Whether the Millennium Challenge Corporation Should Be Considered an "Agency" for Purposes of the Open Meeting Requirements of the Sunshine Act
Background
- MCC is a government corporation created to provide US development aid; question is whether it is an 'agency' under the Sunshine Act.
- The Sunshine Act requires open meetings for agencies; defines agency as headed by a collegial body with a PAS majority.
- MCC Board has nine members; five are ex officio, and four are directly PAS appointed by the President with Senate advice and consent.
- The ex officio members include the Secretary of State, Secretary of the Treasury, USTR, USAID Administrator, and the MCC CEO.
- The President appoints the remaining four Board members with Senate advice and consent; ex officio status affects appointment basis.
- Court follows Symons v. Chrysler Corp. and concludes MCC should not be treated as an 'agency' for Sunshine Act purposes.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is MCC an agency under the Sunshine Act? | MCC argues ex officio members prevent PAS appointment as to the Board. | Sunshine Act requires direct PAS appointment to the majority of the collegial body. | Not an agency; MCC not subject to open meetings. |
| How should 'appointed to such position' be interpreted for MCC? | Ex officio members should not count as 'appointed to such position'. | Count ex officio members toward the Board for PAS majority analysis. | Interpretation favors counting all nine members; ex officio status does not create an agency. |
| Is the MCC CEO ex officio and thus excluded from the PAS majority analysis? | CEO is ex officio via separate office and not PAS appointed to the Board. | CEO is an ex officio Board member appointed to a separate office and counts in the analysis. | CEO is ex officio and counted; MCC remains not an agency. |
| Do prior authorities support treating ex officio boards as non-agency? | Symons precedent could support treating ex officio boards as not agencies. | Symons is persuasive; MCC should follow its reasoning. | Symons-based reasoning supports MCC not being an agency. |
Key Cases Cited
- Symons v. Chrysler Corp. Loan Guarantee Bd., 670 F.2d 238 (D.C. Cir. 1981) (ex officio board members not 'appointed to such position' for agency status under Sunshine Act)