      Whether the Millennium Challenge Corporation Should 

       Be Considered an “Agency” for Purposes of the Open 

           Meeting Requirements of the Sunshine Act 

The Millennium Challenge Corporation is not an “agency” for purposes of the open meeting
  requirements of the Sunshine Act.

                                                                                       May 3, 2013

    MEMORANDUM OPINION FOR THE VICE PRESIDENT AND GENERAL COUNSEL
                MILLENNIUM CHALLENGE CORPORATION

   Section 552b of the Government in the Sunshine Act (the “Sunshine Act,” or
“Act”) provides that, with certain exceptions, “every portion of every meeting of
an agency shall be open to public observation.” Pub. L. No. 94-409, sec. 3(a),
§ 552b(b), 90 Stat. 1241, 1241 (1976) (codified at 5 U.S.C. § 552b(b) (2006)).1
You have asked whether the Millennium Challenge Corporation (“MCC”), a
government corporation established “to provide United States assistance for global
development,” 22 U.S.C. § 7701(1) (2006), is exempt from the open meeting
requirements of the Sunshine Act on the ground that it is not an “agency” within
the meaning of the Act. Letter for Virginia A. Seitz, Assistant Attorney General,
Office of Legal Counsel, from Melvin F. Williams, Jr., Vice President and General
Counsel, Millennium Challenge Corporation, Re: Request for Formal Opinion—
Applicability of Sunshine Act to Millennium Challenge Corporation at 1 (Apr. 9,
2013) (“MCC Letter”). Under the Act, an “agency” is “any agency, as defined in
[5 U.S.C. § 552(f)2], 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.” 5 U.S.C. § 552b(a)(1). As
you acknowledge, all nine members of the MCC Board of Directors are PAS3
appointees. In your view, however, the MCC should not be considered an
“agency” because five of the nine directors are not appointed directly to the Board,
but rather serve as members of the Board ex officio. MCC Letter at 6.
   We agree that the MCC is not an agency for purposes of the Sunshine Act. Our
longstanding position has been that an ex officio board member is not “appointed
to such position by the President with the advice and consent of the Senate” under


    1
      These and the other requirements in section 552b we refer to collectively in this memorandum as
the open meeting requirements of the Sunshine Act.
    2
      The text of 5 U.S.C. § 552b(a)(1) says “as defined in section 552(e) of this title,” but section
552(e) was redesignated section 552(f) by section 1802(b) of Public Law 99-570, 100 Stat. 3207, 3207-
49 (1986). See 5 U.S.C. § 552b note (2006).
    3
      We use the shorthand “PAS” to refer to positions appointed by the President with the advice and
consent of the Senate.




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                      Opinions of the Office of Legal Counsel in Volume 37


the Sunshine Act.4 5 U.S.C. § 552b(a)(1) (emphasis added). Although an argument
could be made that an ex officio board member is appointed “to such position”
when he is appointed to the underlying position, we have thought that the more
natural reading of the statute requires a direct PAS appointment to a board or other
“collegial body.” Here, under 22 U.S.C. § 7703(c)(3) (2006), five of the nine
directors are members of the Board by virtue of their appointments to other federal
offices: the Secretary of State (appointed PAS pursuant to 22 U.S.C. § 2651a(a)(2)
(2006)); the Secretary of Treasury (PAS, 31 U.S.C. § 301(b) (2006)); the United
States Trade Representative (PAS, 19 U.S.C. § 2171(b)(1) (2006)); the Adminis-
trator of the United States Agency for International Development (PAS, 22 U.S.C.
§§ 2384(a), 6592 (2006)); and the Chief Executive Officer (“CEO”) of the MCC
(PAS, 22 U.S.C. § 7703(b)(2)(A)). The President appoints the remaining four
members, with the advice and consent of the Senate, directly to the Board. 22
U.S.C. § 7703(c)(3)(B). Accordingly, a majority of the MCC directors have not
been appointed “to such positions” by the President with the advice and consent of
the Senate.
    This interpretation is supported by the one published court of appeals decision
on the subject, Symons v. Chrysler Corp. Loan Guarantee Bd., 670 F.2d 238
(1981). In that case, the D.C. Circuit held that a government corporation with all
five board members designated ex officio was not an “agency” under the Sunshine
Act, notwithstanding the board members’ PAS appointment to their respective
underlying positions. The court concluded in Symons that the plain meaning of the
phrase “appointed to such position” (emphasis added) excluded ex officio
designees. Id. at 245. The court found no warrant in the legislative history to read
the phrase “to such position” out of the statute; to the contrary, it noted that


    4
      See, e.g., Letter for Harold D. Kessler, Acting Executive Director, Federal Labor Relations
Council, from Leon Ulman, Deputy Assistant Attorney General, Office of Legal Counsel at 2 (Oct. 27,
1976) (“Ulman Letter”) (“Each of the three members of the [Federal Labor Relations] Council was
appointed to his basic position by the President with the advice and consent of the Senate. . . .
However, membership on the Council is an ex officio responsibility; and with respect to such
membership, there is no ‘appointment’ subject to the advice and consent of the Senate. It follows that
the Council is not an ‘agency’ within the meaning of 5 U.S.C.A. 552b(a)(1).”); Letter for Henry Rose,
General Counsel, Pension Benefit Guaranty Corporation, from Mary C. Lawton, Deputy Assistant
Attorney General, Office of Legal Counsel at 2 (Dec. 28, 1976) (“The PBGC Board of Directors is
made up of the Secretary of the Treasury, the Secretary of Labor and the Secretary of Commerce. . . .
Each of those officials is appointed to his basic position by the President subject to confirmation by the
Senate. However, membership on the Board of Directors is an ex officio responsibility, and with
respect to such membership, there is not the requisite form of appointment.”); Letter for Henry L. Judy,
Vice President and General Counsel, Federal Home Loan Mortgage Corporation, from Mary C.
Lawton, Deputy Assistant Attorney General, Office of Legal Counsel at 1 (Feb. 15, 1977) (“Our office
has considered application of the Sunshine Act to certain bodies composed of the heads of several
separate agencies, i.e. persons appointed to their basic position by the President with Senate confirma-
tion, but serving ex officio on the body in question. Regarding these bodies, we relied upon the
‘appointed to such position’ element of the Sunshine Act’s definition and concluded that the ex officio
bodies were not covered.”).




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    Whether the Millennium Challenge Corporation Should Be Considered an “Agency”


Congresswoman Bella Abzug, one of the sponsors of the Sunshine Act, had
testified that “agencies whose members serve in an ex officio capacity would not
be subject to the Sunshine Act.” Id. at 242.5 The court also cited advice given by
this Office to the Federal Labor Relations Council, in which we stated that the
Council was not an “agency” subject to the Sunshine Act, because all three of its
members serve in that position ex officio. Id. at 243 & n.7 (citing Ulman Letter,
supra note 4, at 2). Finally, the court noted that one agency had concluded in
regulations implementing the Sunshine Act that it was not covered by the Act
because a majority of its board members occupied their positions ex officio. Id.6
   One member of the panel in Symons dissented, pointing out that the phrase “to
such position” could be read to refer to any position in which an individual will
serve ex officio by virtue of an appointment, since at the time of appointment he
would automatically assume the ex officio position as well. Before Symons, the
Comptroller General endorsed this same interpretation in determining that Amtrak,
as then constituted, was an “agency” for purposes of the Sunshine Act. See In the
Matter of Printing by Government Printing Office for National Railroad Passen-
ger Corporation, 57 Comp. Gen. 773, 774–76 (1978). As the Symons majority
held, however, this reading would render the phrase “to such position” “mere
surplusage,” “violat[ing] a fundamental rule of statutory interpretation—that in
construing statutes courts should give effect, if possible, to every word used by
Congress.” 670 F.2d at 241–42 (citing Reiter v. Sonotone Corp., 442 U.S. 330,


    5
      Specifically, Congresswoman Abzug testified that the National Security Council would not be
covered by the Sunshine Act because its members are “not appointed to that position by the President”;
rather, “they are appointed to other positions and . . . are ex officio members” of the Council.
Government in the Sunshine: Hearings on H.R. 11656 Before the Subcomm. on Administrative Law
and Governmental Relations of the H. Comm. on the Judiciary, 94th Cong. 16 (1976).
    6
      This agency was the Federal Open Market Committee (“FOMC”) within the Federal Reserve
Board. 42 Fed Reg. 13,300, 13,300 (Mar. 10, 1977), codified at 12 C.F.R. § 281.2 (1978) (“The
FOMC’s membership is composed of the seven members of the Board of Governors [of the Federal
Reserve System] and five representatives of the Federal Reserve Banks who are selected annually in
accordance with the procedures set forth in Section 12A of the Federal Reserve Act, 12 U.S.C.
§ 263(a). Members of the Board of Governors serve in an ex officio capacity on the FOMC by reason
of their appointment as Members of the Board of Governors, not as a result of an appointment ‘to such
position’ (the FOMC) by the President. Representatives of the Reserve Banks serve on the FOMC not
as a result of an appointment ‘to such position’ by the President, but rather by virtue of their positions
with the Reserve Banks and their selection pursuant to Section 12A of the Federal Reserve Act. It is
clear therefore that the FOMC does not fall within the scope of an ‘agency’ or ‘subdivision’ as defined
in the Sunshine Act and consequently is not subject to the provisions of the Act.”).
    A second agency, a review board within the Department of Defense, has also taken this position
with respect to the Sunshine Act. DoD Directive 1000.20, 44 Fed. Reg. 11,220, 11,221, 11,223 (Feb.
28, 1979) (indicating that the Department of Defense Civilian/Military Service Review Board is not
subject to the open meeting requirements of the Sunshine Act because its members—“one representa-
tive each from the Office of the Secretary of Defense and the Departments of the Army, Navy and Air
Force, and the Department of Transportation when cases involve groups claiming active Coast Guard
service”—might be PAS in their underlying positions but would not be appointed in that manner to the
Review Board).




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                 Opinions of the Office of Legal Counsel in Volume 37


339 (1979)). It is also worth noting that the committee reports on the Sunshine Act
contained lists of agencies that were expected to be covered by the definition in
the Act. Those lists, prepared in consultation with the Department of Justice, did
not appear to include any agency that had a majority of its members designated ex
officio. See H.R. Rep. No. 94-880, pt. 2, at 13–14 (1976); S. Rep. No. 94-354, at
15–16 (1975).
    We have adhered to the interpretation adopted by the D.C. Circuit in Symons
ever since the Sunshine Act was enacted. See supra note 4. Symons remains good
law, and we are aware of no subsequent contrary authority. Following Symons and
our prior advice, we conclude that the ex officio members of the MCC Board of
Directors are not “appointed to such position” by the President with the advice and
consent of the Senate and that the MCC therefore should not be considered an
“agency” subject to the open meeting requirements of the Sunshine Act.
    In reaching this conclusion, we have considered specifically whether the MCC
should be distinguished from the entities considered by our prior advice, either
because all of the directors who are appointed directly to the Board receive their
appointment by the President, with the advice and consent of the Senate, or
because the four private sector directors together with the CEO of the MCC
constitute a majority of the Board. Neither of these features persuades us to reach
a different conclusion. First, we believe that all members of the Board, including
ex officio members, must be included when assessing whether a majority of the
Board has been appointed “to such position” directly by the President, with the
advice and consent of the Senate. As the Sunshine Act states, to be subject to the
open meeting requirements of the Act, an agency must be “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.” 5 U.S.C. § 552b(a)(1) (emphasis added). “Whom” refers to the entirety of
the collegial body. Thus, a majority of the members of the collegial body that
heads the agency—and not just a majority of the members of the collegial body
left over after the ex officio members are subtracted—must be PAS appointees. It
does not matter here that a majority of the non-ex officio members (all four) of the
MCC Board are PAS appointees. The denominator in the equation is the nine
members of the Board as a whole, of whom only four are PAS appointees.
    Second, we believe that the CEO of the MCC is 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. The MCC statute
declares in one subparagraph (22 U.S.C. § 7703(b)(2)(A)) that “the Chief Execu-
tive Officer shall be appointed by the President, by and with the advice and
consent of the Senate” and then declares in a separate subparagraph (id.
§ 7703(c)(3)(A)) that “[t]he Board shall consist of . . . the Secretary of State, the
Secretary of the Treasury, the Administrator of the United States Agency for
International Development, the Chief Executive Officer of the Corporation, and




                                          4

   Whether the Millennium Challenge Corporation Should Be Considered an “Agency”


the United States Trade Representative.” That the office of the CEO is distinct
from the Board is underscored by the fact that the CEO “shall report to and be
under the direct authority of the Board.” Id. § 7703(b)(3).
   For all these reasons, we agree with you that the MCC should not be considered
an “agency” subject to the open meeting requirements of the Sunshine Act.

                                               VIRGINIA A. SEITZ
                                             Assistant Attorney General
                                              Office of Legal Counsel




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