Methane Awareness, et al v. USA, et al

Filing

UNPUBLISHED OPINION FILED. [11-30812 Vacated in Part and Reversed in Part ] Judge: FPB , Judge: ECP , Judge: JEG Mandate pull date is 07/16/2012 [11-30812]

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IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
Fifth Circuit

FILED
May 24, 2012

No. 11-30812

Lyle W. Cayce
Clerk

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

*

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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”)1 and the National Cancer Institute (“NCI”)2 – two
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”).3 Once again, HHS’s appeal is successful. We
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
1

NIOSH is a component of HHS. 29 U.S.C. § 671(a). NIOSH conducts scientific
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).
2

NCI is another component of HHS. See 42 U.S.C. §§ 281(a), (b)(1); id. § 202. NCI
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).
3

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

2

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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”).4 In the first part of the order, the district court
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

4

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

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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.5 The 2010 Order
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
5

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

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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”).6 First, the district court ordered HHS
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
6

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

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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 (5th Cir. 1995)). Here, the district court made no
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 that the 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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