IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-30812

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

v.

UNITED STATES OF AMERICA; KATHLEEN SEBELIUS, SECRETARY,

DEPARTMENT OF HEALTH & HUMAN SERVICES; JOHN HOWARD,

Director, National Institute for Occupational Safety and Health; HAROLD

VARMUS, Director, National Cancer Institute,

Defendants-Appellants

Appeal from the United States District Court 

for the Western District of Louisiana

(6:96-CV-2430)

Before BENAVIDES, PRADO and GRAVES, Circuit Judges.

PER CURIAM:*

This appeal involves a Diesel Exhaust in Miners Study, commenced two

decades ago in 1992 and conducted by the National Institute for Occupational

United States Court of Appeals

Fifth Circuit

F I L E D

May 24, 2012

Lyle W. Cayce

Clerk

 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.

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Safety and Health (“NIOSH”) and the National Cancer Institute (“NCI”) – two 1 2

components of the United States Department of Health and Human Services

(collectively, “HHS”). In this appeal – the third in a series of related appeals

spanning thirteen years – HHS challenges the district court’s order granting the

motion for injunctive relief, civil contempt, and fees and expenses brought by the

plaintiffs-appellees, Methane Awareness Resource Group (“MARG”) and Lonny

Badeaux (collectively “Plaintiffs”). Once again, HHS’s appeal is successful. We 3

VACATE and REVERSE.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. The Diesel Exhaust in Miners Study

Between 1992 and 1995, NIOSH and NCI developed a draft protocol for

the study. In 1996, HHS decided to use a particular advisory committee, the

NIOSH’s Board of Scientific Counselors (“BSC”), to provide peer review for the

draft protocol. In January, April and July 1997, BSC held public meetings to

NIOSH is a component of HHS. 29 U.S.C. § 671(a). NIOSH conducts scientific

1

research related to occupational safety and health. Id. §§ 669(a)(1). NIOSH’s research is used,

inter alia, to generate recommendations regarding permissible exposure levels for potentially

harmful substances. Id. §§ 669(a)(3), 671(d). Congress has recognized a particular role for

NIOSH in mine-related research. Federal Mine Safety and Health Act of 1977, 30 U.S.C. §

801. Congress directed NIOSH to improve and expand research programs to prevent

occupational diseases in the mining industry. Id. U.S.C. §§ 801(g), 951(a)(9); see also 29 U.S.C.

§ 671. Congress declared that “there is an urgent need to provide more effective means and

measures for improving the working conditions and practices in the Nation's coal or other

mines in order to prevent death and serious physical harm, and in order to prevent

occupational diseases originating in such mines.” 30 U.S.C. § 801(c).

NCI is another component of HHS. See 42 U.S.C. §§ 281(a), (b)(1); id. § 202. NCI 2

conducts and supports research, information dissemination, and other activities related to “the

cause, diagnosis, prevention, and treatment of cancer.” Id. § 285. NCI is also authorized to

coordinate its research activities with other public and private entities, such as NIOSH, that

perform similar work. See id. § 284(c)(1).

MARG represents a majority of the mine operators with mines in the study. Current 3

MARG company members include Cargill, Inc., Detroit Salt, Mossaic Potash (formerly IMC),

Morton Salt, General Chemical (now Tata Chemicals, US), FMC Wyoming, and Navistar and

Lonny Badeaux who is a plaintiff in his own personal capacity, as a former miner and subject

of the study.

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review the draft protocol, for which BSC provided notice and allowed for public

comment. Plaintiffs offered their comments at the meeting. After the meetings,

BSC voted to approve the protocol for the study.

Then in 1999, however, Plaintiffs sued, alleging that HHS had violated the

Federal Advisory Committee Act (“FACA”) by using BSC to review the draft

protocol. Pursuant to FACA, the government must file the charter for an

advisory committee (such as BSC) with a certain congressional standing

committee, depending on the federal agency that the advisory committee

advises. 5 U.S.C. Appx. § 2. HHS had mistakenly filed the charter for BSC with

the House Committee on Commerce, rather than the House Committee on

Education and the Workforce (“the House Committee”). On appeal, this court

held that HHS had indeed made a mistake by filing BSC’s charter with the

wrong congressional committee. Cargill, Inc. v. United States, 173 F.3d 323, 334

(5th Cir. 1999). Although inadvertent, HHS’s mistake required correction. To

ensure proper congressional oversight of BSC, and to ensure that BSC’s review

of the draft protocol was valid, the appropriate congressional committee with the

requisite expertise needed to be involved. This court further held that Plaintiffs

had standing to compel HHS to refile the charter because the validity of the

study protocol affected Plaintiffs’ interests. Id. at 342. The study findings would

form the basis for new administrative regulations. An invalid study protocol

would generate an invalid study, which could lead to unnecessarily restrictive

regulations on Plaintiffs. This court ultimately instructed the district court to

fashion an injunction that promoted FACA’s goals of ensuring public

accountability and of reducing economic waste. Id.

On remand on March 13, 2000,the district court issued an injunctive order

to remedy this FACA violation (“2000 Order”), which required HHS to provide

study drafts and requested study data to the House Committee, and gave the

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House Committee veto power over the study. HHS appealed the order as overly

broad, and this court agreed with HHS, instructing the district court to enter a

narrower order, stating that there was “little reason for future injunctive relief”

beyond refiling the charter with the correct House committee. Akzo-Nobel, Inc.

v. United States, 2001 WL 34772206, at *2–*3 (5th Cir. 2001). “[A]n order

requiring [House Committee] approval before the study can be released is not

appropriate for HHS’s inadvertent mistake in filing the [BSC’s] charter with the

wrong House committee.” Id. at *2. 

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.

Id. This court noted concern “that the [House] Committee should have sufficient

time to examine the misfiled study data” and become familiar on the validity of

the study protocol and BSC’s corresponding advice. Id. at *3. Accordingly, we

instructed the district court to “revise its order so that HHS will be barred from

publicly releasing any of the information it sends to the [House] Committee until

90 days after its submission.” Id.

On remand again in 2001, the district court issued a new two-part

injunctive order (“2001 Order”). In the first part of the order, the district court 4

required HHS to submit BSC work product to the House Committee and to

Plaintiffs. The last line of the first part states: “Defendants shall provide

Plaintiffs with copies of all documents submitted to the Committee in compliance

with this Order.” In the second part of the order, the district court required

HHS to submit to the House Committee (i) study data requested by the

 Attached is a copy of the 2001 Order as appendix 1. 4

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Committee and (ii) study “draft reports, publications, and draft results or risk

notification materials.” The district court also barred HHS from publicly

releasing information submitted to the House Committee until 90 days after

submission. The second part of the order did not mention Plaintiffs.

Nine years passed after the 2001 Order without any controversy. In 2002,

BSC finished its oversight of the study protocol. Between 2002 and 2004, in

compliance with the 2001 Order, HHS submitted study drafts and data to the

House Committee. The submitted materials included final drafts of different

parts of the study as they were completed, sample notification letters that were

sent to individual miners, and a presentation that the agencies gave at a public

meeting regarding the study’s progress. Furthermore, in 2002, the House

Committee wrote to HHS (“2002 Letter”) to:

request that [NIOSH] provide all draft copies of all reports, notifications,

recommendations, or alerts, related to or based on the [study], prior to the

release or publication of such study, or portion thereof. The [House

Committee] also requests submission of study data, in a format capable of

being analyzed, as the data collection phase of each part of this study is

completed, and preceding the drafting of any reports.

In 2003,the House Committee wrote to Defendants (“2003 Letter”), asking

several questions about the study and requesting specific data sets. HHS

complied with these letters; HHS also provided Plaintiffs with copies of the cover

letters sent to the House Committee, but not the actual drafts and data. In

2004, the House Committee wrote to Defendants (“2004 Letter”), stating that

NIOSH and NCI:

must submit any data requested by the Committee in accordance with

certain confidentiality statutes and the terms specified in the order and

must refrain from publicly releasing information submitted to the

Committee until 90 days after the date of submission. We hereby request

NIOSH and NCI to provide copies of any submissions that the agencies

are required to make to this Committee under the District Court’s order

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to a scientific reviewer designated by the United Steelworkers of America

at the same time they make their submission to the Committee.

In response, HHS provided some data sets to Plaintiffs and answered Plaintiffs’

questions about the data.

In or about 2009, HHS split the study into seven draft articles and decided

to submit the draft articles to scientific journals for peer review. In November

2009, HHS submitted the first four draft articles to the Annals of Occupational

Hygiene (“AOH”). HHS sent AOH a copy of the 2001 Order and asked the

journal to “ensure that its staff and peer reviewers . . . maintain the

confidentiality of the manuscripts” to “ensure that the [HHS] agencies remain

in compliance with [the 2001 Order] during the journal’s review process of these

manuscripts.” AOH agreed. In February 2010, AOH accepted the four articles

for publication.

On March 1, 2010, HHS submitted the final drafts of these four articles to

the House Committee. HHS also sent Plaintiffs a copy of the cover letter sent

to the House Committee, but not the actual articles–similar to HHS’s practice

in 2002 and 2003. In April 2010, the Plaintiffs responded by filing two motions

for contempt. First, Plaintiffs argued that HHS had violated the 2001 Order by

submitting the final drafts of the four articles to the House Committee but not

to Plaintiffs. Second, Plaintiffs argued that HHS had violated the 2001 Order

by submitting the four articles to AOH before sending them to the House

Committee and to Plaintiffs and then waiting 90 days. In its order (“2010

Order”), the district court denied the contempt motions. The 2010 Order 5

required HHS to submit the final drafts of the four articles to the House

Committee and Plaintiffs, and required HHS to wait 90 days before further

distributing the study articles so that the House Committee and Plaintiffs would

 Attached is a copy of the 2010 Order as appendix 2. 5

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have an opportunity to review the study articles. The district court further

required HHS to prevent AOH from publishing the articles until the 90-day

review period was complete. Lastly, the district court noted that Plaintiffs may

not further disclose the articles during the 90-day period, but may make

comments about the articles to HHS or to the House Committee. The district

court did not resolve the issue of whether the submission of an article to a

scientific journal for peer review constituted “public release” in violation of the

2001 Order. Furthermore, in a prior hearing, the district court had explained

that it was not holding Defendants in contempt because “there is some language

in [the 2001 Order] that I can see where they’re coming from.”

In September 2010, AOH published the four articles, after Plaintiffs and

the House Committee had 90 days to review them. HHS only provided Plaintiffs

and the House Committee with the final proofs of the articles. HHS did not

provide Plaintiffs with the underlying study drafts or data. HHS indicated that

it planned to produce data in the form of a “public use” dataset that resolved

confidentiality problems.

By May 2011, the study’s final three papers were almost ready for

publication. One article was ready to be published in AOH, and the other two

had been submitted to another peer-reviewed scientific journal and were

undergoing peer review. HHS planned to provide the final drafts of these

articles to the House Committee and Plaintiffs once they were accepted for

publication, and then wait 90 days before publishing the articles. Accordingly,

on May 31, 2011, HHS moved “for an order extending the provisions of the [2010

Order] to the last three papers remaining for publication in this action.”

In response, Plaintiffs brought a new motion for contempt on June 10,

2011. Plaintiffs argued that HHS had been violating the 2001 Order since 2005,

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when it stopped submitting any study drafts or data to the House Committee

and to Plaintiffs. They argued further that HHS had violated the 2001 Order by

submitting the last three draft articles to outside journals before submitting

them to Plaintiffs and the House Committee. Plaintiffs requested that study

drafts and data be provided to the House Committee and to Plaintiffs, pursuant

to the 2001 Order.

In July 2011, the House Committee wrote to HHS (“2011 Letter”), noting

that under the 2001 Order, NIOSH and NCI:

must submit to this Committee and the MARG all data requested by the

Committee as well as all draft reports, publications, and draft results or

risk notification materials prepared in connection with the NIOSH/NCI

Diesel study. The agencies must submit any data requested by the

Committee in accordance with certain confidentiality statutes and the

terms specified in the order, and must refrain from publicly releasing

information submitted to the Committee until 90 days after the date of

submission.

In August 2011, the district court held a hearing on the Plaintiffs’ motion

for contempt. In its order, the district court found HHS in contempt, and issued

a broad injunctive remedy (“2011 Order”). First, the district court ordered HHS 6

to immediately produce to Plaintiffs and the House Committee, “all nonconfidential documents, data, draft reports, publications, and draft results or

risk notification materials,” relating to the study. Second, the district court

ordered HHS to “immediately inform all recipients, including journals, of the

above described study draft reports, not yet published, that they are prohibited

from further distribution of said drafts until at least 90 days after [HHS has]

complied with this Order[.]” Third, the district court noted that Plaintiffs may

not further disclose the articles during the 90-day period, but may make

comments about the articles to HHS, the publishing journals, or the House

 Attached is a copy of the 2011 Order as appendix 3. 6

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Committee. Fourth, the district court awarded Plaintiffs attorneys’ fees. On

September 1, 2011, HHS appealed the 2011 Order.

II. STANDARD OF REVIEW

“We review contempt orders and sanctions imposed thereunder for an

abuse of discretion.” Whitcraft v. Brown, 570 F.3d 268, 271 (5th Cir. 2009). “We

review the district court’s underlying findings of fact for clear error and its

underlying conclusions of law de novo.” Id. 

III. ANALYSIS

A. Whether the district court abused its discretion by holding HHS

in contempt.

“[A] court abuses its discretion when it (1) relies on clearly erroneous

factual findings, (2) relies on erroneous conclusions of law, or (3) misapplies its

factual or legal conclusions.” Cargill, Inc. v. United States, 173 F.3d 323, 341

(5th Cir. 1999) (citing Peaches Entertainment Corp. v. Entertainment Repertoire

Assocs., 62 F.3d 690, 693 (5 Cir. 1995)). Here, the district court made no th

findings, and likewise, made no conclusions of law. Hence, there is no way to

determine what the district court either relied on or applied. Instead, the

district court provided no specificity as to what action by HHS violated the 2001

Order.

First, the only finding made by the district court in its 2011 Order was

that HHS was in contempt, but the district court does not provide any basis for

that finding. The three preceding paragraphs of the 2011 Order are stand alone

orders, not reasons for the finding of contempt. Second, a careful review of the

hearing transcript regarding Plaintiffs’ contempt motion further supports our

conclusion, because it also reveals that the district court made no findings and

made no conclusions of law. The district court did not specifically identify any

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violation of the 2001 Order, nor did the district court identify, or discuss with

specificity, any part of the 2001 Order.

Nonetheless, the parties have briefed two grounds for the district court’s

contempt order. First, Plaintiffs urge, and HHS denies, that HHS violated the

2001 Order by submitting study articles to outside scientific journals for peer

review before submitting the articles to Congress. Second, Plaintiffs urge, and

HHS denies, that HHS violated the 2001 Order by failing to submit study drafts

and requested study data to both Congress and to Plaintiffs. For the reasons

stated below, even if we assume that the district court based its contempt order

on these alleged violations, the contempt order constitutes an abuse of

discretion. 

1. Whether the district court properly held HHS in contempt

for submitting study articles to outside scientific journals.

“A movant in a civil contempt proceeding bears the burden of establishing

by clear and convincing evidence 1) that a court order was in effect, 2) that the

order required certain conduct by the respondent, and 3) that the respondent

failed to comply with the court’s order.” Id. It is undisputed that the 2001 Order

was in effect. It is further undisputed that the 2001 Order required certain

conduct by HHS. Therefore, the remaining question is whether HHS failed to

comply with the 2001 Order.

The last sentence of the 2001 Order states that HHS “shall refrain from

publicly releasing information submitted to the Committee until 90 days after

it is submitted to the Committee.” (Emphasis added.) Plaintiffs contend that

HHS violated the 2001 Order when it provided draft copies of the study to AOH. 

HHS maintains that it did not violate the 2001 Order, because it provided the

draft copies of the study to AOH (1) for the purpose of peer review, which does

not qualify as a “public release” and (2) with a specific admonition that any

manuscripts related to the study remain confidential.

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Documents involved in the peer review process are exempt from disclosure

pursuant to the Freedom of Information Act (“FOIA”) exemption that applies to

“inter-agency or intra-agency memorandum or letters which would not be

available by law to a party other than an agency in litigation with the agency.” 

5 U.S.C. § 552(b)(5). This FOIA exemption cannot be invoked for a document

that has already been released publicly. See Cooper v. Department of Navy, 594

F.2d 484, 488- 89 (5th Cir. 1979). Here, the 2001 Order does not define “publicly

release,” and the 2011 Order specifically exempts confidential documents from

production. Therefore, a paper submitted for peer review cannot be deemed

publicly released. 

This court also recognized that “the government may deem it necessary to

seek the objective opinion of outside experts rather than rely solely on the

opinions of government” employees, and that documents prepared by these

outside experts qualify as “intra-agency” memoranda not subject to disclosure

pursuant to the relevant FOIA exemption. Hoover v. U.S. Dep’t of the Interior,

611 F.2d 1132, 1138 (5th Cir. 1980). Additionally, in the aforementioned 2004

Letter, the House Committee recognized that “[w]e understand that the

participation of the representatives of MARG and the Steelworkers will be

dependent upon these representatives entering appropriate confidentiality

agreements with the agencies.” (Emphasis added.) Likewise, in 2005, the

Executive Office of the President Office of Management and Budget issued its

Final Information Quality Bulletin for Peer Review (“Peer Review Final

Bulletin”), which are guidelines regarding peer review of scientific information

disseminated by federal agencies. See Final Information Quality Bulletin for

Peer Review, 70 Fed. Reg. 2,664, 2,665 (2005). The Peer Review Final Bulletin

states, in relevant part:

Peer review should not be confused with public comment and other

stakeholder processes. The selection of participants in a peer review is

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based on expertise, with due consideration of independence and conflict of

interest. Furthermore, notice-and-comment procedures for agency

rulemaking do not provide an adequate substitute for peer review, as some

experts – especially those most knowledgeable in a field – may not file

public comments with Federal agencies.

. . .

Peer review may take a variety of forms, depending upon the nature and

importance of the product. For example, . . . the names of each reviewer

may be disclosed publicly or may remain anonymous (e.g., to encourage

candor) . . . For large, complex reports, different reviewers may be

assigned to different chapters or topics. Such reports may be reviewed in

stages, sometimes with confidential reviews that precede a public process

of panel review. As part of government-sponsored peer review, there may

be opportunity for written and/or oral public comments on the draft

product.

. . .

Similarly, when a government agency sponsors peer review of its own

draft documents, the peer review reports are an important factor in

information dissemination decisions but rarely are the sole consideration.

Agencies are not expected to cede their discretion with regard to

dissemination or use of information to peer reviewers; accountable agency

officials must make the final decisions.

Id. at 2,665-2,666 (emphasis added). In addition, the Peer Review Final Bulletin

defines “dissemination” as “agency initiated or sponsored distribution of

information to the public” but specifically excludes from this definition

“information distributed for peer review in compliance with this Bulletin.” Id.

at 2,667. “Moreover, the National Academy of Sciences now discloses the names

of its peer reviewers, without disclosing the substance of their comments.” Id. at

2,670 (emphasis added). 

Here, HHS submitted drafts of the study to AOH solely for peer-review

purposes. When HHS submitted the final three papers for peer review, it

transmitted a copy of the 2001 Order to the reviewing journals and admonished

them to maintain the confidentiality of the papers during the review process. In

a November 2, 2009 letter to AOH, HHS stated:

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NIOSH’s and NCI’s “actions regarding this study are the subject of a court

order issued by the United States District Court of the Western District of

Louisiana, and request your journal’s assistance to ensure thatthe agencies

remain in compliance with this order during the journal’s review process

of these manuscripts. I have enclosed a copy fo this order for your

information. Paragraph 2 of the order directs the agencies, among other

things, to submit draft reports and publications to a committee in the

United States House of Representatives and to refrain from publicly

releasing any information submitted to that committee until 90 days after

it is submitted. . . . Therefore, both agencies are requesting that the

Annals of Occupational Hygiene ensure that its staff and the peer reviewers

it employs maintain the confidentiality of the manuscripts. It is my

understanding, from your discussions with representatives of NCI, that

the Annals of Occupational Hygiene requests that its reviewers maintain

the confidentiality of any manuscript which they are asked to peer review

as part of its normal peer review process. The agencies request, in

addition to your normal procedures, that you inform your reviewers and

staff, in writing, that this study is subject to a court order that requires the

manuscripts and their content to remain confidential.

(Emphasis added.) HHS’s specific confidentiality admonition supplemented the

general rule that scientific journals – such as AOH – keep materials submitted

for peer review confidential. For example, HHS stated – in a March 1, 2010

letter to the United States House of Representatives Committee on Education

and Labor – that “[i]t is the policy of peer-reviewed scientific journals to refuse

to publish papers if the information contained in them is disclosed prior to the

scheduled publication date.” NIOSH and NCI had followed this practice when

HHS submitted the study’s first four papers to AOH for peer review in 2009,

and the House Committee never objected or indicated that it found this

problematic. Accordingly, HHS did not violate the 2001 Order by submitting

study articles to outside scientific journals. Even if submitting study articles to

outside scientific journals is the basis for the contempt order, holding HHS in

contempt for such submission constitutes an abuse of discretion. 

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2. Whether HHS violated the 2001 Order by failing to produce

requested study data and drafts to Plaintiffs and to the

House Committee.

HHS argues on appeal that it has fully complied with the 2001 Order’s

mandate to submit to the House Committee: (1) study “data requested by the

[House Committee]” and (2) “draft reports, publications, and draft results or risk

notification materials” related to the study. Plaintiffs counter on appeal that

HHS violated the 2001 Order by failing to provide: (1) Plaintiffs with study

materials, (2) the House Committee with requested data from 2005 onward, and

(3) the House Committee with study drafts from 2005 onward.

First, HHS did not violate the 2001 Order by failing to submit requested

study data and study drafts to Plaintiffs. HHS routinely provided Plaintiffs with

cover letters of the study materials sent to the House Committee. Although

HHS did not always provide Plaintiffs with the actual study materials, the 2001

Order did not require HHS to do so. Part 1 of the 2001 Order required HHS to

submit BSC’s work product to the House Committee, and required Defendants

to submit to Plaintiffs all the documentation that it submitted to the House

Committee. That latter requirement was the last sentence of Part 1, which read:

“[HHS] shall provide Plaintiffs with copies of all documents submitted to the

Committee in compliance with this Order.” Yet, in the entirely separate Part 2

– wherein HHS was ordered to submit to the House Committee: (1) study data

that the House Committee requested and (2) study drafts – there was no

mention of Plaintiffs. Part 2 includes no requirement that HHS submit this

information – requested study data and study drafts – to Plaintiffs. Of course,

Plaintiffs urge that the last line of Part 1 of the 2001 Order applies to the entire

order. However, because the 2001 Order has been split into two separate parts,

there is no reason to read the last sentence of Part 1 as also applying to Part 2,

such that HHS would be required to submit requested study data and study

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drafts to both Plaintiffs and the House Committee. Furthermore, to the extent

that HHS submitted any materials to Plaintiffs – such as the materials

submitted in 2004 – HHS did so out of an abundance of courtesy. Lastly, the

House Committee itself read the 2001 Order as requiring HHS to submit study

materials to the House Committee, but not to Plaintiffs. In the 2004 Letter, the

House Committee indicated that the 2001 Order obligated HHS to submit study

materials to the House Committee. The letter then proceeded to request HHS

to produce to Plaintiffs’ reviewer study materials that had been submitted to the

House Committee. HHS provided the reviewer with certain study data. If the

2001 Order on its face required HHS to produce study materials to Plaintiffs,

then the House Committee would not have had to request HHS to produce study

materials to Plaintiffs. Later, in the 2011 Letter, the House Committee

indicated that the 2001 Order obligated HHS to submit study materials “to this

Committee and to MARG,” one of the Plaintiffs. It appears that the House

Committee about faced because of the instant litigation. The absence of “MARG”

in the 2004 Letter, compared to the 2011 Letter, demonstrates that the original

understanding of the 2001 Order was that HHS was not required to produce

study materials to Plaintiffs. Therefore, HHS did not violate the 2001 Order by

failing to submit study materials to Plaintiffs.

To be sure, Plaintiffs also argue that HHS violated the 2001 Order by

failing to provide the House Committee with requested data and study drafts

from 2005 onward. Regardless of the soundness of Plaintiffs’ argument,

however, the 2001 Order was ambiguous. It is well-settled that the “judicial

contempt power”–a “potent weapon”–“should not be used if the court’s order

upon which the contempt was founded is vague or ambiguous.” Piggly Wiggly

Clarksville, Inc. v. Mrs. Baird’s Bakeries, 177 F.3d 380, 383 (5th Cir. 1999)

(internal quotation marks omitted). Thus, even if the district court based its

contempt order on HHS’s failure to provide Plaintiffs and Congress with certain

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study materials–including the failure to provide Congress with study drafts and

requested study data from 2005 onward–holding HHS in contempt for such a

failure constitutes an abuse of discretion.

We have concluded that there was no basis for the district court to hold

HHS in contempt. In any event, the district court’s entire record is completely

devoid of any stated reason for the contempt order. The district court made no

factual findings or legal conclusions related to the 2011 Order. We therefore

hold that the district court abused its discretion in holding HHS in contempt.

B. Whether the district court abused its discretion in issuing a broad

injunctive remedy to ensure compliance with the 2001 Order.

In the 2011 Order, the district court required HHS to “immediately

produce to Plaintiffs and [the House Committee] all non-confidential documents,

data, draft reports, publications, and draft results or risk notification materials”

related to the seven published or publish-ready articles. The district court also

required HHS to warn the journals not to publish the study materials, and

required Plaintiffs not to further disseminate the study materials. The district

court also noted that Plaintiffs are permitted to make comments about the

articles to HHS, the publishing journals, or the House Committee.

We hold that the district court abused its discretion by fashioning a new,

broader order in 2011 that went beyond what it had ordered in 2001. Remedial

injunctions must be narrowly drawn and precise, and the relief granted must be

tailored to fit the nature and extent of the established violation. See, e.g.,

Haitian Refugee Center v. Smith, 676 F.2d 1023, 1041 (5th Cir. 1982); Fiber

Systems Int’l v. Roehrs, 470 F.3d 1150, 1159 (5th Cir. 2006) (“An injunction must

be narrowly tailored to remedy the specific action necessitating the injunction.”). 

The 2011 Order purported to restate HHS’s obligations pursuant to the 2001

Order, which remedied a specific violation: the minor FACA violation. Because

the 2001 Order was issued to remedy the FACA mistake, and the 2011 Order

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was issued to ensure compliance with the 2001 Order, the 2011 Order should

have been narrowly tailored to fit the minor administrative mishap. By

requiring production of all non-confidential study drafts and data to the House

Committee and to Plaintiffs, however, the 2011 Order is not so narrowly drawn.

After HHS had filed BSC’s charter with the wrong congressional

committee, this court instructed the district court to require HHS to file BSC’s

charter with the correct congressional committee. Cargill, 173 F.3d at 342. BSC

was tasked with advising HHS on the research protocol for the study. The

charter needed to be filed with the correct congressional committee to ensure

proper congressional oversight of BSC’s review. Other than ordering HHS to

refile the charter, however, we noted that “there was little reason for further

injunctive relief.” Akzo-Nobel, 2001 WL 34772206, at *2. We also noted that the

new House Committee would require some time to become familiar with the

study protocol and examine the misfiled study protocol data. Id. We thus

instructed the district court to revise its order to bar HHS from publicly

releasing any information it sends to the House Committee until 90 days after

its submission. Id. In response, the district court fashioned the 2001 Order to

require HHS to submit study drafts and requested study data to the House

Committee. 

Because the 2001 Order was issued to remedy such a trivial FACA

violation, the 2001 Order should be read narrowly. The violation only concerned

BSC, which was tasked with a small role: advising HHS on the research

protocol. Despite the erroneous filing, Plaintiffs had actual notice that BSC was

reviewing the study protocol, were informed of and invited to every BSC

meeting, and attended each BSC meeting and provided oral and written

comments. Also, filing the charter with the correct committee was important

merely to enable the House Committee’s oversight regarding the research

protocol, as opposed to the entire study itself.

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The 2011 Order is overly broad and demands much more than the

properly-construed 2001 Order. First, although the 2001 Order only requires

HHS to produce study materials to the House Committee, the 2011 Order

requires HHS to produce study materials to the House Committee and to

Plaintiffs. Second, although the 2001 Order requires HHS to submit to the

House Committee data that the House Committee requests, the 2011 Order

requires HHS to produce all non-confidential data to the House Committee and

to Plaintiffs. Third, although the 2001 Order requires HHS to submit to the

House Committee “draft reports, publications, and draft results or risk

notification materials,” the 2011 Order requires HHS to submit all “documents”

to House Committee and to Plaintiffs, in addition to draft reports, publications,

draft results or risk notification materials.

Because the 2011 Order was issued to ensure compliance with the 2001

Order, the 2011 Order must be as narrowly drawn and precise as the 2001

Order, which was narrowly tailored to remedy the inadvertent FACA mistake. 

By going beyond the 2001 Order, however, the 2011 Order becomes untethered

from the underlying FACA violation to which it must be narrowly fit. As HHS

argues: “Ordering the disclosure of information completely unrelated to an

advisory board and that [P]laintiffs never could have obtained had FACA been

complied with goes far beyond FACA’s purpose to regulate boards and

committees established to advise the executive branch.”

Plaintiffs have no free-standing right to HHS’s study materials. For the

district court to issue an injunction to grant Plaintiffs access to HHS’s study

materials, Plaintiffs must identify a specific violation that the injunction would

remedy. Neither Plaintiffs nor the district court has identified any violation that

the 2011 Order was issued to remedy except for the FACA mistake, which HHS

remedied a decade ago. More precisely, the 2011 Order was issued to bring HHS

into compliance with the 2001 Order, which was issued to remedy the FACA

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mistake. However, neither Plaintiffs nor the district court has identified some

other “violation,” besides the FACA mistake, that HHS committed that would

justify issuing a broader injunctive remedy. Consequently, there are no grounds

for expanding the scope of the 2011 Order beyond the scope of the 2001 Order.

Because the underlying FACA mistake was, at most, administrative, we

should narrowly construe the 2001 Order, and we should be wary of any

provision of the 2011 Order that goes beyond the 2001 Order. The overly broad

injunctive remedy in the 2011 Order – requiring production of all study drafts

and data to the House Committee and to Plaintiffs – is an abuse of discretion. 

IV. CONCLUSION

For the foregoing reasons, we hold that the district court abused its

discretion by holding HHS in contempt and by fashioning an overly broad

injunctive remedy. With respect to the 2011 Order, therefore, we VACATE in

part and REVERSE in part.

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