Byrd v. U.S. E.P.A.

Decision Date30 April 1999
Docket NumberNo. 98-5180,98-5180
Citation174 F.3d 239
PartiesDaniel M. BYRD, III, Appellant, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Appellee. ISAAC
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeal from the United States District Court for the District of Columbia (No. 97cv01923).

Thomas R. Bartman argued the cause for the appellant. James V. Delong was on brief for the appellant.

Thomas M. Bondy, Attorney, United States Department of Justice, argued the cause for the appellee. Frank W. Hunger, Assistant Attorney General, Wilma A. Lewis, United States Attorney, and Mark B. Stern, Attorney, United States Department of Justice, were on brief for the appellee. Alisa B. Klein, Attorney, United States Department of Justice, entered an appearance.

Before: EDWARDS, Chief Judge, WILLIAMS and HENDERSON, Circuit Judges.

Opinion for the court filed by Circuit Judge HENDERSON.

Separate opinion concurring in part and dissenting in part filed by Circuit Judge WILLIAMS.

KAREN LeCRAFT HENDERSON, Circuit Judge:

Appellant Daniel M. Byrd seeks reversal of the district court's grant of summary judgment to the Environmental Protection Agency (EPA) on his claim that EPA violated the Federal Advisory Committee Act (FACA), 5 U.S.C.App. II §§ 1-15. Specifically, Byrd contends that a peer review panel convened by an EPA contractor, the Eastern Research Group (ERG), to update EPA's interim benzene report constituted a federal "advisory committee" and therefore its proceedings were governed by FACA, with which it admittedly did not comply. Byrd seeks either reversal and a declaration that the panel's proceedings violated FACA or, alternatively, remand for discovery pursuant to Fed.R.Civ.P. 56(f). EPA counters that Byrd lacks standing, his claim is now moot and he is wrong on the merits. We affirm for the reasons set forth below.

I. BACKGROUND

In 1985, EPA issued an interim report discussing the carcinogenic effects of benzene. By 1996, EPA had prepared a draft update of its interim benzene report (Benzene Update). See Sonawane Decl. pp 2-5, Joint Appendix (JA) 173-75. Before finalizing the Benzene Update, EPA decided to subject it to external peer review.

Under a contractual arrangement with EPA, ERG, a private environmental consulting firm, convened and conducted the peer review. See id. p 5, JA 175. The contract required ERG to select a panel of qualified experts, organize a public meeting of the panel to discuss the proposed Benzene Update and compile and submit a report to EPA summarizing the panel's assessment. See Statement of Work at 1-7, JA 184-90; Work Plan for Work Assignment No. 0-5 Contract No. 68-C6-0041, Expert Panel Peer Review of Benzene Risk Assessment Update (May 14, 1997) [hereinafter Work Plan], JA 199-204. In addition, the contract specified that EPA was to pay ERG a fixed sum and that ERG was to compensate the panel members. See Work Plan, JA 201. The contract also allowed EPA to determine the issues for the panel to evaluate and to comment in writing on ERG's draft final report. See Statement of Work at 5, JA 188.

Pursuant to the contract, EPA submitted to ERG for its consideration a list of twenty-four scientists who, in EPA's view, possessed the professional credentials necessary to serve on the peer review panel. See JA 192-93 (list of potential panelists). From the list, ERG selected four individuals to be panelists. ERG also selected two panelists from its own database of consultants. See EPA Mem. from Barbara Cook to Billy Oden, Re: Work Plan/Cost Estimate Approval, ERG Contract No. 68-C6-0041, WA 0-5 (June 9, 1997) [hereinafter 6/9/97 Mem.], JA 220; 6/13/97 Letter, JA 221. EPA suggested no modifications to the list of panel members selected by ERG. See 6/9/97 Mem., JA 220; 6/13/97 Letter, JA 221; see also Statement of Work at 2, JA 185 (stating that "final approval of selected experts will be made by EPA").

On June 27, 1997 EPA held a teleconference with ERG and the selected panelists, during which the panelists were instructed to prepare pre-meeting comments on the draft Benzene Update "specifically addressing a series of questions that [EPA] had provided" to ERG. Sonawane Decl. p 7, JA 176. The panelists circulated their pre-meeting notes among themselves and provided a copy to EPA. See id. p 8, JA 176. On June 30, 1997 EPA gave public notice in the Federal Register of the panel's scheduled meeting. See Draft Carcinogenic Effects of Benzene: An Update, 62 Fed.Reg. 35,172, 35,172-73 (1997), JA 213-14. The Federal Register notice explained the purpose of the meeting and noted that the draft was publicly available on the Internet or in writing from EPA. The notice also stated that ERG was to provide "logistical support for the workshop" and that interested persons could attend and participate in the meeting and advised that written comments could be submitted to EPA during a 60-day period ending August 29, 1997. 62 Fed.Reg. at 35,173, JA 214.

The panel meeting took place as scheduled on July 16, 1997. "The meeting was managed by ERG. Although several EPA employees who had been involved in developing the draft benzene update attended the meeting and effectively participated ..., no EPA employee or officer supervised the conduct of the meeting." 1 Byrd Decl. p 8, JA 345. Byrd, a self-employed "consulting toxicologist and risk assessor," id. p 2, JA 342, also attended after "learn[ing] about the [July 16, 1997] meeting through EPA's [public notice] in the Federal Register." 2 Id. p 4, JA 344. Byrd participated in the meeting, twice expressing his views to the panel and others present. In addition, because of his concerns regarding the assumptions underlying the Benzene Update and his desire to be more informed, Byrd had earlier sought a copy of the panel members' pre-meeting notes but had been rebuffed three times. See id. pp 11, 13-15, JA 345-47; Sonawane Decl. pp 12-13, JA 177-78. Byrd made no additional attempt at the meeting to secure the notes. After the meeting, Byrd timely submitted written comments to EPA on the draft Benzene Update. See Sonawane Decl. p 15, JA 178.

On August 22, 1997, Byrd filed this action alleging that the expert panel assembled by ERG was an "advisory committee" within the meaning of FACA 3. Byrd sought both declaratory relief and a use injunction barring EPA from using the panel's work product. See Compl. p 16. One month later, ERG submitted to EPA its final report, including its analysis of the draft Benzene Update. See Sonawane Decl. p 14, JA 178; Schalk Decl. p 8, JA 219; Panel Report, JA 228-329. EPA "did not participate in ERG's preparation of the final report." Sonawane Decl. p 14, JA 178.

On October 10, 1997, almost three months after the meeting, Byrd's counsel wrote a letter to EPA's FOIA officer requesting a copy of the panel's pre-meeting notes. See Letter from Thomas R. Bartman to Jeralene Green, EPA, Re: Written Comments Prepared for or by Members of the Advisory Committee Convened July 16, 1997 (Oct. 10, 1997), JA 216. EPA provided all of the requested notes and invited Byrd to submit additional comments. See Letter from William H. Farland, Director, Office of Research and Development, to Thomas R. Bartman, Re: FOIA Request HQ-Rin-00186-98 (Nov. 14, 1997), JA 215. Byrd, however, declined to do so. EPA then moved to dismiss Byrd's complaint or, alternatively, for summary judgment. EPA challenged Byrd's standing and, on the merits, argued that the peer review panel assembled by ERG was not an "advisory committee" under FACA. The district court ruled in favor of EPA. Byrd v. EPA, C.A. No. 97-1923 (D.D.C. May 1, 1998) (Mem. and Order) [hereinafter Mem. & Order], JA 5-9. Although it "assum[ed] without deciding" that Byrd had standing, Mem. & Order at 2-3 n.1, JA 6-7, the district court held that a panel convened by a private contractor is not a FACA "advisory committee" as that term has been construed by the Supreme Court and by this Court. See id. at 2-5, JA 6-9 (citing Public Citizen v. United States Dep't of Justice, 491 U.S. 440, 109 S.Ct. 2558, 105 L.Ed.2d 377 (1989), and Food Chem. News v. Young, 900 F.2d 328 (D.C.Cir.), cert. denied, 498 U.S. 846, 111 S.Ct. 132, 112 L.Ed.2d 99 (1990)). Byrd timely filed his appeal.

II. DISCUSSION
A. Standing

EPA first attacks Byrd's standing to bring this action. Although the district court "assum[ed] without deciding" Byrd's standing, Mem. & Order at 2-3 n.1, JA 6-7, its approach is incorrect in light of the Supreme Court's recent holding in Steel Company v. Citizens for a Better Environment, 523 U.S. 83, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998), that standing is a "threshold jurisdictional question" that cannot be assumed in resolving litigation. Id. at 1016. "Moreover, because Article III standing is always an indispensable element of the plaintiff's case, neither we nor the Congress can dispense with the requirement--even if its application renders a FACA violation irremediable in a particular case." Natural Resources Defense Council v. Pena, 147 F.3d 1012, 1020 (D.C.Cir.1998) (NRDC); see also Federal Express Corp. v. Air Line Pilots Ass'n, 67 F.3d 961, 963 (D.C.Cir.1995) ("The requirement of a case or controversy is no less strict when a party is seeking a declaratory judgment than for any other relief."). Therefore, we must decide EPA's challenge to Byrd's standing.

The Steel Company holding requires us to focus on three elements:

First and foremost, there must be alleged (and ultimately proven) an injury in fact--a harm suffered by the plaintiff that is concrete and actual or imminent, not conjectural or hypothetical.... Second, there must be causation--a fairly traceable connection between the plaintiff's injury and the complained-of conduct of the defendant.... And third, there must be redressability--a likelihood that the requested relief will redress the alleged injury.... This triad of injury-in-fact, causation, and redressability comprises the...

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