from Mexico City, Mexico, across the United States–
                                10
Mexico border at Laredo, Texas, and throughout the United
States.

    Laredo sits on the northern bank of the Rio Grande River,
which is part of the natural border between the United States
and Mexico. Trains crossing the border at Laredo enter or exit
the United States by way of the International Bridge, which
runs north–south over the Rio Grande.

     Three of Southern Company’s railroads—two that operate
in the United States and one that has historically operated only
in Mexico—are relevant to this case.

     The two railroads that operate in the United States are
Kansas City Southern Railway Company (“Kansas City
Railway”) and its wholly owned subsidiary Texas-Mexican
Railway Company (collectively, “the Railroads”). The
Railroads own tracks and operate trains on the United States
side of the border at Laredo and into the interior of the United
States.

      Kansas City Southern de México (“de México Railway”)
is the Railroads’ Mexican affiliate. It operates the rail line that
runs from Mexico City to Laredo, which provides exclusive
rail access to the United States border crossing at Laredo from
the Mexican side of the border. The Railroads do not own or
control de México Railway; they are simply affiliated with it.

    Historically, de México Railway crews operated trains
only in Mexico, and not in the United States. De México
Railway’s operations in Mexico and up to the border did not
require it to certify its engineers or conductors under a program
approved by the Railroad Administration.
                              11
     As a result of Mexico’s and the United States’ differing
certification regimes, Southern Company trains that crossed
the border at Laredo have long “interchanged” in the middle of
the International Bridge. That is, rail cars were transferred
from one railroad to another, and a new rail crew took over.

     Specifically, southbound trains operated by the Railroads
heading into Mexico stopped in the middle of the International
Bridge so that de México Railway crews could recouple the rail
cars and take them into Mexico. Northbound trains operated
by de México Railway heading into the United States similarly
stopped in the middle of the bridge so that the Railroads’ crews
could recouple the rail cars and take them into the United
States. Those Railroads’ crews would operate the northbound
trains to Kansas City Railway’s Laredo Train Yard, which is
roughly 9.2 miles from the International Bridge. At the Train
Yard, new crewmembers working for the Railroads would take
the rail cars on their journeys elsewhere in the United States,
while the disembarking crew would be shuttled back to the
International Bridge to take over another northbound train.

    The dedicated crews that operated the Railroads’ trains
back and forth on the 9.2-mile stretch of track between the
border and the Laredo Train Yard were busy. They commonly
operated hundreds of northbound and southbound trips every
month along that route.

     Those crewmembers are represented by two labor
organizations: (i) the Brotherhood of Locomotive Engineers
and Trainmen, a division of the Rail Conference of the
International Brotherhood of Teamsters, and (ii) the
Transportation Division of the International Association of
Sheet Metal, Air, Rail and Transportation Workers
(collectively, “the Unions”).
                               12
                               C

     According to the Railroad Administration and a report by
the Government Accountability Office, this longstanding
practice of interchanging in the middle of the International
Bridge caused problems on the storied streets of Laredo, see,
e.g., JOHNNY CASH, Streets of Laredo, on AMERICAN IV: THE
MAN COMES A ROUND (American Recordings & Universal
Records 2002).

     Specifically, stopping each train in the middle of the
International Bridge to swap crews caused significant backups
on highway–rail crossings in Laredo. Because the trains can
be several miles long, a single one stopped on the bridge could
stretch all the way to nearby Interstate 35, a major highway that
runs through Laredo and intersects with the rail line. Trains
were sometimes forced to sit on the bridge for long periods of
time, waiting for a new crew to arrive and take over. For
example, the Railroads’ crews that delivered northbound trains
from the border to the Laredo Train Yard were then driven back
to the border to pick up the next northbound train, and they
were sometimes delayed at the Train Yard or on the way back
to the border by (ironically enough) bridge-induced traffic
congestion. All things considered, crew changes on the bridge
could sometimes take two to three hours.

    On top of those crew change delays, when trains entered
the United States from Mexico, the Railroads’ crews that
assumed control were generally required to perform what is
known as a “Class I brake test.” See 49 C.F.R. § 232.205(a)(1).
Trains crossing the border are also subject to inspection by
United States Customs and Border Protection and Mexico’s
customs agencies. Those brake tests and customs inspections
added to Laredo’s traffic gridlock.
                               13
                               D

     Over the years, the Railroad Administration and the
Railroads have tried to streamline the journey of trains over the
International Bridge to reduce delays and traffic congestion.

     First, in 2008, Kansas City Railway obtained from the
Railroad Administration a formal waiver excusing the
Railroads from having to perform a Class I brake test on the
International Bridge. Instead, only a less time-consuming
Class III brake test had to “be performed before departing the
interchange point[.]”      J.A. 141.     Compare 49 C.F.R.
§ 232.211(b) (defining Class III brake tests), with id.
§ 232.205(c) (defining more rigorous Class I brake tests). The
waiver required Class I brake tests to eventually be performed
before the northbound trains departed the Laredo Train Yard.

     Kansas City Railway’s brake-test waiver was effective for
a five-year period. But the Railroad Administration has twice
extended the waiver, and it is still in effect today. See 83 Fed.
Reg. 35,052 (July 24, 2018).

     Second, the Railroads proposed a plan by which they
would grant de México Railway operating rights over the 9.2
miles of track between the International Bridge and the Laredo
Train Yard. As part of that plan, Kansas City Railway would
certify de México Railway engineers and conductors through
an abbreviated training program, given the de México
employees’ experience working in Mexico.                  Those
certifications would allow de México engineers and conductors
to operate north- and southbound trains inside the United States
on that stretch of track. That meant the Railroads’ crews would
operate northbound trains only after they arrived at the Laredo
Train Yard, and southbound trains no further than that point.
                               14
    As for brake testing (which is required only of the
northbound trains entering the United States), the plan
provided that de México Railway crews would avail
themselves of Kansas City Railway’s existing waiver to skip
the Class I brake test on the International Bridge. Kansas City
Railway also petitioned the Railroad Administration for an
additional brake-test waiver excusing performance of any
brake test at all at the border. See 83 Fed. Reg. at 35,052–
35,053.

     On October 26, 2016, Kansas City Railway described its
proposed crew change plan to a Railroad Administration
official over email and asked for a meeting to discuss it. At the
official’s request, Kansas City Railway forwarded its draft
plan, explaining that it was “not inclusive of everything that
will need to take place, but [was] intended to start a dialogue.”
J.A. 44.

     That draft plan—entitled “International Crew Pilot
Program Draft Implementation Plan”—is dated October 27,
2016. J.A. 47. Its stated purpose is to identify “the steps for
Certification, Qualification, and Operation for [Kansas City
Railway’s] vision of the International Crew Pilot Program”
intended “to operate between border yards in Mexico and the
United States without the need to stop on the International
Bridge for any reason.” J.A. 47. The draft plan describes de
México Railway crew members as “experienced train
operators that are certified to operating standards in Mexico,”
which, the draft asserted without elaboration or citation, “are
similar to those required by” the Railroad Administration.
J.A. 47. The Draft Plan added that de México Railway “crew
members will be certified, to operate trains in the [United
States], under [Kansas City Railway’s] approved 49 C.F.R.
[Parts] 240 and 242 submission.” J.A. 47.
                               15
     Appendix A to the Draft Plan, entitled “FRA Compliance
Document,” lists various parts of the Railroad Administration’s
regulations and “how [Kansas City Railway] will comply with
information/audit requests from the” Railroad Administration.
J.A. 50. In that regard, the Draft Plan points to, among other
things, the regulations governing alcohol and drug use, railroad
communications, hours of service limitations, and brake
maintenance and testing.

   Communications between the Railroads and the Railroad
Administration about the proposed plan continued into 2017.

     In June of that year, the Railroad Administration issued a
public report stating that the Railroads had “spent the past three
years attempting to” certify a group of de México Railway
crew members to operate trains in the United States “in a
manner that is acceptable from a regulatory standpoint, in
which [the Railroad Administration] would approve Mexican
train crew certifications without the need for a waiver” of
safety regulations. A.R. 1774.

    That same month, a staff member for Congressman Henry
Cuellar, whose congressional district includes Laredo, emailed
a Railroad Administration official about the proposed crew
change procedures. The staff member inquired whether the
Railroad Administration had or would be approving the new
procedures and when they would take effect.

     The Railroad Administration official forwarded the email
internally.     Another Railroad Administration official
confirmed to his colleague that, in July 2018, de México
Railway crews would indeed begin operating trains in the
United States on the 9.2-mile stretch of track between the
International Bridge and the Laredo Train Yard. J.A. 558–559.
                                 16
     The Railroad Administration official’s internal email
further noted that, under the new procedure, southbound trains
would no longer have any reason to stop on the bridge (though
they would “still proceed at 5 mph across the bridge to be
x-rayed by [Customs and Border Patrol]”). J.A. 558. Finally,
the official added that Kansas City Railway “currently operates
under a waiver that requires them to stop at the bridge on
northbound movements to conduct a [Class III] brake test,” and
that will “still be the case” under the new procedure. J.A. 559.
That is, “[a]ll northbound trains [operated by de México
Railway crews] will still be required to stop and conduct a
[Class III] brake test” on the International Bridge. J.A. 559. 1
Finally, the official stated that the Railroad Administration had
“done extensive inspections and review of the plan,” and that
“Mexican crews will be in compliance with all [Railroad
Administration] regulations.” J.A. 559.

    On August 16, 2017, the Railroad Administration
completed a self-described “audit” to determine whether
Kansas City Railway could certify de México Railway
engineers and conductors using an abbreviated curriculum
within its certification programs. See J.A. 390–391.

    In that audit, the Railroad Administration concluded that
“no changes [were] necessary” to Kansas City Railway’s five-
year-old conductor certification program to allow it to certify
de México Railway conductors. J.A. 390. The audit noted that


    1
      The Railroad Administration subsequently denied Kansas City
Railway’s petition for a waiver of the obligation to perform a
Class III brake test on the International Bridge. See 83 Fed. Reg. at
35,052–35,053 (petition for waiver); Letter, Docket No. 2007-28700
(Fed. R.R. Admin. March 8, 2019) (rejecting waiver petition).
                              17
Kansas City Railway’s existing conductor certification
program already included language tracking 49 C.F.R.
§ 242.125, which, the audit reasoned, allowed it “to train
previously uncertified conductors with extensive operating
experience.” J.A. 390; see also J.A. 237–238 (Section 4 of
Kansas City Railway’s 2012 Part 242 program, entitled
“Training, Testing and Evaluating Persons Not Previously
Certified”).

     For Kansas City Railway’s existing engineer certification
program, however, the Railroad Administration determined
that the railroad could not certify de México engineers under
an abbreviated curriculum because some “added language to
the engineer program” was necessary and “would need to be
vetted * * * and approved by” Administration officials.
J.A. 391. Namely, the audit called for language “explicitly
address[ing] how [de México] engineers working into the
[United States] would be trained and certified.” J.A. 391. The
Railroad Administration noted that Kansas City Railway had
already developed language in consultation with an
Administration official “to amend [its] program that would
recognize the experience” of de México engineers and “allow
[them] to be trained under an amended training program.”
J.A. 390. The intent of the added language was “to take
advantage of the previously trained/experienced [de México]
engineers and avoid having to start retraining from ground
zero.”     J.A. 390.      The audit added that a Railroad
Administration attorney “would need time to determine if [the
Administration] could recognize [de México Railway]
engineers[’] experience as being compatible with what we
accept from other railroads in the United States.” J.A. 391
(emphasis added). But see J.A. 391 (audit team noting that it
“feels” full training “would be a disproportionate amount of
training for [the] train movements into the United States”). The
                               18
audit team said nothing about the prospect of a railroad
certifying engineers that it did not employ and who worked for
a foreign affiliate that the domestic railroad did not claim to
control. See J.A. 391.

     Consistent with the results of that internal audit, which
were not publicly released, Kansas City Railway did not revise
its previously approved conductor certification program. But
it did, on January 19, 2018, email to the Railroad
Administration a revised engineer certification program.

     The revised engineer certification program states that
Kansas City Railway “will issue all required certificates for
employees of its affiliate or subsidiary companies,” including
de México Railway. J.A. 520. The revised program also
provides that “[e]ngineer candidates that work for a [Kansas
City Railway] affiliate * * * in the capacity of Locomotive
Engineer and have previous training on the railroad’s operating
and safety rules may receive an accelerated training curriculum
based on their proficiency by a qualified engineer instructor.”
J.A. 519; see also J.A. 515 (section entitled “Initial
Certification of Foreign Locomotive Engineers”); J.A. 519
(noting that “[a]ll international engineers will be kept on a
separate roster from all [Kansas City Railway] locomotive
engineers”).2



    2
       The audit notwithstanding, several subsequent Railroad
Administration communications contemplated that Kansas City
Railway was actually required to revise both its “240 [engineer] &
242 [conductor] submissions” to add a “new section” outlining
“exactly how [it] plan[s] to train [its] new [de México Railway]
engineers and conductors with previous experience.” J.A. 394; see
                                19
     Thirty days came and went, and Kansas City Railway
received no communication from the Railroad Administration
rejecting its revised Part 240 engineer certification proposal.
As a result, the revised engineer certification program was
passively approved by the Railroad Administration on
February 19, 2018, and the Administration authorized Kansas
City Railway to implement it. See 49 C.F.R. § 240.103(c). For
good measure, the Railroad Administration sent an email four
months later confirming to Kansas City Railway that its
engineer certification submission had previously been
approved.

     A number of de México Railway crewmembers completed
their training, medical examinations, background checks, drug
and alcohol certifications, and field testing, and were certified
under Kansas City Railway’s modified engineer and existing
conductor certification programs to operate trains in the United
States.

                                 E

     The Unions have consistently opposed Kansas City
Railway’s efforts to certify de México Railway’s crews to
operate trains on the 9.2-mile stretch of track between the
International Bridge and the Laredo Train Yard. In May 2018,
Kansas City Railway informed the Unions that it would
implement its new crew change procedure using de México
Railway crews on July 9, 2018.



also J.A. 533. But there is no evidence that Kansas City Railway
ever submitted a revised Part 242 program for certifying conductors.
Nor does the record indicate that the Railroad Administration ever
considered or approved a revised conductor certification program.
                              20
     The Unions threatened to strike on that date, arguing both
that the governing collective bargaining agreements did not
permit the Railroads to move the interchange point unilaterally
and that the use of de México Railway crews in the United
States would violate Railroad Administration regulations.

     Shortly thereafter, the Railroads filed suit in the United
States District Court for the Southern District of Texas to
enjoin the impending strike. See Kansas City S. Ry. Co. v.
Brotherhood of Locomotive Eng’rs & Trainmen, No. 5:18-cv-
00071, 2018 WL 7253969, at *1 (S.D. Tex. July 6, 2018). The
Railroads argued that the Railway Labor Act, 45 U.S.C. § 151
et seq., mandated arbitration of the grievance and prohibited
striking. See id.

     At an evidentiary hearing in the Southern District of Texas
litigation on July 3, 2018, Kansas City Railway’s Vice
President     testified   publicly     about    the     Railroad
Administration’s non-public August 2017 audit and
subsequent approval of the railroad’s modified Part 240
engineer certification program. Specifically, he disclosed that
Kansas City Railway had “developed a written plan” to certify
de México Railway engineers and conductors, and “that the
[Railroad Administration] audited[,] reviewed and accepted”
those plans and concluded that they authorized Kansas City
Railway “to certify [de México Railway] engineers and
conductors to operate in the United States.” Transcript of
Motion Hearing at 68–69, Kansas City, 2018 WL 7253969
(No. 5:18-cv-00071), ECF No. 24.

    On July 6, 2018, a few days before the new crew change
procedure was set to begin, the district court granted the
Railroads’ motion for a preliminary injunction and enjoined the
Unions from striking. See Kansas City, 2018 WL 7253969, at
                               21
*1, *4, *7. At the parties’ joint request, the district court made
the injunction permanent.

     On July 9, 2018, the new crew change procedures were
implemented, with de México Railway crews certified by
Kansas City Railway operating trains for the first time on the
9.2-mile stretch of track between the International Bridge and
the Laredo Train Yard. The Railroad Administration publicly
participated in the rollout. See A.R. 2150 (Kansas City
Railway document noting that Railroad Administration staff
have “been in Laredo and activ[ely] participated in the program
since launch”); id. (also noting that Railroad Administration
“observers have ridden trains with” the de México Railway
crewmembers and inspected trains at the Laredo Train Yard,
where the Unions’ members take over/disembark the affected
trains).

                                F

     On September 4, 2018, the Unions filed a petition for
review with this court under the Hobbs Act, 28 U.S.C. § 2342,
challenging what they labeled the Railroad Administration’s
decision to “authorize[] and permit[]” de México Railway “to
operate freight trains * * * in Laredo” for Kansas City Railway
in violation of applicable rail safety laws and regulations.
Petition for Review at 1–3, No. 18-1235 (D.C. Cir. Sept. 4,
2018). Their petition targets “certain administrative orders
and/or actions issued and/or taken” by the Railroad
Administration “as arbitrary and capricious, an abuse of
discretion, in excess of the [agency’s] statutory authority and
otherwise contrary to law.” Id. at 1–2.

    More specifically, the petition explains that it challenges,
among other things, (i) the Railroad Administration’s
“authorization” of “the training, testing and certification of [de
                                22
México Railway’s] non-U.S. locomotive engineers and
conductors,” and (ii) “the implementation of [de México
Railway’s] operations taking place in Laredo, Texas on or after
July 9, 2018, including participation, monitoring and/or
observation by [Railroad Administration] personnel.” Petition
at 3.

     As to the Railroad Administration’s approval of Kansas
City Railway’s modified engineer program—which allowed
the railroad to certify de México Railway engineers under an
abbreviated training curriculum—the Unions argue that the
approval must be set aside for two reasons.

     First, the Unions contend that, under the relevant statutes
and regulations, it was unlawful to approve a certification
program permitting one railroad to certify employees of a
foreign affiliate railroad that it does not control. In the Unions’
view, de México Railway must operate its own approved
engineer certification program for its crews to operate in the
United States. See Unions Br. 5–7, 13, 35–39; Unions Reply
Br. 20–22.

    Second, the Unions dispute whether a certification
program may deploy an abbreviated curriculum and training
protocol to engineers with operating experience only in
Mexico, where they are governed by a different regulatory
regime, and lacking any prior certification in the United States.
See Unions Br. 39; Unions Reply Br. 23.

    The Unions did not attach the challenged Railroad
Administration decisions or orders to their petition. Instead,
they explained that the relevant agency “actions have been
taken * * * without public notice or other published
documentation,” leaving the Unions “unable to cite or attach a
copy of a formal [Administration] order, waiver, or other
                              23
Agency decision.” Petition at 3. The Unions then assert, on
information and belief, that the Railroad Administration
“maintains internal records reflecting and/or relating to the
Agency’s authorization [of] and permission” for the challenged
actions. Id.

     The Railroads intervened in support of the Railroad
Administration. Both the Railroad Administration and the
Railroads moved to dismiss the Unions’ petition for lack of
jurisdiction, contending that it failed to identify and timely
challenge any final agency action of the Railroad
Administration subject to judicial review.

     That motion to dismiss and the merits of the Unions’
petition are now before us.

                              II

    We determine de novo whether we have jurisdiction under
the Hobbs Act, 28 U.S.C. § 2342. See Blue Ridge Envtl.
Defense League v. Nuclear Regulatory Comm’n, 668 F.3d 747,
753 (D.C. Cir. 2012).

     Congress subjected “final action of the Secretary of
Transportation” under the statutory provisions at issue here to
judicial review exclusively under the Hobbs Act. See 49
U.S.C. § 20114(c); see also 28 U.S.C. § 2342(7) (jurisdiction
over “final agency actions” under 49 U.S.C. § 20114(c)).
Included in that jurisdictional grant are final actions taken by
the Railroad Administration under Chapter 201 of Title 49.
See Daniels v. Union Pac. R.R. Co., 530 F.3d 936, 940–941
(D.C. Cir. 2008); see also 49 C.F.R. § 1.89 (Secretary of
Transportation’s delegation of authority under Chapter 201 to
the Railroad Administration).
                               24
     The Hobbs Act, in turn, invests federal courts of appeals
(other than the Federal Circuit) with “exclusive jurisdiction to
enjoin, set aside, suspend (in whole or in part), or to determine
the validity of” such final agency actions. 28 U.S.C. § 2342(7).
To invoke a court of appeals’ jurisdiction under the Hobbs Act,
a “party aggrieved” by the agency’s action must file a petition
for review within sixty days of “entry” of the relevant agency
decision. 28 U.S.C. § 2344; see id. § 2342. The Hobbs Act
separately commands a covered agency, upon entering a final
and reviewable order, to “promptly give notice thereof by
service or publication in accordance with its rules.” Id. § 2344.

     The Hobbs Act’s requirements that the agency action be
final and that the petition timely filed are jurisdictional. See
Blue Ridge, 668 F.3d at 753 (finality requirement); see also
Western Union Tel. Co. v. FCC, 773 F.2d 375, 376 (D.C. Cir.
1985) (timeliness requirement).

      Applying those terms, we have jurisdiction to review the
Unions’ challenge to the Railroad Administration’s final action
approving Kansas City Railway’s revised engineer
certification program, allowing that railroad to certify for the
first time de México Railway engineers under an abbreviated
training curriculum. As the Railroad Administration agrees, its
approval of that program constituted a final and reviewable
order under the Hobbs Act. And the Unions have timely
challenged it. But we lack jurisdiction over the Unions’ other
claims.

                               A

    We begin with the question of our jurisdiction over the
Unions’ challenge to the approval of Kansas City Railway’s
modified engineer certification program.
                               25
                                1

     As to the question of finality, the Railroad
Administration’s approval of Kansas City Railway’s revised
engineer certification program is a final agency action
reviewable under the Hobbs Act, 28 U.S.C. §§ 2342(7), 2344.

    Agency actions qualify as final if they “mark the
consummation of the agency’s decisionmaking process” and
“legal consequences” flow from them. Bennett v. Spear, 520
U.S. 154, 178 (1997) (internal quotation marks omitted); see
also Blue Ridge, 668 F.3d at 753 (“An order is final” for
purposes of the Hobbs Act “if it imposes an obligation, denies
a right, or fixes some legal relationship, usually at the
consummation of an administrative process.”) (formatting
modified). The Railroad Administration’s passive approval of
Kansas City Railway’s revised Part 240 engineer certification
program fits that bill.

      First, the Railroad Administration’s judgment allowing
the revised program to go into operation assuredly had fixed
legal consequences. By regulation, the revised certification
program could not be implemented without the Railroad
Administration’s approval. See 49 C.F.R. § 240.103(a), (c),
(e); see also 49 U.S.C. § 20135. As such, the approval made it
lawful for Kansas City Railway to, for the first time, certify de
México Railway engineers through an abbreviated training
curriculum, and it permitted the engineers who received those
certificates to operate trains within the United States. So it was
an action “from which legal consequences [flowed]” and legal
rights changed. Bennett, 520 U.S. at 178 (internal quotation
marks omitted).

     Of course, the Railroad Administration’s approval took
the form of inaction—its declination to intervene—rather than
                               26
the affirmative issuance of an order. But that decision not to
act, by virtue of the Railroad Administration’s regulatorily
prescribed passive-approval scheme, naturally had the same
legal effect regarding the rights and obligations at issue as if
the Administration had formally stamped “Approved” on
Kansas City Railway’s submission. See Oral Arg. Tr. 17:18–
21 (Q: “And if you don’t do anything, then on, shall we say
the 31st day, [it is as] if [the agency] stamped approved on
there[?]” Railroad Administration: “Yes[.]”). The particular
form that the agency’s final approval took did not change the
“direct and appreciable legal consequences” that flowed from
it. California Cmtys. Against Toxics v. EPA, 934 F.3d 627, 640
(D.C. Cir. 2019).

     Nor is the idea that a document can take full and final legal
effect if not rejected within a predetermined period of time a
concept unknown to law. See, e.g., U.S. CONST. Art. I, § 7,
cl. 2 (“If any Bill [passed by the House of Representatives and
the Senate] shall not be returned by the President within ten
Days (Sundays excepted) after it shall have been presented to
him, the Same shall be a Law, in like Manner as if he had
signed it[.]”).

     Second, the Railroad Administration’s decision to allow
the certification program to go into operation marked the
consummation of the agency’s decisionmaking process. The
Administration has said so by regulation. See 49 C.F.R.
§ 240.103(c) (“A railroad’s program is considered approved
and may be implemented thirty days after the required filing
date (or the actual filing date) unless the Administrator notifies
the railroad in writing that the program does not conform to the
criteria” of Part 240.) (emphasis added). Lest there be any
doubt, the Railroad Administration is explicit that it will not
issue a “formal approval document[.]” Id. § 240 App. B. By
                              27
regulation, the completion of the thirty-day period without
objection itself marks the program’s formal and final approval.
And that approval legally authorizes the railroad to implement
its program, id. § 240.103(c), in full compliance with the
regulatory obligation to have a certification “program in effect
prior to commencing operations” that has been “approved in
accordance with § 240.103,” id. § 240.101(b)–(c). Put simply,
once the passive approval took effect, there was nothing more
for the agency to review or resolve. Its decisionmaking process
was at an end. See California Cmtys., 934 F.3d at 636 (What
“can only reasonably be described as [an agency’s] last word”
on a question “marks the consummation of [its]
decisionmaking process.”) (formatting modified).

     And while we must independently evaluate our
jurisdiction, see Blue Ridge, 668 F.3d at 753, it bears noting
that the Railroad Administration agrees that its regulatorily
prescribed tacit approval of Kansas City Railway’s modified
Part 240 engineer certification program was final agency action
reviewable under the Hobbs Act. See Railroad Admin. Supp.
Br. 3 (“The Agency’s approval of the modified engineer
certification program is a reviewable final agency action[.]”);
Oral Arg. Tr. 32:22–33:15.

     Third, though the practice leaves much to be desired, we
also agree with the Railroad Administration that the absence of
a written memorialization by the agency does not defeat
finality. Congress empowered this court to review “final
agency actions” of the Railroad Administration. See 28 U.S.C.
§ 2342(7); 49 U.S.C. § 20114(c); see also Daniels, 530 F.3d at
940–941; see also id. at 944 n.13 (holding that final agency
action under 28 U.S.C. § 2342(7) “includes the [Railroad
Administration’s] administration of the locomotive engineer
certification program”) (citations omitted). Agency action
                               28
generally need not be committed to writing to be final and
judicially reviewable. See Venetian Casino Resort, LLC v.
EEOC, 530 F.3d 925, 930–931 (D.C. Cir. 2008) (reviewing as
final agency action under the Administrative Procedure Act an
unwritten policy that, “[o]n this record[,] it is clear the
Commission” adopted); see also Blue Ridge, 668 F.3d at 753
(looking to cases “address[ing] the requirement of finality
under the Administrative Procedure Act, 5 U.S.C. § 704,”
when analyzing finality under the Hobbs Act); Atchison,
Topeka & Santa Fe Ry. Co. v. Peña, 44 F.3d 437, 441 (7th Cir.
1994) (en banc) (“Because it appears that ‘final agency action’”
in 28 U.S.C. § 2342(7) “carries the same meaning as it does in
the Administrative Procedure[] Act, 5 U.S.C. § 704, we will
apply the same standards applicable to the APA.”) (citation
omitted), aff’d sub nom. Brotherhood of Locomotive Eng’rs v.
Atchison, Topeka & Santa Fe R.R. Co., 516 U.S. 152 (1996).

     In any event, under this scheme, there is a relevant written
document: Namely, the railroad’s written submission that
itself, upon the passage of thirty days, becomes the agency’s
approved program. 49 C.F.R. § 240.103(c).

                               2

     Section 2344 of Title 28 also requires that the agency
make an “entry of a final order[.]” 28 U.S.C. § 2344. The
Railroad Administration admits that, under its passive approval
process, the agency “entered” its decision formally approving
Kansas City Railway’s modified engineer certification
program on the day that marked the passage of the thirty-day
review period. See Oral Arg. Tr. 32:22–33:7. We agree.

    To start with, we look to the agency’s governing statutes
and regulations to determine when a final decision has been
entered.    See Western Union, 773 F.2d at 376–378
                                29
(determining when an FCC order is “deemed to be ‘entered’
for purposes of § 2344” by turning to the FCC’s governing
statutes and regulations). For the Railroad Administration, that
point of entry is when its regulations mark the certification
program as “approved” and—most critically—allow it to take
legal effect and to be “implemented” by the submitting
railroad. 49 C.F.R. § 240.103(c). Under the Railroad
Administration’s distinctive passive approval scheme, in
which no formal approval document is issued or filed, that
conclusive authorization and formal vesting of legal rights in
the railroad satisfies the Hobbs Act’s “entry” requirement.

     To be sure, most agencies subject to the Hobbs Act have
adopted more formalized measures of “entry” that must occur
before jurisdiction attaches. See Western Union, 773 F.2d at
377–378 (petition for review filed before entry of final FCC
order was premature and did not establish jurisdiction because
the FCC statute and implementing regulation explicitly tied
“entry” to “publication in the Federal Register”) (some
capitalization omitted) (citing 47 U.S.C. § 405 (1982); 47
C.F.R. § 1.4(b) (1984)); see also Dissent Op. at 5–6 (noting
that “most agencies * * * sensibly comply with their Hobbs
Act obligations”) (citing examples). That is perhaps a
byproduct of the fact that the Hobbs Act explicitly limits
courts’ jurisdiction over all other agencies to their “final
orders,” rules, or regulations. See 28 U.S.C. § 2342(1)
(emphasis added) (vesting jurisdiction over specified “final
orders of the [FCC]”); id. § 2342(2) (“final orders of the
Secretary of Agriculture”); id. § 2342(3) (“all [specified] rules,
regulations, or final orders of” the Secretary of Transportation
and the Federal Maritime Commission); id. § 2342(4)
(specified “final orders of the Atomic Energy Commission”);
id. § 2342(5) (“all [specified] rules, regulations, or final orders
of the Surface Transportation Board”); id. § 2342(6) (all
                               30
specified “final orders under section 812 of the Fair Housing
Act”).

     But the Hobbs Act speaks differently about review of
Department of Transportation decisions involving railroad
safety (including those of the Railroad Administration, 49
C.F.R. § 1.89). That later-added portion of the Hobbs Act
more broadly empowers courts to review “all final agency
actions[.]” 28 U.S.C. § 2342(7) (emphasis added); see 49
U.S.C. § 20114(c) (same); see also Rail Safety Enforcement
and Review Act, Pub. L. No. 102-365, § 5(c), 106 Stat. 972,
975 (1992) (adding subsection 7 to 28 U.S.C. § 2342);
Atchison, 44 F.3d at 441.

     Recognizing, as the Railroad Administration agrees (Oral
Arg. Tr. 32:22–33:7), that its passive final approval was
entered upon the passage of the thirty-day approval period,
then the agency’s endorsement of the plan and the agency’s
conferral of new legal rights on the railroad falls within Section
2342(7)’s comprehensive coverage of Railroad Administration
“actions” dealing with railroad safety. The form that an act of
“entry” takes in any particular case is very much a product of
agency regulations and procedures for formalizing in agency
records the adoption of a final decision. See Western Union,
773 F.2d at 376–378. As a result, nothing in the Hobbs Act
requires that entry involve publication or a special form of
internal documentation. Indeed, the text of Section 2344 itself
makes plain that “entry” and “notice thereof by service or
publication” can be two distinct steps in the agency’s process.
28 U.S.C. § 2344.

     Entry, in other words, depends on context. And under the
unusual passive scheme at issue here, entry occurs when the
document submitted by the railroad as a proposal
transmogrifies into an agency-approved program conferring
                              31
new rights or authority on the railroad. That, for all practical
intents and purposes, is the date a railroad’s proposal is
designated “approved” by the Railroad Administration and
agency regulations make the railroad aware of the agency’s
official sanction. Cf. Energy Probe v. Nuclear Regulatory
Comm’n, 872 F.2d 436, 438 (D.C. Cir. 1989) (Under Nuclear
Regulatory Commission regulations, “the date of ‘entry,’
which commences the running of the sixty-day period for filing
for review under the Hobbs Act, is the date on which the
agency’s final decision is signed and served.”).

     A contrary conclusion, under which agencies could take
undisputedly final actions with concrete legal consequences
and yet evade judicial review just by declining to formally
paper them internally, would create an agency-controlled end-
run of the Hobbs Act. The text enacted by Congress gives no
quarter to such manipulation. And the well-established
“principle of statutory construction”—“the presumption
favoring judicial review of administrative action[]”—counsels
strongly against reading it into the text. Guerrero-Lasprilla v.
Barr, 140 S. Ct. 1062, 1069 (2020) (That “strong presumption”
requires courts to, where feasible, adopt a reading of a statute
“that accords with” the “basic principle[] that executive
determinations generally are subject to judicial review.”)
(internal quotation marks omitted); see also SAS Inst., Inc. v.
Iancu, 138 S. Ct. 1348, 1359 (2018) (noting “the strong
presumption in favor of judicial review”).

     In sum, we agree with the parties that finality and entry
have been established. While the Railroad Administration’s
passive approval process is less common than affirmative
forms of agency signoff, the Hobbs Act’s provision for review
of all “final agency actions” by the Railroad Administration
encompasses such decisions. The agency’s decision had
                               32
material and operative legal consequences, and its entry of that
order marked the end of the administrative road, licensing
Kansas City Railway to materially change its operations. That
entry of approval also transformed what before had been just
the Kansas City Railway’s proposed document into a program
bearing the Railroad Administration’s imprimatur of approval.

                               3

                               a

     The Unions’ challenge to the Railroad Administration’s
approval of the revised Part 240 engineer certification program
is also timely.

    The Hobbs Act imposes distinct obligations on both the
agency and the party seeking judicial review that affect the
time for filing a petition. Understanding how those duties fit
together is key to determining the timeliness of the Unions’
challenge.

    As relevant here, the Hobbs Act provides:

    On the entry of a final order reviewable under this
    chapter, the agency shall promptly give notice thereof
    by service or publication in accordance with its rules.
    Any party aggrieved by the final order may, within 60
    days after its entry, file a petition to review the order
    in the court of appeals wherein venue lies.

28 U.S.C. § 2344.

    So the first requirement under the Hobbs Act, once a final
order is entered, falls on the agency’s shoulders: It must
“promptly give notice thereof by service or publication in
                                33
accordance with its rules.” 28 U.S.C. § 2344; see Public
Citizen v. Nuclear Regulatory Comm’n, 901 F.2d 147, 153
(D.C. Cir. 1990) (noting the Hobbs Act’s “requirement that
agencies promptly give notice of their final orders by service
or publication”) (citing 28 U.S.C. § 2344).

     The second duty under the Hobbs Act falls on the
aggrieved party seeking judicial review. That party must,
“within 60 days after [the final order’s] entry, file a petition to
review the order” in the appropriate court of appeals. 28 U.S.C.
§ 2344. The obligation to file within that sixty-day window “is
jurisdictional in nature, and may not be enlarged or altered by
the courts,” Energy Probe, 872 F.2d at 437 (internal quotation
marks omitted), at least absent “exceptional” circumstances,
JEM Broadcasting Co. v. FCC, 22 F.3d 320, 325 (D.C. Cir.
1994); id. at 326 (“[W]e have recognized exceptions to the
limitations period[.]”); see RCA Global Commc’ns, Inc. v.
FCC, 758 F.2d 722, 730 (D.C. Cir. 1985); see also Matson
Navigation Co. v. Department of Transp., 895 F.3d 799, 804
(D.C. Cir. 2018) (noting that the Hobbs Act’s limitations
“period can be tolled by the timely filing of a [permissible]
motion to reconsider”) (internal quotation marks omitted).

     When an agency publicly issues orders memorializing its
final actions, that satisfies the agency’s statutory duty of
providing prompt public notice of entry and generally makes
calculation of the time for filing petitions for review easy. In
that context, “the date of ‘entry,’ which commences the
running of the sixty-day period for filing for review under the
Hobbs Act, is the date on which the agency’s final decision is
signed and served” or published, Energy Probe, 872 F.2d at
438. See also Grier v. Department of Housing & Urban Dev.,
797 F.3d 1049, 1054 (D.C. Cir. 2015) (similar); Western
Union, 773 F.2d at 376–378. If the aggrieved party fails to file
                                34
a petition for review within the ensuing sixty days, the window
for judicial review will close. See Energy Probe, 872 F.2d at
438.

     Difficulties arise, though, when the agency internally
enters a final order but fails to provide the statutorily required
prompt public notice of that entry. Must petitioners be locked
out of the courts for failing to file their challenges within sixty
days of an unknown and secret agency act of entry—
notwithstanding the Hobbs Act’s clear prohibition on such
agency behavior?

    That is the problem we confront here. The Railroad
Administration’s entirely passive approval system already
presents significant challenges for aggrieved parties to
establish the finality of its orders, albeit ones that the Unions
were able to hurdle in this case. Yet this agency has made a
bad situation worse by completely abdicating its legal duty to
give prompt public notice of a passively approved final order’s
entry—or even to establish rules for the provision of such
public notice. Both of which the Hobbs Act plainly mandates.
28 U.S.C. § 2344; Public Citizen, 901 F.2d at 153; contrast
Oral Arg. Tr. 22:14–19 (Railroad Administration agreeing that
the approval “[w]as not made public”); id. 20:23–21:1
(Railroad Administration agreeing that its regulations do not
provide for it to “publish or give notice of * * * certification
approval[s]”).

     Nor does the Railroad Administration provide public
notice when it disapproves a proposal. See 49 C.F.R.
§ 240.103(c) (contemplating that disapprovals will be sent only
to “the [submitting] railroad in writing”). So while the
submitting party may be informed of the negative decision, no
one else is. As a result, no inference of approval can
reasonably be drawn from agency silence. Either way, the
                                 35
Railroad Administration’s regulatory scheme shields its final
decisions from public view. 3

     Because of the Railroad Administration’s wholesale
abandonment of its duty to formally serve or publish what it
agrees was a reviewable final and entered order, or even to
provide a known regulatory framework for the entry of its
approval decisions, the agency afforded the Unions—and the
public at large—no notice of the important and consequential
action it took when it approved Kansas City Railway’s plan for
the abbreviated training and certification of de México Railway
engineers.

    Instead, the Unions first learned from the Railroad
Administration that the agency had approved Kansas City
Railway’s revised engineer certification program on July 9,
2018, when the Unions witnessed Kansas City Railway put the
crew changes into effect “with [the Administration]’s presence
and support.” Unions Supp. Reply Br. 6; A.R. 2150; see 49
C.F.R. § 240.101 (requiring each railroad to have an approved


    3
       Strikingly, the Railroad Administration’s approval process is
so cryptic that it seems to have befuddled itself in this case. While
the Administration argues (without citation to the record) that its
order of approval was entered and the clock for filing started to run
on January 31, 2018, Railroad Admin. Br. 16; Railroad Admin.
Supp. Br. 3–4, the record indicates that Kansas City Railway
submitted its revised Part 240 program via email on January 19,
2018, A.R. 2083, despite the fact that the submission document itself
is dated January 1, 2018, A.R. 2047. So it would seem that the
Railroad Administration’s passive approval actually occurred after
thirty days had passed from the date of the email submission—that
is, on February 19, 2018. Compare 49 C.F.R. § 240.103(c), with
Railroad Admin. Supp. Br. 3–4.
                                 36
certification program “in effect prior to commencing
operations”); see also 49 U.S.C. § 20135. And the Unions
diligently filed their petition for review on September 4, 2018,
within sixty days of the agency’s public rollout of its approval
and support.

     The Unions did hear a few days earlier, on July 3, 2018
(during the Southern District of Texas litigation), that the
Railroad Administration had approved the revised engineer
program. See Transcript of Motion Hearing, supra, at 68–69.
But that claim did not come from the Railroad
Administration—the entity statutorily tasked with making the
entry that opens the petition-for-review window, 28 U.S.C.
§ 2344. It came only from Kansas City Railway’s Vice
President, during a motion hearing. See Transcript of Motion
Hearing, supra, at 68–69.           Nor was the Railroad
Administration even a party to that litigation. Regardless, the
Unions’ petition for review was also filed within sixty days of
that disclosure.4

    The Railroad Administration separately asserts that the
Unions personally learned of the approval no later than June


     4
       By the calendar, the petition was filed on the sixty-second day
from the July 3, 2018 disclosure. But the Sunday (sixtieth day) and
Monday (sixty-first day) of the Labor Day weekend do not count in
calculating the review period. See FED. R. APP. P. 26(a)(1)(C) (“[I]f
the last day [of the statutory review period] is a Saturday, Sunday, or
legal holiday, the period continues to run until the end of the next
day that is not a Saturday, Sunday, or legal holiday.”) Accordingly,
the petition is timely whether measured from July 3rd or July 9th of
that year, and we need not resolve whether the earlier disclosure on
July 3rd was sufficient to open the filing window regarding the
Railroad Administration’s approval.
                               37
27, 2018, pointing to a letter from the Unions to Kansas City
Railway on that date. See Railroad Admin. Br. 6. But that
letter states only that the Unions have “review[ed] * * * the
revised Part 240 Locomotive Engineer Certification Program”
submitted to it by the Railway, and consider it to have “several
glaring deficiencies in the requirements for foreign national
locomotive engineers[.]” Plaintiffs’ Memorandum of Points
and Authorities in Support of Motion for Temporary
Restraining Order and/or Preliminary Injunction at Exhibit 9,
Kansas City, 2018 WL 7253969 (No. 5:18-cv-00071), ECF
No. 7-9. The letter provides no hint that the Unions knew that
the Railroad Administration itself had actually approved
Kansas City Railway’s program.

     All in all, the parties agree that the agency gave notice of
the entry of its approval decision sufficient to open the
jurisdictional window for filing a petition for review no later
than July 9, 2018—the date de México engineers began driving
trains in the United States under the watching and
“support[ing]” eyes of the Railroad Administration, Unions
Supp. Reply Br. 6; A.R. 2150. Given that agreement, we need
not determine under what other particular and likely rare
circumstances an agency’s public actions alone will open the
Hobbs Act’s filing window. It suffices to say that the Unions’
petition was timely because it was filed within sixty days of the
Railroad Administration’s public rollout of its final approval of
the new engineer certification program.

                               b

     The Railroad Administration sees the timeliness issue
differently. Having completely hidden its already obscured
passive approval from public view, the Railroad
Administration argues that the Unions’ petition for review is
untimely because it was not filed within sixty days of the final
                               38
approval’s entry on February 19, 2018. As noted, that date was
more than four months before the agency gave any public
indication of its action that could have alerted the Unions of the
approval’s existence and entry. As the Administration would
have it, by dropping the ball, it has successfully hidden the ball
from judicial review.

     But that is not how the Hobbs Act works. “[B]efore any
litigant reasonably can be expected to present a petition for
review” under the Hobbs Act, “he first must be put on fair
notice” of the reviewable agency action’s existence. Public
Citizen, 901 F.2d at 153. So even “[]though the Hobbs Act’s
limitations period is “jurisdictional, * * * self-evidently the
calendar does not run until the agency has decided a question
in a manner that reasonably puts aggrieved parties on notice
of” the challenged agency action. RCA Global Commc’ns, 758
F.2d at 730); see JEM, 22 F.3d at 326 (same); cf. Grier, 797
F.3d at 1053–1054 (Where an agency’s regulations do not
establish when an order is “entered” for purposes of a
jurisdictional statute, it is “untenable” for it to argue that the
limitations period began when the order was signed but not
served, because that “would permit an agency to shorten a
would-be petitioner’s review period by delaying service[.]”)
(relying on cases construing “entry” under the Hobbs Act).

     This is not the first time an agency has flouted the Hobbs
Act’s notice-upon-entry requirement and then asked us to
dismiss a petition as jurisdictionally time-barred. In Public
Citizen, the Nuclear Regulatory Commission ignored the
Hobbs Act’s “requirement that agencies promptly give notice
of their final [reviewable] orders by service or publication,”
and instead “mere[ly] place[d] a decision in [the] agency’s
public files, without any other announcement[.]” 901 F.2d at
153. We rejected the Commission’s argument that such
                              39
“placement” was sufficient to “start the clock running for
review[.]” Id. “Potential petitioners,” we reasoned, “cannot be
expected to squirrel through the Commission’s public
document room in search of papers that might reflect final
agency action.” Id.

    The Hobbs Act instead imposes a sixty-day “filing
window” rather than “a filing deadline,” Western Union, 773
F.2d at 377, and we have repeatedly held that the filing window
does not open until the agency “put[s] aggrieved parties on
reasonable notice of the” action they seek to challenge, JEM,
22 F.3d at 326 (citing Eagle-Picher Indus. v. EPA, 759 F.2d
905, 911–915 (D.C. Cir. 1985); and RCA Global Commc’ns,
758 F.2d at 730).

     Of course, agencies subject to the Hobbs Act can by
regulation combine the distinct “entry,” contemplated for
jurisdiction to attach, and the separately mandated public
notice. The FCC, for one, has done just that. 47 C.F.R.
§ 1.103(b) (“Commission action shall be deemed final, for
purposes of seeking * * * judicial review, on the date of public
notice,” which is “publication in the Federal Register,” id.
§ 1.4(b)(1)). When an agency does so, the filing of a petition
for review before such publication is premature and does not
confer jurisdiction, because the agency decision, by definition,
is not “final” and entered within the meaning of the Hobbs Act.
See Council Tree Commc’ns, Inc. v. FCC, 503 F.3d 284, 287–
290 (3d Cir. 2007); Western Union, 773 F.2d at 376–377.

    This, however, is the unusual case where an agency has,
without public knowledge, taken an action that is both final and
entered, but for which its regulations provide no notice by
service or publication, in direct violation of the Hobbs Act’s
commands. Because (as the Railroad Administration agrees)
the Unions’ petition was filed after the Railroad
                               40
Administration’s approval was finalized and entered, it was not
filed too early.

     Neither was the petition filed too late. As noted, while the
sixty-day period is jurisdictional, Western Union, 773 F.2d at
377, that clock does not start running prior to the agency giving
“fair notice” of the entry of its action. Public Citizen, 901 F.2d
at 153 (unnoticed final agency action cannot “start the clock
running for review, particularly in view of the Hobbs Act’s
requirement that agencies promptly give notice of their final
orders by service or publication, 28 U.S.C. § 2344”); RCA
Global Commc’ns, 758 F.2d at 729–731; JEM, 22 F.3d at 326
(collecting cases).

     By virtue of the Railroad Administration’s presence and
support, in the company of the Unions, at Kansas City
Railway’s public rollout of the approved crew changes on July
9, 2018, the Unions explain that the Railroad Administration’s
actions alerted them to the agency’s final approval and entry of
the Railway’s modified engineer certification program.

     To be clear, it is doubtful that the Unions’ observation of
the Railroad Administration’s on-the-scene actions constituted
the formal, statutorily required public notice under the Hobbs
Act. But the only question here is whether Public Citizen’s
fair-notice-of-entry requirement for opening the jurisdictional
window to file a petition for review of hidden agency action
was satisfied, 901 F.2d at 153. On these unusual facts—and in
particular because of the agency’s unique, entirely passive
approval construct—we accept the parties’ agreement that the
Railroad Administration going public with its approval of and
support for the revised engineer certification program in the
presence of the Unions on July 9, 2018, opened the filing
window. And this petition was filed within sixty days of that
date.
                               41
                                4

     The dissenting opinion agrees that the Railroad
Administration’s approval of Kansas City Railway’s revised
engineer program constitutes final agency action that was
entered (albeit in an unreasonable manner, given the non-
public nature of the entry). See Dissent Op. at 1–3.
Nonetheless, the dissenting opinion argues that we lack
jurisdiction over the agency’s enshrouded final approval solely
because the Railroad Administration subsequently defied the
Hobbs Act’s mandate that it promptly give formal notice by
service or publication of its entry. See Dissent Op. at 3. The
dissenting opinion contends that the consequence of the
agency’s secrecy and failure to give notice did not simply
“delay[] the filing period[,]” but also “invalidated the
jurisdictional effect of the approval’s entry,” wholly insulating
the agency action from judicial review. Dissent Op. at 3.

     But nothing in the Hobbs Act supports elevating the
agency’s independent discharge of its formal notice duty to a
freestanding jurisdictional prerequisite in that way.

     Even when a statutory requirement sits in the company of
other jurisdiction-conferring provisions, mere proximity alone
will not make it jurisdictional. Gonzalez v. Thaler, 565 U.S.
134, 147 (2012) (“Mere proximity will not turn a rule that
speaks in nonjurisdictional terms into a jurisdictional hurdle.”);
Sebelius v. Auburn Reg’l Med. Ctr., 568 U.S. 145, 155 (2013)
(similar). Rather, courts will treat statutory elements as
jurisdictional only if “the Legislature clearly states that a
threshold limitation * * * shall count as jurisdictional[.]”
Arbaugh v. Y & H Corp., 546 U.S. 500, 515 (2006); Kaplan v.
Central Bank of the Islamic Republic of Iran, 896 F.3d 501,
512 (D.C. Cir. 2018).
                                42
     For example, in Gonzalez, the Supreme Court looked at
the certificate of appealability requirement in the Antiterrorism
and Effective Death Penalty Act, 28 U.S.C. § 2253, subsection
by subsection and then paragraph by paragraph to parse out
which components are jurisdictional and which are not. 565
U.S. at 140–148 (holding that 28 U.S.C. §§ 2253(a), 2253(b),
and 2253(c)(1) are jurisdictional, but Section 2253(c)(3) is
not).

     In the Hobbs Act, the obligation on the agency to promptly
give notice of or to publish the final order upon entry appears
in a standalone sentence at the beginning of the statutory
section: “On the entry of a final order reviewable under this
chapter, the agency shall promptly give notice thereof by
service or publication in accordance with its rules.” 28 U.S.C.
§ 2344. Notice, service, and publication are not mentioned
again in Section 2344. Congress, in other words, placed no
“clear jurisdictional label” on the separate statutory duty of the
agency to provide prompt notice of its final, entered orders, nor
did it otherwise hinge jurisdiction on the agency’s compliance.
Kaplan, 896 F.3d at 512 (quoting Reed Elsevier, Inc. v.
Muchnick, 559 U.S. 154, 162 (2010)).

     Rather, it is the next sentence that packs the jurisdictional
punch. It specifically conditions the availability of judicial
review on (i) a final order, (ii) its entry, and (iii) the aggrieved
party filing its petition in the appropriate court of appeals
within a sixty-day window. 28 U.S.C. § 2344 (“Any party
aggrieved by the final order may, within 60 days after its entry,
file a petition to review the order in the court of appeals
wherein venue lies.”); Western Union, 773 F.2d at 377
(Section 2344 establishes a sixty-day “filing window,” not “a
filing deadline”).
                                43
    To be sure, Congress presupposed that agencies would
comply with the public notice or service command of the first
sentence so that the jurisdictionally required “entry” would be
proximate to the notice necessary to file a petition. And where
agencies issue formal orders that are signed and served, such
orders are deemed “entered” that day, ensuring that those
subject to the orders have fair notice of the opening of the filing
window. Energy Probe, 872 F.2d at 438; Grier, 797 F.3d at
1054. After all, without the agency providing notice of its
decision, how else would affected parties even know they are
aggrieved? But that does not make the agency’s provision of
post-entry notice itself a jurisdictional element.

     Also of jurisdictional note, the obligation to provide notice
is not “a burden that” the parties affected by agency action
“bear[.]” Gonzalez, 565 U.S. at 144. The petitioning party,
who “may have done everything required of him by law,” has
“no control over” the agency’s nonfeasance. Id. Nothing in
the statutory text or structure supports assigning jurisdictional
consequence to the petitioner’s agency-induced haplessness.
And the “strong presumption” in favor of judicial review
weighs heavily against making the agency’s flouting of a
statutory requirement the very instrument for locking the
agency’s challengers out of court. See Guerrero-Lasprilla, 140
S. Ct. at 1069.

     The dissenting opinion points to the Supreme Court’s
recent decision in Rotkiske v. Klemm, 140 S. Ct. 355 (2019), as
support for the general proposition that courts should not
rewrite statutory limitations periods to include an across-the-
board discovery-rule limitation that Congress did not enact.
See Dissent Op. at 2. We agree. But this case is about the
provision of statutorily required agency notice of its action, not
plaintiffs’ discovery of their injury caused by an asserted legal
                               44
error in that agency action. Contrary to the dissenting
opinion’s assumption (Dissent Op. 2–3), those are not the same
things.

     Plus, the Supreme Court in Rotkiske expressly left open
the “application of equitable [tolling] doctrines[.]” 140 S. Ct.
at 361 n.3. That would seem to include the very reasonable
notice principle adopted by this court in Public Citizen,
endorsed by the dissenting opinion (at 3–4) and applied here,
where an agency has openly flouted its statutory duty to
provide formal notice of its indiscernible, entirely passive, and
unwritten entry process.

      More specifically, in Rotkiske, the Supreme Court
declined to read the limitations period in the Fair Debt
Collection Practices Act that permitted certain suits to “be
brought * * * within one year from the date on which the
[statutory] violation occurred,” 15 U.S.C. § 1692k(d), as never
running in any case until “the date the [violation] is discovered
[by the plaintiff].” 140 S. Ct. at 360. The Court stressed that
it is not for the judiciary to “second-guess” the legislature’s
decision not to adopt an across-the-board discovery rule to start
the filing period, and that courts instead must “simply enforce
the value judgments made by Congress.” Id. at 361
(emphasizing that “many [other] statutes included provisions
that, in certain circumstances, would begin the running of a
limitations period upon the discovery of a violation, injury, or
some other event”) (citing examples).

     This case bears little resemblance to the issue decided in
Rotkiske. The Unions do not seek, and we do not read into the
Hobbs Act, an across-the-board—or any—“de facto discovery
rule.” Dissent Op. at 2. Here, it was Congress, not this court,
that mandated in no uncertain terms that covered agencies
promptly provide notice by service or publication after entering
                              45
their orders. 28 U.S.C. § 2344. We simply give the same effect
to that statutory notice requirement as Public Citizen did,
hinging the opening of the window for filing a petition for
review on the agency providing some reasonable form of notice
to the Unions, and not on the Unions’ independent discovery
of agency action.

     Likewise, it was Congress that declined to make
jurisdictional the agency’s post-entry provision of notice. By
applying Public Citizen’s fair-notice-of-entry requirement to
the distinctive facts of this record and the agency’s unique
purely passive-approval process, and accepting the parties’
agreement that it was eventually satisfied, we do no surgery on
the Hobbs Act—certainly none that differs from the dissenting
opinion’s agreement that “reasonabl[e]” notice is required,
Dissent Op. at 3–4. Holding that the Railroad Administration
had to provide “fair notice” to be entitled to repose, Public
Citizen, 901 F.2d at 153, “enforce[s,]” rather than supplants,
“the value judgments made by Congress” regarding this
limitations period, Rotkiske, 140 S. Ct. at 361. To the extent
the dissenting opinion dismisses the application of a “fair
notice” requirement under the Hobbs Act, it is at war with
thirty-year-old circuit precedent that binds this panel.
Compare Dissent Op. at 2–3 (“More fundamentally, the court’s
‘fair-notice-of-entry doctrine’ contravenes the Hobbs Act,
which keys commencement of the sixty-day filing period to
‘entry’ itself, 28 U.S.C. § 2344, and not to when aggrieved
parties receive ‘fair notice’ of such entry.”), with Public
Citizen, 901 F.2d at 153 (petitioner “first must be put on fair
notice” of the agency’s entry of its action before the sixty-day
filing period runs).

    Of course, if the notice requirement were jurisdictional,
our hands would be tied. See e.g., Arbaugh, 546 U.S. at 513–
                               46
516. The agency’s failure to provide such notice would be a
jurisdictional defect fatal to the Unions’ petition. But Congress
did not make the provision of notice itself a jurisdictional
hurdle—a reading of the statute with which the dissenting
opinion agrees. Dissent Op. at 5 (agreeing that the agency’s
provision of notice, “on its own, is of no jurisdictional
consequence”). Yet by fusing together the reasonable
provision of notice and the jurisdictional requirement of an
entry—such that only a “reasonably” noticed entry creates
jurisdiction, id. at 4—the dissenting opinion necessarily
elevates the notice requirement to jurisdictional effect. That is
Congress’s job, not the courts’.

     The dissenting opinion acknowledges that its approach
would allow agencies to evade judicial review of their final
actions just by violating the Hobbs Act’s notice requirements.
Dissent Op. at 5. But it says not to worry because “most
agencies * * * sensibly comply with their Hobbs Act
obligations.” Dissent Op. at 5–6 (citing examples). Thank
goodness they do. But that is no help to those parties aggrieved
by a recalcitrant agency’s statutory defiance.

     The dissenting opinion would relegate those parties to the
extraordinary remedy of mandamus relief. Dissent Op. at 6;
see Dunlap v. Presidential Advisory Comm’n on Election
Integrity, 944 F.3d 945, 950 (D.C. Cir. 2019) (Mandamus relief
is a “drastic and extraordinary remedy reserved for really
extraordinary causes.”) (quoting Cheney v. United States Dist.
Court, 542 U.S. 367, 380 (2004)); see also id. (noting that
mandamus petitioners must demonstrate, among other things,
“a clear and indisputable right to” the relief they seek)
(emphasis added).

     That approach, however, is at least a half—if not a total—
victory for the misbehaving agency. Requiring aggrieved
                               47
parties to navigate the convoluted mandamus road would long
delay judicial review and confine it to those few (if any)
aggrieved parties who have the resources, time, and legal
wherewithal to first pursue mandamus and then, months and
months later, start the judicial review process. Still worse,
because the Railroad Administration has also disregarded the
statutory obligation to establish “rules” for the provision of
notice, 28 U.S.C. § 2344, there might first need to be a
mandamus action to require the creation of such rules and—if
that succeeded—another mandamus action to compel notice in
accordance with those rules. And only then could a petition for
review follow.

     It is hard to wring that crabbed route to judicial review out
of the Hobbs Act’s text. Or to explain how the Unions’ petition
is premature when it challenges an (undisputedly) final and (as
the agency acknowledges) entered Administration order that
has been in operation now for over two and a half years,
allowing engineers not properly certified for safety to operate
hundreds of northbound and southbound train trips every
month on domestic rail lines. It is even harder when analyzed
against the strong presumption in favor of judicial review of
Railroad Administration action. See Guerrero-Lasprilla, 140
S. Ct. at 1069.

                                5

     The Railroad Administration separately argues that the
Unions’ petition does not actually include a challenge to its
approval of Kansas City Railway’s modified engineer
certification program. Railroad Admin. Supp. Br. 3. As the
Railroad Administration sees it, the Unions’ petition fails to
specifically point to the Part 240 approval and, instead, raises
only a general challenge to the agency’s “purported decision”
to allow de México Railway “to operate freight trains in the
                                48
United States,” Railroad Admin Br. 14, without first requiring
de México “to submit its own engineer certification program,”
Railroad Admin. Supp. Br. 3.

     That argument only half reads the petition. Alongside
those more general complaints, the Unions’ petition also
specifies that its challenge includes, among other things,
“the * * * certification of” de México Railway’s “non-U.S.
locomotive engineers and conductors, as well as the review,
vetting and approval of such * * * certification by” the
Railroad Administration. Petition at 3. That language directly
challenges the Railroad Administration’s approval of Kansas
City Railway’s modified engineer certification program.
Especially since a petitioner’s intent to seek review of a
specific order need only be “fairly inferred from the petition
for review or other contemporaneous filings[.]” Entravision
Holdings, LLC v. FCC, 202 F.3d 311, 313 (D.C. Cir. 2000).
The Unions’ petition satisfies that requirement.

     To the extent that the Railroad Administration separately
objects that the Unions did not “attach to the petition, as
exhibits, copies of the” Railroad Administration’s approval of
the modified Part 240 engineer certification program, Railroad
Admin. Br. 14 (quoting 28 U.S.C. § 2344), that is pure
chutzpah. It was the Railroad Administration that chose to act
through a passive approval process and entirely failed to
provide the statutorily required notice of its final order’s entry.
So there was no paper that the Unions could attach. It should
go without saying that we will not dismiss the petition for
failing to attach a document that, by agency design, does not
exist. But apparently we do have to say it after all.
                              49
                           *****

    For all of those reasons, we have jurisdiction under the
Hobbs Act to address the Unions’ timely petition from the
Railroad Administration’s final approval of Kansas City
Railway’s modified engineer certification program.

                               B

     The Unions’ petition also challenges several other actions
of the Railroad Administration relating to the Railroads’
implementation of the new crew change procedures. First, the
Unions seek to overturn the agency’s acquiescence in Kansas
City Railway’s application of its existing Part 242 conductor
certification program to de México Railway conductors.
Second, they argue that the Railroad Administration
unlawfully modified or reassigned Kansas City Railway’s
brake-test waiver by permitting de México Railway workers to
operate northbound trains without performing a Class I brake
test at the International Bridge. Third, the Unions broadly seek
review of multiple other Railroad Administration failures to act
pertaining to Kansas City Railway’s revised crew change
procedures.

     Because the administrative record does not show that the
Railroad Administration entered a final approval for any of
those actions, we do not have jurisdiction under the Hobbs Act
to review them.

                               1

     Recall that, unlike the engineer certification program, the
Railroad Administration’s August 2017 audit concluded that
“no changes [were] necessary to” Kansas City Railway’s
existing Part 242 conductor program to enable it to certify de
                               50
México Railway conductors under an abbreviated training
curriculum. J.A. 390. So Kansas City Railway never
submitted a revised, modified, or amended (or even
resubmitted its existing) conductor certification program to the
Railroad Administration for approval. And the Railroad
Administration did not review (let alone approve) any
modifications to that conductor certification program.

     So there is nothing in the administrative record to point to
as a reviewable final agency action taken by the Railroad
Administration with respect to Kansas City Railway’s
certification of de México Railway’s conductors under an
abbreviated training program.

     To be sure, the Railroad Administration took final and
reviewable agency action in 2012 when it first approved
Kansas City Railway’s conductor certification program. But
the Unions do not purport to challenge that approval, nor could
they timely do so at this juncture.

     Neither does the Railroad Administration’s audit in 2017
amount to a final and reviewable agency action. The audit
itself reached “a merely tentative or interlocutory” decision on
the Railroad’s proposed cross-border program. Bennett, 520
U.S. at 178. The internal audit was sent from two Railroad
Administration officials to another official, and it concluded by
stating that, subject to further review, the audit team
“believe[s]” that Kansas City Railway “has completed the due
diligence necessary to certify [de México] engineers and
conductors.” J.A. 391.

     The Railroad Administration explains that the audit
represents only “the preliminary views of a subordinate agency
official,” and not a final determination of the Administration
itself. Railroad Admin. Supp. Br. 6. We agree. Without any
                              51
showing that the recipient of the audit or any official with
authority to bind the Railroad Administration ever ratified the
audit team’s conclusions, we cannot conclude that the audit
constitutes final agency action. See, e.g., Holistic Candlers &
Consumers Ass’n v. FDA, 664 F.3d 940, 944 (D.C. Cir. 2012);
cf. California Cmtys., 934 F.3d at 636; Her Majesty the Queen
in Right of Ontario v. EPA, 912 F.2d 1525, 1531–1532 (D.C.
Cir. 1990).

     True, Kansas City Railway began, after the audit, to allow
de México Railway conductors it had certified to operate on its
tracks in the United States. But without more, “[p]ractical
consequences” independently put into effect by private parties
alone “are insufficient to bring an agency’s conduct under our
purview.” Independent Equip. Dealers Ass’n v. EPA, 372 F.3d
420, 428 (D.C. Cir. 2004).

     The Unions nonetheless argue that there was final agency
action in that, by allowing Kansas City Railway to operate with
de México Railway conductors that it had certified, the
Railroad Administration must have implicitly waived
regulatory and statutory requirements that, in the Unions’ view,
required de México Railway to obtain its own approved
Part 242 certification program for conductors. See Unions
Reply Br. 9–10.

     But the administrative record contains no sign of final
agency action whatsoever granting such a waiver, either
actively or passively. As far as the record shows, Kansas City
Railway’s certification of conductors seems to be purely a
decision of its own making.

    At bottom, the Unions’ challenge is to what they see as the
Railroad Administration’s failure to enforce the laws
governing conductor certifications against Kansas City
                               52
Railway and de México Railway. That argument runs up
against the “well-established tradition” that “an agency’s
decision not to prosecute or enforce is generally committed to
an agency’s absolute discretion.” Department of Homeland
Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1906
(2020) (internal quotation marks omitted). And from a
practical perspective, a challenge like the Unions’ that targets
an agency’s refusal to act, leaves courts without an “action to
provide a focus for judicial review.” Id. (formatting modified).
Relabeling that same inaction a “waiver” of legal requirements
does not suddenly make the unreviewable reviewable.

     For those reasons, there is no final agency action regarding
Kansas City Railway’s decision to begin certifying de México
conductors under its preexisting Part 242 conductor
certification program, and we lack jurisdiction under 28 U.S.C.
§ 2342 to entertain the Unions’ objections to that program’s
operation.

                               2

     The Unions also seek our review of the Railroad
Administration’s asserted indication that Kansas City
Railway’s brake-test waiver can also be used by de México
Railway conductors. The Unions point in particular to an
internal June 6, 2018 Railroad Administration email noting that
Kansas City Railway “currently operates under a [brake-test]
waiver” for northbound trains, and that, under the new crew
change procedure, “this will still be the case.” J.A. 559; see
also Oral Arg. Tr. 51:17–23.

     The Railroad Administration argues that the email is
nothing more than a lone staffer’s response to “questions about
how the new crew change procedures work.” Railroad Admin.
Br. 18.   That is in some tension with the Railroad
                              53
Administration’s repeated arguments in this court that,
“[c]ontrary to the [U]nions’ views[,] * * * the existing brake
test waiver applies to all trains operating on [Kansas City
Railway’s] tracks at the border, including trains operated by
[de México Railway] crews (who are certified under [Kansas
City Railway’s] engineer and conductor certification
programs).” Railroad Admin. Br. 22. And the Railroad
Administration does not dispute its own knowledge that de
México Railway crewmembers are, and have been for quite
some time, using Kansas City Railway’s brake-test waiver for
their own operations.

     But like the conductor certifications, the record shows
only that the Railroad Administration has knowingly allowed
the Class I brake-test waiver’s use by de México Railway
crews. Nothing in the administrative record surfaces an actual
final action by the agency granting an extension of Kansas City
Railway’s brake-test waiver or otherwise assigning it to de
México Railway. Nor can counsel’s argument to this court
retroactively create final agency action that the administrative
record itself does not reveal. Cf. SEC v. Chenery Corp., 332
U.S. 194, 196 (1947). “[W]e have held often enough that when
an agency has not yet made any determination or issued any
order imposing any obligation, denying any right, or fixing any
legal relationship, the agency action was not reviewable.”
Independent Equip., 372 F.3d at 427 (formatting modified).
Neither may we review the Railroad Administration’s failure
to bring an enforcement action regarding the asserted violation
of brake-test regulations. See Regents, 140 S. Ct. at 1906.

                               3

     Apart from those discrete objections to the Railroad
Administration’s actions or inaction, the Unions describe their
petition as more broadly challenging the Railroad
                               54
Administration’s approval of a “Pilot Program allowing a
Mexican railroad company, using Mexican train crews, to
regularly operate freight trains within the United States free
from U.S. rail safety requirements.” Unions Br. 1. In addition
to the engineer certifications, conductor certifications, and
expanded brake-test waiver, the Unions assert that the Railroad
Administration has wrongly permitted de México Railway
crews to operate in violation of agency regulations governing
communication protocols and hours of service restrictions,
without going through the necessary procedural requirements
for granting regulatory waivers. See Unions Br. 43–47.

     The Railroad Administration, for its part, categorically
denies that it has adopted a “so-called ‘Pilot Program,’” and
denies that it has granted any regulatory waivers, de facto or
otherwise. Railroad Admin. Br. 11–12, 15–20. Far from it, the
Railroad Administration insists that de México Railway must
fully comply with all regulations when operating within the
United States, and that the Administration “may initiate
enforcement proceedings” if it does not. See Railroad Admin.
Br. 22.

     Because the Unions’ arguments sound in terms of a failure
to enforce the law, rather than final-action review, we likewise
lack jurisdiction to entertain these portions of the petition for
review. The Unions have failed to identify anything in the
administrative record evidencing that the Railroad
Administration has either excused any of the railroads from
complying with the regulations, or otherwise reached a final
determination that all planned and ongoing operations are in
full compliance with statutory and regulatory requirements.
Instead, the Unions simply assert that the de México Railway
crews have been or must be violating certain specific safety
                              55
regulations and fault the Railroad Administration for not
stopping them.

     For example, the Unions assert that the Railroad
Administration has provided “[u]nlawful relief from” various
hours of service regulatory provisions. Unions Br. 43–47. But
as evidence of such “unlawful relief,” the Unions point only to
the absence of any agency documentation definitively proving
that the crews are (or are not) in compliance. See Unions
Br. 43–47.

     The Unions also cite Kansas City Railway’s July 2017
draft implementation document entitled “Int[ernational] Crew
Hours of Service Reporting Use Case.” Unions Br. 46–47;
J.A. 362. The Unions insist that the draft Railway plan “is
patently inadequate in scope and substance” to ensure
compliance by de México Railway crews with hours of service
limitations. Unions Br. 46.

     But nothing in the administrative record shows that the
Railroad Administration ever finally approved—either
affirmatively or passively—the Railway’s draft document.
Neither is there any evidence that the Administration has
otherwise made a final determination that ongoing operations
comply with any or all of the regulatory limitations on hours of
service. Nor does anything in the record indicate that the
Railroad Administration “exempted [de México Railway]
crews from hours-of-service regulations when operating within
the United States,” or otherwise “granted” the Railroads “de
facto general waiver[s]” from other applicable regulations,
Railroad Admin. Br. 22.

     At bottom, what the Unions denominate final agency
action granting a regulatory waiver is, on this record, nothing
more than the Railroad Administration’s failure to bring
                               56
enforcement actions for alleged regulatory violations.
Whatever tools parties may have to prod an agency off the
regulatory sidelines, they do not on this record include judicial
review under the Hobbs Act.

     To be sure, Kansas City Railway did share with the
Railroad Administration its “International Crew Pilot
Program” early on as it went about developing its proposal for
new crew change procedures. See, e.g., J.A. 44–47. Also, in a
June 6, 2018 internal email, a Railroad Administration official
stated that “the plan” had been reviewed, and that “Mexican
crews will be in compliance with all [Railroad Administration]
regulations.” J.A. 559.

    But that is of no help to the Unions. Reviewing a plan is
not the same as approving or adopting it. Back and forth
communications between a regulatory official and the party it
regulates are commonplace. That does not transform every
document drafted by the regulated party or comment made by
a regulatory official into final action by the agency. Internal
Railroad Administration communications expressing opinions
about whether various features of the cross-border program
would comply with regulatory requirements do not “mark the
consummation of the agency’s decisionmaking process” that
could confer legally enforceable rights on the Railroads.
Bennett, 520 U.S. at 178 (internal quotation marks omitted).

    There is little doubt that the Railroad Administration’s
shadowy and unwritten processes make it difficult for
aggrieved parties to navigate the Hobbs Act’s jurisdictional
constraints. But this court cannot exercise judicial review of
agency action beyond what Congress permits. Nor does this
                                 57
case involve a challenge to the Railroad Administration’s
procedures themselves.5

                                III

     Finally, we turn to the merits of the Unions’ challenge to
the one final agency action over which we have jurisdiction—
the Railroad Administration’s approval of Kansas City
Railway’s revised engineer certification program that allows
that railroad to use its abbreviated program to certify de
México Railway engineers.             Because the Railroad
Administration chose to passively approve that program
without any explanation or discernible reasoning, the track to
invalidation is short.

     In reviewing final orders under the Hobbs Act, we use “the
familiar standards [of review] set forth in the” Administrative
Procedure Act, see 5 U.S.C. § 706. BNSF Ry. Co. v.
Department of Transp., 566 F.3d 200, 203 (D.C. Cir. 2009);
see also Interstate Commerce Comm’n v. Brotherhood of
Locomotive Eng’rs, 482 U.S. 270, 282 (1987) (While the
Hobbs Act includes a general grant of jurisdiction, “it is the
Administrative Procedure Act * * * that codifies the nature and
attributes of judicial review.”).

     The APA, in turn, “requires agencies to engage in
reasoned decisionmaking,” Regents, 140 S. Ct. at 1905
(internal quotation marks omitted), and mandates that


    5
       Because we conclude that none of these three challenges arises
from a final agency action, we need not address the parties’
arguments about the timeliness of these portions of the Unions’
petition.
                              58
reviewing courts “hold unlawful and set aside agency action,
findings, and conclusions found to be * * * arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law,” 5 U.S.C. § 706(2)(A). To put a finer
point on it, the APA requires agencies to reasonably explain to
reviewing courts the bases for the actions they take and the
conclusions they reach. See Regents, 140 S. Ct. at 1907.

     The Railroad Administration’s approval of Kansas City
Railway’s Engineer Certification Program empowered that
Railway, for the first time, to train and certify engineers of a
different and foreign railroad over which it exercises no
apparent control—de México Railway—under an abbreviated
curriculum.

      Recall that de México Railway is only a foreign affiliate
of Kansas City Railway, and there is no indication that Kansas
City Railway exerts any control over de México Railway or the
performance of its railway crews. Cf. Agency for Int’l Dev. v.
Alliance for Open Soc’y Int’l, Inc., 140 S. Ct. 2082, 2087
(2020) (“[I]t is long settled as a matter of American corporate
law that separately incorporated organizations are separate
legal units with distinct rights and obligations.”) (citations
omitted); id. (“Even though the foreign organizations have
affiliated with the American organizations, the foreign
organizations remain legally distinct from the American
organizations.”). Indeed, as part of developing the new crew
change operations, the Railroads separately had to grant de
México Railway operating rights over their 9.2-mile stretch of
track in the United States.

     Yet Railroad Administration regulations require “[e]ach
railroad” operating within the United States to submit to and
receive from the Railroad Administration approval for its
training program for the engineers it employs. 49 C.F.R.
                                 59
§ 240.101(a) (“Each railroad subject to this part shall have in
effect a written program for certifying the qualifications of
locomotive engineers.”); id. § 240.101(b) (“Each railroad shall
have such a program in effect prior to commencing
operations.”); id. § 240.103 (“Each railroad shall submit its
written certification program and a description of how its
program conforms to the specific requirements of this part
* * * and shall submit this written certification program for
approval at least 60 days before commencing operations.”)
(emphases added).

     The statute likewise instructs the Railroad Administration
to “establish a program requiring the licensing or
certification * * * of any operator of a locomotive” “through
review and approval of each railroad carrier’s operator
qualification standards[.]” 49 U.S.C. § 20135(a), (b)(1)
(emphasis added); see also id. § 20102 (defining a “railroad
carrier” as “a person providing railroad transportation”). To be
sure, the statute also allows the Railroad Administration, “upon
petition by a group of commonly controlled railroad carriers
that the [Administration] determines is operating within the
United States as a single, integrated rail system,” to “by order
treat the group of railroad carriers as a single railroad carrier[.]”
Id. § 20102(3). But there has been no such petition, let alone
order making those determinations, in this case.

     Also, once a certification program is approved, Railroad
Administration regulations require each railroad that crosses an
operating-revenue threshold to satisfy various monitoring and
reporting requirements “concerning the administration of its
program for responding to detected instances of poor safety
conduct by” the engineers it certifies. See 49 C.F.R. § 240.309
(emphasis added); see also id. § 1201.1-1 (classifications of
railroad carriers).
                              60
     As the Unions see it, the Railroad Administration acted
unlawfully when it formally approved Kansas City Railway’s
modified engineer certification program, allowing that railroad
to fulfill de México Railway’s independent statutory and
regulatory certification obligations. The Unions also challenge
the approval on the ground that it permits Kansas City Railway
to rely on de México Railway’s engineers’ operating
experience in Mexico—experience gained under a different
regulatory regime—as a basis for providing only an
abbreviated training protocol normally reserved for engineers
previously certified under federal regulations. Unions Reply
Br. 23; see 49 C.F.R. §§ 240.225, 242.125.

     By virtue of the Railroad Administration’s passive
approval system and the complete absence of any
accompanying explanation for the agency’s approval of
Kansas City Railway’s modified engineer certification
program, the administrative record is devoid of any
explanation or reasoning for the administrative steps taken and
legal determinations made by the agency in approving the
engineer certification program. Likewise, in searching the
administrative record for the rationale by which the agency
allowed Kansas City Railway to certify the engineers of
another railroad, despite the former’s apparent lack of control
over de México Railway’s crew members, we come up empty-
handed. And in a hunt for the reason that service under a
foreign regulatory system was credited to allow an abbreviated
certification program, we hear only crickets.

     All that we have are the Railroad Administration’s
attorneys’ arguments to this court that “it is sufficient for
[Kansas City Railway] to certify [de México Railway] crews
under its own engineer * * * certification program[,]” and the
                               61
approved program “compl[ies] with [Railroad Administration]
requirements[.]” Railroad Admin Br. 22.

     That will not do. Putting aside the entirely conclusory
nature of the arguments, “[i]t is a ‘foundational principle of
administrative law’ that judicial review of agency action is
limited to ‘the grounds that the agency invoked when it took
the action.’” Regents, 140 S. Ct. at 1907 (quoting Michigan v.
EPA, 576 U.S. 743, 758 (2015)). The “basic rule here is clear:
An agency must defend its actions based on the reasons it gave
when it acted.” Id. at 1909.

     Here, there are no reasons. Instead, what we confront in
this case is a total explanatory void. There is no reason—not
one word—in the administrative record for the Railroad
Administration’s material and consequential decisionmaking
on important matters of railroad safety. Not even Kansas City
Railway’s certification program itself, as submitted to the
agency, provides an explanation for the relevant
determinations that the Agency presumably reached. When the
reasons that an agency provided at the time it took the
challenged action “are inadequate[,]” the agency’s action may
not be sustained. See, e.g., Regents, 140 S. Ct. at 1907; City of
Oberlin v. FERC, 937 F.3d 599, 605 (D.C. Cir. 2019). The
Railroad Administration’s reasons in this case are even less
than “inadequate.” They are non-existent.

     Vacatur “is the normal remedy” when we are faced with
unsustainable agency action. Allina Health Servs. v. Sebelius,
746 F.3d 1102, 1110 (D.C. Cir. 2014). In this case, the
Railroad Administration has neither asked the court nor given
us any reason to depart from that standard course of action. So
we vacate and remand for the Railroad Administration either
to “offer a fuller explanation of the agency’s reasoning at the
time of the agency action,” or to “deal with the problem afresh
                              62
by taking new agency action.” Regents, 140 S. Ct. at 1907–
1908 (formatting modified).

                              IV

     For all of those reasons, we grant the Unions’ petition for
review as to the Railroad Administration’s approval of Kansas
City Railway’s use of its modified Part 240 engineer
certification program to train and certify de México Railway
engineers, and we vacate and remand for further agency action
consistent with this opinion. We otherwise dismiss the petition
for lack of jurisdiction.

                                                   So ordered.
     TATEL, Circuit Judge, concurring in part and dissenting in
part: I share my colleagues’ exasperation with the Railroad
Administration’s conduct and agree with much of the court’s
excellent analysis. But because I believe we lack jurisdiction at
this time to review the revised engineer certification program,
I reluctantly dissent from that portion of the court’s opinion.

     The Hobbs Act requires that “[o]n the entry of a final
order,” an agency “shall promptly give notice thereof by
service or publication in accordance with its rules” and that a
party aggrieved by that order must file any petition for review
“within 60 days after its entry.” 28 U.S.C. § 2344. The sixty-
day period acts as a “filing window,” barring consideration not
only of “petitions filed more than sixty days after entry” but
also of “petitions filed prior to entry of the agency orders to
which they pertain.” Western Union Telegraph Co. v. FCC,
773 F.2d 375, 377, 378 (D.C. Cir. 1985).

     In this case, although the Railroad Administration
ostensibly entered the certification program’s approval in
February 2018, it wholly ignored its statutory duty to
“promptly give notice thereof”; indeed, the agency has never
even promulgated “rules” for the “service or publication” of
such decisions. 28 U.S.C. § 2344. The court readily
acknowledges these failures and that, as a result, the Unions
filed their petition more than sixty days after entry occurred.
See Majority Op. at 35, 38. It nevertheless finds the petition
timely on the ground that the Hobbs Act’s sixty-day clock did
not begin running until the Unions had “‘fair notice’ of the
entry,” id. at 40 (quoting Public Citizen v. Nuclear Regulatory
Commission, 901 F.2d 147, 153 (D.C. Cir. 1990)), namely,
when, on July 9, 2018, “the Unions witnessed Kansas City
Railway put the crew changes into effect ‘with [the
Administration]’s presence and support,’” id. at 36 (quoting
Unions Supp. Reply Br. 6) (citing Administrative Record
(A.R.) 1250). On the court’s account, then, the petition was not
too early because it came after the program’s entry and not too
                                2
late because it was filed within sixty days of when the Unions
“first learned” of the agency’s decision. Id.

     The court’s holding is difficult to square with its own “fair-
notice-of-entry requirement,” id. at 41, as the court fails to
explain how the Railroad Administration’s mere “presence and
support,” id. at 36 (quoting Unions Supp. Reply Br. 6),
“reasonably put[] aggrieved parties on notice” of the
challenged agency action, RCA Global Communications, Inc.
v. FCC, 758 F.2d 722, 730 (D.C. Cir. 1985). Surely not all
potentially aggrieved parties happened to “witness[]” the crew
change go into effect, as did the Unions. Majority Op. at 36.
And even if they had, it would take something like divine
guidance to deduce from the Railroad Administration’s opaque
involvement in the rollout that the agency, months earlier, had
passively approved the railway’s revised engineer program.
See A.R. 2150 (detailing the agency’s limited participation in
the program’s launch). True, the Unions had a rough notion of
the program’s approval by July 9, see Unions Supp. Reply Br.
6, though that might well have been because they were
informed of the decision days earlier, see Transcript of Motion
Hearing at 68–69, Kansas City, 2018 WL 7253969 (No. 5:18-
cv-00071), ECF No. 24. In any event, if the measure of fair
notice is actual notice for one set of aggrieved parties, then the
court’s fair-notice requirement collapses into nothing more
than a de facto discovery rule, with petitions’ timeliness turning
on the happenstance of when aggrieved parties (or just one
aggrieved party) learn of the agency’s action. But see Rotkiske
v. Klemm, 140 S. Ct. 355, 360 (2019) (cautioning against
reading notice-based discovery exceptions into statutory filing
requirements and calling such “[a]textual judicial
supplementation . . . inappropriate”).

    More fundamentally, the court’s “fair-notice-of-entry
requirement” contravenes the Hobbs Act, which keys
                               3
commencement of the sixty-day filing period to “entry” itself,
28 U.S.C. § 2344, and not to when aggrieved parties receive
“fair notice” of such entry, Majority Op. at 40 (quoting Public
Citizen, 901 F.2d at 153). Tellingly, because the Hobbs Act
requires agencies to give notice only “promptly,” i.e., not
simultaneously with entry, 28 U.S.C. § 2344, the statute
expressly contemplates orders being entered and the filing
window opening before aggrieved parties learn of agency
action, see, e.g., Energy Probe v. Nuclear Regulatory
Commission, 872 F.2d 436, 437 (D.C. Cir. 1989) (explaining
that “[t]he Secretary’s letter informing petitioners of the
Commission’s final action was signed and stamped ‘served’ on
September 13” and that “[t]he sixty-day period therefore began
to run from that date,” even though petitioners did not receive
the letter “until September 26”).

     In my view, rather than delaying the filing period, the
Railroad Administration’s failure to give notice invalidated the
jurisdictional effect of the approval’s entry. Put differently,
instead of pushing back the start of the filing window, the lack
of notice meant the window never opened. This is evident from
our court’s decision in Public Citizen v. Nuclear Regulatory
Commission, 901 F.2d 147 (D.C. Cir. 1990). There, the agency
argued that the Hobbs Act’s sixty-day filing period should be
measured not from when the challenged action was published
in the Federal Register but from when, prior to such
publication, a paper reflecting that decision “was made
available to the public in the [agency’s] public document
room.” Id. at 153 (internal quotation marks omitted). Rejecting
that argument out of hand, we explained that although agencies
have “considerable latitude in determining the event that
triggers commencement of the judicial review period, [they]
must do so reasonably.” Id. (citation omitted) (internal
quotation marks omitted). And because “[p]otential petitioners
[should not] be expected to squirrel through [an agency’s]
                                4
public document room in search of papers that might reflect
final agency action,” we concluded that the “mere placement
of a decision in an agency’s public files, without any other
announcement,” could not reasonably “start the clock running
for review.” Id.

     Under the plain terms of the Hobbs Act, the jurisdiction-
triggering event—that is, the event that opens the filing
window—is “entry.” 28 U.S.C. § 2344. Public Citizen, then,
necessarily stands for the proposition that however agencies
choose to enter orders, they “must do so reasonably.” 901 F.2d
at 153. And entering an order “without any other
announcement” is simply unreasonable, id., as agency action
“cannot be said to have been issued for purposes of defining
rights . . . if its substance is merely in the bosom of the
[agency],” Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S.
667, 676 (1950). In such circumstances, the filing window
remains shut because the “event that triggers commencement
of the judicial review period,” i.e., entry, has not “reasonably”
occurred. Public Citizen, 901 F.2d at 153 (internal quotation
marks omitted). Only when the agency properly enters its
order—by, for example, publishing it in the Federal Register—
does the “clock” start “running for review.” Id.

     That logic controls here. The Railroad Administration
gave no notice—prompt, fair, or otherwise—of the
certification’s February 2018 approval. Contrary to the court’s
conclusion, then, the Hobbs Act’s filing window did not open
at that time because entry, the jurisdiction-triggering event, had
not reasonably occurred. And unlike in Public Citizen, where
the agency eventually entered its decision properly by
publishing it, thereby “start[ing] the clock running for review,”
901 F.2d at 153, to this day the Railroad Administration has yet
to publish or serve its decision, see Majority Op. at 35, meaning
that the program’s approval was invalidly entered and that the
                                 5
sixty-day window never opened. Because the Union’s petition
was “filed prior to entry of the action[] to which [it] pertain[s],”
Western Union, 773 F.2d at 378, we lack jurisdiction.

     The court criticizes this approach for “fusing together” the
Hobbs Act’s “reasonable provision of notice and the
jurisdictional requirement of an entry,” thus “elevat[ing] the
notice requirement to jurisdictional effect.” Majority Op. at 46.
But as explained above, it is entry, and entry alone, that, as the
court says, “packs the jurisdictional punch.” Id. at 43. Notice is
merely an indicator of whether entry has “reasonably”
occurred, Public Citizen, 901 F.2d at 153, and, on its own, is of
no jurisdictional consequence. Thus, the Hobbs Act’s sixty-day
window may open even before parties receive notice of an
order’s entry, see, e.g., Energy Probe, 872 F.2d at 437, just as
it may remain shut even after they first learn of final agency
action, see, e.g., Western Union, 773 F.2d at 377–78. In fact,
by holding that a petition’s timeliness depends on when
aggrieved parties receive fair notice of an order’s entry, it is the
court that “elevates” notice’s “jurisdictional effect.” Majority
Op. at 46.

     The court rightly worries about agencies ignoring their
statutory duties in order to evade judicial review. See id. But
most agencies, including other constituent agencies of the
Department of Transportation, sensibly comply with their
Hobbs Act obligations. See, e.g., 10 C.F.R. § 2.305(a) (Nuclear
Regulatory Commission) (“[T]he Commission shall serve all
orders, decisions, notices, and other documents to all
participants, by the same delivery method those participants
use to file and accept service.”); 49 C.F.R. § 397.219(d)
(Federal Motor Carrier Safety Administration) (“The
Administrator         serves  a    copy      of    the    order
upon . . . any . . . person readily identifiable by the
Administrator as one who may be affected by the order. A copy
                               6
of each order is [also] placed on file in the public docket.”).
And we have a ready-made solution for an outlaw agency, like
this one, that insulates itself from review only by blatantly
flouting its statutory obligations, i.e., mandamus. See In re
Public Employees for Environmental Responsibility, 957 F.3d
267, 273 (D.C. Cir. 2020) (explaining that “mandamus relief is
appropriate” where “agencies have failed to comply with their
statutory mandate”). To be sure, the Unions would first have to
initiate proceedings to force the Railroad Administration’s
compliance with the Hobbs Act before they could challenge the
agency’s decision on the merits. But aggrieved parties must
occasionally take such additional steps where, as here, an
agency has “clear[ly] and indisputab[ly]” violated its statutory
mandate, and they “have no other adequate means to attain the
relief [they] desire[].” Cheney v. U.S. District Court for D.C.,
542 U.S. 367, 381–82 (2004) (internal quotation marks
omitted). Indeed, had the Unions styled their petition as one for
mandamus relief, I would have surely voted to grant it.

     Anyway, I trust that the Railroad Administration will take
this court’s unanimous condemnation of its “statutory
defiance,” Majority Op. at 47, as a clear message that it should
revise its procedures to ensure that, however it chooses to enter
final orders, it “promptly give[s] notice thereof,” 28 U.S.C.
§ 2344.
