Center for Biological Diversity v. U.S. Intl. Dev. Finance Corp

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

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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.

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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.

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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

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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.

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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

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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

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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.