CENTER FOR BIOLOGICAL DIVERSITY, ET AL., APPELLANTS v. U.S. INTERNATIONAL DEVELOPMENT FINANCE CORPORATION, APPELLEE
No. 22-5095
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 16, 2023 Decided July 7, 2023
William J. Snape, III argued the cause for appellants. With him on the briefs was Margaret A. Coulter.
Michelle Harrison was on the brief for amicus curiae Accountability Counsel in support of appellants.
Nicholas S. Crown, Attorney, U.S. Department of Justice, argued the cause for appellee. On the brief were Brian M. Boynton, Principal Deputy Assistant Attorney General, and Mark B. Stern and Samantha L. Chaifetz, Attorneys.
Before: MILLETT, PILLARD, and CHILDS, Circuit Judges.
Opinion for the Court filed by Circuit Judge CHILDS.
CHILDS, Circuit Judge: The Sunshine Act‘s “agency” definition only encompasses those with a majority of Board members whom the President appoints, and the Senate confirms, to such position. Government in the Sunshine Act (Sunshine Act),
But in 2018, Congress arguably switched off OPIC‘s lights. By statute, it reorganized OPIC into the International Development Finance Corporation (DFC). Relative to its OPIC predecessor, Congress shrunk DFC‘s Board of Directors (the Board) from fifteen members to nine. DFC‘s Chief Executive Officer (CEO) serves by virtue of their appointment to DFC instead of to the Board itself, like four other Board members appointed to other agencies. Thus, DFC thought its Board majority was composed only of ex officio members. Accordingly, it promulgated a rule exempting itself from the Sunshine Act without notice-and-comment.
CBD sued. The district court granted DFC‘s motion to dismiss, deciding that: CBD had informational standing, DFC was not subject to the Sunshine Act, and it was
We first hold that CBD clearly had informational standing under Federal Election Commission v. Akins, 524 U.S. 11, 19–21 (1998), because the information it statutorily sought is from the agency itself. Next, we hold that the Sunshine Act does not apply to DFC because a majority of its Board members serves ex officio by virtue of their appointments to other positions. Finally, we hold that CBD‘s claim that DFC violated the Administrative Procedure Act (APA) by not engaging in notice-and-comment rulemaking fails because CBD did not demonstrate any prejudice arising from the asserted APA violation distinct from the legal question of Sunshine Act compliance.
I.
A.
In 1976, Congress enacted the Sunshine Act to ensure that multi-member federal agencies hold their deliberations open and accessible to the public. See Common Cause v. Nuclear Regul. Comm‘n, 674 F.2d 921, 928 (D.C. Cir. 1982). The Sunshine Act requires that every “meeting” of a covered “agency” be conducted publicly, with only a few exceptions. See
Until 2018, OPIC was a United States government agency that complied with the Sunshine Act. Foreign Assistance Act of 1969,
DFC‘s Board contains nine members. With Senate confirmation, the President appoints four out of DFC‘s nine Board members to the Board itself.
On April 13, 2020, DFC promulgated a rule (Sunshine Act Rule) that exempted itself from Sunshine Act compliance without notice-and-comment. Compl. ¶ 9, J.A. 27; 85 Fed. Reg. 20,423, 20,423/1–2 (Apr. 13, 2020). In the rule, the agency stated that “the Sunshine Act . . . is not applicable to DFC,” 85 Fed. Reg. 20,423, 20,423/1 (Apr. 13, 2020), because “[o]nly four of the
Thus, the majority of its Board serves ex officio, that is by virtue of the Board members’ appointments either to a non-Board position within the same agency or other agencies.
B.
DFC‘s conclusion was guided by an opinion and a letter from the Department of Justice‘s Office of Legal Counsel (OLC). Letter from Liam P. Hardy, Deputy Assistant Att‘y Gen., Dep‘t of Justice, to Kevin L. Turner, Vice President & Gen. Counsel, DFC (Feb. 25, 2020) [hereinafter 2020 O.L.C. Ltr.]; Whether the Millennium Challenge Corporation is Subject to the Open Meeting Requirements of the Sunshine Act, 37 Op. O.L.C. 27, 27–32 (2013) [hereinafter 2013 O.L.C. Op.]. The 2013 OLC opinion related to a different agency posing a similar Sunshine Act issue: the Millennium Challenge Corporation (MCC). 2013 O.L.C. Op. 27. The 2020 OLC letter concerned DFC, which had solicited OLC‘s view. OLC reached the same conclusion in its opinion and letter: an agency with a majority of ex officio Board members is not subject to the Sunshine Act, even if the Board includes members who serve by virtue of their appointment to the same agency. 2020 O.L.C. Ltr. (“The fifth director, DFC‘s Chief Executive Officer, is also ‘properly regarded as one of these ex officio members because by statute the CEO is appointed to a separate office and serves on the Board by virtue of that separate office.‘” (quoting 2013 O.L.C. Op. 4)).
In 2021, CBD sued DFC, alleging that the agency violated the APA in three ways. First, it contended that DFC‘s Sunshine Act Rule was arbitrary and capricious. Second, it complained that DFC‘s failure to promulgate Sunshine Act regulations constituted agency action “unlawfully withheld and unreasonably delayed.” Compl. ¶ 70, J.A. 38 (citing
The district court first addressed the jurisdictional issue of whether CBD had informational standing and concluded that it did. Under this Court‘s standard in Electronic Privacy Information Center v. Presidential Advisory Commission on Election Integrity, 878 F.3d 371, 378 (D.C. Cir. 2017), the district court found that informational standing existed, because “[p]laintiffs have alleged a right under the Sunshine Act to obtain the information they seek, a specific denial of that right by the agency, and a resulting injury flowing from the denial.” Ctr. for Biological Diversity v. U.S. Int‘l Dev. Fin. Corp., 585 F. Supp. 3d 63, 72 (D.D.C. 2022). The district court also reasoned that no specific denial—such as rejection of a plaintiff‘s request for a meeting—need be shown to establish an injury. Id.
Moving to the merits, the district court combined CBD‘s remaining two claims into one question: whether DFC is subject to the Sunshine Act. It determined that Symons v. Chrysler Corporation Loan Guarantee Board, 670 F.2d 238 (D.C. Cir. 1981), was controlling. Symons held that the Chrysler Corporation Loan Guarantee Board (Chrysler Board) was not an “agency” subject to the Sunshine Act. Id. at 240–41. Because all the Board members served “by virtue of the other offices they hold[,]” and thus were not “appointed to such position[,]” the Chrysler Board was not subject to the Sunshine Act. Id.
Applying Symons here, the district court decided that DFC‘s CEO serves “by virtue of” their appointment to that position,
The district court dismissed as harmless error that DFC failed to engage in notice-and-comment when promulgating its Sunshine Act rule which exempted itself from Sunshine Act compliance. Id. at 73–75. It did not answer if DFC was required to conduct notice-and-comment in its rule because “[n]either side present[ed] caselaw” that squarely answered whether said rule was procedural or legislative. Id. at 75. Regardless, because DFC‘s “conclusion [was] compelled by the language of the two statutes at issue and binding D.C. Circuit precedent[,]” the district court concluded that no amount of procedure would have remedied CBD‘s alleged harm. Id. at 75.
C.
We have jurisdiction pursuant to
II.
A.
Before we proceed to the merits, we begin with standing—a jurisdictional question. Nat. Res. Def. Council v. Pena, 147 F.3d 1012, 1018 (D.C. Cir. 1998) (“Because the standing question goes to our jurisdiction, we address it first.“). The “irreducible constitutional minimum” to establish standing is whether the plaintiff (i) suffers an injury in fact, such that the interest is concrete and actual or imminent, (ii) demonstrates a causal connection between the injury and the conduct, and (iii) complains of a legally redressable injury. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992). On the first prong, the Supreme Court held informational injury sufficient to satisfy standing. Akins, 524 U.S. at 24; Pub. Citizen v. U.S. Dep‘t. of Just., 491 U.S. 440, 449 (1989); Havens Realty Corp. v. Coleman, 455 U.S. 363, 373–74 (1982). To prove an informational injury, a plaintiff must show that “(1) it has been deprived of information that, on its interpretation, a statute requires the government or a third party to disclose to it, and (2) it suffers, by being denied access to that information, the type of harm Congress sought to prevent by requiring disclosure.” Elec. Priv. Info. Ctr., 878 F.3d at 378 (citation and quotation omitted). For purposes of standing, “we assume the merits in favor of the plaintiff.” Waterkeeper All. v. Env‘t Prot. Agency, 853 F.3d 527, 533 (D.C. Cir. 2017).
In Akins, the Supreme Court noted that the injury in fact analysis for informational harm rests only on a plaintiff‘s “inability to obtain information.” 524 U.S. at 21. The Court did not specify whether an inability to obtain information must result from a specific denial, requiring a plaintiff to first seek access and be denied the information they request, or whether a plaintiff needs only rely on a lack of notice, as CBD does in this appeal. However, Akins did make clear that when a plaintiff “fails to obtain information which must be publicly disclosed pursuant to a statute,” they are injured. Id. And there, respondents, like CBD, sought information from the Federal Election Commission, which it believed was statutorily required to be made public under the Federal
Because CBD statutorily seeks information from the agency itself, it need not receive a specific denial to sustain an informational injury. CBD‘s complaint is squarely within this Court‘s precedents. For example, a plaintiff suffers an informational injury when an agency, like DFC here, adopts a rule that places a legally unsupported limit on its statutory reporting requirements. See Waterkeeper All., 853 F.3d at 533. We have also held that a plaintiff has informational standing, so long as the plaintiff has a statutory right to seek the information that the agency withheld. See Friends of Animals v. Jewell, 824 F.3d 1033, 1041 (D.C. Cir. 2016). But when a plaintiff claims an informational injury with no statutory support, standing will be in jeopardy. See Am. Soc‘y for Prevention of Cruelty to Animals v. Feld Ent., Inc., 659 F.3d 13, 23 (D.C. Cir. 2011).
Here, CBD easily clears the informational injury hurdle. On its interpretation of the Sunshine Act, CBD claims that it was denied notice about certain meetings, preventing it from attending and engaging with DFC. In relevant part, Section 552b(b) states:
[Agencies bound by the Sunshine Act] shall not jointly conduct or dispose of agency business other than in accordance with this section. Except as provided in subsection (c), every portion of every meeting of an agency shall be open to public observation.
Furthermore, CBD suffers the type of harm the Sunshine Act envisioned. CBD identified several DFC meetings that were held without sufficient Sunshine Act notice in the Federal Register, and that were closed to the public without valid exception. See, e.g., Compl. ¶ 57, J.A. 36 (specifying that the Dec. 10, 2020, and Mar. 9, 2021, meetings were held without notice); DeAngelis Decl. ¶ 8, J.A. 48–49 (specifying the Sept. 9, 2020, meeting as closed); see also
CBD‘s injury is also traceable and redressable. It is “fairly traceable to the challenged action” because DFC‘s Sunshine Act rule deprived CBD of advance notice it would have otherwise received for numerous meetings. Lujan, 504 U.S. at 560–61 (alterations and citation omitted). Also, CBD‘s alleged injury could be “redressed by [this Court‘s] favorable decision” because we are asked whether, as a legal matter, DFC must comply with the Sunshine Act. Id. Thus, CBD has informational standing to bring its claims.
B.
We next answer whether the Sunshine Act applies to DFC. We think not.
Starting with the statutory text, the Sunshine Act states:
(a) For purposes of this section—
(1) the term “agency” means any agency, as defined in section 552(e) of this title, headed by a collegial body composed of two or more individual members, a majority of whom are appointed to such position by the President with the advice and consent of the Senate, and any subdivision thereof authorized to act on behalf of the agency[.]
Having interpreted that where DFC‘s CEO is appointed is consequential, we move to the second relevant statutory phrase in the Sunshine Act: “appointed to such position[.]”
More than forty years ago, this Court held that the Chrysler Board was not subject to the Sunshine Act because it interpreted “appointed to such position[,]”
The central holding of Symons forecloses CBD‘s argument. “[A]ppointed to such position” in the Sunshine Act requires that the majority of an agency‘s Board members be appointed to the Board itself, not serve ex officio.
That the Senate confirmed DFC‘s CEO to DFC itself, with no mention of the Board, is unsurprising. Roll Call Vote 117th Congress – 2nd Session, U.S. Senate, Feb. 9, 2022, https://perma.cc/8G7X-XVMY. The BUILD Act ensures that DFC‘s CEO is the fifth government member who serves ex officio and maintains accountability elsewhere.
Although Congress did not subject DFC to the Sunshine Act in the BUILD Act, it required some important alternative measures of transparency. DFC is still required to hold two public hearings a year instead of OPIC‘s only one public hearing per year.
Furthermore, the Department of Justice‘s OLC twice agreed with this Court that the Sunshine Act does not apply to agencies with a majority of ex officio Board members, even if one or more of those members is appointed and confirmed to the agency itself. 2020 O.L.C. Ltr.; 2013 O.L.C. Op. 27–32. At the outset, we acknowledge that OLC‘s views are not binding, nor are they entitled to deference. We look to them for their persuasive value. SW Gen., Inc. v. N.L.R.B., 796 F.3d 67, 74 n.4 (D.C. Cir. 2015), aff‘d, 580 U.S. 288 (2017).
The 2013 OLC opinion concluded that MCC, whose board structure replicates DFC, was not subject to the Sunshine Act. 2013 O.L.C. Op. 27–32. Both agencies have a Board of nine members. Compare Millennium Challenge Act of 2003 (Millennium Act),
Analyzing the Sunshine Act and Symons, OLC concluded that its “longstanding position” is that “the more natural reading of the [Sunshine Act] requires [presidential appointment and Senate confirmation] to a board or other ‘collegial body.‘” 2013 O.L.C. Op. 28. In doing so, it considered, but rejected, an ex officio distinction between Board members appointed to the agency but not to the Board.
In sum, we see no reason to read the BUILD Act to treat the President‘s appointment and the Senate‘s confirmation to one position to count simultaneously for another unmentioned position in which that person serves ex officio. Unlike the BUILD Act, the Federal Vacancies Reform Act is an example of Congress making clear when the President can appoint, with Senate confirmation, a person to a different position, without a separate appointment process.
III.
We finally turn to the last question on appeal: whether DFC violated the APA by failing to engage in notice-and-comment rulemaking. The district court concluded that DFC committed harmless error by excluding notice-and-comment, given that DFC is not subject to the Sunshine Act. Ctr. for Biological Diversity, 585 F. Supp. 3d at 73–75. Error is harmless “when a mistake of the administrative body is one that clearly had no bearing on the procedure used or the substance of decision reached.” Braniff Airways v. Civ. Aeronautics Bd., 379 F.2d 453, 466 (D.C. Cir. 1967) (citation omitted). Generally, “[w]e have not been hospitable to [] claims of harmless error in cases in which the government violated § 553 of the APA by failing to provide notice.” Allina Health Servs. v. Sebelius, 746 F.3d 1102, 1109 (D.C. Cir. 2014). But error can be harmless if notice-and-comment would not alter the legal conclusion of the rule. See, e.g., Ass‘n of Am. Physicians & Surgeons v. Sebelius, 746 F.3d 468, 471–72 (D.C. Cir. 2014) (recognizing that “all the procedure in the world” could not change when statutory language, as interpreted under D.C. Circuit precedent, foreclosed the appellants’ interpretation); Hadson Gas Sys., Inc. v. Fed. Energy Regul. Comm‘n, 75 F.3d 680, 683–84 (D.C. Cir. 1996). Ultimately, it is the plaintiff‘s responsibility to show that an error is harmful. See Shinseki v. Sanders, 556 U.S. 396, 409 (2009).
We hold that CBD failed to assert harm distinct from the legal question of DFC‘s Sunshine Act compliance such that any error was harmless. On appeal, CBD argued that had notice-and-comment occurred: “the agency and public would have contemplated the Sunshine Act behavior of other federal agencies similar . . . to the [DFC]“; “the Millennium Memo would have been discussed“; “a richer discussion of the Sunshine Act‘s goals and purposes would have occurred“; and CBD could discuss how it was “utterly uninformed of these closed door decisions.” Appellants’ Br. 30–31. Its argument in this Court mirrors the one it made below, submitting that its harm from a lack of notice-and-comment could have been remedied by DFC simply following the Sunshine Act. Opp. Mot. 24 (“Had DFC followed proper notice-and-comment requirements under
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For the foregoing reasons, we affirm the district court‘s grant of DFC‘s motion to dismiss. We hold that CBD had informational standing for its suit, but DFC is not subject to the Sunshine Act. And CBD failed to demonstrate prejudicial error arising from DFC‘s failure to engage in notice-and-comment rulemaking.
So ordered.