Byrd v. United States Environmental Protection Agency

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 13, 1999 Decided April 30, 1999

No. 98-5180

Daniel M. Byrd, III,

Appellant

v.

United States Environmental Protection Agency,

Appellee

Appeal from the United States District Court

for the District of Columbia

(No. 97cv01923)

Thomas R. Bartman argued the cause for the appellant.
James V. Delong was on brief for the appellant.

Thomas M. Bondy, Attorney, United States Department of
Justice, argued the cause for the appellee. Frank W. Hun-
ger, Assistant Attorney General, Wilma A. Lewis, United
States Attorney, and Mark B. Stern, Attorney, United States
Department of Justice, were on brief for the appellee. Alisa
B. Klein, Attorney, United States Department of Justice,
entered an appearance.

Before: Edwards, Chief Judge, Williams and Henderson,
Circuit Judges.

Opinion for the court filed by Circuit Judge Henderson.

Separate opinion concurring in part and dissenting in part
filed by Circuit Judge Williams.

Karen LeCraft Henderson, Circuit Judge: Appellant Dan-
iel M. Byrd seeks reversal of the district court's grant of
summary judgment to the Environmental Protection Agency
(EPA) on his claim that EPA violated the Federal Advisory
Committee Act (FACA), 5 U.S.C. App. II ss 1-15. Specifi-
cally, Byrd contends that a peer review panel convened by an
EPA contractor, the Eastern Research Group (ERG), to
update EPA's interim benzene report constituted a federal
"advisory committee" and therefore its proceedings were
governed by FACA, with which it admittedly did not comply.
Byrd seeks either reversal and a declaration that the panel's
proceedings violated FACA or, alternatively, remand for dis-
covery pursuant to Fed. R. Civ. P. 56(f). EPA counters that
Byrd lacks standing, his claim is now moot and he is wrong
on the merits. We affirm for the reasons set forth below.

I. BACKGROUND

In 1985, EPA issued an interim report discussing the
carcinogenic effects of benzene. By 1996, EPA had prepared
a draft update of its interim benzene report (Benzene Up-
date). See Sonawane Decl. pp 2-5, Joint Appendix (JA) 173-
75. Before finalizing the Benzene Update, EPA decided to
subject it to external peer review.

Under a contractual arrangement with EPA, ERG, a pri-
vate environmental consulting firm, convened and conducted
the peer review. See id. p 5, JA 175. The contract required
ERG to select a panel of qualified experts, organize a public
meeting of the panel to discuss the proposed Benzene Update
and compile and submit a report to EPA summarizing the
panel's assessment. See Statement of Work at 1-7, JA 184-
90; Work Plan for Work Assignment No. 0-5 Contract No.
68-C6-0041, Expert Panel Peer Review of Benzene Risk

Assessment Update (May 14, 1997) [hereinafter Work Plan],
JA 199-204. In addition, the contract specified that EPA was
to pay ERG a fixed sum and that ERG was to compensate the
panel members. See Work Plan, JA 201. The contract also
allowed EPA to determine the issues for the panel to evaluate
and to comment in writing on ERG's draft final report. See
Statement of Work at 5, JA 188.

Pursuant to the contract, EPA submitted to ERG for its
consideration a list of twenty-four scientists who, in EPA's
view, possessed the professional credentials necessary to
serve on the peer review panel. See JA 192-93 (list of
potential panelists). From the list, ERG selected four indi-
viduals to be panelists. ERG also selected two panelists from
its own database of consultants. See EPA Mem. from Bar-
bara Cook to Billy Oden, Re: Work Plan/Cost Estimate
Approval, ERG Contract No. 68-C6-0041, WA 0-5 (June 9,
1997) [hereinafter 6/9/97 Mem.], JA 220; 6/13/97 Letter, JA
221. EPA suggested no modifications to the list of panel
members selected by ERG. See 6/9/97 Mem., JA 220; 6/13/97
Letter, JA 221; see also Statement of Work at 2, JA 185
(stating that "final approval of selected experts will be made
by EPA").

On June 27, 1997 EPA held a teleconference with ERG and
the selected panelists, during which the panelists were in-
structed to prepare pre-meeting comments on the draft Ben-
zene Update "specifically addressing a series of questions
that [EPA] had provided" to ERG. Sonawane Decl. p 7, JA
176. The panelists circulated their pre-meeting notes among
themselves and provided a copy to EPA. See id. p 8, JA 176.
On June 30, 1997 EPA gave public notice in the Federal
Register of the panel's scheduled meeting. See Draft Carcin-
ogenic Effects of Benzene: An Update, 62 Fed. Reg. 35,172,
35,172-73 (1997), JA 213-14. The Federal Register notice
explained the purpose of the meeting and noted that the draft
was publicly available on the Internet or in writing from
EPA. The notice also stated that ERG was to provide
"logistical support for the workshop" and that interested
persons could attend and participate in the meeting and
advised that written comments could be submitted to EPA

during a 60-day period ending August 29, 1997. 62 Fed. Reg.
at 35,173, JA 214.

The panel meeting took place as scheduled on July 16,
1997. "The meeting was managed by ERG. Although sever-
al EPA employees who had been involved in developing the
draft benzene update attended the meeting and effectively
participated ..., no EPA employee or officer supervised the
conduct of the meeting."1 Byrd Decl. p 8, JA 345. Byrd, a
self-employed "consulting toxicologist and risk assessor," id.
p 2, JA 342, also attended after "learn[ing] about the [July 16,
1997] meeting through EPA's [public notice] in the Federal
Register."2 Id. p 4, JA 344. Byrd participated in the meet-
ing, twice expressing his views to the panel and others
present. In addition, because of his concerns regarding the
assumptions underlying the Benzene Update and his desire to
be more informed, Byrd had earlier sought a copy of the
panel members' pre-meeting notes but had been rebuffed
three times. See id. pp 11, 13-15, JA 345-47; Sonawane Decl.
pp 12-13, JA 177-78. Byrd made no additional attempt at the
meeting to secure the notes. After the meeting, Byrd timely
submitted written comments to EPA on the draft Benzene
Update. See Sonawane Decl. p 15, JA 178.

On August 22, 1997, Byrd filed this action alleging that the
expert panel assembled by ERG was an "advisory committee"
within the meaning of FACA3. Byrd sought both declaratory

__________
1 David Bayless, an EPA employee, opened the meeting by
introducing the panel and repeating the questions EPA had posed
to the panel. See Panel Report at 3-4, JA 233-34; Byrd Decl. p 10,
JA 345.

2 Byrd "frequently attend[s], and plan[s] to continue attending,
meetings sponsored by [EPA] about the toxicology and risks of
specific air pollutants." Byrd Decl. p 2, JA 342.

3 If the benzene panel was in fact an "advisory committee"
subject to FACA as defined by 5 U.S.C. App. II s 3(2), both parties
agree that the panel functioned in violation of FACA. Among other
things, "the records, ... working papers ... or other documents
which were made available to ... each advisory committee shall be
available for public inspection and copying", FACA, 5 U.S.C. App.

relief and a use injunction barring EPA from using the
panel's work product. See Compl. p 16. One month later,
ERG submitted to EPA its final report, including its analysis
of the draft Benzene Update. See Sonawane Decl. p 14, JA
178; Schalk Decl. p 8, JA 219; Panel Report, JA 228-329.
EPA "did not participate in ERG's preparation of the final
report." Sonawane Decl. p 14, JA 178.

On October 10, 1997, almost three months after the meet-
ing, Byrd's counsel wrote a letter to EPA's FOIA officer
requesting a copy of the panel's pre-meeting notes. See
Letter from Thomas R. Bartman to Jeralene Green, EPA,
Re: Written Comments Prepared for or by Members of the
Advisory Committee Convened July 16, 1997 (Oct. 10, 1997),
JA 216. EPA provided all of the requested notes and invited
Byrd to submit additional comments. See Letter from Wil-
liam H. Farland, Director, Office of Research and Develop-
ment, to Thomas R. Bartman, Re: FOIA Request HQ-Rin-
00186-98 (Nov. 14, 1997), JA 215. Byrd, however, declined to
do so. EPA then moved to dismiss Byrd's complaint or,
alternatively, for summary judgment. EPA challenged
Byrd's standing and, on the merits, argued that the peer
review panel assembled by ERG was not an "advisory com-
mittee" under FACA. The district court ruled in favor of
EPA. Byrd v. EPA, C.A. No. 97-1923 (D.D.C. May 1, 1998)
(Mem. and Order) [hereinafter Mem. & Order], JA 5-9.
Although it "assum[ed] without deciding" that Byrd had
standing, Mem. & Order at 2-3 n.1, JA 6-7, the district court
held that a panel convened by a private contractor is not a
FACA "advisory committee" as that term has been construed
by the Supreme Court and by this Court. See id. at 2-5, JA
6-9 (citing Public Citizen v. United States Dep't of Justice,
491 U.S. 440 (1989), and Food Chem. News v. Young, 900

__________
II s l0(b), and "[d]etailed minutes of each meeting of each advisory
committee shall be kept." Id. s 10(c). FACA also stipulates that
"[t]here shall be designated an officer or employee of the Federal
Government to chair or attend each meeting of each advisory
committee." Id. s 10(e). "No advisory committee shall conduct any
meeting in the absence of that officer or employee." Id.

F.2d 328 (D.C. Cir.), cert. denied, 498 U.S. 846 (1990)). Byrd
timely filed his appeal.

II. DISCUSSION

A. Standing

EPA first attacks Byrd's standing to bring this action.
Although the district court "assum[ed] without deciding"
Byrd's standing, Mem. & Order at 2-3 n.1, JA 6-7, its
approach is incorrect in light of the Supreme Court's recent
holding in Steel Company v. Citizens for a Better Environ-
ment, 118 S. Ct. 1003 (1998), that standing is a "threshold
jurisdictional question" that cannot be assumed in resolving
litigation. Id. at 1016. "Moreover, because Article III stand-
ing is always an indispensable element of the plaintiff's case,
neither we nor the Congress can dispense with the require-
ment--even if its application renders a FACA violation ir-
remediable in a particular case." Natural Resources Defense
Council v. Pena, 147 F.3d 1012, 1020 (D.C. Cir. 1998)
(NRDC); see also Federal Express Corp. v. Air Line Pilots
Ass'n, 67 F.3d 961, 963 (D.C. Cir. 1995) ("The requirement of
a case or controversy is no less strict when a party is seeking
a declaratory judgment than for any other relief."). There-
fore, we must decide EPA's challenge to Byrd's standing.

The Steel Company holding requires us to focus on three
elements:

First and foremost, there must be alleged (and ultimately
proven) an injury in fact--a harm suffered by the plain-
tiff that is concrete and actual or imminent, not conjec-
tural or hypothetical.... Second, there must be causa-
tion--a fairly traceable connection between the plaintiff's
injury and the complained-of conduct of the defen-
dant.... And third, there must be redressability--a
likelihood that the requested relief will redress the al-
leged injury.... This triad of injury-in-fact, causation,
and redressability comprises the core of Article III's
case-or-controversy requirement, and the party invoking

federal jurisdiction bears the burden of establishing its
existence.

118 S. Ct. at 1016-17 (quotations and citations omitted).

According to the Supreme Court, a refusal to provide
information to which one is entitled under FACA constitutes
a cognizable injury sufficient to establish Article III standing.
See Public Citizen, 491 U.S. at 449 ("refusal to permit appel-
lants to scrutinize [committee's] activities to the extent FACA
allows constitutes a sufficiently distinct injury to provide
standing to sue"). By denying Byrd timely access to the
panel's written comments and pre-meeting notes, EPA direct-
ly caused his informational injury. See Byrd Decl. at 6 p 15;
Sonawane Decl. at 5-6 p 13, JA 177-78; Panel Report at 30,
JA 260. EPA therefore can make no serious challenge to the
injury and causation elements of Byrd's standing. See Food
Chem. News v. Department of Health & Human Servs., 980
F.2d 1468, 1469 (D.C. Cir. 1992) ("[W]henever practicable, all
[Federal Advisory Committee] materials must be available for
public inspection and copying before or on the date of the
advisory committee meeting to which they apply.") (emphasis
added).

EPA does question whether Byrd can meet the redressabil-
ity prong. It first contends that declaratory relief will no
longer redress Byrd's inability to obtain timely access to the
panel's documents because they have since been made avail-
able and the panel has completed its work and been disband-
ed. See Appellee's Br. at 13, 21-27; Sonawane Decl. at 6
p 14, JA 178; Schalk Decl. p 8, JA 219. EPA also stresses
that declaratory relief will not prevent additional information-
al injuries resulting from any future noncompliance with
FACA. [See Appellee's Br. at 21-27.] If Byrd had simply
complained that EPA failed to release the documents he
requested, his alleged injury could not be redressed by any
action of this Court because he ultimately received the mate-
rials. Byrd's injury, however, resulted from EPA's failure to
furnish him with the documents until long after they would
have been of any use to him. Thus, contrary to EPA's
contentions, declaratory relief will redress Byrd's injury be-
cause it will provide him with this Court's declaration that the
agency failed to comply with FACA; and such a declaration

will give Byrd "ammunition for [his] attack on the Commit-
tee's findings" in subsequent agency proceedings that make
use of the Benzene Update. NRDC, 147 F.3d at 1026 n.6.
Such an attack might also prompt, in view of the importance
placed on the Benzene Update by EPA, see Statement of
Work at 1 (contracting with ERG to conduct "category 1 peer
review of the draft benzene document"), JA 184; Sonawane
Decl. at 3 p 4 (" 'Category 1' peer review is used when major
scientific or technical work products are being generat-
ed...."), JA 175, additional, FACA-compliant peer review on
the issue. Moreover, declaratory relief might well cause EPA
to reevaluate and change peer review practices not in con-
formity with FACA. Accordingly, we conclude Byrd has
standing to maintain his action.

B. Mootness

EPA also contends that Byrd's request for declaratory
relief is moot because it has already given him the panel's
pre-meeting notes and it is not engaged in any ongoing
violation of FACA. Nevertheless, "even the availability of a
'partial remedy' is 'sufficient to prevent [a] case from being
moot'." Calderon v. Moore, 518 U.S. 149, 150 (1996) (quoting
Church of Scientology v. United States, 506 U.S. 9, 13 (1992)).
Because Byrd's injury resulted not only from EPA's failure to
provide him materials but also from the tardiness of their
eventual release, his injury would be mooted if EPA convened
another panel to review the Benzene Update in compliance
with FACA and provided him with all panel documents either
before or at the meeting. Because EPA has not taken such
action, declaratory relief would afford Byrd some relief and
prevent his action from becoming moot.

Byrd also argues that EPA has a policy of hiring contrac-
tors to conduct peer reviews without following FACA require-
ments. See Payne Enters., Inc. v. United States, 837 F.2d
486, 491 (D.C. Cir. 1988) ("So long as an agency's refusal to
supply information evidences a policy or practice of delayed
disclosure or some other failure to abide by the terms of the
FOIA, and not merely isolated mistakes by agency officials, a

party's challenge to the policy or practice cannot be mooted
by the release of the specific documents that prompted the
suit.").4 Thus, the tardy release of the documents does not
render the case moot because Byrd's challenge to the policy
remains. See United States v. W.T. Grant Co., 345 U.S. 629,
632 (1953) ("[V]oluntary cessation of allegedly illegal conduct
does not deprive the tribunal of power to hear and determine
the case, i.e., does not make the case moot. A controversy
may remain to be settled in such circumstances, e.g., a
dispute over the legality of the challenged practices. The
defendant is free to return to his old ways. This, together
with a public interest in having the legality of the practices
settled, militates against a mootness conclusion. For to say
that the case has become moot means that the defendant is
entitled to a dismissal as a matter of right. The courts have
rightly refused to grant defendants such a powerful weapon
against public law enforcement.") (citations omitted).

C. The Merits

FACA defines an "advisory committee" as

any committee, board, commission, council, conference,
panel, task force, or other similar group, or any subcom-
mittee or other subgroup thereof ... which is ... estab-
lished or utilized by one or more agencies, in the interest
of obtaining advice or recommendations for ... one or
more agencies or officers of the Federal Government.

5 U.S.C. App. II, s 3(2) (emphasis added). Because EPA did
not "establish" nor did it "utilize" the panel within the mean-
ing of section 3(2) of FACA, we affirm the district court's
grant of summary judgment to EPA.5 The district court
treated EPA's motion for dismissal and summary judgment

__________
4 Indeed, counsel for EPA conceded at oral argument that peer
review meetings conducted by contractors without following FACA
might occur in the future. See Tr. at 14-30, Byrd v. EPA, No.
98-5180 (D.C. Cir. Jan. 13, 1999).

5 We review the district court's grant of summary judgment de
novo and sustain the decision below if "there is no genuine issue of

as a motion for summary judgment and on that basis granted
the motion. See Mem. & Order at 2, JA 6.

Relying on legislative history, Byrd suggests that "estab-
lished" and "utilized" should be construed "in their most
liberal sense, so that when an officer brings together a group
by formal or informal means, by contract or other arrange-
ment ... to obtain advice and information, such group is
covered by [FACA]." Appellant's Br. at 11 (quoting S. Rep.
No. 92-1098, reprinted in V. McMurty, Fed. Advisory Comm.
Act (Pub. L. 92-463), Source Book: Legislative History,
Texts, and Other Documents at 158 (Cong. Res. Serv. 1978)).
The Supreme Court, however, in Public Citizen v. United
States Dep't of Justice, 491 U.S. 440 (1989), squarely rejected
an expansive interpretation of the words, reading "estab-
lished" and "utilized" narrowly to prevent FACA from sweep-
ing more broadly than the Congress intended. See 491 U.S.
at 452, 461 (finding "utilized" a "wooly verb" and declining to
adopt dictionary meanings of "established" and "utilized" in
FACA); see also Animal Legal Defense Fund v. Shalala, 104
F.3d 424, 427 (D.C. Cir.) (noting "the term 'utilized' was given
a very narrow interpretation by the Supreme Court")
(ALDF), cert. denied sub nom., National Academy of Sci-
ences v. Animal Legal Defense, 118 S. Ct. 367 (1997). In
addition, the Court indicated that an advisory panel is "estab-
lished" by an agency only if it is actually formed by the
agency, see id. at 452, 456-57, and "utilized" by an agency
only if it is "amenable to ... strict management by agency
officials," id. at 457-58. The Court, therefore, held FACA
inapplicable to the American Bar Association Standing Com-
mittee on the Federal Judiciary, rejecting the argument that
that committee had to comply with FACA simply because the

__________
material fact and the moving party is entitled to a judgement as a
matter of law." Fed. R. Civ. P. 56(c); see also Doe v. Gates, 981
F.2d 1316, 1322 (D.C. Cir.), cert. denied, 510 U.S. 928 (1993). We
view the evidence in the light most favorable to the nonmoving
party and ask "whether any reasonable jury could find in its favor."
Harbor Ins. Co. v. Schnabel Found. Co., 946 F.2d 930, 935 (D.C.
Cir. 1991).

Department of Justice regularly sought its input regarding
judicial nominees. See id. at 452-67.

We have similarly interpreted "established" and "utilized."
For example, in Food Chemical News v. Young, 900 F.2d 328
(D.C. Cir.) cert. denied, 498 U.S. 846 (1990), we held that a
panel assembled by the Federation of American Societies for
Experimental Biologies (FASEB) pursuant to a formal con-
tract to advise the Food and Drug Administration (FDA) on
food safety was not an advisory committee subject to FACA.
In so holding, we explained that " 'established' indicates 'a
Government-formed advisory committee,' while 'utilized' en-
compasses a group organized by a nongovernmental entity
but nonetheless so 'closely tied' to an agency as to be amena-
ble to 'strict management by agency officials'." Id. at 332-33
(quoting Public Citizen, 109 S. Ct. at 2568, 2570) (footnote
omitted). We have interpreted "utilized" to encompass "man-
agement ... 'by [any] semiprivate entity the Federal Govern-
ment helped bring into being.' " Id. at 333 (quoting Public
Citizen, 109 S. Ct. at 2571) (alteration original); see also
ALDF, 104 F.3d at 427 (noting Supreme Court and this
Circuit have adopted " 'management and control' test to
determine whether a committee not established by a govern-
ment agency is nevertheless 'utilized' "). This "second prong"
of Food Chemical New's "utilized" standard is inapplicable
here because EPA is a governmental agency and ERG is not
an entity the government had a role in creating. Thus,
contrary to the broad standard suggested by Byrd, "the
utilized test is a stringent standard, denoting 'something
along the lines of actual management or control of the
advisory committee.' " ALDF, 104 F.3d at 430 (quoting
Washington Legal Found. v. Sentencing Comm'n, 17 F.3d
1446, 1450 (D.C. Cir. 1994)) (emphasis original). Indeed, this
Court has held that participation by an agency or even an
agency's "significant influence" over a committee's delibera-
tions does not qualify as management and control such that
the committee is utilized by the agency under FACA. See
Washington Legal Found., 17 F.3d at 1451.

Although this Court has held that an agency "establishes" a
committee only if the agency forms the committee, see Food
Chem. News, 900 F.2d at 332, Byrd contends that EPA
"effectively created" the panel by "conceiving of the need for"

it and implementing it by hiring ERG to handle the logistics.
Appellant's Br. at 16-17 (noting EPA's presentation of panel
as its own in Federal Register notice and at public meeting).
According to Byrd, EPA's actions are unlike those of the
FDA in Food Chemical News in that, there, the contractor
(not the agency) "proposed using ad hoc groups of knowledge-
able experts as a means of carrying out the contract." Id. at
13 (quoting Br. of Resp't in Opp'n, Food Chem. News, No.
90-23 (in Supreme Ct. on pet. for writ of cert.)). But our
analysis of whether an advisory committee has been "estab-
lished" does not turn on a determination of who determines
the methodology or operation of the peer review. Notably,
the contractors in both Food Chemical News and here re-
ceived a "task order" or a "work assignment" from the
relevant agency defining the objective, the method and the
scope of the studies to be performed. See Food Chem. News,
900 F.2d at 330; Statement of Work at 1-7, JA 184-90; Work
Plan, JA 199-204. Moreover, because ERG selected the
membership of the benzene panel, see 6/9/97 Mem., JA 220;
6/13/97 Letter, JA 221, Byrd cannot show that it was " 'a
Government-formed advisory committee' " as required by our
narrow interpretation of "established." Food Chem. News,
900 F.2d at 332 (quoting Public Citizen, 109 S. Ct. at 2570).
Byrd nevertheless argues that EPA established the panel
because it retained the power to approve ERG's panel mem-
ber selections. Although EPA provided a list of suggested
panel members to ERG, ERG was not required to select its
members from that list and two of the panel members were
not on the EPA list.6 See JA 192-93 (list of potential
panelists); Work Plan, JA 201; 6/9/97 Mem., JA 220; 6/13/97
Letter, JA 221; Panel Report App. A, JA 275-76. Moreover,
EPA approved ERG's panel member selections without
changes. See Sonawane Decl. p 6, JA 176; 6/9/97 Mem., JA
220; 6/13/97 Letter, JA 221. Finally, ERG, not EPA, paid
the panelists from its own funds. See Schalk Decl. p 4, JA

__________
6 After consulting with EPA, see Statement of Work at 1, JA
184, ERG also designated the panel's chairman. See Sonawane
Decl. at 5, JA 177; Schalk Decl., JA 218; 6/13/97 Letter, JA 221;
Panel Report App. A, JA 275-76.

218. Although the contract between ERG and EPA afforded
EPA significant potential authority in the panel selection
process, EPA never fully exercised it. And there is no reason
to assume that the threat of an EPA veto affected ERG's
panel selections. The result in this case might have been
different if EPA had exercised its authority. The record,
however, belies any claim that EPA in fact "established" the
panel as required by FACA. The statute describes a panel
that "is ... established," 5 U.S.C. App. II, s 3(2), not one
that could have been established by a government agency.
Accordingly, EPA did not establish the benzene panel within
the meaning of FACA.

Byrd also contends that EPA "utilized" the benzene panel
because it exercised much more control over it than the
agencies in Food Chemical News and Washington Legal
Foundation exercised over the committees at issue in those
cases.7 See Appellant's Br. at 14-15 (asserting EPA provided
list of experts from which ERG was to select panel, reserved
final authority to approve composition of panel, consulted
with ERG on choice of chairman and agenda, presented
charge to panel in pre-meeting conference call and reserved
right to make written comments on ERG draft report). But
even assuming EPA exercised more influence here than did
the FDA or the DOJ in relation to their committees, EPA did
not manage and control the benzene panel within FACA's
scope, keeping in mind that "the utilized test is a stringent
standard, denoting 'something along the lines of actual man-
agement or control of the advisory committee.' " ALDF, 104
F.3d at 430 (quoting Washington Legal Found., 17 F.3d at
1450) (emphasis original)). As we held in Washington Legal

__________
7 Although Byrd asserts that EPA exerted greater influence on
the benzene panel than did the Justice Department on the Sentenc-
ing Commission's Advisory Group in Washington Legal Founda-
tion, see Reply Br. at 4-5, his assertion is debatable. In Washing-
ton Legal Foundation, the agency placed its own employees on the
panel. See 17 F.3d at 1450-51. And even with agency employees
on the panel, this Court nonetheless held that their influence did
not meet the management and control level needed to trigger
FACA. See id. at 1451.

Foundation, even "significant" influence does not represent
the level of control necessary to establish that a government
agency "utilized" an advisory panel. 17 F.3d at 1451 ("But
influence is not control.").

Contrary to Byrd's contention, the record shows that ERG
in fact actually managed and controlled the selection of the
panel's membership. See Mem. & Order at 4 n.2, 5; Sona-
wane Decl. at 4, JA 176; 6/9/97 Mem., JA 220; 6/13/97 Letter,
JA 221. Moreover, as even Byrd admits,

The [panel's July 16, 1997 public] meeting was managed
by a contractor, ERG. Although several EPA employees
who had been involved in developing the draft benzene
update attended the meeting and effectively participated
..., no EPA employee or officer supervised the conduct
of the meeting.

Byrd Decl. p 8, JA 345; see Schalk Decl. p 6, JA 219. Finally,
ERG, rather than EPA, prepared the report of the panel's
proceedings. See Statement of Work at 5, JA 188; Work
Plan, JA 204. Although the contract authorized EPA to
receive and comment on the draft report before it was
finalized, the district court found "no evidence that EPA's
input, if any, resulted in changes being made to the final
Expert Panel Report." Mem. & Order at 4 n.2, JA 8; see
Sonawane Decl. p 14, JA 178 (EPA "did not participate in
ERG's preparation of the final report."). Because our deci-
sion is based on what EPA in fact did, rather than on what it
could have done under its contract with ERG, we conclude
that EPA's actions regarding the benzene panel do not consti-
tute "actual management and control." ALDF, 104 F.3d at
430; Washington Legal Found., 17 F.3d at 1450. According-
ly, the district court correctly determined that the benzene
panel was not subject to the constraints of FACA because
EPA neither "utilized" nor "established" it.

For the foregoing reasons, the district court's grant of
summary judgment to the Environmental Protection Agency
is

Affirmed.8

__________
8 Byrd alternatively sought remand for discovery pursuant to
Fed. R. Civ. P. 56(f) (allowing discovery before summary judgment
if "it appear[s] from the affidavits of a party opposing the motion
that the party cannot for the reasons stated present by affidavit
facts essential to justify the party opposition."). See Decl. of Daniel
M. Byrd Pursuant to Rule 56(f), JA 350-51. Byrd had to show
what facts he intended to discover that would create a triable issue
and why he could not produce them in opposition to the motion.
See Hotel & Restaurant Employees Union, Local 25, et al. v.
Attorney Gen. of the United States, 804 F.2d 1256, 1259 (D.C. Cir.
1986). "It is well settled that [c]onclusory allegations unsupported
by factual data will not create a triable issue of fact." Exxon Corp.
v. FTC, 663 F.2d 120, 126-27 (D.C. Cir. 1980) (quotation omitted).
Byrd merely alleged that "there may well be knowledge on the part
of EPA employees or undisclosed documents identifying additional
contacts between EPA and the peer panel members," Rule 56(f)
Decl. at 1-2 p 3, JA 350-51, a plainly conclusionary assertion
without any supporting facts. The district court did not abuse its
discretion in denying Byrd discovery before granting EPA's sum-
mary judgment motion. See Exxon Corp., 663 F.2d at 126 (Rule
56(f) ruling reviewed for abuse of discretion).

Williams, Circuit Judge, concurring in part and dissenting
in part: I agree with the majority that we have jurisdiction,
albeit on a different theory. On the merits, however, though
the case is close, I would reverse.

Jurisdiction rests, I think, entirely on EPA's policy of using
contractors to do peer reviews of risk assessments under
arrangements like those involved in the Benzene Update that
triggered this suit. Because Byrd is a regular participant in
risk assessment panels, the threat of future injury from the
policy is likely and imminent enough to justify standing.
Jurisdiction based on the policy rather than the benzene
episode suffers no mootness problem: EPA never claimed it
would back away from the alleged policy; indeed, counsel at
oral argument more or less admitted that the procedures
used for benzene represented EPA's ongoing policy.

Unlike the future informational injuries that will flow from
EPA's refusal to apply FACA to its contractors' consultative
process, Byrd's injury from EPA's applying that view to the
Benzene Update appears irredressable. His claim to the
documents, of course, is mooted by EPA's FOIA officer's
releasing them to him. And I do not see how a mere
declaration that he should have had them at the time of the
meeting constitutes redress for that loss. The majority sug-
gests that a declaration would help Byrd attack this commit-
tee's findings on benzene if EPA wishes to use them in some
future proceeding. Perhaps this provides standing for one
claiming threatened injury-in-fact from the outcome of this
future proceeding, but Byrd made no such claim. Further,
such a declaration would seem a telling weapon for Byrd in a
hypothetical future proceeding only if he asserted that the
documents belatedly turned over enabled him to poke a hole
in the substance of the peer review, a hole that he was unable
to perceive on a timely basis because of EPA's original
refusal to deliver them. But he has identified no such gap.

Nor do I think NRDC v. Pena, 147 F.3d 1012, 1026 n.6
(D.C. Cir. 1998), see Maj. Op. at 7-8, extended "informational
injury" so far. That footnote merely observed that denying
an injunction against future use of findings from a FACA-

defective proceeding would not render FACA entirely tooth-
less. One such tooth may be declaratory relief, and its utility
in some cases may depend on the winner's being able to use it
to delegitimate such findings. But nothing in Pena suggested
that the prospect of securing such a benefit from the court
could alone support standing as a general matter. The
majority's language extending the "informational injury" re-
dressable under FACA appears to assume that a highly
theoretical injury is adequate for standing; the language is
unnecessary to jurisdiction here.

On the merits, I believe that FACA governs panels estab-
lished under the challenged policy. Our precedent on this
language is rather thin, but appears to say that an agency
"establish[es]" a panel if it has real control over its personnel
and subject matter at its inception. Thus in Food Chemical
News v. Young, 900 F.2d 328, 333 (D.C. Cir. 1990), we said
that the agency had not "established" the panel because the
contractor "proposed" it, "alone selected its members," "set
the panel's agenda," "scheduled its meetings," and "would
have reviewed the panel's work." Here EPA proposes the
use of a panel, submits an initial list of suggested members to
the contractor, retains veto power over the final membership,
and sets the panel's agenda. (The procedure used for the
Benzene Update is evidently representative of EPA's prac-
tice.) The veto power is key. That it was not used in the
benzene episode does not much help EPA: not only may EPA
exercise it in future applications of the policy, but the contrac-
tor was and is quite likely to take the fact of veto power into
account in its selection decisions. Assuming that contractors
will ignore this fact--as the majority appears to do, see Maj.
Op. at 13--seems akin to believing that the President takes
no account of senators' opinions when he nominates federal
judges.

Although the issue of whether EPA "established" the panel
is certainly a close one, it seems to me inconsistent with the
statute's language and intent to exempt from FACA a panel
controlled so closely in membership and purpose.