United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 16, 2023 Decided July 7, 2023
No. 22-5095
CENTER FOR BIOLOGICAL DIVERSITY, ET AL.,
APPELLANTS
v.
U.S. INTERNATIONAL DEVELOPMENT FINANCE CORPORATION,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:21-cv-01491)
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.
2
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), Pub. L. No. 94-409, 90 Stat. 1241, 1241 (1976)
(codified at 5 U.S.C. § 552b(a)(1)). For years, the Center for
Biological Diversity, Friends of the Earth, and the Center for
International Environmental Law (collectively, CBD) enjoyed
the sunlight from the Sunshine Act’s application to the
Overseas Private Investment Corporation (OPIC). It provided
CBD, with, among other things, notice, transcripts, and
minutes of OPIC’s various meetings. See 5 U.S.C.
§ 552b(e)(1)–(f)(2).
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 harmless error
for DFC to promulgate a rule without notice-and-comment.
We affirm.
3
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 5 U.S.C. § 552b(b), (c). But it only applies to “any agency
. . . 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 . . . .” Id. § 552b(a)(1) (emphasis added).
Until 2018, OPIC was a United States government agency
that complied with the Sunshine Act. Foreign Assistance Act
of 1969, Pub. L. No. 91-175, 83 Stat. 805, 810 (1969) (codified
as amended in 22 U.S.C. § 2191 et seq.) (repealed 2018); see
also 22 C.F.R. § 708 (1977). OPIC’s primary mission was to
provide financing to support private-sector investment in
4
developing countries and emerging markets. CONG. RSCH.
SERV., IF10659, OVERSEAS PRIVATE INVESTMENT
CORPORATION (OPIC) 1 (2017). With fifteen Board members,
eight of whom were appointed by the President and confirmed
by the Senate to the Board itself, the Sunshine Act applied to
OPIC. 22 U.S.C. § 2193(b) (repealed 2018). In the 2018
BUILD Act, however, Congress combined OPIC with the
Development Credit Authority (DCA) of the United States
Agency for International Development to create DFC. 85 Fed.
Reg. 20,423, 20,423/1 (Apr. 13, 2020); see also Better
Utilization and Investments Leading to Development Act
(BUILD Act), Pub. L. No. 115-254, div. F, 132 Stat. 3485,
3485-519 (2018) (codified as amended at 22 U.S.C. §§ 9601–
9689).
DFC’s Board contains nine members. With Senate
confirmation, the President appoints four out of DFC’s nine
Board members to the Board itself. 22 U.S.C. § 9613(b)(2)(A).
Four other Board members serve by virtue of their appointment
and confirmation to other offices. That includes the Secretary
of State, the Administrator of the United States Agency for
International Development, the Secretary of Treasury, and the
Secretary of Commerce. Id. § 9613(b)(2)(B). As for DFC’s
CEO, the last remaining Board member, they are only
appointed “in the Corporation.” Id. § 9613(d)(1).
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 nine DFC board members are appointed by
the President with the advice and consent of the Senate solely
for the purpose of serving on DFC’s Board.” Id. at 20,423/2.
5
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 5 U.S.C.
§§ 552b(b), (j), (k); 706(1)). Finally, it argued that DFC
6
violated the APA by failing to put the Sunshine Act Rule
through notice-and-comment procedures. DFC moved to
dismiss CBD’s complaint, which the district court granted.
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, and thus cannot constitute the Board’s fifth member
to form a Sunshine Act “agency.” Ctr. for Biological Diversity,
7
585 F. Supp. 3d at 77–78. It further reasoned that the BUILD
Act’s legislative history was not instructive of whether
Congress intended that DFC remain subject to or become
exempt from the Act. Id. at 77 n.2. Importantly, the district
court left it open for this Court to decide whether it would like
to distinguish or overturn Symons in the first instance.
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 28 U.S.C. § 1291. And
this Court reviews de novo the district court’s grant of DFC’s
motion to dismiss CBD’s complaint. See King v. Jackson, 487
F.3d 970, 972 (D.C. Cir. 2007).
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
8
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 Election
Campaign Act—without any specific denial. See id. at 19–26.
9
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.
5 U.S.C. § 552b(b) (emphasis added). Public observation
requires that agencies “shall make [a] public announcement, at
least one week before the meeting, of the time, place, and
subject matter of the meeting, whether it is to be open or closed
to the public, and the name and phone number of the official
designated by the agency to respond to requests for information
10
about the meeting.” Id. § 552b(e)(1) (emphasis added); see
also id. § 552b(e)(3) (requiring that notice “also be submitted
for publication in the Federal Register”). The Sunshine Act
also provides the right to a transcript, an electronic recording,
or minutes of closed portions of meetings, which the agency
“shall make promptly available to the public” and “shall
maintain . . . for a period of at least two years after such
meeting, or until one year after the conclusion of any agency
proceeding with respect to which the meeting or portion was
held, whichever occurs later.” Id. § 552b(f)(2). Given
Congress’s clear command for any agency subject to the
Sunshine Act to provide robust public information, there can
be no doubt that these provisions create a right to information
sufficient for CBD’s injury.
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 5 U.S.C. § 552b(c)(1)–
(10) (noting permitted exceptions for closed meetings).
Specific deliberations relevant to their work, like votes on
international development projects in Mozambique and India,
occurred at these meetings. DeAngelis Decl. ¶ 8, J.A. 48–49
(noting a board vote on a project in Mozambique); Supp.
DeAngelis Decl. ¶ 8, J.A. 67 (noting that up to a $250 million
loan for a vehicle finance program in India and $50 million in
political risk insurance to Sierra Leone was approved at the
Dec. 8, 2021, meeting). And CBD was effectively denied
access to the meetings that it otherwise would have attended
because of deficient notice. See DeAngelis Decl. ¶ 8, J.A. 48;
Norlen Decl. ¶ 7, J.A. 53.
11
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[.]
5 U.S.C. § 552b(a)(1) (emphasis added); Bellagio, LLC v. Nat’l
Lab. Rels. Bd., 863 F.3d 839, 847 (D.C. Cir. 2017) (quoting
NetCoalition v. S.E.C., 715 F.3d 342, 348 (D.C. Cir. 2013))
(“So ‘[w]e begin, as we must, with the text of the statute.’”).
We focus on two phrases: “majority of whom” and “appointed
to such position.” 5 U.S.C. § 552b(a)(1). From the first phrase,
we deduce, and the parties agree, that DFC’s CEO is the
12
consequential member determining whether DFC is subject to
the Sunshine Act. Appellants’ Br. 13; Appellee’s Br. 17–18.
Pursuant to the BUILD Act, DFC’s Board consists of nine
members. See 22 U.S.C. § 9613(b)(2)(A). Four members of
DFC’s Board are appointed by the President and confirmed by
the Senate to the Board. Id. § 9613(b)(2)(A)(iii). Another four
members of DFC’s Board serve ex officio or by virtue of their
appointment and confirmation to other positions. Id.
§ 9613(b)(2)(A)(ii), (b)(2)(B)(i). They include the Secretary of
State, the Administrator of the United States Agency for
International Development, the Secretary of Treasury, and the
Secretary of Commerce or their designees. Id
§ 9613(b)(2)(B)(i). The CEO remains. But they are appointed
only “in the Corporation,” like the Deputy CEO. Id. § 9613(a),
(d)(1), (e). Nowhere in the BUILD Act does it clearly state that
the President appoints, with Senate confirmation, DFC’s CEO
to the Board itself. See id. § 9613(b)(2)(A)(i) (describing
DFC’s CEO as a member of the Board); id. § 9613(d)(3)
(stating that DFC’s CEO “shall report and be under the direct
authority of the Board”).
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[.]” 5 U.S.C.
§ 552b(a)(1). Specifically, we must answer whether that
phrase requires the CEO to be appointed to the Board itself for
the Sunshine Act to apply. Reaffirming our holding in Symons,
we answer yes, again. 670 F.2d at 241, 245.
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[,]” 5 U.S.C.
§ 552b(a)(1), to exclude Board members who are appointed
and confirmed “to other high government offices.” Symons,
670 F.2d at 241 (emphasis added). The Chrysler Board was
13
different than DFC’s Board at issue here: its entire Board of
five members served ex officio. Id. at 240. It included the
Secretary of Treasury, the Chairman of the Board of Governors
of the Federal Reserve System, the Comptroller General of the
United States, and the Secretary of Labor and Transportation.
Id. Each was appointed and confirmed to other agencies. Id.
CBD tells us Symons is distinguishable because DFC’s Board
only has a minority of members appointed and confirmed to
other agencies. Appellants’ Br. 22–24. The CEO is appointed
to DFC and functionally serves on the Board. See id. 14–15.
Thus, ex officio appointments, as conceived in Symons, are
restricted to only inter-agency appointments, not intra-agency
ones. We disagree.
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. 5 U.S.C.
§ 552b(a)(1). In Symons, the dissent reasoned that the
Sunshine Act’s statutory definition could include ex officio
members because, at the time of their appointments, they
would automatically serve both on the Board ex officio and
their underlying appointments simultaneously. 670 F.2d at
245–49 (Wald, J., dissenting). However, as the majority
reasoned in response to the dissent, reading Section 552b(a)(1)
that way would “not [be] favored by the law and would violate
a fundamental rule of statutory interpretation–that in
construing statutes[,] courts should give effect, if possible, to
every word used by Congress.” Id. at 242 (majority opinion).
Given Symons’s holding, it is of no moment whether an
agency’s majority of ex officio members is as large as the entire
Board or as small as just one member—a majority is a majority.
It is also insignificant whether a Board member is appointed
14
and confirmed to a non-Board position within the same agency
or in another agency—both count as ex officio.1
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. 22 U.S.C.
§ 9613(b)(2)(B)(i); see also Oral Arg. Tr. 29:10–25, 30:1–8.
On the other hand, the BUILD Act describes the four Board
appointees as “nongovernment members,” 22 U.S.C.
§ 9613(b)(2)(C), and restricts them from serving as “an officer
or employee of the United States Government.” Id.
§ 9613(b)(2)(C)(i). Consequently, the Board’s direct
appointee minority lacks the same accountability structure.
When a Board’s majority is composed of government
members, who are already accountable by virtue of their
appointment and confirmation to other positions, then the
Sunshine Act does not apply. See Oral Arg. Tr. 29:10–25,
30:1–8. While DFC’s CEO may have concurrent Board duties,
their responsibilities do not mean that they were appointed to
the Board itself.
1
A year before Symons, this Court correctly observed that an agency
as defined by the Sunshine Act is a subset of the agency definition
under the Freedom of Information Act (FOIA). See Pac. Legal
Found. v. Council on Env’t Quality, 636 F.2d 1259, 1261 (D.C. Cir.
1989). The reasoning in Pacific Legal Foundation that the Sunshine
Act “incorporates by reference the definition of ‘agency’” in FOIA
spoke only to the definitional aspect relevant there—the placement
of an “agency” in the executive branch. Id. at 1263; see id. at 1263–
64. Any suggestion there that FOIA agencies are all subject to the
Sunshine Act is unnecessary dicta because the government there
conceded that it was subject to the Sunshine Act. See id. at 1263.
15
CBD contends that we should read Congress’s silence
regarding where DFC’s CEO is appointed in its favor, because
“Congress did not say it was curtailing any public access that
previously existed under the Sunshine Act when replacing the
Overseas Private Investment Corporation with the new
Development Finance Corporation in the BUILD Act.”
Appellants’ Br. 16 (emphasis added). But DFC’s origins do
not support the inference CBD urges. When Congress created
the DFC, it combined OPIC with DCA of the United States
Agency for International Development. 85 Fed. Reg. 20,423,
20,423/1 (Apr. 13, 2020). While OPIC was subject to the
Sunshine Act, the DCA was not, because it was led by a single
administrator. See Foreign Assistance Act of 1961, Pub. L. No.
87-195, § 624, 75 Stat. 424, 447 (1961) (codified at 22 U.S.C.
§ 2151w(a)). Given that one of the DFC’s predecessors was
subject to the Sunshine Act, while the other was not, even
accepting CBD’s assumption that Congress sought continuity
would not tip the scale in favor of Sunshine Act coverage.
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. 22 U.S.C. § 9613(c) (repealed 2018).
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).
16
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), Pub. L. No. 108-199, div. D, title VI, 118
Stat. 211, 213 (2004) (codified at 22 U.S.C. § 7703(c)(3)), with
22 U.S.C. § 9613(b)(2)(A). Both Boards have four members
who serve by virtue of their appointment and confirmation to
other agencies. Compare 22 U.S.C. § 7703(c)(3), with 22
U.S.C. § 9613(b)(2)(A). And both Boards have a remaining
member, the CEO, who is not appointed to the Board itself.
Compare 22 U.S.C. § 7703(b)(2)(A), with 22 U.S.C.
§ 9613(d)(1). The only difference is that the Millennium Act
lists its CEO and its ex officio Board members in the same
Board membership paragraph, whereas the BUILD Act notes
them in separate provisions. Compare 22 U.S.C. § 7703(c)(3),
with 22 U.S.C. § 9613(b)(2)(A)(ii); see also Appellants’ Br.
25–26. But that does not dilute OLC’s reasoning as applied to
DFC.
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.
Id. at 31 (considering whether the ex officio Board members’
presidential appointment and Senate confirmation and the
CEO’s appointment to the agency itself affected its opinion and
concluding that it did not). Thus, OLC’s opinion concerning
the MCC operated as a background principle against the
BUILD Act’s creation.
17
If any reason existed to doubt the applicability of the 2013
OLC opinion, in 2020, seven years later, DFC asked OLC to
confirm whether it should be subject to the Sunshine Act; OLC
obliged. Appellee’s Br. 10. But the answer did not change.
OLC stated, “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.’” 2020 O.L.C. Ltr. (quoting 2013 O.L.C. Op. 4).
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. Pub. L. No. 105-277, 112 Stat.
2681, 2681-611 (1998) (codified at 5 U.S.C. § 3345(a)(3)).
There is no reason to imply any material deviation from the
typical appointment and confirmation requirements here.
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
18
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 5 U.S.C. § 553, members of the public,
including Plaintiffs, would have been able to obtain necessary
information about agency decisionmaking, obtain access to
agency meetings or minutes of those meetings, and notice of
meeting closures as required by the Sunshine Act.”); see also
Compl. ¶ 61, J.A. 37. However, those alleged harms rise and
fall with the Sunshine Act. For example, CBD does not argue
19
that notice-and-comment would have allowed it to urge DFC
to adopt Sunshine Act-like compliant procedures, such as
alternative ways to provide notice, transcripts, and minutes for
specific meetings. Nor does it argue for other procedures that
could have mitigated the harm from DFC’s non-compliance
with the Sunshine Act. If an agency fails to engage in notice-
and-comment rulemaking, requiring the plaintiff to explain
what is lost by the absence of such is not “a particularly onerous
requirement.” Shinseki, 556 U.S. at 410.
***
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.