Methane Awareness v. USA ( 2001 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-30834
AKZO-NOBEL INC; GENERAL CHEMICAL CORP; MISSISSIPPI LIME
MANAGEMENT CO; MORTON INTERNATIONAL; OCI OF WYOMING;
LONNY BADEAUX; JOSEPH VENDETTI; METHANE AWARENESS RESOURCE
GROUP; DIESEL COALITION
Plaintiffs-Appellees
versus
UNITED STATES OF AMERICA; TOMMY THOMPSON, SECRETARY
OF HEALTH & HUMAN SERVICES; LINDA ROSENSTOCK,
Director, National Institute for Occupational Safety and
Health; RICHARD KLAUSNER, Director, National Cancer Institute
Defendants-Appellants
Appeal from the United States District Court
for the Western District of Louisiana
(H-96-CV-2430)
May 25, 2001
Before GARWOOD, HALL,1 and BARKSDALE, Circuit Judges.
PER CURIAM:2
Appellants challenge an injunctive order requiring them to
submit data from a study on the health effects of diesel exhaust to
a Congressional committee. The order was designed to remedy the
appellants’ violation of the Federal Advisory Committee Act
1
Circuit Judge of the Ninth Circuit, sitting by designation.
2
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
(“FACA”), 5 U.S.C. App. 2. Appellants’ contend that the order is
not tailored to their FACA violation and should be revised. We
agree.
I. FACTS AND PROCEDURAL HISTORY
In 1995, two components of the U.S. Department of Health and
Human Services (“HHS”), the National Institute for Occupational
Safety and Health (“NIOSH”) and the National Cancer Institute
(“NCI”), began conducting a health study to determine whether
exposure to diesel exhaust causes lung cancer in mine workers. The
data collected includes personal and medical records, tax records,
and cause of death information for thousands of mine workers. The
first results from the mortality portion of the study should be
available in 2003.
At first, HHS asked a panel of six scientists to periodically
review the progress of the study and comment on the study’s
methods. Plaintiffs, a coalition of mine owners, brought a civil
action challenging the use of the peer review panel under FACA.
Congress enacted FACA in 1972 to regulate the increasing number of
boards and committees established to advise the executive branch.
A committee that meets FACA’s definition of “advisory committee” is
subject to several limitations regarding its establishment,
composition, recordkeeping, and duration.
The district court held that the HHS peer review panel
challenged by plaintiffs was an advisory committee within the
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meaning of FACA and enjoined further meetings of the panel. In
response, HHS disbanded the peer review panel and replaced it with
a pre-existing FACA advisory committee, the Board of Scientific
Counselors of NIOSH (“BSC”). The BSC is a panel of 15 members
knowledgeable in disciplines involving occupational safety and
health. The BSC panel is selected by the Secretary of HHS. The
BSC met in January 1997 to review the revised draft protocol for
the diesel exhaust study. Once it gave its approval, HHS began the
study in the field.
Plaintiffs amended their complaint to challenge the use of the
BSC as an advisory committee. They alleged several violations of
FACA. The district court rejected all of plaintiffs’ claims and
entered judgment in favor of the government. This Court affirmed
the district court’s ruling except for one issue. Under FACA, a
federal agency must file the advisory committee’s charter with the
appropriate Congressional oversight committees. HHS had filed the
BSC’s charter with the Committee on Commerce in the House of
Representatives. This Court held that HHS had filed BSC’s charter
with the wrong committee in the House; the charter should have been
filed with the House Committee on Education and the Workforce (“the
Committee”) (previously known as the House Labor Committee).3 The
3
This seems to have been an understandable mistake. While
the House Committee on Commerce has jurisdiction over HHS, the
Committee on Education and the Workforce has jurisdiction over
NIOSH, and, therefore, was the committee where the BSC charter had
to be filed. See Cargill, Inc. v. United States, 173 F.3d 323, 329
(5th Cir. 1999).
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case was remanded back to the district court to determine an
appropriate remedy for HHS’s violation of FACA. See Cargill, Inc.
v. United States, 173 F.3d 323, 342 (5th Cir. 1999).
On remand, the district court issued an injunctive order that
stated in part:
3. Defendants shall submit to the U.S. House of
Representatives Committee on Education and the Workforce
all Diesel Study data requested by the Committee, as well
as all draft reports, publications, and draft results or
risk notification materials prepared in connection with
the Diesel Study, for review and approval prior to
finalization and release and/or publication and
distribution of such materials.
After the district court rejected the government’s motion to modify
the order, the government filed this appeal.
II. DISCUSSION
HHS contends that the order is flawed in two ways: 1) the
order gives the Committee the authority to disallow publication
of the study; and 2) the order requires HHS to turn over
confidential tax data and cause of death information to the
Committee. This Court reviews the “scope and form of the
injunction for an abuse of discretion.” Pebble Beach Co. v. Tour
18 I Ltd., 155 F.3d 526, 550 (5th Cir. 1998).
A. House Committee Control Over the Study’s Release
In its earlier opinion in this case, this Court refused to
adopt a per se rule enjoining publication of all data acquired
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while an agency was in violation of FACA requirements: “[T]here
occasionally may be FACA violations that are either unintentional
or so de minimis as not to warrant a court’s attention.”
Cargill, 173 F.3d at 342. “The per se rule would require a
costly injunction to issue even when its deterrence benefits
would be minimal.” Id.
As we suggested in our prior opinion, an order requiring
Committee approval before the study can be released is not
appropriate for HHS’s inadvertent mistake in filing the BSC
charter with the wrong House committee: “[T]he district court
need not automatically bar the use of all of the BSC’s work
product–i.e., grant a ‘use injunction.’” Id. Congress has given
HHS the authority to publish the results of its investigations
into public health dangers. See 29 U.S.C. § 657(g)(1). The
district court order is tantamount to a use injunction because it
authorizes the Committee to prevent the study’s publication.
“[W]e join the District of Columbia Circuit in concluding that ‘a
use injunction should be the remedy of last resort.’” Cargill,
173 F.3d at 342 (quoting Natural Resources Defense Council v.
Pena, 147 F.3d 1012, 1025 (D.C. Cir. 1998)).
In our earlier opinion, we endorsed the approach taken in
California Forestry Ass’n v. United States Forest Serv., 102 F.3d
609, 614 (D.C. Cir. 1996). The California Forestry court noted
that “[t]he need for injunctive relief may be reduced where, as
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here, there has been at least some attempt to ensure public
accountability” and where an injunction would not serve FACA’s
goal of reducing wasteful expenditures. Id.; see also Natural
Resources, 147 F.3d at 1026 (“Substantial efforts to include
members of the interested public in at least some committee
meetings . . . counsel against a use injunction.”). We
instructed 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.” Cargill,
173 F.3d at 342.
The district court order does not serve the goals of public
accountability and reduction of economic waste. HHS did not hide
from Congressional oversight. It tried to make itself
accountable to the public. It unknowingly filed BSC’s charter
with the wrong House committee and filed it with the correct
Senate committee. Plaintiffs and other interested parties had
actual notice that the BSC was reviewing the study protocol and
were informed of and invited to every meeting of the BSC panel.
See Cargill, 173 F.3d at 332. As the order stands, the Committee
can decide to never release or publish the study results. This
would result in a waste of the $2.5 million already invested in
this study.
Plaintiffs contend that a remedial order that only requires
HHS to file its charter with the appropriate committee at this
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late date gives it a “free pass” for its FACA violation. But the
district court did order some injunctive relief that the
government complied with immediately. It ordered HHS to file the
BSC charter with the appropriate committee. This relief ensures
that HHS does not proceed with its study without appropriate
Congressional oversight. Injunctive relief is meant to serve a
remedial purpose, not a punitive one. See Natural Resources, 147
F.3d at 1022. It is unclear how authorizing the Committee to
prevent publication of the study would remedy HHS’s mistake in
filing its charter with the wrong House committee. There is no
evidence suggesting that the data collected for the HHS study
would have differed if the BSC charter had been filed with the
appropriate committee, and this Court rejected every other FACA
violation alleged by the plaintiffs.
If there is no indication that the study protocol would have
differed under the supervision of the Committee on Education,
there is no indication that HHS is likely to commit similar
violations in the future, and BSC’s charter has been filed with
the correct committee, then there is little reason for further
injunctive relief. We are concerned, however, that the Committee
should have sufficient time to examine the misfiled study data.
Accordingly, we instruct the district court to revise its order
so that HHS will be barred from publicly releasing any of the
information it sends to the Committee until 90 days after its
submission.
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B. Confidential Records
The district court’s order requires HHS to turn over “all
draft reports, publications, and draft results” prepared in
connection with the study and “all Diesel Study data requested by
the Committee.” HHS contends that the order would require it to
turn over two categories of data that the agency is barred from
disclosing by statute: 1) federal tax returns; and 2) cause-of-
death information obtained from the states.
1. Tax Information
The only tax information received by HHS consists of mailing
addresses of diesel study subjects culled from IRS files. The
Internal Revenue Code provides for disclosure of tax information
to Congressional committees. The Secretary of the Treasury must
furnish tax return information upon receiving a written request
by the chair of any Congressional committee that has been
“specially authorized” to inspect returns by a resolution of the
Senate or House. 26 U.S.C. § 6103(f)(3). No resolution has been
passed authorizing the Committee on Education to review the tax
returns at issue.
Congress was sensitive to the need to preserve the
confidentiality of tax information when it crafted and revised §
6103. See United States v. De Leon Guerrero, 1992 WL 321010, *18
(D. N. Mar. I., July 24, 1992) (“[T]he legislative history of 26
U.S.C.A. § 6103 . . . [is] aimed at protecting taxpayer privacy
8
with respect to the public, and preventing disclosure to society
at large.”). Therefore, until the House of Representatives has
passed a resolution authorizing the Committee to review the
individual tax returns, HHS does not need to release this
information to the Committee. Any “agency reformulation of the
return information into a statistical study or some other
composite product,” however, must be turned over to the
Committee. Church of Scientology of California v. IRS, 792 F.2d
153, 160 (D.C. Cir. 1986) (en banc) (emphasis in original),
aff’d, 484 U.S. 9 (1987).
B. Cause-of-Death Information
HHS also objects to the mandatory release of cause-of-death
statistics to the Committee. 42 U.S.C. § 242m(d) provides that
information collected as part of HHS’s research on environmental
hazards may not be used “for any purpose other than the purpose
for which it was supplied” unless the establishment or person
supplying the information has consented to its use for such other
purpose.
The cause-of-death data comes from contracts between the
National Center for Health Statistics and individual states. The
contracts submitted by HHS do not show an intent to restrict the
access of Congressional committees to the data. The data was
released for its use in a study of the effects of diesel exhaust.
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Giving the Committee the ability to oversee the study by
examining such data is part of this purpose.
The contracts do show an intent to avoid the outside release
of information identifying specific individuals and their causes
of death, however. Moreover, under § 242m(d), “such information
may not be published or released in other form if the particular
establishment or person supplying the information or described in
it is identifiable unless such establishment or person has
consented (as determined under regulations of the Secretary) to
its publication or release in other form.” 42 U.S.C. § 242m(d).
Therefore, the death statistics should be released to the
Committee in aggregate form, but not in a way that would allow
for the identification of individual decedents.
III. CONCLUSION
We remand this case to the district court to revise its
order. The order cannot require Committee approval before
publication of the study. Instead, HHS must wait until 90 days
after the Committee has received the data before it can publicly
release the data. The order should only require HHS to provide
the Committee with individual tax data after a resolution has
been passed by the House of Representatives authorizing such
individual review. Any data on cause of death must be submitted
to the Committee but not in a way that would allow for the
identification of individual decedents.
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