United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 15, 1999 Decided December 21, 1999
No. 98-1558
Chiron Corporation and
PerSeptive Biosystems, Inc.,
Petitioners
v.
National Transportation Safety Board, et al.,
Respondents
On Petition for Review of an Order of the
United States Department of Transportation
Jerry W. Cox argued the cause for petitioners. With him
on the briefs were Richard S. Odom and Martin Shulman
Peter R. Maier, Attorney, U.S. Department of Justice,
argued the cause for respondents. With him on the brief
were David W. Ogden, Acting Assistant Attorney General,
Leonard Schaitman, Attorney, and Wilma A. Lewis, U.S.
Attorney. Mark E. Nagle, Assistant U.S. Attorney, entered
an appearance.
Before: Edwards, Chief Judge, Silberman and Henderson,
Circuit Judges.
Opinion for the Court filed by Chief Judge Edwards.
Edwards, Chief Judge: The National Transportation Safety
Board ("NTSB" or "Board") is an independent federal agency
charged with investigating airplane accidents. The agency
does not function as a traditional regulatory or adjudicatory
body; rather, its principal missions are to determine the
probable cause of accidents and make recommendations that
will help prevent future accidents. Private parties who are
involved in an accident (other than just as victims) may be
designated to participate in an NTSB investigation, but their
involvement is voluntary and it does not include an adjudica-
tion of individual claims.
In the instant case, petitioners, Chiron Corporation ("Chi-
ron") and PerSeptive Biosystems, Inc. ("PerSeptive"), partici-
pated as parties in an NTSB investigation of an accident
involving Federal Express Flight 1406. Concerned that they
might be found responsible for the accident and eventually
face claims of liability in a civil suit, petitioners asked NTSB
for a copy of the cargo list for Flight 1406. The Board
refused to disclose the cargo list, in part because Federal
Express viewed the data as privileged, business information.
Petitioners then filed this law suit, claiming injury from
NTSB's refusal to release the requested information and
seeking an order requiring its production. We dismiss the
petition for review, because petitioners lack standing.
Petitioners first argue that NTSB's denial of information
injures them, because it may disadvantage them as defen-
dants in a civil suit that Federal Express has filed against
them. However, any possible injury to petitioners as defen-
dants in a civil law suit is not legally cognizable here, because
it is not an injury that petitioners will suffer as a consequence
of their participation in the NTSB investigation. In other
words, in order to have standing to bring this law suit,
petitioners must have suffered an injury related to their
involvement as parties to the NTSB investigation. They
cannot show this.
Furthermore, there is little likelihood that petitioners will
suffer any injury of the sort that they claim. Petitioners are
concerned that NTSB's report may be admitted as evidence
in a lawsuit that Federal Express has filed against them.
They hope that the information they seek will reveal new
evidence that they can use to convince NTSB to change its
report so that it will not adversely affect them in the pending
lawsuit. This is an idle concern, for Congress has made it
clear that NTSB reports, including probable cause determina-
tions, are not admissible as evidence in a civil lawsuit. Thus,
the Board's report will not control the results in any civil
litigation over Flight 1406.
Petitioners also argue that, as parties to the investigation,
they have a legal right to the plane's cargo information.
Petitioners contend that such a right may be found in the
Board's regulations and in a written Guidance given to them
as parties to the investigation. Thus, according to petition-
ers, NTSB's denial of their request for the cargo list caused
them an informational injury. This claim fails, however,
because there is no statute, regulation, or any other source of
law that secures for parties to an NTSB investigation unfet-
tered access to all information garnered by the Board. In
short, petitioners have no legal basis for the alleged rights
that they seek to enforce.
Because petitioners lack standing to bring this suit, their
petition for review is dismissed.
I. Background
A. NTSB Investigations
NTSB is a uniquely independent federal agency responsible
for investigating airplane accidents, determining the probable
cause of accidents, and making recommendations to help
protect against future accidents. See 49 U.S.C. ss 1131,
1132, 1135 (1994). NTSB neither promulgates nor enforces
any air safety regulations. Nor does the agency adjudicate
claims over liability for accidents. Rather, it simply analyzes
accidents and recommends ways to prevent similar accidents
in the future.
Congress has endowed NTSB with broad powers to accom-
plish its missions, because the work of the agency is viewed
as extremely important. See S. Rep. No. 101-450, at 2 (1990)
("The NTSB's mission ... is critical."). An officer or employ-
ee of the Board can enter a site where an accident has
occurred and "do anything necessary to conduct an investiga-
tion." 49 U.S.C. s 1134(a)(1) (1994). The Board may inspect
and test any aircraft, aircraft engine, or property on an
aircraft that has been involved in an accident, and the Board
has sole discretion to determine how those tests are to be
conducted. See 49 U.S.C. s 1134(b), (d) (1994). Most impor-
tantly, the Board's investigations have "priority over any
investigation by another department, agency, or instrumental-
ity of the United States Government." 49 U.S.C. s 1131(a)(2)
(1994). The Board has used these broad powers wisely,
achieving notable successes in its work and receiving high
praise for the integrity of its investigative processes. See
S. Rep. No. 104-324, at 2 (1996) ("The Safety Board's reputa-
tion for impartiality and thoroughness has enabled it to
achieve such success in shaping transportation safety im-
provements that more than 80 percent of its recommenda-
tions have been implemented.").
Although NTSB investigations are conducted by agency
staff, outside individuals may be designated to participate as
well. Only the Federal Aviation Administration ("FAA") has
a right to participate in an investigation; however, the
Board's regulations allow the individual in charge of an
investigation to designate private parties to participate if
their involvement would assist the investigation. See 49
C.F.R. s 831.11 (1998). The regulations specify that "parties
shall be limited to those persons, government agencies, com-
panies, and associations whose employees, functions, activi-
ties, or products were involved in the accident or incident."
Id.
It is often the case that corporations or individuals suspect-
ed of causing an accident will be invited to participate in an
investigation, whereas victims of the accident will not. The
rationale for this approach is that parties who may have
caused an accident will provide investigators with valuable
information; they may also learn how to improve the safety
of their products or activities to avoid future accidents. The
same cannot be said of accident victims. See John W.
Simpson, Use of Aircraft Accident Investigation Information
in Actions for Damages, 17 J. Air L. & Com. 283, 290 (1950)
("[R]epresentatives of industry and employee groups are
often permitted to participate in the investigation and thus
have access to much information, while the representatives of
the victims seldom participate in the investigation. These
procedures are absolutely necessary in order to determine
the probable cause of an accident.").
Moreover, an NTSB investigation is a "fact-finding pro-
ceeding[ ] with no formal issues and no adverse parties. [It
is] ... not conducted for the purpose of determining the
rights or liabilities of any person." 49 C.F.R. s 831.4 (1998).
Board regulations and policies are explicit in providing that
parties participating in an investigation are involved in NTSB
processes only to assist the safety mission and not to prepare
for litigation. Parties are required to sign a "Statement of
Party Representatives to NTSB Investigation," which re-
quires them to agree that their "participation is not for the
purposes of preparing for litigation," but, rather, "for the
purpose of providing technical assistance to the [NTSB]."
Statement of Party Representatives to NTSB Investigators
reprinted in 1 Deferred Appendix, at 435; see also 49 C.F.R.
s 831.11(b) (requiring parties to sign the "Statement of Party
Representatives to NTSB Investigation" in order to partici-
pate in the investigation).
Parties assist the investigation in a variety of ways. See
"Information for the Guidance of Parties to Safety Board
Investigations of Accidents" ("Guidance"), reprinted in Br.
for Respondents at 1c; see also "Guidance for Party Coordi-
nators and Other Participants in the Investigation of Aircraft
Accidents," 2 National Transportation Safety Board Aviation
Investigation Manual, app. D (containing much of the same
information). They provide information about their products
or activities. They may also join various groups organized
for the investigation, such as a group organized to investigate
hazardous materials. They report to the investigator in
charge, who, in turn, provides the groups and parties with
information about any developments in the investigation.
These groups may then write a report at the end of the
investigation detailing their findings and suggestions. Par-
ties may also submit their own report at the end of the
investigation suggesting the probable cause of the accident.
In addition to the reports submitted by the investigation
groups and the parties, NTSB investigators also prepare
factual accident reports that are submitted to the Board.
Public hearings are sometimes held. From this information,
the Board compiles and publishes a final accident report that
contains factual findings, a probable cause finding, and safety
recommendations.
B. The Investigation of Flight 1406
On September 5, 1996, Federal Express Flight 1406's cargo
caught fire. Unable to control it, the crew made an emergen-
cy landing, but smoke and fire destroyed the plane and most
of its cargo. NTSB immediately began an investigation,
which quickly focused on a DNA synthesizer as the possible
source of the fire's ignition. Chiron, who owns the synthesiz-
er, and PerSeptive, who manufactures it, were invited to
participate in the investigation. Both Chiron and PerSeptive
were actively involved in the investigation, but neither was
happy with its progress.
Chiron and PerSeptive have maintained that something
other than the DNA synthesizer may have started the fire on
Flight 1406. When they were unable to convince NTSB
investigators to focus on other possibilities, Chiron and Per-
Septive resolved to explore these possibilities on their own.
To that end, they sought to discover what else Federal
Express was carrying on Flight 1406. NTSB, however, re-
fused to disclose the cargo list. Chiron and PerSeptive then
filed formal petitions requesting the cargo information.
Their petitions were denied. The Board explained that party
status did not grant parties a right to information and that it
was withholding the information because Federal Express
considered the information to be a trade secret. See Letter
from Daniel D. Campbell, General Counsel, National Trans-
portation Safety Board, to Jay E. Grover, Director, Environ-
mental Health and Safety, Chiron Corp. (Oct. 31, 1997),
reprinted in Respondent's Appendix at 139-40; Letter from
Daniel D. Campbell, General Counsel, National Transporta-
tion Safety Board, to Jerry W. Cox (May 4, 1998), reprinted
in Respondent's Appendix at 151. This petition for review
followed.
II. Analysis
The first and, as it turns out here, only issue before the
court is a question of standing. If, as we hold, petitioners
lack standing, then this court is without jurisdiction to decide
the merits of their claims. See Steel Co. v. Citizens for a
Better Env't, 523 U.S. 83, 94-95 (1998). In order to establish
their standing, petitioners must show that they have suffered
a particularized injury to a cognizable interest, which is fairly
traceable to the Board's actions, and that a favorable judicial
decision will redress the injury. See Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560-61 (1992). The problem facing
petitioners in this case is that they have suffered no injury.
Petitioners argue that they are injured in two ways by the
Board's refusal to give them a copy of the cargo list. First,
they argue that the denial of information injures them, be-
cause they need the information to correct the Board's faulty
report, which may be used against them in a civil suit.
Second, they contend that they have suffered an information-
al injury, because, they claim, they have a legal right to
obtain the cargo list. These arguments are meritless.
A. Injury By Virtue of Civil Litigation
Petitioners apparently are afraid that the factual portion of
NTSB's report may be admitted as evidence in a lawsuit that
Federal Express has filed against them. See Joint Br. for
Petitioners at 21 ("[S]ome day a judge and/or a jury may be
asked to rely on supposedly 'factual' evidence from an NTSB
investigation that did not include all pertinent material.").
Petitioners object to the report as written, and they hope that
the information they seek will reveal new evidence that they
can employ to convince the NTSB to change its report so that
it will not be so damaging to them in the pending lawsuit.
This alleged injury is not cognizable, because petitioners
bring this petition for review as parties to an NTSB investi-
gation, and, as parties, they cannot claim injuries that they
might suffer as defendants in an entirely separate civil law-
suit.
As an initial matter, we reject the premise that NTSB's
report itself is admissible in a civil lawsuit. Congress has
quite explicitly provided that,
[n]o part of a report of the Board, related to an accident
or an investigation of an accident, may be admitted into
evidence or used in a civil action for damages resulting
from a matter mentioned in the report.
49 U.S.C. s 1154(b) (1994). The simple truth here is that
NTSB investigatory procedures are not designed to facilitate
litigation, and Congress has made it clear that the Board and
its reports should not be used to the advantage or disadvan-
tage of any party in a civil lawsuit. In our view, this
congressional mandate could not be clearer.
Petitioners point out that, despite the statute's clear lan-
guage, some early circuit court opinions held that NTSB
"factual findings" were admissible in civil litigation. Joint Br.
for Petitioners at 20 (citing authority). A careful review of
these opinions, however, shows that these early cases actually
focused only on the admissibility of investigators' reports
which were mislabeled by the courts as "report[s] of the
Board." See, e.g., American Airlines, Inc. v. United States,
418 F.2d 180, 196 (5th Cir. 1969) (allowing admission of
graphs that were based on information from a safety commit-
tee's report); Berguido v. Eastern Air Lines, Inc., 317 F.2d
628, 631-32 (3d Cir. 1963) (allowing testimony of witness
based on investigator's report); Lobel v. American Airlines,
Inc., 192 F.2d 217, 220 (2d Cir. 1951) (allowing admission of
an investigator's report of his examination of the plane wreck-
age). Because of this judicial mislabeling, these circuits
created what they supposed was an "exception" to s 1154(b)
for factual data from NTSB investigations in order to protect
the interests of alleged victims. See, e.g., Berguido, 317 F.2d
at 631-32 (finding testimony based on an investigator's report
admissible, despite the statute, because of the need to "com-
promise between the interests of those who would adopt a
policy of absolute privilege ... and the countervailing policy
of making available all accident information to litigants in a
civil suit"). In short, the need to insure that victims had
access to investigators' factual data surrounding an accident
prompted the courts in the early years to allow admission of
what they labeled as a "report of the Board."
When faced with the judiciary's literal distortion of the
statute, the Board, in 1975, responded by amending its regu-
lations to make clear that investigators' reports--the very
reports that some courts were already admitting--are not
"reports of the Board" for the purpose of s 1154(b). Section
835.2 defines the Board's accident report as "the report
containing the Board's determinations, including the probable
cause of an accident." 49 C.F.R. s 835.2 (1998). No part of
this report "may be admitted as evidence or used in any suit
or action for damages growing out of any matter mentioned
in such reports." Id. (using almost the exact language of 49
U.S.C. s 1154(b)). A "factual accident report," on the other
hand, is "an investigator's report of his investigation of the
accident." Id. Because this report is not a "report of the
Board," it is not barred by the statute and is therefore
admissible. As counsel for NTSB made clear during oral
argument, the only reports that are admissible "are the
factual reports that investigators do, not the Board's findings,
either factual or probable cause, but what individual investi-
gators find.... [T]hose reports of these factual develop-
ments are made part of the record and parties can get that."
Audio-tape of Oral Arguments (Nov. 15, 1999). Thus, be-
cause investigators' reports are now plainly admissible under
agency regulations, victims have access to necessary factual
information. Therefore, courts no longer need to employ an
"exception" to the statute to protect parties in litigation.
Our research indicates that, since the promulgation of the
Board's 1975 rule, only two circuit court opinions have failed
to recognize that the admissibility of investigators' reports
obviates the need for a judicial exception to the statute. See
Mullan v. Quickie Aircraft Corp., 797 F.2d. 845, 848 (10th
Cir. 1986) ("[E]xpert witness properly relied on the factual
portions of the NTSB report."); Curry v. Chevron, USA 779
F.2d 272, 274 (5th Cir. 1985) (acknowledging judicial gloss of
the statute "that allow[s] factual portions of the report to be
admitted"). In each case, the courts distinguished between
the "factual portions" of Board reports and "parts of NTSB
reports which contain agency conclusions on the probable
cause of accidents." Mullan, 797 F.2d at 848. However,
neither opinion is weighty authority, even for the limited rule
enunciated, because there are later decisions from both cir-
cuits that adhere to the strict terms of the statute. Subse-
quent to Mullan, the Tenth Circuit has held that, "[c]onsis-
tent with its fact-finding mission that is litigation neutral,
NTSB reports are barred as evidence in court." Thomas
Brooks v. Burnett, 920 F.2d 634, 639 (10th Cir. 1990); accord
Jetcraft Corp. v. Flight Safety Int'l, 16 F.3d 362, 366 (10th
Cir. 1993). And even more recently, in 1998, the Fifth Circuit
has noted that:
Federal law flatly prohibits the NTSB accident report
from being admitted into evidence in any suit for dam-
ages arising out of accidents investigated by the NTSB.
Campbell v. Keystone Aerial Surveys, Inc., 138 F.3d 996,
1001 (5th Cir. 1998).
We agree with these recent decisions from the Fifth and
Tenth Circuits, and also a decision from the Ninth Circuit, see
Benna v. Reeder Flying Serv., Inc., 578 F.2d 269, 271 (9th
Cir. 1978), holding that, under the plain terms of the statute,
NTSB reports are inadmissible in civil litigation. When the
statute was interpreted broadly to include investigators' re-
ports, there may have been a public policy justification for
admitting factual information. However, once the statute was
interpreted more narrowly, no justification remained for any
exception to s 1154(b).
Moreover, as this case demonstrates, admitting Board re-
ports into civil litigation can have the unsavory affect of
embroiling NTSB in the interests of civil litigants. Thus, the
statute means what it says: No part of the Board's actual
report is admissible as evidence in a civil suit. See Universal
Airline, Inc. v. Eastern Air Lines, Inc., 188 F.2d 993, 1000
(D.C. Cir. 1951) (noting that the Board should not be com-
pelled to produce its reports). Because it is the Board's
actual report that petitioners hope to change, they are not
injured by their inability to change it, because it is not
admissible in a civil suit.
Even if the report were admissible, however, petitioners'
injury as civil litigants is simply not cognizable in this case.
Petitioners bring this suit as parties to an NTSB investiga-
tion. As parties, they signed a statement agreeing that their
participation would be for the purpose of assisting NTSB's
investigation and would not be for the purpose of preparing
for litigation. See Statement of Party Representatives to
NTSB Investigation, reprinted in 1 Deferred Appendix at
435. Furthermore, NTSB's investigations are fact-finding
proceedings; they are not conducted for the purpose of
determining the rights or liabilities of any party. Therefore,
the injuries petitioners might suffer as civil defendants are
not relevant to their status as parties. Accordingly, because
petitioners bring this suit as parties to an NTSB investiga-
tion, their injuries as civil litigants are not legally cognizable.
Whatever data they may require in litigation, apart from the
Board's report, may be obtained through the normal course of
discovery.
B. Informational Injury
Petitioners also argue that NTSB's denial of information
has caused them an informational injury. Petitioners rely
principally on Cummock v. Gore, 180 F.3d 282 (D.C. Cir.
1999), which held that, as a member of a committee regulated
by the Federal Advisory Committee Act ("FACA"), Cummock
had a right of participation that created a right to informa-
tion, and that "she suffered an injury under FACA insofar as
the Commission denied her requests for information that it
was required to produce." 180 F.3d at 290. Petitioners
argue that, "as parties to an NTSB investigation," they have
"judicially-enforceable Cummock rights" that entitle them to
the information they seek. Joint Br. for Petitioners at 26.
Petitioners' argument fails, however, because, unlike FACA,
nothing in NTSB's statute, regulations, or other sources of
law requires NTSB to produce this information to petitioners.
Therefore, the denial of information does not give rise to an
informational injury.
Unlike FACA, NTSB's organic statute does not grant
parties to an NTSB investigation rights of participation.
FACA provides that federal advisory committees are "to be
fairly balanced" and structured to insure that the advice of
the committee reflects its "independent judgment." 5
U.S.C.A. app. 2 s 5(b)(2) (1996); id. at s (b)(3). In Cum-
mock, this court held that, "to give meaning to FACA's fair
balance and independent judgment provisions, the Act must
be read to confer on a committee member the right to fully
participate in the work of the committee to which he or she is
appointed." Id. at 291. The right of participation, the court
held, endowed committee members with a right to informa-
tion. See id. at 292. NTSB's statute does not confer any
such rights on a party to an investigation. Congress, quite
simply, provided that "[t]he National Transportation Safety
Board shall investigate or have investigated (in detail the
Board prescribes) and establish the facts, circumstances, and
cause or probable cause of--(A) an aircraft accident...." 49
U.S.C. s 1131(a)(1). The statute does not require the investi-
gation either to be balanced or even to involve any outside
persons; it places the responsibility of investigating the acci-
dent solely within NTSB's hands. Thus, nothing in the
statute gives petitioners the Cummock rights of participation
and information that they seek to enforce.
In addition, there is legislative history showing that Con-
gress did not want the interests of private parties to constrain
an NTSB investigation. The Senate Committee on Com-
merce, Science, and Transportation noted that "[c]ourts typi-
cally have recognized and appreciated the important public
purpose served by the NTSB's ability to conduct prompt
investigations without the burdens and interference that
would stem from injecting the civil litigation interests into the
NTSB's accident investigation process." S. Rep. No. 101-450,
at 5. The Committee continued, adding that
[t]he time devoted by NTSB investigations in defending
their decisions diverts the energies that they should be
directing to investigating the accidents.... [T]he com-
mittee strongly believes that the ability of the NTSB to
conduct investigations independently, thoroughly, and in
a timely manner for the benefit of the public, should not
be compromised.
Id. Equipping parties with a right to information would
"inject[ ] the civil litigation interests into the NTSB investiga-
tion process" and compromise the investigation, a prospect
against which Congress admonished. Thus, not only does the
statute fail to endow parties with a right to information,
legislative history admonishes against reading such a right
into the statute.
Neither can the right be found, as petitioners argue, in
either NTSB's regulations or a Guidance that NTSB gave
petitioners as parties to the investigation. Nothing in the
regulations speaks to the rights petitioners seek to enforce,
and the Guidance is not a source of law enforceable against
NTSB. Petitioners point to a handful of regulations that they
argue create a right to information, but they are grabbing at
straws. 49 C.F.R. s 831.11(a), which states that NTSB shall
only appoint parties who "can provide suitable qualified tech-
nical personnel actively to assist in the investigation," does
not, as petitioners argue, require NTSB to provide parties
with all the facts of an investigation. Rather, the regulation
speaks only to qualifications necessary to become a party:
The corporation or individual must provide someone who has
the time and expertise to assist the investigation. Likewise,
s 831.11(a)(4), which provides that the FAA and other quali-
fied entities will have "the same rights and privileges ... as
other parties" does not itself provide rights to any party.
Finally, s 831.14(a) cannot, as petitioners argue, endow par-
ties with any rights, because it merely says that "[a]ny
person ... may submit to the Board written proposed find-
ings to be drawn from the evidence produced during the
course of the investigation." 49 C.F.R. s 831.14(a) (1998)
(emphasis added).
Petitioners' most noteworthy argument rests on part four
of the NTSB Guidance that is given to all parties to an
investigation. The Guidance says that "[a]ll factual informa-
tion and developments of the investigation that are made
known to the [Investigator in Charge] will be passed to each
party spokesman." Guidance, reprinted in Br. for Respon-
dents at 2c. Petitioners maintain that, pursuant to this
statement in the agency's Guidance, they have a legal right to
information. Petitioners' problem, however, is that the Guid-
ance does not establish a binding legal norm.
Petitioners argue that the Guidance is binding on the
Board, because it is incorporated into the Board's regulations.
Petitioners' attempt to demonstrate this incorporation at oral
argument was, as they acknowledged, convoluted. Counsel
argued that s 831.11(b) requires parties to sign a "Statement
of Party Representatives to NTSB Investigation," and the
Statement then connects to the Guidance, which contains the
sentence endowing them with a right to the information. In
their brief, petitioners simplified the route and argued instead
that the Party Statement itself "spells out Petitioners' rights
and the procedures NTSB would follow, and promised Peti-
tioners full participation and sharing in all pertinent factual
developments and deliberations." Joint Br. for Petitioners at
11. Both versions are wrong.
The Party Statement gives petitioners no rights. It is a
one-page document that discusses their duties as parties and
requires them to waive their right to assert privilege in
litigation with respect to information or documents obtained
during the course of the investigation. It does not discuss
their rights as parties, let alone "promise[ ] Petitioners full
participation and sharing in all pertinent factual develop-
ments." It entitles petitioners to nothing. Neither does the
Party Statement incorporate the Guidance. The Party State-
ment makes no reference--either explicitly or implicitly--to
the Guidance. Thus, there is no link between the Board's
regulations and the Guidance.
Without that link, the Guidance is not a source of law;
rather it is exactly what it appears to be, a hand-out that
gives information, not rights, to parties in an NTSB investiga-
tion. While some unpublished agency pronouncements can
be binding, not every "piece of paper emanating from a
Department or Independent Agency is a regulation." Pic-
cone v. United States, 407 F.2d 866, 877 (Ct. Cl. 1969)
(Nichols, J., concurring). The general test is whether the
agency intended to bind itself with the pronouncement. See
Padula v. Webster, 822 F.2d 97, 100 (D.C. Cir. 1987). Agency
intent is "ascertained by an examination of the provision's
language, its context, and any available extrinsic evidence."
Doe v. Hampton, 566 F.2d 265, 281 (D.C. Cir. 1977). Here,
petitioners make no showing, and we can find none, that
NTSB intended the Guidance to be binding.
NTSB certainly never has stated an intention to be bound
by the Guidance. See Service v. Dulles, 354 U.S. 363, 373-74,
377-82 (1957) (finding departmental regulations to be binding
where the agency explicitly adopted the regulations to bind
its discretion). Indeed, we cannot imagine why NTSB would
ever limit its ability to collect and digest information as it
sees fit. The agency is not in the business of facilitating
private investigations by private parties, so it would make no
sense for NTSB to bind itself to serve as a repository of
information for private parties who are angling to protect
their interests in litigation. The Guidance simply indicates
that, during an investigation, parties may share in some
information gathered by the Board; however, the Guidance
guarantees nothing.
Manuals or procedures may be binding on an agency when
they affect individuals' rights. See Morton v. Ruiz, 415 U.S.
199, 235 (1974) (holding that an agency is bound by proce-
dures in its manual where an individual's entitlement to
government benefits was affected by procedures); Massachu-
setts Fair Share v. Law Enforcement Assistance Admin., 758
F.2d 708, 711 (D.C. Cir. 1985) (holding that an agency is
bound by regulations in its manual delineating procedures for
grant-funding). But see Schweiker v. Hansen, 450 U.S. 785,
789 (1981) (declining to find internal rules set forth in a
handbook binding where relief would have been inconsistent
with a published regulation). Because an NTSB investigation
does not itself determine the rights of the parties, see 49
C.F.R. s 831.4 ("Accident/incident investigations are fact-
finding proceedings.... [They] are not conducted for the
purpose of determining the rights or liabilities of any per-
son."), however, the Guidance cannot be viewed as a binding
rule on these terms.
In sum, because NTSB has never indicated an intention to
be bound by the Guidance and because the investigation does
not affect petitioners' rights, the Guidance does not endow
petitioners with any rights to seek the information at issue.
Accordingly, they have not suffered any informational injury.
III. Conclusion
Petitioners cannot demonstrate that NTSB's denial of the
information they seek has injured them. Without injury,
petitioners have no standing to bring this suit. Therefore,
the petition for review is dismissed.