77 F.4th 679
D.C. Cir.2023Background
- Congress created the International Development Finance Corporation (DFC) in the 2018 BUILD Act by combining OPIC and USAID’s DCA; DFC has a nine‑member Board.
- Four Board members are presidential appointees confirmed to the Board; four serve ex officio by virtue of other offices (Secretary of State, USAID Administrator, Treasury Secretary, Commerce Secretary); the CEO is appointed “in the Corporation” (not expressly to the Board).
- OPIC had been subject to the Sunshine Act; DFC promulgated a rule asserting the Sunshine Act does not apply because a majority of its Board serves ex officio, and it issued that rule without notice‑and‑comment.
- Center for Biological Diversity (CBD) sued under the APA seeking access to notices/minutes and challenging DFC’s rulemaking procedure; the district court granted DFC’s motion to dismiss, finding CBD had informational standing but DFC not covered by the Sunshine Act and any APA notice‑and‑comment error harmless.
- The D.C. Circuit affirmed: CBD has informational standing; the Sunshine Act does not apply to DFC because a majority of its Board members are ex officio (following Symons); CBD failed to show prejudice from the lack of notice‑and‑comment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Informational standing to sue under the Sunshine Act | CBD: Denial of statutorily required meeting notices, minutes, and transcripts is an informational injury even without a prior specific denial | DFC: No specific denial was shown, so no concrete informational injury | CBD has informational standing (Akins; Elec. Priv. Info. Ctr.) |
| Whether DFC is an "agency" subject to the Sunshine Act (5 U.S.C. § 552b(a)(1)) | CBD: BUILD Act did not eliminate Sunshine Act coverage; the CEO’s appointment to DFC should count toward the majority "appointed to such position" | DFC: A majority of the Board serves ex officio; "appointed to such position" requires appointment to the board itself, so Sunshine Act does not apply | Sunshine Act does not apply to DFC; majority ex officio excludes coverage (reaffirming Symons) |
| Whether DFC violated the APA by issuing the exemption rule without notice‑and‑comment | CBD: Lack of notice‑and‑comment deprived public participation and information; prejudice could have been cured via rulemaking | DFC: Any procedural omission was harmless because the statutory text and controlling precedent compelled the agency’s legal conclusion | Error was harmless; CBD failed to show prejudice distinct from its Sunshine Act claim |
Key Cases Cited
- Federal Election Comm’n v. Akins, 524 U.S. 11 (informational injury can confer standing when statute requires disclosure)
- Symons v. Chrysler Corp. Loan Guarantee Bd., 670 F.2d 238 (D.C. Cir.) (Sunshine Act excludes boards whose majority serve ex officio)
- Electronic Privacy Info. Ctr. v. Presidential Advisory Comm. on Election Integrity, 878 F.3d 371 (D.C. Cir.) (framework for informational standing)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (standing constitutional minima: injury, causation, redressability)
- Waterkeeper Alliance v. EPA, 853 F.3d 527 (D.C. Cir.) (agency rule limiting statutory reporting can create informational injury)
- Allina Health Servs. v. Sebelius, 746 F.3d 1102 (D.C. Cir.) (notice‑and‑comment harmlessness analysis)
- Shinseki v. Sanders, 556 U.S. 396 (plaintiff bears burden to show that procedural error caused prejudice)