Methane Awareness v. USA

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