1Circuit Judge of the Ninth Circuit, sitting by designation.

2Pursuant 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this opinion should not be published and is not precedent except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.

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
2

(“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
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).

3

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
4

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
5

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
6

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
7

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.
8

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-ofdeath 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
9

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. 
10

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.