Ctr. for Biological Diversity v. U.S. Int'l Dev. Fin. Corp.
| Decision Date | 11 February 2022 |
| Docket Number | 21-cv-1491 (CRC) |
| Parties | CENTER FOR BIOLOGICAL DIVERSITY, et al., Plaintiffs, v. U.S. INTERNATIONAL DEVELOPMENT FINANCE CORP., Defendant. |
| Court | U.S. District Court — District of Columbia |
The Government in the Sunshine Act (“Sunshine Act”) requires that every meeting of a covered “agency” be conducted in public, with a handful of exceptions. 5 U.S.C. § 552b. In April 2020, the U.S. International Development Finance Corporation (“DFC”) published a rule, without notice and comment, exempting itself from the Sunshine Act and has since declined to notice and hold public meetings as the Act would require. See Sunshine Act Exemption Regulation, 85 Fed. Reg. 20, 423 (Apr. 13, 2020) (the “Sunshine Act Rule”). Plaintiffs, three non-profit organizations that monitor the environmental effects of DFC projects, have challenged the rule under the Administrative Procedure Act (“APA”) and the Sunshine Act itself.
Plaintiffs seek an order declaring the DFC subject to the Sunshine Act and enjoining the agency from conducting further meetings out of the public eye. The DFC has moved to dismiss plaintiffs' complaint for lack of standing under Federal Rule of Civil Procedure 12(b)(1) and for failure to state a claim under Rule 12(b)(6). Finding that plaintiffs have established informational standing but that the DFC does not meet the Sunshine Act's definition of an “agency ” the Court will grant the DFC's motion to dismiss under Rule 12(b)(6).
“Congress enacted the Sunshine Act to open the deliberations of multi-member federal agencies to public view.” Common Cause v. Nuclear Reg. Comm'n, 674 F.2d 921, 928 (D.C. Cir. 1982). The Act is “founded on the proposition that the government should conduct the public's business in public.” Compl. ¶ 24 (citing S. Rep. No. 354, 94th Cong., 1st Sess. 1; Conf. Rep. No. 1178, 94th Cong., 2d Sess. 9 (1976), reprinted in 1976 U.S. Code Cong. & Admin. News 2183, 2245). The Act thus requires covered agencies to hold meetings “open to public observation, ” with certain exceptions. 5 U.S.C. § 552b(b). They must also publicly announce the time, place, and subject matter of meetings at least a week in advance, id. § 552b(e)(1), and prepare a complete transcript or electronic recording of meetings that are closed for any reason, id. § 552b(f). The term “agency” in the Sunshine Act means “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).
The DFC was created by statute in 2018. See Better Utilization of Investments Leading to Development Act, P.L. 115-254, 132 Stat. 3485 (Oct. 5, 2018) (codified at 22 U.S.C. § 9612) (the “BUILD Act”). Its mission is to facilitate private financing of international development projects in poorer countries, consistent with the foreign policy objectives of the United States. Compl. ¶¶ 15, 16.
The DFC's predecessor agency was the Overseas Private Investment Corporation (“OPIC”). OPIC met the definition of an “agency” under the Sunshine Act because a majority (eight) of its fifteen board members were “appointed by the President of the United States, by and with the advice and consent of the Senate.” 22 U.S.C. § 2193(b) (repealed). The President of OPIC was the ninth board member, and the remaining six members were other United States officers, such as the United States Trade Representative. Id. § 2193(c). Accordingly, OPIC was subject to the Sunshine Act and complied with it until OPIC was replaced with the DFC by statute. See, e.g., 84 Fed. Reg. 6839-40 (Feb. 28, 2019) (Notice of OPIC Sunshine Act meeting).
The DFC has a nine-member board of directors. It includes: (a) the Chief Executive Officer of the DFC; (b) four officers from other government agencies; and (c) four other individuals appointed directly to the board by the President, with the advice and consent of the Senate. 22 U.S.C. § 9613(b)(2)(A). The four officers from other agencies are: the Secretary of State, the Administrator of the United States Agency for International Development, the Secretary of the Treasury, and the Secretary of Commerce (or their respective designees). Id. § 9613(b)(2)(B).
The BUILD Act also provides that the Chief Executive Officer of the DFC be nominated by the President with the advice and consent of the Senate. Id. § 9613(d)(1). The CEO is “responsible for the management of the Corporation and shall exercise the powers and discharge the duties of the Corporation subject to the bylaws, rules, regulations, and procedures established by the Board, ” of which the CEO is a part. Id. § 9613(d)(2); see Compl. ¶ 11-13.
On April 13, 2020, DFC published a rule exempting itself from the Sunshine Act because, in its view, it did not meet the Act's definition of an “agency.” Compl. ¶ 42. The DFC did not issue a proposed rule prior to publishing the final rule, and the rule did not go through APA notice and comment procedures. Compl. ¶ 43. Since that change, the DFC has conducted meetings without following the requirements of the Sunshine Act. Compl. ¶¶ 46-47, 57. C. Plaintiffs' Participation in OPIC and DFC Meetings
Plaintiffs are three non-profit organizations, the Center for Biological Diversity (“CBD” or “the Center”), Friends of the Earth (“FOE”), and the Center for International Environmental Law (“CIEL”). All three groups monitor the environment and endangered species, both in the United States and abroad. They also engage in advocacy and educational outreach related to their goals of protecting the environment and maintaining biological diversity. Compl. ¶¶ 5-7.
According to several declarations submitted by plaintiffs, prior to the DFC's creation in 2018, staff and members of all three attended OPIC meetings and engaged with OPIC in connection with its overseas projects. Compl. ¶¶ 5-7; see also Uhlemann Decl., ECF No. 7-1; DeAngelis Decl., ECF No. 7-2; Norlen Decl., ECF No. 7-3; Zendejas Decl., ECF No. 7-4.[1] This participation furthered plaintiffs' work monitoring the potential impact of OPIC projects on federally endangered species. Compl. ¶¶ 5-7. Plaintiffs say that access to OPIC meetings and records pursuant to the Sunshine Act facilitated this participation. For example, when OPIC existed, staff from the Center for Biological Diversity “relied on Federal Register notices of meetings, minutes of meetings, transcripts of meetings, and records of meetings.” Uhlemann Decl. ¶ 7. This information “allowed Center staff to monitor the workings of OPIC and participate more effectively in the agency's decision-making process.” Id. The Center submitted comments on OPIC projects in 2017 and 2018. Id. ¶¶ 8-9. Similarly, staff from Friends of the Earth presented at public OPIC meetings throughout 2017 and 2018. DeAngelis Decl. ¶¶ 4-5.
Plaintiffs allege that the DFC's Sunshine Act exemption deprives them of timely information about the agency's projects and activities. Compl. ¶¶ 5-7. They insist that the exemption has already hampered their ability to interact with the DFC. For example, plaintiffs allege that on September 9, 2020, the DFC held a private board meeting at which the board voted to approve funds for the Rovuma Liquified Natural Gas project in northern Mozambique. Norlen Decl. ¶ 7. Doug Norlen, Director of FOE's Economic Policy Program, attests that he has tracked this project since 2015, but was unable to participate in the meeting or provide comments because it was not noticed in the federal register in advance-Mr. Norlen only learned of the meeting on the day it was scheduled to occur. Id.; see also, e.g., Zendejas Decl. ¶ 18 (); Supp. DeAngelis Decl. ¶¶ 8-9, ECF No. 12-1 ().
A. Motion to Dismiss
When analyzing a motion to dismiss under either Rule 12(b)(1) or 12(b)(6), a court “must treat the complaint's factual allegations as true, and must grant plaintiff the ‘benefit of all inferences that can be derived from the facts alleged.'” Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000) (quoting Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979)).
A motion under Rule 12(b)(1) “‘presents a threshold challenge to a court's jurisdiction.'” Ctr. for Biological Diversity v. Jackson, 815 F.Supp.2d 85, 89 (D.D.C. 2011) (quoting Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987)). The plaintiff “bears the burden of proving by a preponderance of the evidence that the Court has subject-matter jurisdiction over her claims.” Schmidt v. U.S. Capitol Police Bd., 826 F.Supp.2d 59, 69 (D.D.C. 2011) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)). When reviewing a challenge under Rule 12(b)(1), “the court may consider documents outside the pleadings to assure itself that it has jurisdiction.” Sandoval v. U.S. Dep't of Justice, 322 F.Supp.3d 101, 104 (D.D.C. 2018) (Cooper, J.).
One core aspect of subject matter jurisdiction is standing-i.e that the plaintiff has suffered an “injury in fact” that is (1) “actual or imminent, ” (2) “fairly traceable to the challenged action of the defendant, ” and (3) capable of being “redressed by a favorable decision.” Lujan, 504 U.S. at 560-61. “[S]tanding is an essential and unchanging part of the case-or-controversy requirement of Article III.” Id. As relevant here, plaintiff can establish an informational injury sufficient for standing by demonstrating a...
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