IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 97-31190
_______________
CARGILL, INCORPORATED; GENERAL CHEMICAL CORPORATION;
MISSISSIPPI LIME MANAGEMENT COMPANY; MORTON INTERNATIONAL;
OCI OF WYOMING; LONNY BADEAUX; JOSEPH VENDETTI;
METHANE AWARENESS RESOURCE GROUP;
and
DIESEL COALITION,
Plaintiffs-Appellants,
VERSUS
UNITED STATES OF AMERICA; DONNA E. SHALALA,
Secretary, Department of Health and Human Services;
LINDA ROSENSTOCK,
Director, National Institute for Occupational Safety and Health;
RICHARD KLAUSNER,
Director, National Cancer Institute,
Defendants-Appellees.
_________________________
Appeal from the United States District Court
for the Western District of Louisiana
_________________________
April 19, 1999
Before DAVIS, SMITH, and WIENER, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Plaintiffs Cargill, Incorporated, General Chemical
Corporation, Mississippi Lime Management Company, Morton
International, OCI of Wyoming, Lonny Badeaux, Joseph Vendetti, the
Methane Awareness Resource Group, and the Diesel Coalition, which
we refer
to collectively as “MARG,”1 appeal the denial of injunctive and
declaratory relief from alleged violations of the Federal Advisory
Committee Act (“FACA”), 5 U.S.C. App. 2. MARG claims that the
National Institute for Occupational Safety and Health (“NIOSH”) and
the other defendants violated FACA and its implementing regulations
by employing NIOSH's Board of Scientific Counselors (“BSC”) to
peer-review the protocol to govern a planned study of the health
effects of exposure to diesel exhaust. We affirm in part, reverse
in part, and remand.
I.
In 1992, NIOSH began evaluating the feasibility of a study to
determine and quantify the correlation, if any, between exposure to
diesel exhaust and adverse health effects in underground miners.
In August 1995, NIOSH released a draft protocol and feasibility
assessment indicating its intent to study, over seven years,
fourteen mines, including some operated by members of MARG.
Because of the complexity of collecting long-term exposure and
health data and isolating the effects of past diesel exposure from
the effects of exposure to tobacco and other agents, NIOSH realized
1
“MARG” is an abbreviation for “Methane Awareness Resource Group,” a
coalition of mine owners. When this litigation began, MARG was the first-
named plaintiff, and the briefs refer to the plaintiffs as “MARG.”
2
that it needed experts to provide peer review of the protocol and,
in particular, advice from experts in diesel exhaust, diesel
exposure assessment, and the mining environment.2 Accordingly, it
circulated a letter to interested parties and, on November 27,
1995, convened a public meeting of the peer review panel at which
a number of independent scientists, including some representing
MARG members, severely criticized the protocol.
Concerned that the diesel study was not being adequately
reviewed by a balanced and impartial group, and worried that a
flawed protocol would yield misleading results justifying
unnecessarily strict regulations, MARG sued for declaratory and
injunctive relief under FACA, averring that the peer review panel
was an “advisory committee” for purposes of FACA and was not in
compliance with it. Agreeing with MARG, the district court e-
njoined further meetings of the peer review panel until FACA's
requirements were met. The court stated that complying with FACA
“should not be that difficult” and told NIOSH that the agency could
either appeal the ruling or “go ahead and proceed with the
formalities procedurally and form this committee according to
2
The August 1995 draft protocol stated:
An external advisory committee will be established to provide advice and
to monitor the activities of the study. This panel will consist of
scientists with expertise in various areas, including, but not
necessarily limited to: epidemiologic methods; carcinogenicity of diesel
exhaust; diesel exhaust monitoring methodology; retrospective exposure
assessment; biomarkers of exposure; and the mining environment and
operation. This committee will also serve as the NIOSH Peer Review
Panel, and meet periodically to review study progress and comment on
procedures, methods, analysis, and reports as the project advances.
3
statute.”
Purporting to do the latter, NIOSH called on the BSC to peer-
review the study protocol. According to its charter, BSC
“provide[s] guidance to the Director, [NIOSH], on [NIOSH] research
programs.” NIOSH sent the protocol to members of BSC for review in
December 1996, and BSC considered the protocol at a meeting held
January 14, 1997.
Unconvinced that BSC meets FACA's requirements, MARG moved on
December 30, 1996, to amend its complaint and for the court to
enjoin further use of the diesel protocol until the protocol has
been reviewed by a properly constituted peer review group. After
an evidentiary hearing, the court decided that BSC is “in
compliance with all applicable procedural requirements,” that “any
past violations of the applicable substantive requirements have
been cured,” and that BSC is in “substantial compliance” with “all
applicable regulations.”
BSC continued its peer review at subsequent meetings. NIOSH
is now in the early stages of using the peer-review work product in
a data collection effort that, under the protocol, is projected to
last several years.
II.
MARG claims that NIOSH violated FACA's congressional filing
requirements by filing BSC's charter with the wrong congressional
4
committee. Reviewing de novo the district court's conclusion to
the contrary, see Reich v. Lancaster, 55 F.3d 1034, 1045 (5th Cir.
1995), we agree and reverse the determination that NIOSH complied
with FACA's filing requirements.
FACA provides that “[n]o advisory committee shall meet or take
any action until an advisory committee charter has been filed . . .
with the head of the agency to whom any advisory committee reports
and with the standing committees of the Senate and of the House of
Representatives having legislative jurisdiction of such agency.”
5 U.S.C. App. 2 § 9(c)(2). NIOSH filed BSC's charter with the
House Committee on Commerce, the committee having jurisdiction over
the Department of Health and Human Services (“HHS”). NIOSH
reasoned that because the agency is located within HHS, filing with
the committee having jurisdiction over HHS met the requirement of
§ 9(c)(2). MARG contends that NIOSH should have filed the charter
with the House Labor Committee (renamed in 1997 the Committee on
Education and Workforce). MARG notes that the agency “to whom
[BSC] reports” is NIOSH, and the Labor Committee has jurisdiction
over NIOSH.
A.
NIOSH claims that MARG lacks standing to sue for improper
filing because it cannot show that it suffered an “injury in fact”
as a result of NIOSH's filing BSC's charter with the wrong
5
congressional committee. Under Lujan v. Defenders of Wildlife,
504 U.S. 555, 560 (1992), to establish standing a plaintiff must
show that he has suffered “an invasion of a legally protected
interest” that is both “concrete and particularized” and “actual or
imminent, not 'conjectural' or 'hypothetical.'”
In addition, NIOSH argues, MARG cannot meet the “prudential”
standing requirement “that a plaintiff's grievance must arguably
fall within the zone of interests protected or regulated by the
statutory provision or constitutional guarantee invoked in the
suit.” See Bennett v. Spear, 520 U.S. 154, 162 (1997). NIOSH
insists that FACA's requirement that advisory committees file their
charters with the appropriate congressional committees is intended
to benefit Congress, not constituents, and that MARG therefore does
not arguably fall within the zone of interests of that provision.
1.
MARG meets the jurisprudential standing requirement because it
has suffered an injury in fact. FACA is designed to ensure that
advisory committees are fairly constituted and properly monitored
so that they will provide sound advice.3 The requirement to file
3
See 5 U.S.C. App. 2 § 2(b)(5) (finding and declaring that “the
Congress and the public should be kept informed with respect to the number,
purpose, membership, activities, and cost of advisory committees”); Public
Citizen v. United States Dep't of Justice, 491 U.S. 440, 453 (1989) (noting
that public and congressional scrutiny is intended to further FACA's overall
objective of avoiding the “expenditure of public funds for worthless committee
meetings and biased proposals”).
6
with the committee having legislative jurisdiction over the agency
to whom the committee reports is central to FACA's purpose of
ensuring accountability, for FACA charges each standing committee
with the responsibility to engage in intense monitoring of the
advisory committees under it.4 Obviously, if the charters of
advisory committees are filed with the wrong congressional
committees, the monitoring endeavor is thwarted.
Hence, NIOSH's mistake prevented effective congressional
monitoring of BSC. The mines affected by the diesel study have a
compelling interest in ensuring that the study's results are
accurate,5 and the alleged FACA violation, which made it harder for
Congress to scrutinize BSC's activities, increased the likelihood
4
FACA provides that each standing committee of the House and Senate
must make
a continuing review of the activities of each advisory committee
under its jurisdiction to determine whether such advisory
committee should be abolished or merged with any other advisory
committee, whether the responsibilities of such advisory committee
should be revised, and whether such advisory committee performs a
necessary function not already being performed. Each such
standing committee shall take appropriate action to obtain the
enactment of legislation necessary to carry out the purpose of
this subsection.
5 U.S.C. App. 2 § 5(a).
5
Owners of the selected mines are required to participate in the study,
see 30 U.S.C. §§ 813, 818 (provisions of the Federal Mine Safety and Health
Act), and thus to submit to intrusive, extensive, and burdensome examination
of their records and facilities. They have a strong interest in ensuring that
the data collected as a result of their cooperation will be interpreted and
analyzed in a way that will provide sound results, because (1) new regulations
will be proposed and promulgated on the basis of the study's findings; (2)
mine operators need reliable information to help them design and implement
employee health programs; and (3) there is a potential for tort litigation
resulting from the study, because NIOSH plans to provide notification of study
results and risk assessments to all 8,000 studied individuals (and others).
7
that the results of the study will be inaccurate. Consequently,
MARG did suffer an injury in fact.6
2.
MARG also has “prudential” standing, and NIOSH's assertion to
the contrary is based on a misunderstanding of the “zone of
interests” test. NIOSH claims that MARG lacks prudential standing
because the statutory requirement was “intended for the benefit of
the congressional committees” and not “for the benefit of” the
members of MARG. In evaluating whether plaintiffs have prudential
standing, however, courts “should not inquire whether there has
been a congressional intent to benefit the would-be plaintiff.”
National Credit Union Admin. v. First Nat'l Bank & Trust Co.,
522 U.S. 479, ___, 118 S. Ct. 927, 933 (1998) (emphasis added).
[I]n applying the “zone of interests” test [for
prudential standing], we do not ask whether, in enacting
the statutory provision at issue, Congress specifically
intended to benefit the plaintiff. Instead, we first
discern the interests “arguably . . . to be protected” by
6
MARG's injurySSa decrease in the ease with which Congress could
monitor BSCSSis concrete, even if it is widely shared.
[W]here a harm is concrete, though widely shared, the Court has
found “injury in fact.” Thus the fact that a political forum may
be more readily available where an injury is widely shared
. . . does not, by itself, automatically disqualify an interest
for Article III purposes. Such an interest, where sufficiently
concrete, may count as an “injury in fact.”
Federal Election Comm'n v. Akins, 524 U.S. 11, __, 118 S. Ct. 1777, 1786
(1998) (holding that individual voters have constitutional and statutory
standing to seek redress of violations of federal election law). Moreover,
NIOSH's arguments about standing, if accepted, would convert FACA from a
statute binding on the agency to one that is merely hortatory.
8
the statutory provision at issue; we then inquire whether
the plaintiff's interests affected by the agency action
in question are among them.
Id., 522 U.S. at ___, 118 S. Ct. at 935.
The protected interest is to ensure congressional scrutiny of
advisory committees, to avoid advice that is “biased” and/or of
little value. The miners that are members of MARG have an interest
in avoiding biased or valueless advice, and that interest is easily
among those “arguably . . . to be protected” by FACA. If FACA does
not protect MARG from actions of unauthorized committees, then the
statute is aspirational, at best.
B.
FACA provides that “[n]o advisory committee shall meet or take
any action until an advisory committee charter has been filed
. . . with the head of the agency to whom any advisory committee
reports and with the standing committees of the Senate and of the
House of Representatives having legislative jurisdiction of such
agency.” 5 U.S.C. App. 2 § 9(c)(2). FACA defines “agency” as
“each authority of the Government of the United States, whether or
not it is within or subject to review by another agency.”7 BSC
exists for the sole purpose of giving advice to NIOSH,8 and it
7
See 5 U.S.C. App. 2 § 3(3) (FACA provision stating that agency will have
same meaning as in 5 U.S.C. § 551(1)); 5 U.S.C. § 551(1) (defining agency)
(emphasis added).
8
See, e.g., 48 Fed. Reg. 8588 (Mar. 1, 1983) (stating that BSC is
(continued...)
9
“reports to” NIOSH, not HHS. Under this definition, NIOSH is the
relevant agency, despite the fact that it is “within . . . another
agency,” namely HHS. Hence, NIOSH should have filed BSC's charter
with the committee possessing jurisdiction over NIOSH (the House
Labor Committee), and because it did not do so, BSC could not
lawfully “meet or take action.” See 5 U.S.C. App. 2 § 9(c)(2);
41 C.F.R. § 191.6-1013(a)(1) (1997).
NIOSH asserts, and the district court apparently found, that
HHS, not NIOSH, has jurisdiction over BSC. NIOSH notes that
neither NIOSH nor any other HHS component can create a FACA
committee without the express approval of the Secretary of HHS.
While the Secretary may delegate this authority to a component of
the Department, the Secretary does retain the primary authority to
create FACA committees.
Similarly, the Secretary approves the renewal, amendment, or
termination of federal advisory committees within the department
unless that authority has been delegated by the Secretary or vested
by statute in another official. In addition, the secretary of BSC
testified that BSC was a departmental committee, and the charters
for BSC were signed by the HHS Secretary or by someone to whom the
Secretary had delegated authority. NIOSH argues that these facts,
taken together, show that BSC is a committee of HHS, not NIOSH.
We disagree. The statute requires filing the charter “with
(...continued)
established to provide “advice and guidance to the Director, NIOSH”).
10
the head of the agency to whom any advisory committee reports and
with the standing committees of the Senate and of the House of
Representatives having legislative jurisdiction of such agency.”
5 U.S.C. App. 2 § 9(c). This language indicates that the relevant
inquiry is not “who may form the committee?” but “to whom does the
committee report?”
BSC reported to NIOSH, not HHS. NIOSH admitted as much when
it stated in its brief that “it is clear from the record that the
BSC is a FACA committee of HHS, established to provide advice to
NIOSH . . . .” The brief also admitted that BSC (1) “primarily
offers a broad critique of the agency's [NIOSH's] research agenda,”
(2) “provides ongoing . . . advice to NIOSH . . . concerning its
entire range of research activities across many different
industries,” and (3) has provided advice to NIOSH on “countless
matters.” Moreover, the fact that the National Cancer
Institute (“NCI”)SSanother separate agency within HHSSShas its own
“NCI BSC” that provides advice only to NCI, suggests that the NIOSH
BSC was established to provide advice to NIOSH, not HHS. See 62
Fed. Reg. 34762 (June 27, 1997). Accordingly, BSC “reports” to
NIOSH, and NIOSH violated § 9(c) in failing to file BSC's charter
with the House Labor Committee.
III.
MARG contends that BSC's authorization was not properly
11
renewed. Under § 14(a)(2)(A) of FACA, an advisory committee's
authority expires after two years unless the committee is “renewed
. . . by appropriate action prior to the end of such period.”
5 U.S.C. App. 2 § 14(a)(2)(A). The General Services Administration
(“GSA”), acting under its authority to prescribe binding management
controls applicable to advisory committees,9 has promulgated rules
defining the “appropriate action” necessary to renew or re-
establish an advisory committee.10
MARG contends that NIOSH failed to abide by these rules and
that BSC's advisory activities therefore violated FACA.11 MARG,
however, lacks standing to raise the issue of inadequate notice of
renewal or re-establishment, because it has failed to produce
9
FACA requires the Administrator of GSA to prescribe “administrative
guidelines and management controls applicable to advisory committees.” 5
U.S.C. App. 2 § 7(c). All agencies are to follow these regulations. See 41
C.F.R. § 101-6.1002 (1997). See also 5 U.S.C. App. 2 § 7(a)) (stating that
GSA shall be responsible for all matters related to advisory committees.).
10
The agency must publish notice in the Federal Register when an
advisory committee “is being established, used, re-established, or renewed.”
41 C.F.R. § 101-6.1015(a) (1997). Notice of establishment or re-establishment
must be given fifteen days before the charter is filed, and notice of renewal
must be given, at the latest, contemporaneously with the filing. See 41
C.F.R. § 101-6.1015(a)(2) (1997). The regulation does not authorize
retroactive notice of renewal or re-establishment.
11
NIOSH gave Federal Register notice of the initial establishment of
BSC in 1983, see 48 Fed. Reg. 8588 (Mar. 1, 1983), and a re-establishment
notice was filed in 1991, extending BSC's authority until February 3, 1993,
see 56 Fed. Reg. 14939 (Apr. 12, 1991). After this date, however, no renewal
or re-establishment notice appeared in the Federal Register until April 9,
1997. The notice made on that date purported to re-establish BSC as of
February 3, 1997. MARG contends that, because the regulations do not permit
retroactive re-establishment, see supra note 10, BSC was not properly re-
established until April 9, 1997, and that, even if retroactive re-
establishment were permitted, BSC would not have been properly established at
the time of the January 14, 1997 meeting.
12
evidence of an injury in fact stemming from NIOSH's alleged failure
to comply with GSA's notice rules. MARG has not shown that NIOSH's
alleged failure properly to renew or re-establish BSC caused MARG's
members to suffer “an invasion of a legally protected interest”
that is both “concrete and particularized,” and “actual or
imminent, not 'conjectural' or 'hypothetical.'” See Lujan,
504 U.S. at 560.
Even if BSC did not publish its charter renewal notice in the
Federal Register in a timely fashion, it is undisputed that MARG
and the general public had actual notice that BSC was operational
and was going to hold a meeting on January 14, 1997, to-peer review
the Diesel Protocol. The meeting was announced in the Federal
Register nearly a month in advance. See 61 Fed. Reg. 66052
(Dec. 16, 1996). MARG members attended the January 14, 1997,
meeting and made a lengthy presentation. At the meeting, NIOSH
specifically announced that the next scheduled BSC gathering would
take place on May 9, 1997 (subsequently changed to April 30, 1997),
and notice of that meeting was timely published.
Thus, MARG and other interested parties had actual notice that
the BSC was continuing to operate; indeed, they were informed of,
and invited to, every meeting of the committee. Because MARG was
included in all meetings, and there is no indication that public
monitoring of BSC was significantly thwarted by any technical
violations of the GSA's notice rules, there is no evidence that
13
MARG members suffered any injury in fact, and they therefore lack
standing to assert the claim at hand.
IV.
MARG argues on two grounds that BSC is not properly
constituted to perform the tasks assigned to it and is thereby in
violation of FACA. MARG first asserts that BSC is not chartered to
provide peer review.12 Next, it contends that, in light of the
sophisticated peer review NIOSH is seeking, BSC is neither “ade-
quate[ly] staff[ed]” nor “fairly balanced in terms of . . . func-
tions to be performed,” as FACA requires.13 See 5 U.S.C. App. 2
§ 5(b)(5) (adequate staff); § 5(b)(2) (functional balance).
A.
MARG insists that BSC's charter does not permit it to provide
peer review. The charter does not mention peer reviewSSa term of
artSSand the general language in the charter is not, MARG asserts,
broad enough to cover that function. The charter states that the
group shall, inter alia,
provide guidance on [NIOSH's] research activities related
to developing and evaluating hypotheses, systematically
12
Interpreting a charter is akin to interpreting a contract or statute,
so we review this issue de novo. See Reich, 55 F.3d at 1045.
13
Whether an advisory committee is “adequate[ly] staff[ed]” and
“fairly balanced in terms of . . . functions to be performed” is a mixed
question of law and fact, which we review de novo. See Salazar v. Johnson, 96
F.3d 789, 791 (5th Cir. 1996).
14
documenting findings, and disseminating results . . .
[and] shall [] evaluate the degree to which the research
activities of [NIOSH] conform to those standards of
scientific excellence appropriate to Federal scientific
institutions in accomplishing objectives in occupational
safety and health.
MARG contends that this language is not specific enough to
cover the highly specialized scientific function BSC was asked to
perform: “'[P]eer review' is not just 'advice,' and the Diesel
Protocol is not a 'program' or an 'activity.'” In addition, MARG
observes that BSC has never engaged in peer review in its fifteen-
year history, and its annual report14 and January 14, 1997, meeting
agenda15 reveal that peer review is not the sort of activity it
14
In its 1995 Annual Report, BSC listed the following accomplishments,
none of which included peer review of NIOSH research projects:
Guidance was solicited and received from committee members on the
Institute's research programs to ensure scientific quality,
timeliness, and efficacy. At the four meetings this year many
issues were discussed and advice received that will enhance NIOSH
programs, such as increasing intramural research efforts,
expanding the NIOSH constituency, prevention of musculoskeletal
disorders, strengthening relations with the World Health
Organization and the International Labor Organization, reducing
turn-around time for criteria documents, and improving involvement
in evaluating changes in the work force, work practices, and
workplace environment.
15
The meeting agenda illustrates how different peer review is from the
activities NIOSH normally undertakes:
[A] report from the Director of NIOSH and reports on the January
NIOSH/OSHA effective ergonomics practices conference; NIOSH
construction and agriculture programs; women's safety and health
at work; the National Occupational Research Agenda; review of the
Health Hazard Evaluation Program; and future activities of the
Board.
In addition, the Board will consider the August 1995 draft
protocol for the NIOSH/National Cancer Institute (NCI) [diesel
exhaust] study. The Board will provide NIOSH with an assessment
of the scientific quality of the draft protocol, including a
review of the stated objectives of the study and the methods proposed to
(continued...)
15
normally undertakes. MARG reasons that because BSC is not
chartered to provide peer review, and because each advisory
committee must have a charter that includes a statement of duties
and functions, see 5 U.S.C. App. 2 § 9(c)(2)(F), BSC is not
authorized to provide peer review.
The language in BSC's charter is sufficiently broad to cover
peer review. Peer review of a study is “advice” on a “research
program”SSsomething the charter expressly authorizes. Simply
because peer review is a special kind of advice, and the diesel
study a special type of research program, does not change the fact
that, in providing peer review, BSC members are advising NIOSH on
its research program. “Advice” plainly encompasses peer review,
and “research program” plainly encompasses particular studies.16
It is irrelevant that BSC has not heretofore provided peer
review. The language of its charter determines the charter's
scope, which does not shrink over time just because BSC does not
immediately engage in all the permitted activities.
B.
(...continued)
achieve those objectives.
61 Fed. Reg. 66052 (Dec. 16, 1996).
16
Moreover, if there were some ambiguity in these terms, the agency's
interpretation of its own committee's charter would be entitled to deference.
See Citizens for Fair Util. Regulation v. United States Nuclear Regulatory
Comm'n, 898 F.2d 51, 54 (5th Cir. 1990).
16
BSC also was functionally balanced and adequately staffed to
perform the peer review tasks it was assigned. FACA requires that
advisory committees be “fairly balanced in terms of . . . the
functions to be performed,” 5 U.S.C. App. 2 § 5(b)(2), and have
“adequate staff,” 5 U.S.C. App. 2 § 5(b)(5).17 In its implementing
regulations, GSA has required agencies establishing or renewing an
advisory committee to have a “plan” to attain “fairly balanced
membership . . . as appropriate to the nature and functions of the
committee.” 41 C.F.R. § 101-6.1007(b)(2)(iii) (1997). Among the
elements of this plan is the requirement that “[c]ommittees
requiring technical expertise should include persons with
demonstrated professional or personal qualifications and experience
relevant to the functions and tasks to be performed.”18 41 C.F.R.
§ 101-6.1007(b)(2)(iii) (1997).
1.
NIOSH avers that FACA's fair balance and adequate staffing
requirements are not justiciable. The weight of the caselaw is to
the contrary, however, so we conclude that the functional balance
17
Although § 5(b), which includes the functional balance and adequate
staffing requirements, applies by its own terms to committees established by
Congress, § 5(c) applies all relevant requirements of § 5(b) to advisory
committees established by agencies. See 5 U.S.C. App. 2 § 5(c).
18
When the function of a committee changes, the plan must change to
reflect newly-needed expertise. HHS's General Administrative Manual (“GAM”)
requires that the request for renewal of a charter must include a discussion
of any “changes between the current and the proposed [renewal] charter,”
including “any significant change in the committee's function” or “in
expertise required by members.” GAM § 9-00-70(G)(2)(c)(1).
17
and adequate staffing requirements, while subject to a deferential
standard of review, are justiciable.
Judicial review of an agency's compliance with a statute is
precluded when the statute is “drawn so that a court would have no
meaningful standard against which to judge the agency's exercise of
discretion.” Heckler v. Chaney, 470 U.S. 821, 830 (1985).19 NIOSH
contends that FACA's command that an agency “require the membership
of the advisory committee to be fairly balanced in terms of the
points of view represented and the functions to be performed,”
5 U.S.C. App. 2 § 5(b)(2), is nonjusticiable because the statute
lays out no standards for determining whether a committee is
“fairly balanced.”
NIOSH cites a concurring opinion by Judge Silberman, who
observed that “[t]he relevant points of view on issues to be
considered by an advisory committee are virtually infinite.”
Public Citizen v. Nat'l Advisory Committee on Microbiological
Criteria for Foods, 886 F.2d 419, 426 (D.C. Cir. 1989) (per curiam)
(Silberman, J., concurring). He thus opined that the task of
determining what is a fair balance is “a political one” that is
19
See, e.g., Brazos Elec. Power Coop., Inc. v. Southwestern Power
Admin., 819 F.2d 537, 543-44 (5th Cir. 1987) (holding that action of federal
agency in allocating hydroelectric power was not judicially reviewable because
the statutory language requiring the agency to “transmit and dispose of such
power and energy in such manner as to encourage the most widespread use
thereof” did not provide a meaningful standard by which to judge the propriety
of the agency's actions).
18
nonjusticiable. Id.20
We conclude that FACA's requirements that advisory committees
be fairly balanced and adequately staffed are justiciable. Relying
primarily on Judge Silberman's concurring opinion, NIOSH fails to
note that the other two judges disagreed with Judge Silberman and
found the statutory provisions to be justiciable.21
Another panel of that circuit has concluded that the words
chosen by Congress in § 5 of FACA were intended to be enforced by
the courts. In National Anti-Hunger Coalition v. Executive
Committee, 711 F.2d 1071 (D.C. Cir. 1983), the court explained that
courts may enforce FACA's “point-of-view balance” requirementSSa
“balance” requirement that is even more subjective than is the
functional balance requirement:22
[T]he legislative history makes clear [that] the “fairly
balanced” requirement was designed to ensure that persons
or groups directly affected by the work of a particular
advisory committee would have some representation on the
committee. When the requirement is ignored, therefore,
persons having a direct interest in the committee's
purpose suffer injury-in-fact sufficient to confer
20
Accord Fertilizer Inst. v. EPA, 938 F. Supp. 52, 53 (D.D.C. 1996)
(holding FACA's “fair balance” requirement to be nonjusticiable).
21
See Microbiological Criteria, 886 F.2d at 434 (Edwards, J.,
concurring in part and dissenting in part) (“It does not matter that the
'fairly balanced' requirement falls short of mathematical precision in
application, or that it may involve some balancing of interests by the agency.
The presumption in favor of judicial review is not altered in the face of a
diffuse statutory directive.”); id. at 423-25 (Friedman, J., concurring).
22
The functional balance and point-of-view balance requirements are
articulated together in the statute: “[An agency shall] require the
membership of the advisory committee to be fairly balanced in terms of the
points of view and the functions to be performed by the advisory committee.”
5 U.S.C. App. 2 § 5(b)(2).
19
standing to sue.
Id. at 1074 n.2 (citation omitted). Citing this passage, Judge
Edwards stated in his separate opinion in Microbiological Criteria
that “[t]he question of justiciability of claims under section 5 of
FACA is thus not an open issue in this circuit.” Microbiological
Criteria, 886 F.2d at 433 (Edwards, J., concurring in part and
dissenting in part). Indeed, National Anti-Hunger Coalition
establishes that point-of-view balance is a justiciable
requirement, and it would seem that the requirements of functional
balance and avoidance of inappropriate influenceSSrequirements that
are more “objective” than is point-of-view balanceSSwould, a
fortiori, be justiciable.23
Finally, NIOSH's brief fails to mention the district court's
opinion on remand in National Anti-Hunger Coalition v. Executive
Committee, 566 F. Supp. 1515 (D.D.C. 1983) (order modifying
judgment), a case directly on point, in which the court found an
23
District courts within the District of Columbia Circuit have strayed
from the Microbiological Criteria panel's apparent holding. See, e.g.,
Fertilizer Inst. v. EPA, 938 F. Supp. 52, 54 (D.D.C. 1996) (finding the fair
balance requirement non-justiciable “[o]n the basis of the record” in that
case); Public Citizen v. Dep't of HHS, 795 F. Supp. 1212, 1221-22 (D.D.C.
1992) (“[T]here are no meaningful standards by which the Court can review
whether the FDA Advisory Committee is 'fairly balanced in terms of the points
of view represented and the functions to be performed.'”). The Fertilizer
Institute court believed the question of justiciability was an open one
because of “the alternative conclusions reached by Judges Silberman and
Edwards in [Microbiological Criteria].” Fertilizer Institute, 938 F. Supp. at
54 n.3. The court, however, did not explain why it ignored Judge Friedman's
tie-breaking conclusion that the fair balance requirement is justiciable.
Regardless, we follow our sister circuit's lead and conclude that FACA's § 5
requirements are justiciable.
20
advisory committee's work to be illegal and ultra vires because the
committee was not balanced in light of the functions that had been
newly assigned to it. That opinion demonstrates that the
functional balance requirement is justiciable, particularly in a
situation in which newly-added tasks raise questions about whether
the committee remains functionally balanced.24
2.
In considering whether a committee is fairly balanced in terms
of function, courts naturally have looked first at the functions to
be performed.25 Similarly, courts should consider the functions a
committee is to perform in evaluating whether it meets FACA's
adequate staff requirement. We thus evaluate BSC's functional
balance and staffing adequacy in light of the specialized peer
review functions the committee was asked to undertake. Affording
appropriate deference to the appointing officials, see supra
note 24, we conclude that BSC is functionally balanced and
24
While the functional balance and adequate staffing requirements are
justiciable, they are subject to highly deferential review. See
Microbiological Criteria, 886 F.2d at 424 (Friedman, J., concurring)
(“[D]etermination of how the 'fairly balanced' membership of an advisory
committee . . . is to be achieved, necessarily lies largely within the
discretion of the official who appoints the committee.”); id. at 434 (Edwards,
J., concurring in part and dissenting in part) (noting that “the difficulty of
determining what precisely constitutes a 'fair balance' may incline courts to
be deferential in reviewing the composition of advisory committees”).
25
See National Anti-Hunger Coalition v. Executive Committee, 566 F.
Supp. 1515 (D.D.C. 1983) (order modifying judgment) (committee work was ultra
vires and illegal for lack of balanced committee in light of functions newly
assigned to committee).
21
adequately staffed to peer review the Diesel Protocol.
a.
NIOSH contends that the proper inquiry is whether BSC is
fairly balanced in terms of all the functions it is to perform
under its charter, not when viewed simply as a peer reviewer of the
Diesel Protocol. The agency believes it is not necessary to re-
analyze BSC's functional balance and staffing adequacy after the
committee has been assigned new tasks. NIOSH reasons that, while
MARG says BSC was not fairly balanced in terms of function after it
was given the task of peer-reviewing the diesel study protocol, the
statute requires fair balance in terms of all functions, not just
newly added ones. NIOSH then asserts that BSC is appropriately
balanced to perform all its functions and that the court should not
read the fair-balance requirement to mandate re-balancing every
time an advisory committee is charged with a new task that would
fit under its charter. NIOSH cites Public Citizen v. Department of
HHS, 795 F. Supp. 1212, 1221 (D.D.C. 1992), in which the court
queried, “Is the Court to engage in continuous oversight so that
for each separate 'function' that a particular committee engages
in, the Court can reassess whether the committee was 'fairly
balanced' to engage in that function?”
We reject the analysis NIOSH suggests and instead adopt the
view that assigning new functions to an advisory committee may
22
render it functionally out of balance. Accordingly, the addition
of peer review functions to BSC's duties could have caused it to
fail to meet the functional balance requirement of § 5. Precedent
and reason support this approach.26 Under FACA, agencies should not
be permitted to assign advisory committees functions that the
committee members do not have the expertise to perform. Otherwise,
an agency could easily evade FACA by listing, in its advisory
committee's charter, functions that are so broad as to be
meaningless or are simply different from the functions actually
assigned.
b.
Nonetheless, we conclude that BSC complies with the functional
balance and adequate staffing requirements of FACA § 5, even when
the new peer review tasks are considered. Agencies have
considerable discretion to determine whether an advisory committee
is functionally balanced and adequately staffed, see supra note 24,
and NIOSH's conclusion that BSC was appropriately constituted to
peer review the Diesel Protocol is sound.
As the district court noted, the membership of BSC includes
scientists with expertise in many fields related to the subject
matter of the Diesel Study: “epidemiology, toxicology, chemistry,
26
See National Anti-Hunger Coalition v. Executive Committee, 566 F. Supp.
1515 (D.D.C. 1983) (order modifying judgment) (holding that committee's work was
ultra vires and illegal because of lack of functional balance in light of
functions newly assigned to it).
23
industrial hygiene, biomarkers and biostatistics.” MARG asserts
that broad scientific expertise is not enough in this case, for the
function of peer-reviewing the diesel study protocol requires an
in-depth knowledge of diesel processes, a knowledge possessed by
few individuals. We disagree.
The Diesel Protocol is, after all, simply a plan for how to
conduct a scientific study. The membership of BSC thus needed
expertise in the scientific method, which it undoubtedly possessed.
Given the deference with which we review an agency's determination
that its advisory committee is functionally balanced and adequately
staffed, we affirm the conclusion that BSC meets § 5's functional
balance and adequate staff requirements.
V.
MARG attacks what it perceives as BSC's lack of “point-of-view
balance.”27 FACA § 5(b)(2) states that each advisory committee
must have membership that is “fairly balanced in terms of the
points of view represented.” 5 U.S.C. App. 2 § 5(b)(2). The
regulations implementing FACA require that the agency overseeing an
advisory committee have a “plan” to ensure “fairly balanced
membership” and to ensure that “the agency will consider a cross-
section of those directly affected, interested, and qualified, as
27
Whether an advisory committee's membership is balanced in terms of
point-of-view, as FACA § 5(b)(2) requires, is a mixed question of law and
fact, which we review de novo. See Salazar, 96 F.3d at 791.
24
appropriate to the nature and functions of the committee.” See
41 C.F.R. § 101-6.1007(b)(2)(iii) (1997). MARG argues that when
NIOSH added the new function of providing peer review of a
specific, highly specialized study, FACA and the implementing
regulations required NIOSH to ensure participation by those
directly affected by the committee's work, to guarantee point-of-
view balance.
A.
As it did with the functional balance and adequate staffing
requirements, NIOSH first claims that FACA's requirement of a fair
balance of points of view is nonjusticiable. For the reasons we
have articulated in response to NIOSH's claim that FACA's
functional balance requirement is nonjusticiable, we disagree. In
particular, it is worth repeating that “[w]hen the [point-of-view
balance] requirement is ignored, persons having a direct interest
in the committee's purpose suffer injury-in-fact sufficient to
confer standing to sue.” National Anti-Hunger Coalition, 711 F.2d
at 1074 n.2. If aggrieved individuals may sue to enforce the
requirement, then the requirement must be justiciable.
B.
The district court correctly decided that BSC had complied
with the point-of-view balance requirement. The task of the
25
committeeSSproviding scientific peer reviewSSis politically neutral
and technocratic, so there is no need for representatives from the
management of the subject mines to serve on the committee. BSC,
charged with the scientific task of evaluating a study protocol,
was not called on to make policy decisions about mine regulation.
The court thus properly concluded that FACA does not require BSC to
include management representatives from the mines.
National Anti-Hunger Coalition, 711 F.2d at 1074, supports
this conclusion. There, the court upheld as “unimpeachable” the
conclusion that a committee appointed to study social service
programs was fairly balanced, even though “virtually every member
of the Executive Committee was an executive of a major corporation
and . . . no public interest representatives or beneficiaries of
federal feeding programs had been appointed.” The court based its
finding of fair point-of-view balance on the fact that the
committee's goal was to “apply private sector expertise to attain
cost-effective management in the federal government.” Id. Given
that goal, public interest representatives and welfare
beneficiaries were not needed.28
In arguing that BSC must include representatives of the
affected mines, MARG relies on a statement in a footnote from
28
See also Microbiological Criteria, 886 F.2d at 423 (Friedman, J.,
concurring) (“Since the Committee's function in this case involves highly
technical and scientific studies and recommendations, a 'fair balance' of
viewpoints can be achieved even though the Committee does not have any members
who are consumer advocates or proponents of consumer interests.”).
26
National Anti-Hunger Coalition: “[T]he 'fairly balanced'
requirement was designed to ensure that persons or groups directly
affected by the work of a particular advisory committee would have
some representation on the committee.” 711 F.2d at 1074 n.2.
MARG's reliance on that case is misguided. Its central holding is
precisely contrary to the position MARG advocates; the court
expressly held that an advisory committee with a narrow, technical
mandate does not have to include representatives of those who might
be affected by the committee's work. See id. at 1074.
MARG insists that it is not calling for non-scientists to be
included on a panel charged with giving scientific advice but is
arguing only that, among the group of scientific experts,
there should be one or more highly qualified scientists
and scientific consultants employed by, retained by, or
at least recommended by the companies and labor groups
affected by the study. At the very least, there must be
a strong good faith effort to locate, consider, and
appoint such experts.
MARG, however, has pointed to no evidence indicating that BSC's
membership is somehow biased toward one particular point of view.
An entity bringing a point-of-view balance challenge must do more
than simply say, “The agency didn't come to us for an expert”; the
challenger must make some kind of prima facie showing that the
membership of the committee is biased in its point of view.
VI.
MARG contends that BSC is not properly constituted to avoid
27
inappropriate influence.29 Section 5(b)(3) of FACA requires federal
agencies to make “appropriate provision[] to assure that the advice
and recommendations of the advisory committee will not be
inappropriately influenced by the appointing authority or by any
special interest, but will instead be the result of the advisory
committee's independent judgment.” 5 U.S.C. App. 2 § 5(b)(3).
MARG asserts that the potential for inappropriate influence by the
appointing authority is acute in the case of the diesel study peer
review, for NIOSH and HHS have an interest in finding that diesel
exhaust poses a danger; if they so find, they likely will be able
to expand their regulatory authority, budgets, and prestige.
MARG points out that ten of fifteen BSC members who attended
the January 14, 1997, meeting are former HHS employees or fellows.
At that time, eight members (a voting majority) were recipients of
a total of more than $4 million in active NIOSH/NCI grants, and
two-thirds had published or co-authored professional papers and
research articles with each other or with high-ranking NIOSH or NCI
officials or the researchers involved in the diesel study. In
addition, two members of BSC who participated in the meeting were,
at that time, actively negotiating jobs with OSHA and EPASStwo
agencies whose regulatory authority likely will expand if the study
29
Whether an advisory committee is properly constituted to avoid
inappropriate influence is a mixed question of law and fact that we review
de novo. See Salazar, 96 F.3d at 791.
28
concludes that diesel exhaust is a danger.30
A.
NIOSH did not fail to manage BSC to avoid inappropriate
influence when it permitted participation by former HHS employees
and grant recipients. The fact that some BSC members have ties to
HHS does not in itself render them susceptible to improper
influence.
NIOSH is the major sponsor of occupational safety and health
research, and it is therefore not surprising that BSC, whose
members are selected because they are experts in that field, would
include some persons who had worked for or received a grant from
HHS. Working for or receiving a grant from HHS, or co-authoring a
paper with a person affiliated with the department, does not impair
a scientist's ability to provide technical, scientific peer review
of a study sponsored by HHS or one of its agencies.31 Moreover, if
HHS were required to exclude from peer review committees all
30
As before, NIOSH first argues that MARG's claim is nonjusticiable
because the statute does not provide adequate standards to guide courts in
determining whether “appropriate provisions” have been taken to avoid
“inappropriate influence.” See Microbiological Criteria, 886 F.2d at 429-30
(Silberman, J., concurring). Again, we follow the Microbiological Criteria
majority and hold that § 5's inappropriate-influence prohibition is
justiciable. See id. at 425 (Friedman, J., concurring); id. at 432-34
(Edwards, J., concurring in part and dissenting in part).
31
See, e.g., Public Citizen v. National Advisory Committee on
Microbiological Criteria for Foods, 708 F. Supp. 359, 364 (D.D.C. 1988),
aff'd, 886 F.2d 419 (D.C. Cir. 1989) (rejecting assertion that all members of
a FACA committee who were employed by the food industry or who ever worked as
consultants to the industry were anti-regulatory).
29
scientists who somehow had been affiliated with the department, it
would have to eliminate many of those most qualified to give
advice.
B.
While we are more troubled by the fact that BSC's membership
included two persons who were actively negotiating for employment
with agencies whose regulatory authority will be directly affected
by the results of the diesel study, we agree with the district
court that this fact alone does not indicate a failure to guard
against inappropriate influence. We disagree with NIOSH's claim
that there is no potential for “inappropriate influence” until the
committee member is actually employed by the other agency,32 for it
is while a person is negotiating for a new job that the potential
for inappropriate influence is the greatest. Nevertheless, we
decline to reverse the determination that BSC complied with
§ 5(b)(3). Only two of fifteen BSC members were negotiating with
other agencies, and while those agencies may have an interest in
the diesel study's producing a particular result, that interest is
not strong enough to cause BSC to be inappropriately influenced.
32
NIOSH claims that it complied with FACA's command to avoid
“inappropriate influence . . . by any special interest” because it required
one employee to resign after he had accepted a job with EPA, and the employee
did not accept the job until after the January 14 meeting. As for the other
BSC member, there was no impropriety, NIOSH avers, because, although the
member was negotiating a job with OSHA at the time of the January 14 meeting,
she had neither received nor accepted an employment offer from OSHA at that
time.
30
VII.
MARG claims that BSC failed on three counts to abide by its
charter and the rules set out in HHS's GAM.33 First, the January
14 meeting involved twenty participants, and the BSC charter limits
board membership to fifteen. Second, the BSC failed to provide
geographic diversity, as required by GAM § 9-00-80(B)(3). Most of
the members of BSC are from the East Coast. Finally, BSC did not
abide by GAM § 9-00-80(B)(4)(d), which prohibits service on an
advisory committee by two persons affiliated with the same
institution in the same city.
A.
The district court did not err in finding that BSC and NIOSH
complied with the GAM.34 The BSC does have broad geographic
33
MARG's claims of noncompliance with agency regulations and charter
provisions raise questions of law, which we review de novo. See Reich, 55
F.3d at 1045).
34
Even if NIOSH did technically violate the GAM, MARG cannot state a
claim for relief, because the manual is intended solely to govern HHS's
internal administration and does not confer any judicially enforceable
benefits or rights. “[A]gencies are not required, at the risk of invalidation
of their action, to follow all of their rules, even those properly classified
as 'internal.'” United States v. Caceres, 440 U.S. 741, 754 n. 18 (1979).
See also Shalala v. Guernsey Mem. Hosp., 514 U.S. 87, 99 (1995) (noting that
interpretive rules do not have the force and effect of law); Central Freight
Lines v. United States, 669 F.2d 1063, 1070 (5th Cir. 1982) (holding that rule
was not enforceable where agency “did not promulgate the rule primarily to
confer important procedural rights”).
MARG admits that the requirements in the GAM are self-imposed, but it
asserts that even where an agency is not obligated to impose limitations on
itself, “having done so [the agency] could not, so long as the Regulations
remained unchanged, proceed without regard to them.” Service v. Dulles, 354
U.S. 363, 388 (1957). This principle, MARG asserts, applies to policies set
(continued...)
31
representation. There are two members from California, two from
New York, three from Massachusetts, two from Washington, D.C., and
one each from Connecticut, Iowa, Maryland, and North Carolina.
While the board's composition may be somewhat weighted toward the
East Coast, the GAM imposes no strict geographic quotas, but simply
calls for a “broad . . . representation of geographic area”SSa
criterion that BSC meets. See GAM § 9-00-80(B)(3).
The court also did not err in concluding that NIOSH did not
violate the GAM provision banning service on an advisory committee
by two persons affiliated with the same institution in the same
city. There is sufficient evidence to support a finding that the
provision did not apply because BSC had secured a waiver under GAM
§ 9-00-80(C)(2).
MARG argues that the waiver was not valid because it was not
executed in advance of the January 14 meeting. MARG notes that the
printed version of the GAMSSthe version initially provided to MARG
and the district courtSSstated that a waiver must be made in
(...continued)
out in agency manuals as well as to substantive legislative rules. See Morton
v. Ruiz, 415 U.S. 199, 235 (1974). A fortiori, an agency is required, MARG
argues, to adhere to management controls Congress has directed it to adopt and
follow.
But MARG is reading Dulles and Ruiz too broadly. In each, the agency's
self-imposed rules affected the rights of individuals. As the Ruiz Court
explained, “Where the rights of individuals are affected, it is incumbent upon
agencies to follow their own procedures.” Id. The regulations allegedly
violated here do not affect individual rights by, for example, creating
particular expectations and reliance interests, and NIOSH and HHS were thus
“not required, at the risk of invalidation of their action, to follow [their
internal rules].” See Caceres, 440 U.S. at 754.
32
writing before the member is appointed. The waiver NIOSH secured
was obtained on March 28, 1997SSafter the two “same town/same
institution” members had been appointed and had participated in the
January 14 meeting.
The district court determined, and the record supports,
however, that the waiver provision had been amended to permit
retroactive execution. NIOSH provided the court with a version of
the GAM, dated 1995, that included a handwritten change that
deleted the requirement that a waiver request be made prior to
appointment. While this handwritten amendment may seem
questionable, we cannot conclude that the court clearly erred in
finding that the amendment was bona fide and that the waiver
therefore was timely.
B.
The district court properly refused to see a substantive FACA
violation in the fact that the BSC meeting included more
participants than BSC's charter authorizes. Section 9(c) of FACA
prescribes information that must be included in an advisory
committee's charter.35 The statute does not, however, require the
charter to indicate how many persons may participate on the
committee.
35
See 5 U.S.C. App. 2 § 9(c) (requiring, inter alia, the committee's
“official designation,” objectives, scope of activity, supporting agency,
estimated annual operating costs, number and frequency of meetings, and
termination date).
33
Neither has MARG cited any HHS regulation that imposes such a
requirement. It simply avers that NIOSH violated a charter
provision it never had to adopt in the first place. This fact
cannot disturb the finding of “substantial compliance with all
applicable regulations.”
VIII.
MARG contends that the district court erred when it denied
injunctive relief because of its conclusion that NIOSH had
“substantially complied” with all applicable statutory and
regulatory requirements. We review a refusal to grant an
injunction for abuse of discretion. Peaches Entertainment Corp. v.
Entertainment Repertoire Assocs., Inc. 62 F.3d 690, 693 (5th Cir.
1995). In granting or denying injunctive relief, a court abuses
its discretion when it (1) relies on clearly erroneous factual
findings, (2) relies on erroneous conclusions of law, or (3) mis-
applies its factual or legal conclusions. Id. Because, despite
its diligent efforts, the court erred in concluding that NIOSH
complied with FACA's congressional filing requirements, we remand
for that court to determine the appropriate remedy in light of our
legal analysis.
A.
The fact that an instance of noncompliance with FACA seems
34
trivial and inconsequential should not deter the court from
granting some type of injunctive relief. In FACA, Congress made a
calculated decision that advisory committees, which wield hefty
influence, should be structured a certain way. While some of the
strictures imposed by CongressSSand, pursuant to delegation, the
GSASSmay seem trivial, Congress believed the rules were necessary
to ensure balanced, rationally-based decision making.36
If the courts do not enforce FACA by enjoining the work
product of improperly constituted committees, FACA will be
toothless, merely aspirational legislation. “Congress outlined in
detail exactly what procedures were to be used [in establishing and
utilizing advisory committees], and it is the responsibility of the
courts to see that such laws are carried out.” Alabama-Tombigbee
Rivers Coalition v. Department of the Interior, 26 F.3d 1103, 1006
(11th Cir. 1994). If FACA has no teeth, the work product of
spuriously formed advisory groups may obtain political legitimacy
that it does not deserve. See Association of Am. Physicians &
Surgeons v. Clinton, 997 F.2d 898, 913 (D.C. Cir. 1993). Hence,
some type of injunctive relief is appropriate.
B.
Nonetheless, the district court need not automatically bar the
36
While some of FACA's requirements may seem “nit-picky,” it is not the
court's place to loosen the statute's requirements. “If the straitjacket is
too tight, Congress is free to loosen it.” National Nutrition Foods Ass'n v.
Califano, 603 F.2d 327, 336 (2d Cir. 1979).
35
use of all of the BSC's work productSSi.e., grant a “use
injunction”SSas MARG requests. Courts have differed somewhat on
when a use injunction is appropriate; we join the District of
Columbia Circuit in concluding that “a use injunction should be the
remedy of last resort.” See Natural Resources Defense Council v.
Peña, 147 F.3d 1012, 1025 (D.C. Cir. 1998).
We reject the approach of the Eleventh Circuit, which appears
to have adopted a per se rule that use of the work product of a
committee that violates FACA must be enjoined to preserve
incentives to abide by FACA's dictates. That court explained:
[T]o allow the government to use the product of a tainted
procedure would circumvent the very policy that serves as
the foundation of the Act. . . . We find injunctive
relief as the only vehicle that carries the sufficient
remedial effect to ensure future compliance with FACA's
clear requirements. Anything less would be tantamount to
nothing.
Alabama-Tombigbee, 26 F.3d at 1107 (citation omitted).
Under this approach, BSC would be enjoined from engaging in
further peer review until it meets all of FACA's requirements, and
NIOSH would not be permitted to use the “tainted” fruits of prior
peer review activities. While the per se rule does exhibit the
virtue of simplicity, there occasionally may be FACA violations
that are either unintentional or so de minimis as not to warrant a
court's attention. The per se rule would require a costly
injunction to issue even when its deterrence benefits would be
minimal.
36
Instead, we adopt the approach taken in California Forestry
Ass'n v. United States Forest Serv., 102 F.3d 609, 614 (1996),
which reasons that “an injunction [for a FACA violation] might be
appropriate in some cases . . . if the unavailability of an
injunctive remedy would effectively render FACA a nullity.” The
court remanded to the district court to determine “whether under
the circumstances an injunction would promote FACA's purposes.”
Id. Similarly, we remand to the district court to fashion an
injunctive remedy that will encourage compliance with FACA's
strictures while remaining sensitive to its principal purposes of
public accountability and avoidance of wasteful expenditures.37
Needless to say, the district court has broad discretion in
fashioning its injunction.
IX.
In sum, we affirm the determinations that (1) BSC's charter
permits peer review; (2) BSC complies with FACA § 5's functional
balance, adequate staffing, and point-of-view balance requirements;
(3) BSC is properly constituted to be free from inappropriate
influence; and (4) BSC complies with applicable HHS regulations
regarding geographic diversity and representation. We dismiss, for
37
See Natural Resources Defense Council, 147 F.3d at 1026 (remanding to
the district court to fashion remedy for FACA violation and instructing court to
consider principal purposes of FACA, including avoidance of wasteful expenditures
and public accountability, before granting injunction preventing the use of
material obtained in violation of FACA).
37
lack of standing, MARG's claim that NIOSH failed properly to renew
or re-establish BSC. We reverse the determination that BSC
complies with FACA's congressional filing requirements. We remand
for the district court to fashion an appropriate injunctive remedy
in light of the legal analysis presented herein.
AFFIRMED in part, REVERSED in part, and REMANDED.
38