no. 11-30812 in the united states court of … · case: 11-30812 document: ... in connection with a...

No. 11-30812

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

____________________ 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 AND HUMAN SERVICES; JOHN HOWARD, DIRECTOR, NATIONAL INSTITUTE FOR OCCUPATIONAL SAFETY AND HEALTH; HAROLD VARMUS, DIRECTOR, NATIONAL

CANCER INSTITUTE, Defendants-Appellants. ____________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF LOUISIANA ____________________

BRIEF FOR PLAINTIFFS-APPELLEES

____________________

Henry Chajet Mark Savit Edward S. Wisneski Avi Meyerstein Erik Dullea Lesley Sachs Gregory M. Louer PATTON BOGGS, LLP 2550 M Street, N.W. Washington, D.C. 20037 (202) 457-6000 Attorneys for Plaintiffs-Appellees

Case: 11-30812 Document: 00511656813 Page: 1 Date Filed: 11/04/2011

CERTIFICATE OF INTERESTED PERSONS

Mining Awareness Resources Group, et al. v. United States, et al., No. 11-30812. The undersigned counsel of record certifies that the following listed persons and entities described in the fourth sentence of Rule 28.2.1 have an interest in the outcome of this case. These representations are made in order that the judge of this court may evaluate possible disqualifications or recusal. Plaintiffs-Appellees:

Mining Awareness Resource Group (formerly Methane Awareness Resources Group) Lonny Badeaux Morton International Tata Chemicals (formerly General Chemical Corp.) Cargill (formerly Akzo-Nobel Inc.) Mosaic Potash Detroit Salt Company Navistar FMC

Defendants-Appellants:

United States Kathleen Sebelius, Secretary of Health and Human Services John Howard, Director, National Institute for Occupational Safety and Health Harold Vamus, Director, National Cancer Institute

Counsel:

Henry Chajet, Patton Boggs Avidan Meyerstein, Patton Boggs Mark Savit, Patton Boggs Edward S. Wisneski, Patton Boggs Gregory M. Louer, Patton Boggs Lesley Sachs, Patton Boggs Joseph L Lemoine, Jr, Lemoine & Associates Mary M. Armstrong, U.S. Department of Health and Human Services Helen L. Gilbert, U.S. Department of Justice David Michael Glass, U.S. Department of Justice David Horowitz, U.S. Department of Health and Human Services


2

Janice E. Hebert, U.S. Attorney's Office for the Western District of Louisiana Patricia Kvochak, U.S. Department of Health and Human Services Benjamin M. Shultz, U.S. Department of Justice Michael Jay Singer, U.S. Department of Justice Jon Tyler, U.S. Department of Justice

/s/ Henry Chajet Attorney for Plaintiffs-Appellees


STATEMENT REGARDING ORAL ARGUMENT

Plaintiffs-Appellees (“Plaintiffs”) respectfully request oral argument, which

this Court has scheduled. This litigation, which began in 1996, returns to this

Court for the third time, resulting in an extensive record. Oral argument should aid

the Court in analyzing the issues before it, especially since the parties have

differing views of the proper scope of this appeal, which Plaintiffs suggest is

limited to whether the District Court, on August 18, 2011, abused its discretion in

finding Defendants-Appellants (“Defendants”) in contempt of an earlier (2001),

un-appealed, final order of the District Court.


i

TABLE OF CONTENTS

JURISDICTIONAL STATEMENT ..........................................................................1

STATEMENT OF THE ISSUES PRESENTED FOR REVIEW .............................2

STATEMENT OF THE CASE..................................................................................4

STATEMENT OF FACTS ........................................................................................6

I. In connection with a study on diesel exhaust health effects in mines, NIOSH utilized an advisory committee that did not comply with FACA, leading to an injunction prohibiting that committee from meeting……………………. 6

II. Defendants used a third advisory committee, which also did not follow FACA, ultimately requiring this Court to issue a decision designed to provide the statute with “teeth……………………………………………… 8

III. On initial remand, the District Court fashioned an overly broad injunction, leading to a second appeal, in which this Court reiterated that injunctive relief was appropriate……………………………………………………... 10

IV. On a second remand, the District Court ordered Defendants to produce Study materials and provide Congress and Plaintiffs with 90 days’ advance review of Study publications. Defendants never sought to clarify or appeal that Order…………………………………………………………………. 12

V. In 2002 and subsequent years, the Committee requested that Defendants produce “all” Study data. Defendants initially complied with the 2001 Final Order and that congressional request before refusing to obey further……. 13

VI. Defendants further violated the 2001 Final Order by sending draft Study papers to outside journals before sending them to Congress and Plaintiffs, prompting the District Court to order compliance last year………………. 16

VII. In 2011, Defendants repeated their violation, sending the remaining Study papers to journals for publication before sending them to Congress and Plaintiffs and refusing to produce the data and documents relating to the


ii

now-completed Study. The District Court held Defendants in contempt…………………………………………………………………... 17

SUMMARY OF ARGUMENT ...............................................................................22

ARGUMENT ...........................................................................................................25

I. THE STANDARD OF REVIEW ON APPEAL IS HIGHLY DEFERENTIAL TO THE DISTRICT COURT………………………….. 25

II. AFTER YEARS OF DEFENDANTS’ DELAY, THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN HOLDING DEFENDANTS IN CONTEMPT FOR VIOLATING THE 2001 FINAL ORDER…………... 28

A. Defendants failed to produce documents and data to the Committee and Plaintiffs as required by the 2001 Final Order………………… 29

1. Defendants never sought clarification of or an appeal from the 2001 Final Order, with which Defendants initially complied, precluding them from suddenly arguing now that it is ambiguous…………………………………………………… 30

2. Defendants’ perceived “burden” in complying with the 2001 Final Order, as enforced by the 2011 Contempt Order, is irrelevant and, in any event, of Defendants’ own making…... 35

3. The 2011 Contempt Order did not expand Defendants’ obligations beyond those found in the 2001 Final Order…… 37

B. Defendants also violated the 2001 Final Order by publicly releasing Study papers before providing them to the Committee and Plaintiffs……………………………………………………………. 39

CONCLUSION........................................................................................................46


iii

TABLE OF AUTHORITIES

Cases:

Akzo-Nobel, Inc. v. United States, 2001 WL 34772206 (5th Cir. 2001) ................................................................................... 11, 12

Alabama Nursing Home Association v. Harris, 617 F.2d 385, 387-88 (5th Cir. 1980) ................................................................................. 30, 38

Anderson v. City of Bessemer City, 470 U.S. 564, 573-574 (1985) .................................................................................................. 25

Badgley v. Santacroce, 800 F.2d 33, 37 (2nd Cir. 1986)............................................................................................... 34

Bradley, 588 F.3d 254, 267 (2009).......................................................................................................... 35

Cargill v. U.S., 173 F.3d. 323, 328 (5th Cir. 1999) ............................................................................. 5, 6, 7, 8, 9

Combs v. Ryan’s Coal Company, Inc. 785 F.2d 970, 979 (11th Cir. 1986) .......................................................................................... 32

Department of the Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, (2001)............................................................................................................... 38, 39

Federal Deposit Insurance Corporation v. Maxxam, Inc. et al, 523 F.3d 566, 595-96 (5th Cir. 2008) ....................................................................................... 28

Formaldehyde Institute v. Department of Health & Human Services, 889 F.2d 1118 (D.C.Cir.1989), ................................................................................................. 38

FTC v. Affordable Media, LLC, 179 F.3d 1228, 1241 (9th Cir.1999........................................................................................... 34

Int’l Longshoremen’s Ass’n v. Phila. Marine Trade Ass’n, 389 U.S. 64 (1967).................................................................................................................... 31

Maggio v. Zeitz, 333 U.S. 56, 69 (1948).............................................................................................................. 25

Maritime Management, Inc. v. U.S., 242 F.3d 1326, 1331 (11th Cir. 2001) ...................................................................................... 27

McComb v. Jacksonville Paper Co., 336 U.S. 187, 192 (1949).......................................................................................................... 31


iv

Meyers v. Brown & Root Construction Co., 661 F.2d 369, 373 (5th Cir. 1981) ............................................................................................ 30

National Institute of Military Justice v. Department of Defense, 512 F.3d 677, 694 ..................................................................................................................... 39

Orr v. Merit Systems Protection Bd., 379 Fed.Appx. 333 (5th Cir. 2010)........................................................................................... 26

Perfect Fit Indus., Inc. v. Acme Quilting Co., Inc., 646 F.2d 800, 808 (2d Cir. 1981).............................................................................................. 31

Piggly Wiggly Clarksville, Inc. v. Mrs. Baird’s Bakeries, 177 F.3d 380 (5th Cir. 1999) ..................................................................................................... 31

Polo Fashions, Inc. v. Stock Buyers Int'l, Inc., 760 F.2d 698, 700 (6th Cir. 1985) ............................................................................................ 31

S.E.C. v. Resource Development Intern. LLC, 217 Fed.Appx. 296 (5th Cir. 2007)........................................................................................... 33

Tivo Inc. v. Echostar Corp., 646 F.3d 869, 887 (Fed. Cir. 2011)........................................................................................... 31

U.S. v. Rylander, 460 U.S. 752, 758 (1983)......................................................................................................... 33

United States v. Craun, 51 F.3d 1043, 1043 (5th Cir. 1995) .......................................................................................... 26

Whitcraft v. Brown, 570 F.3d 268, 271 (5th Cir. 2009) ...................................................................................... 24, 31

Statutes:

2 U.S.C. § 190d............................................................................................................................. 32

28 U.S.C. § 2107....................................................................................................................... 1, 26

5 U.S.C. § 552(f)........................................................................................................................... 40

5 U.S.C. App. 2 § 5......................................................................................................................... 8

The Equal Access to Justice Act, 28 U.S.C. § 2412 ..................................................................... 27

The Federal Advisory Committee Act, 5 U.S.C. App. 2 ................................................................ 2


v

Other Authorities:

Annals of Occupational Hygiene, Instructions for Authors, located at http://www.oxfordjournals.org/our_journals/annhyg/for_authors/general.html, last visited October 31, 2011) ..................................................................................................................... 40

Fed. R. Civ. Pro. 65(d).................................................................................................................. 30

Fed.R.App.P. 4(a)(1)..................................................................................................................... 26

Oxford Journals, About the Journal, available at http://www.oxfordjournals.org/our_journals/annhyg/about.html (last accessed Nov. 3, 2011) ..................................................................................................... 17

Regulations:

70 Fed. Reg. 2664, 2665 (2005..................................................................................................... 42


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 AND HUMAN SERVICES; JOHN HOWARD, Director, National Institute for Occupational Safety and Health; HAROLD VARMUS, Director, National Cancer Institute, Defendants – Appellants

___________________

PLAINTIFFS-APPELLEES’ BRIEF ____________________

JURISDICTIONAL STATEMENT

Plaintiffs concur with Defendants’ jurisdictional statement except to clarify

that Defendants’ notice of appeal is timely only with respect to the August 19,

2011 Order of Contempt (the “2011 Contempt Order”) issued by the United States

District Court for the Western District of Louisiana (the “District Court”). The

scope and validity of the underlying June 5, 2001 final order (the “2001 Final

Order”), which Defendants violated, according to the District Court, are issues that

are time-barred by statute and beyond the subject matter jurisdiction of this appeal

under 28 U.S.C. § 2107.


2

STATEMENT OF THE ISSUES PRESENTED FOR REVIEW

Far from a “a minor and inadvertent violation of …. FACA,”1 Brief for

Appellants (“Defendants’ Br.”) at 2, this case tracks Defendants’ twenty-year

record of denying Plaintiffs information about, and participation in, the Diesel

Effects in Miners Study (the “Study”) which has been conducted at Plaintiffs’

facilities and which directly regards Plaintiffs’ health. Throughout these two

decades, Defendants repeatedly violated the law and District Court orders to evade

transparency while seeking scientific and public credibility for their work. The

result is a Study with apparently significant defects.

After this Court twice found that injunctive relief was necessary to remedy

Defendants’ FACA violations, on remand the District Court issued the 2001 Final

Order. Defendants never appealed or sought clarification of that Order. After

Plaintiffs discovered, in 2010, Defendants’ years of non-compliance, Plaintiffs and

the District Court made several unsuccessful efforts to cajole compliance. When

Defendants’ violations of the 2001 Final Order continued, in August 2011, the

District Court held Defendants in contempt and restated Defendants’ obligations to

comply. While the District Court’s recent 2011 Contempt Order is reviewable on

1 The Federal Advisory Committee Act, 5 U.S.C. App. 2 (referred to throughout as “FACA.”


3

appeal under an abuse of discretion standard, the scope of appeal is narrow and

limited to the following question presented:

1. Did the District Court abuse its discretion in finding that Defendants

violated the 2001 Final Order and ordering a remedy for Defendants’ contempt?


4

STATEMENT OF THE CASE

The issues before this Court are straightforward and limited, but they

involve the latest episode in a long and complicated case. The only matter on

appeal here is the District Court’s August 2011 ruling that Defendants are in

contempt of the ten-year old 2001 Final Order. RE at 31 – 32 [R2 at 1108 – 09].2

On that question, this Court asks simply: Did District Court abuse its discretion or

commit clear error in enforcing its own order? As described below, given the clear

obligations of that 2001 Final Order and Defendants’ specific failures to comply,

Defendants cannot overcome that highly deferential standard.

Apparently aware of this likely outcome, Defendants attempt to change the

paradigm and make this appeal a wholesale review of the meaning, scope,

reasoning and justification behind the underlying 2001 Final Order – an order

which Defendants never appealed when it issued years ago, which they never

sought to clarify or modify, and with which they even complied for a few years.

There is no need or jurisdiction to reach those issues here.

This case does involve the 19-year government Study, which Plaintiffs once

hoped would shed light on whether and to what degree miners experience health

2 For the convenience of the Court, Plaintiffs have adopted the same numbering and citation scheme used by Defendants in their opening brief.


5

effects as a result of exposure to diesel engine exhaust in underground mines. See

Cargill v. U.S., 173 F.3d. 323, 328 (5th Cir. 1999). Plaintiffs sued when

Defendants used three consecutive illegal advisory groups to plan, design, review,

and provide credibility for the Study without following FACA’s rules aimed at

ensuring transparency, proper oversight, and accountability, all while minimizing

inappropriate bias. See, generally, id.

The first two groups, comprised of agency-selected “outside” scientists, did

not even purport to follow FACA and were judicially enjoined from meeting. The

third group made a show of following FACA but entirely failed to do so when it

buried its filings with the wrong congressional committee.3 Examining this third

group, the District Court initially found no FACA violation, but this Court

reversed, finding a violation and ordering injunctive relief to give FACA “teeth.”

On remand, the District Court at first issued an order that this Court deemed

too broad, allowing Congress to both review and veto the Study. Based on this

3 The impact of this evasion is hardly “minor.” Plaintiffs retained scientific experts, who were prevented from participating in any of the illegal advisory groups, but nonetheless prepared comments on the Study design in the 1990s. Based on the limited information contained in the 2010 papers, it appears that the Study results suffer from the very defects Plaintiffs’ experts predicted in the 1990s. Their concerns were ignored and could not be adequately investigated by any supervisory authorities due to Defendants’ evasion of FACA oversight and their court-ordered duties. Compounding this damage, following or accompanying publication, the United States Department of Health and Human Services (“HHS”) plans to send “risk notification” letters and other communications to 12,000 or more Study subjects. Together, Study publication and the HHS risk notification campaign are likely to spawn public concerns, regulatory actions, and lawsuits, likely based on inaccurate and faulty Study reports.


6

Court’s instructions to modify the injunction, the District Court, on further remand,

issued the 2001 Final Order. That Order, and the subsequent congressional

requests it generated, required Defendants: (1) to produce to Congress and

Plaintiffs all data and documents relating to their Study; and (2) to send Congress

and Plaintiffs draft Study publications at least 90 days prior to public release.

In 2010, Defendants not only failed to produce Study data and documents,

but they also began releasing draft Study papers to publications without first

sending them to Plaintiffs. On a 2010 motion for contempt, the District Court

reiterated Defendants’ obligation to produce the distributed documents to Plaintiffs

but gave Defendants “some slack” and declined to hold them in contempt at that

time. But when Defendants repeated this violation in 2011, producing nothing to

Congress and Plaintiffs before releasing Study papers to outside journals, the

District Court held Defendants in contempt and ordered them to comply with the

2001 Final Order. Defendants now appeal that contempt ruling.

STATEMENT OF FACTS

I. In connection with a study on diesel exhaust health effects in mines, NIOSH utilized advisory committees that did not comply with FACA, leading to an injunction prohibiting those committees from meeting.

In 1992, Defendants began work on the Study, which involved possible

health effects that miners might experience as a result of their exposure to exhaust

from diesel-powered equipment in underground mines. Cargill, 173 F.3d. at 328.


7

Defendants needed extensive expertise to plan and conduct the complex Study and

sought to bolster the Study’s credibility, so they published an invitation for experts

to join two advisory committees to guide the Study’s development and conduct.

Cargill, 173 F.3d at 328.

In its invitation, Defendant National Institute of Occupational Safety and

Health (“NIOSH”) sought panel members with a wide range of external expertise

necessary to the Study, from epidemiologic methods and exposure assessments to

mining issues. Id., 173 F.3d at 328 n. 2. NIOSH intended that this panel of experts

would have an ongoing role in overseeing the Study, as it would “also serve as the

NIOSH Peer Review Panel,” which would “review study progress and comment on

procedures, methods, analysis, and reports as the project advances.” Id.

Defendants refused to appoint to the advisory committees Plaintiffs’ scientific

nominees and representatives, who were Study participants. Id. at 337.

On October 18, 1996, Plaintiffs filed suit in the District Court to enjoin the

advisory committees out of “concern[] that the diesel study was not being

adequately reviewed by a balanced and impartial group” and “that a flawed

protocol would yield misleading results,” which would either prevent needed

regulation or spur unnecessary regulations. Id. at 328. Plaintiffs contended that

the committees violated FACA, which requires that advisory committees: (a)

establish themselves formally by filing their charters with Congress; (b) have


8

memberships that are “fairly balanced in terms of the points of view represented

and the functions to be performed;” (c) exercise “independent judgment”; (d) are

designed so as not to “be inappropriately influenced by the appointing authority or

by any special interest;” and (e) have adequate resources to provide sound

guidance. Id. See also 5 U.S.C. App. 2 § 5; Defendants’ Br. at 9 (committees “did

not comply with the Act’s other provisions.”)

The District Court agreed with Plaintiffs and, by Order dated November 6,

1996, issued a full use injunction (the “First Injunction”), which barred further

meetings of the NIOSH panels. R1 at 163. Defendants did not appeal that ruling.

RE at 9 – 10 [R1 at 9 – 10].

II. Defendants next used a third advisory committee, which also did not meet FACA’s requirements, ultimately resulting in this Court issuing a decision designed to provide the statute with “teeth.”

Following the First Injunction, and instead of properly reconstituting their

advisory groups under FACA, Defendants disbanded the advisory groups and

sought the same guidance and oversight from a pre-existing advisory committee,

the NIOSH Board of Scientific Counselors (“BSC”). Cargill, 173 F.3d at 328. In a

short time period, the BSC quickly sped through ratification of the work of the

prior advisory committees. See R1 at 556 – 558 (summarizing cursory review by

BSC); RE at 67 – 90 (referenced exhibits). Without the oversight FACA required,


9

the haste and questionable work product of the original committees and the BSC

were not supervised or addressed.

As with Defendants’ prior panels, Plaintiffs’ experts could not serve on the

BSC during the critical design and review of the protocol. Nonetheless, Plaintiffs

retained scientific experts such as former Johns Hopkins Professor and Assistant

Secretary of Labor for Occupational Health and Safety, Dr. Morton Corn, to

comment on the Study design. Plaintiffs’ experts expressed concern regarding,

among other Study plans: (1) invalid air measurements of proposed exhaust

surrogates in mines (e.g., counting carbon regardless of its source); (2) incorrect

historical exposure re-creations (e.g., attributing 1990s measurements to 1950s

exposures); and (3) lack of adequate controls for non-occupational causes of

disease, such as from smoking. RE at 58 – 66. The failure of FACA oversight

enabled Defendants to ignore those concerns to the detriment of the Study.

Convinced that Defendants’ use of the BSC also violated FACA because,

among other reasons, the group’s charter was not filed with the appropriate

congressional committee, Plaintiffs amended their complaint. Cargill, 173 F.3d at

328. After hearing the matter, the District Court sided with Defendants, and

Plaintiffs appealed to this Court. On appeal, this Court reversed and emphasized

FACA’s importance:

In FACA, Congress made a calculated decision that advisory committees, which wield hefty influence,


10

should be structured a certain way. While some of the strictures imposed by Congress . . . may seem trivial, Congress believed the rules were necessary to ensure balanced, rationally-based decision making . . . . If the courts do not enforce FACA by enjoining the work product of improperly constituted committees, FACA will be toothless, merely aspirational legislation . . . . If FACA has no teeth, the work product of spuriously formed advisory groups may obtain political legitimacy that it does not deserve.

Id. at 341. This Court then held that “NIOSH violated § 9(c) in failing to file

BSC’s charter with the House Labor Committee,” thereby evading oversight, and

remanded with instructions “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.

Needless to say, the district court has broad discretion in fashioning its injunction.”

Id. at 341, 342 (emphasis added).

III. On initial remand, the District Court fashioned an overly broad injunction, leading to a second appeal, in which this Court reiterated that injunctive relief was appropriate.

On remand, the District Court issued an order (the “2000 Order”), requiring

Defendants to: (1) file the updated BSC charter with the appropriate House

committee (the House Committee on Education and the Workforce or the

“Committee”); (2) produce certain documents to the Committee; (3) “provide

Plaintiffs with copies of all documents submitted to the Committee;” and (4) cease


11

using the Study protocol until properly filing the charter and producing certain of

these documents. R2 at 286 – 87 (emphasis added).

The 2000 Order described three separate categories of documents which

Defendants were required to produce to Congress and Plaintiffs: (1) “all

documentation of [the BSC’s] peer review of the diesel study protocol, including

revisions to the protocol made in response to the BSC’s peer review”; (2) “all

Diesel Study data requested by the Committee”; and (3) “all draft reports,

publications, and draft results or risk notification materials prepared in connection

with the Diesel Study.” R2 at 286 – 87. Defendants were to produce these

materials to Congress (with copies to Plaintiffs), “for review and approval prior to

finalization and release and/or publication and distribution of such materials.” R2

at 287 (emphasis added).

Defendants appealed the 2000 Order, arguing that the language requiring

advance congressional approval of the Study created an overly broad remedy. In

Akzo-Nobel, Inc. v. United States, 2001 WL 3472206, at *3 (5th Cir. 2001), this

Court agreed and again remanded, striking the approval mechanism from the 2000

Order and reiterating that the District Court must “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.” (emphasis added).


12

In Akzo-Nobel, this Court focused its review on that aspect of the 2000

District Court order that was “tantamount to a use injunction because it

authorize[d] the Committee to prevent the study’s publication.” Akzo-Nobel, 2001

WL 34772206, at *2. This Court did not discuss or address the scope of materials

which the 2000 Order required Defendants to produce to Congress and Plaintiffs.

Indeed, it reiterated the importance of a 90-day pre-publication review period for

Study materials. Id. at 3.

IV. On a second remand, the District Court ordered Defendants to produce Study materials and provide Congress and Plaintiffs with 90 days’ advance review of Study publications. Defendants never sought to clarify, modify, or appeal that Order.

On the second remand, U.S. District Court Judge Richard T. Haik issued the

2001 Final Order tailored to this Court’s instructions. RE at 33 – 34 [R2 at 1108 –

09]. The 2001 Final Order modified the 2000 Order by eliminating the prior

order’s requirement of advance congressional approval of the Study. RE at 33 [R2

at 1108] (compare to R2 at 287). Instead, the 2001 Final Order provided the

Committee and Plaintiffs with 90 days’ advance review of the Study materials

prior to releasing the material to anyone else. RE at 34 [R2 at 1109]. Using

language identical to the 2000 Order, which this Court previously reviewed and

allowed to stand. see Akzo-Nobel, at *3, the 2001 Final Order identified these


13

Study materials as the same three separate categories of documents that were

described in the 2000 Order.4 Id.

Appellants never sought to clarify or appeal the 2001 Final Order. See RE at

18 – 28.

V. In 2002 and subsequent years, the Committee requested that Defendants produce “all” Study data. Defendants initially complied with the 2001 Final Order and that congressional request before refusing to obey further.

In connection with the 2001 Final Order, by letter dated January 16, 2002,

the Committee requested that Defendants produce “Diesel Study data” including

“all draft copies of all reports, notifications, recommendations, or alerts, related to

or based on the [Diesel Study], prior to the release or publication of such study, or

portion thereof.” R2 at 558 – 59 (emphasis added). The Committee also requested

“study data, in a format capable of being analyzed, as the data collection phase of

each study is completed, and preceding the drafting of any reports.” Id.

The Committee later reiterated that Defendants should provide copies of

these materials to Plaintiffs and to the United Steelworkers Union with the same

90-day review period as the Committee would receive so that all interested parties

4 These categories included: (1) all BSC peer review documentation (including revisions to Study protocol “in response to the BSC’s peer review”); (2) “all Diesel Study data requested by the Committee”; and (3) “all draft reports, publications, and draft results or risk notification materials prepared in connection with the Diesel Study.” R2 at 286 – 87 ¶ 2 (emphasis added). The Order did exempt from disclosure certain confidential and/or private information.


14

could equally evaluate the Study results. R2 at 595 – 96 (2004 Committee letter

reiterating requests); see also R2 at 866 – 67 (2011 Committee letter noting non-

NIOSH compliance and repeating requests).

Demonstrating a clear understanding of the 2001 Final Order’s terms,

Defendants initially complied with that order. In 2002, NIOSH wrote to the

Committee that “NIOSH and NCI will be glad to work with your staff to continue

to provide drafts of reports, publications and draft results or risk notification

materials . . . prior to release or publication.” R2 at 566 (emphasis added). In

addition, Defendants provided to the Committee and Plaintiffs, under cover letters

that stated “in compliance with the June 5, 2001 order,” all three categories of

materials explicitly identified in the order even though Defendants now claim some

of these materials were outside the reasonable meaning of the order. Specifically,

the materials Defendants produced included: (1) materials relating to the BSC peer

review; (2) draft reports; and (3) other Study documents and data. See, e.g., R2 at

569 – 70 (submitting to Congress industrial hygiene survey mine reports, which

contain data underlying the Study).

Defendants have described these productions in prior court filings. See, e.g.,

R2 at 565 – 67; 569 – 70; 572. For example, in 2002, 2003, and 2004, Defendants

produced drafts of nine “diesel exhaust industrial hygiene” surveys relating to the

Diesel Study. R2 at 565 – 67; 569 – 70; 593. In 2003 and 2005, NIOSH


15

responded to questions posed by the Committee and Plaintiffs regarding the Study

and its data. R2 at 574 – 76; 579 – 87; 601 – 602; 604 – 607. In 2004, Defendants

produced data underlying the Study, namely “a database containing cause of death

information for decedents within the cohort developed for the [Diesel Study].” R2

at 592.

After 2005, however, though work on the Study continued and intensified to

the point that the Study reports could be completed and published, Defendants’

initial compliance with the 2001 Final Order came to an abrupt end. See

Defendants’ Br. at 27 – 28 (documenting productions through 2004). Indeed,

Defendants admit that since 2005, save for their production of advance copies of

the first few Study papers in 2010, Defendants have failed and refused to provide

the Committee or Plaintiffs with any further data or other materials responsive to

the 2001 Final Order. See id.

VI. Defendants further violated the 2001 Final Order by sending draft Study papers to outside journals before sending them to Congress and Plaintiffs, prompting the District Court to order compliance last year.

In 2010, after nearly 20 years, Defendants finally produced the first four

Study reports (Papers I – IV). In so doing, they violated the 2001 Final Order by

delivering the reports to an outside journal before producing the material to the

Committee and Plaintiffs. This violation forced Plaintiffs once again to seek

redress from the District Court. By order dated June 23, 2010, the District Court


16

found that Defendants failed to produce even final versions of the reports despite

the 2001 Final Order’s requirement that they produce draft versions. RE 31 – 32

(the “2010 Order”). Focusing on this most egregious and immediate violation, the

Court ordered Defendants to immediately produce the reports to the Committee

and Plaintiffs. Id.

On its face, the 2010 Order does not in any way alter, amend, or rescind

Defendants’ obligations under the 2001 Final Order (i.e., producing all underlying

data and documents relating to the Study), nor does it condone future violations of

the 2001 Final Order. Id.

VII. In 2011, Defendants repeated their violation, sending the remaining Study papers to journals for publication before sending them to Congress and Plaintiffs, and refusing to produce the data and documents relating to the now-completed Study. As a result, the District Court held Defendants in contempt.

Following the 2010 Order, Defendants only partially complied with their

obligations under the 2001 Final Order. Defendants provided Plaintiffs with proof

copies of Papers I – IV but did not produce the Study drafts or underlying data.

RE 52 ¶ 3. As a result, Plaintiffs’ scientific reviewers, designated at congressional

request, were unable to meaningfully evaluate the first four draft reports without

the withheld information. RE 52 – 53 ¶¶ 4 – 7.

Those experts, publishing a peer-reviewed letter in the same journal that

published the Study papers, were able to identify areas of significant concern


17

regarding the Study’s reliability, many of which reflected concerns raised a decade

earlier by Plaintiffs’ experts at that time, whom Defendants’ ignored through their

evasion of FACA and court-ordered oversight. For example, both reviews

identified questions about the lack of correlation between diesel exhaust and lung

cancer; both raised concerns about the difficulty in accurately measuring the

amount of exposure to diesel, particularly commenting on the Study’s use of

assumptions to fill in gaps in exposure data; and both voiced concerns about the

surrogates used to measure diesel particulate matter. Compare RE at 58 – 66 with

R2 at 767 – 70.

Less than one year after the 2010 Order, on April 12, 2011, Defendants

admitted that they had again released several Study reports (Papers V – VII) to

outside parties (the British journal Annals of Occupational Hygiene5 and another

unidentified private journal) without first providing the Committee or Plaintiffs

with the required 90-day prior review. R2 at 713 ¶ 2. Choosing to seek

forgiveness after the fact rather than ask permission in advance, on May 31, 2011,

Defendants filed a motion to “extend” the 2010 Order to include the forthcoming

Study reports. R2 at 672. Defendants argued that the District Court had implicitly

5 Far from an agent of Defendants, this publication is published by Oxford University Press for the British Occupational Hygiene Society. See Oxford Journals, About the Journal, available at http://www.oxfordjournals.org/our_journals/annhyg/about.html (last accessed Nov. 3, 2011).


18

overturned the 2001 Final Order with its 2010 Order. See R2 at 812 (discussing

2010 Order as a modification of 2001 Final order). They even argued that the

2001 Final Order did not and could not require them to “provide any materials to

plaintiffs before publishing Papers V – VII other than the final drafts of the papers

themselves.” R2 at 805 (emphasis added).

Plaintiffs opposed Defendants’ motion, and sought their own relief – a

finding of civil contempt for Defendants’ continued blatant failures to comply with

the 2001 Final Order. Since 2005, the last time Defendants produced any Study-

related data or required documents, Defendants had obviously spent years of work

to complete the Study but had produced no additional materials. Meanwhile, on

July 8, 2011, the Committee once again reiterated its request for documents, stating

that it was “troubled by the continued failure of NIOSH to produce the draft

publications, data underlying the research . . . , and other documents the

Committee should be receiving” and noting that “NIOSH has again not provided”

Study “articles being prepared for publication.” R2 at 866 – 67.

On August 18, 2011, Judge Haik held a hearing on the cross-motions. See

R2 at 1113. During that hearing, Judge Haik confirmed that “the only reason” he

“didn’t hold Defendants in contempt [in 2010] for not following the order of 2001”

was “because I thought maybe that y’all made a little mistake, and I cut you some

slack.” R2 at 1116 – 17. Judge Haik then held Defendants in contempt because


19

they “didn’t comply with the 2001 order” when they provided the Study reports to

independent journals and failed to otherwise comply with the 2001 Final Order.

R2 at 1117.

Responding to Defendants’ argument that they had complied with the full

scope of the 2001 Final Order by producing only the final drafts of Study papers,

Judge Haik asked, “Do you actually think – do you actually believe that the 2001 –

that you followed the 2001 order? Do you actually believe that?” R2 at 1119.

When Defendants answered affirmatively, the District Court replied, “then you –

somebody is grossly misunderstanding what the 2001 order is, and it’s you . . . .

That’s improper. It’s inappropriate. It’s wrong.” R2 at 1119 – 20. The Judge

added, referring to Assistant U.S. Attorney Janice Hebert, “That’s why I asked Ms.

Hebert . . . at that little sidebar we had, I said, did you tell [Defendants] it’s okay

to not follow the order, and she said no, because she knows that’s not what I

meant. And you should have known it, too . . . because it is clear.” R2 at 1120.

When Defendants argued that they did not violate the prior orders, or could

not have known that by releasing Study reports to outside journals before sending

them to the Committee and Plaintiffs they would violate those orders, the District

Court emphatically disagreed. Defendants’ counsel asserted, “Your Honor, the

motions for contempt in 2010 were that we haven’t given the plaintiffs the final

drafts of the papers. You ordered us to do that. We did that.” R2 at 1118. The


20

Court replied, “I ordered you to do that in retrospect. You should have given it to

[Plaintiffs] before you sent it out.” R2 at 1118 – 19. The Judge added, “[W]hat

you're doing this time is you did the same thing you did last time. You sent it [to

journals] before you sent it to [Plaintiffs] to give them an opportunity to review it.”

Id.

Confirming that the 2011 Contempt Order would simply require Defendants

to comply with their existing duties under the 2001 Final Order, Judge Haik stated:

“It appears that what you're asking for is immediate compliance with the 2001

order . . . . I’m going to order that . . . . What else do you want? Immediate

production of non-confidential data, documents, drafts, et cetera?” R2 at 1121 –

22. Plaintiffs responded, “Yes. We consider that compliance with the 2001

order.” R2 at 1122. The Court agreed: “I do, too. I'm going to order that.” Id.

(emphasis added).

Following the hearing, Judge Haik entered the Contempt Order, which

requires that Defendants “shall comply with this Court’s June 5, 2001 FINAL

ORDER and immediately produce to Plaintiffs and the United States House of

Representatives Committee On Education and the Workforce, all non-confidential

documents, data, draft reports, publications, and draft results or risk notification

materials, relating to Papers I – VII” of the Study. RE at 33 – 34 [R2 at 1108 – 09]

(emphasis added). The Contempt Order further requires that Plaintiffs keep all


21

materials received under the order confidential during the 90-day review period.

Id. Finally, the Contempt Order holds Defendants in contempt for their repeated

failures to comply with the 2001 Final Order, and awarded Plaintiffs attorneys’

fees, expert fees, and expenses incurred in the 2011 motions briefing and hearing,

as well as the expert fees for reviewing the documents and data withheld by

Defendants. Id.

In this proceeding, Defendants appeal the 2011 Contempt Order.

SUMMARY OF ARGUMENT

The 2011 Contempt Order should be upheld because the District Court did

not abuse its discretion or commit clear error in finding that Defendants violated

the 2001 Final Order in two separate ways, either of which is sufficient to support

the contempt order: (1) Defendants failed to produce to the Committee and to

Plaintiffs required Study-related documents and data for years; and (2) Defendants

publicly released Study papers before providing them to the Committee and

Plaintiffs for a 90-day review period.

Defendants’ argument as to why they should not have been held in contempt

for violating the 2001 Final Order is a study in contradiction. First, Defendants

argue that they “plainly complied” with that order by providing all of the required

documents and data and that their release of the draft Study documents to the

journals was not a “public release.” In the next breath, Defendants argue that they


22

could not be in contempt because the 2001 Final Order is vague and ambiguous

and, as such, they could not have known how to comply.

Defendants cannot have it both ways. Indeed, they can have it neither way.

First, the law does not countenance a contemnor’s contention that he failed to

comply with an order because he did not understand it when he had every

opportunity to move for clarification or appeal but chose instead to proceed at “his

own peril.” In such a situation, this Court will not allow an appellant/contemnor to

re-litigate the scope and meaning of the original order.

Second, Defendants did initially comply with the 2001 Final Order for the

first few years by providing to Plaintiffs and the Committee exactly those

categories of documents and data required by the 2001 Final Order – until they

stopped doing so with no valid legal justification. This act alone proves that

Defendants knew what the 2001 Final Order required of them and contemptuously

decided to cease their compliance. On this ground alone the District Court could

not have abused its discretion by holding Defendants in contempt.

Defendants’ contention that providing the draft Study documents to the

journals was not a “public release,” but rather was analogous to an “intra-agency”

production, also must fail. Defendants’ reliance on FOIA law exemptions are

misplaced; this is not a FOIA case, and Defendants’ duties here are not defined by

that statute. Rather, the District Court defined Defendants’ duties in the 2001 Final


23

Order and later explicitly reiterated that the journals could not receive these

materials prior to the 90-day review period for the Committee and Plaintiffs.

In addition, even if the FOIA exemption was an appropriate analogy,

Defendants conveniently ignore subsequent U.S. Supreme Court precedent, which

severely questions the law upon which Defendants rely. Under that precedent, this

Court should find that when an agency produces a document to an outside foreign

journal, that production is a “public release” because the journal is not acting in the

capacity of an agent or consultant to the agency – a fact which Defendants

themselves have acknowledged in the record.

Defendants’ contention that the 2011 Contempt Order somehow

impermissibly requires them to do something more than what the 2001 Final Order

required of them is simply wrong. All the 2011 Contempt Order requires

Defendants to do going forward (aside from paying Plaintiffs’ expenses and fees)

is to comply with the 2001 Final Order. Finally, Defendants’ claim that complying

with either Order is too “burdensome” is unavailing under the law and, in any

event, is a burden of their own making.

At every turn, Defendants invite this Court not only to consider whether they

earned the 2011 Contempt Order, but more fundamentally, to review the

underlying 2001 Final Order and redefine its scope and breadth more than ten

years after their opportunity to appeal that order expired. But, re-litigation of that


24

final order is beyond this Court’s jurisdiction. Indeed, the conclusion of the Study

makes it even clearer that the 2001 Final Order was a critically necessary and

narrowly tailored remedy. Had Defendants followed FACA in the first place or the

2001 Final Order in the second place, serious apparent defects in the Study might

have been avoided.

Simply put, the District Court was well within its discretion to hold

Defendants in contempt, and this Court should uphold that decision.

ARGUMENT

I. THE STANDARD OF REVIEW ON APPEAL IS HIGHLY DEFERENTIAL TO THE DISTRICT COURT AND DOES NOT INVOLVE A REVIEW OF THE 2001 FINAL ORDER.

Having found Defendants in contempt, the District Court determined: “1)

that a court order was in effect, 2) that the order required certain conduct by the

[Defendants], and 3) that [Defendants] failed to comply with the court’s

order.” Whitcraft v. Brown, 570 F.3d 268, 271 (5th Cir. 2009). This Court

“review[s] contempt orders and sanctions imposed thereunder for an abuse of

discretion.” Id. (citation omitted). The District Court’s “underlying findings of

fact” are reviewed for “clear error” and underlying conclusions of law are reviewed

de novo. Id. Under this standard, this court will not reverse the District Court’s

findings “if the District Court’s account of the evidence is plausible in light of the


25

record viewed in its entirety.” Anderson v. City of Bessemer City, 470 U.S. 564,

573 – 574 (1985).

This standard does not allow for de novo review of the facts underlying the

2011 Contempt Order and does not allow for any review of the 2001 Final Order.

As the Supreme Court has held, “a contempt proceeding does not open to

reconsideration the legal or factual basis of the order alleged to be disobeyed and

thus become a retrial of the original controversy.” Maggio v. Zeitz, 333 U.S. 56, 69

(1948) (once order is final, “disobedience cannot be justified by retrying the issues

as to whether the order should have been issued in the first place”).

This is especially important here, where Defendants are seeking in this

appeal to re-litigate the meaning and terms of a decade-old order with which they

complied until they decided not to. Much of Defendants’ appeal focuses on the

proper scope of the 2001 Final Order in a transparent attempt to re-litigate an

injunction from which they never sought clarification or modification or timely

appealed. Under the guise of justifying their narrow “interpretation” of the 2001

Final Order, Defendants submit arguments about how much injunctive relief order

should have been required. Defendants’ Br. at 29 – 30. Likewise, Defendants

question whether they ever should have been required to provide documents to

Plaintiffs, notwithstanding explicit language in the 2001 Final Order to the


26

contrary.6 Defendants argue about the extent of their FACA violations,

Defendants’ Br. at 30, as if that has any relevance to whether they violated a

decade-old court order.

Of course, Defendants have no right to raise such matters over ten years

after the 2001 Final Order issued on June 5, 2001. See 28 U.S.C. § 2107 (60 days

to appeal entry of order where United States is a party); Fed.R.App.P. 4(a)(1)

(same). “The time limitation for filing a notice of appeal is jurisdictional, and the

lack of a timely notice mandates dismissal of the appeal.” United States v. Craun,

51 F.3d 1043, 1043 (5th Cir. 1995) (quotation omitted). See also Orr v. Merit

Systems Protection Bd., 379 Fed.Appx. 333, 335 (5th Cir. 2010) (dismissing an

appeal filed “more than nine years” after decision).

6 Indeed, in another attempt to explain away their failure to produce documents to Plaintiffs while simultaneously re-litigating the meaning of the 2001 Final Order, Defendants make the incredible argument that they never had a duty to produce the documents because this Court has never “indicated that the government has an obligation to produce study materials to Plaintiffs.” Defendants’ Br. at 30. With all due respect to this Court, on appeal of the district court’s enforcement of its own order, the relevant question is what the district court’s order required on its face, not what this Court may or may not have implied through silence in a prior appellate decision in the same litigation.

The 2001 Final Order states: “Defendants shall provide Plaintiffs with copies of all documents submitted to the Committee in compliance with this Order.” Supra, at 12, 13 (emphasis added). The same language appeared in the 2000 Order, which this Court reviewed without comment on this requirement. Supra, at 10-12. See also supra, at 13, 14 (2004 congressional request to provide documents to Plaintiffs); Supra, at 19, 20 (confirming this duty; Attorney for Defendants: “Your Honor, the motions for contempt in 2010 were that we haven’t given the plaintiffs the final drafts of the papers. You ordered us to do that. We did that.” The Court: “I ordered you to do that in retrospect. You should have given it to [Plaintiffs] before you sent it out”).


27

The only proper inquiry here is whether the District Court abused its

discretion in finding Defendants in contempt and issuing its 2011 Contempt Order.

Even should this Court find such an abuse of discretion, at most, the result could be

the reversal of the 2011 Contempt Order. The un-appealed 2001 Final Order,

however, would remain firmly in place, and Defendants would have no excuses not

to comply promptly in light of the District Court’s recent clear and unequivocal

statements about what its longstanding order meant. See supra, at 18 – 20.

II. AFTER YEARS OF DEFENDANTS’ VIOLATIONS, THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN HOLDING DEFENDANTS IN CONTEMPT FOR VIOLATING THE 2001 FINAL ORDER.

Defendants stopped complying with the 2001 Final Order likely in 2005,

repeatedly violated it thereafter, and blatantly and intentionally violated it in 2011.

The District Court thus did not abuse its discretion or commit clear error when it

found that Defendants violated the 2001 Final Order in two distinct ways.7 First,

7 The District Court also did not abuse its discretion in awarding attorneys’ fees, expenses, and costs to Plaintiffs. The district court has the power to impose sanctions, including attorneys’ fees, against Defendants. The Equal Access to Justice Act, 28 U.S.C. § 2412, et seq., waives sovereign immunity and allows courts to impose attorney fees in two ways: (1) under § 2412(b), “the equitable exceptions to the American Rule apply to the federal government in the same manner as they apply to private litigants,” including for acting in bad faith; and (2) mandatory § 2412(d) requires awards of fees to eligible parties, based on net worth. Maritime Management, Inc. v. U.S., 242 F.3d 1326, 1331 (11th Cir. 2001) (upholding award of fees against government based on bad faith, where government withheld documents that it was supposed to file as part of administrative record).

This Court routinely upholds sanctions against the government for purposely disregarding a district court order. Federal Deposit Insurance Corporation v. Maxxam, Inc. et al, 523 F.3d


28

over a period of many years, Defendants failed to produce to the Committee and to

Plaintiffs significant Study materials that the 2001 Final Order required Defendants

to produce. Second, Defendants provided non-consultant, outside third parties

with final copies of reports before producing them to Plaintiffs. Either violation,

standing alone, constitutes proper grounds for the 2011 Contempt Order.

A. Defendants failed to produce documents and data to the Committee and Plaintiffs as required by the 2001 Final Order.

As described supra at 12 – 13, to facilitate the kind of oversight and review

that their FACA evasion thwarted, the 2001 Final Order required Defendants to

produce to the Committee and to Plaintiffs various documents and data underlying

and relating to the Study. From 2002 until 2005, Defendants initially complied,

producing materials in each of these categories under cover letters stating “in

compliance with the June 5, 2001 order.” See supra, at 14 – 15. Ever since,

however, Defendants have refused to comply, in violation of the 2001 Final Order.

Defendants argue that they were not or could not be required to produce data

and documents relating to the Study; that the 2001 Final Order was ambiguous;

and that now they should be excused because compliance would be overly

burdensome. Each of these arguments fails.

566, 595-96 (5th Cir. 2008) (“The government, as a party to a lawsuit, is subject to the same ethical and procedural rules as a private litigant, and risks the same sanctions if it fails to abide by these rules.”)


29

1. Defendants never sought clarification of or an appeal from the 2001 Final Order, with which Defendants initially complied, precluding them from suddenly arguing now that it is ambiguous.

Defendants argue that the 2001 Final Order either did not or could not

require them to produce anything more than the final drafts of their Study papers.

See supra, at 17, 18; Defendants’ Br. at 33 (arguing how much injunctive relief

was appropriate in 2001). As discussed above, Defendants are time-barred from

arguing about what the 2001 Final Order could require. Ten years later,

Defendants can not change the words or meaning of the 2001 Final Order.

In addition, the District Court’s rulings and Defendants’ own behavior show

that there is no merit to their claim that the 2001 Final Order did not require

production of data and documents or was ambiguous. To Plaintiffs, the District

Court, and even the Assistant U.S. Attorney at the August 2011 motions hearing,

the 2001 Final Order was “clear.” Supra, at 18 – 19. When Defendants claimed

that the 2001 Final Order did not require the production of data and documents

(despite the fact that the Assistant U.S. Attorney representing them as co-counsel

understood it), Judge Haik responded that Defendants were “grossly

misunderstanding” the meaning of “the 2001 order.” Id. As the 2011 Contempt

Order reflected, the District Court understood that its 2001 Final Order required


30

Defendants’ “[i]mmediate production of non-confidential data, documents, drafts,

et cetera” relating to the Study. Id.8

In any event, the 2001 Final Order amply meets the Federal Rules’

specificity requirements for injunctions. Rule 65(d) of the Federal Rules of Civil

Procedure requires an injunctive order to state why it was issued, identify the terms

with specificity, and describe in reasonable detail the act or acts restrained or

required. See Fed. R. Civ. Pro. 65(d). The “specificity requirement is not

unwieldy;” thus, an injunction “must be framed so that those enjoined will know

what conduct the court has prohibited [or required].” Meyers v. Brown & Root

Construction Co., 661 F.2d 369, 373 (5th Cir. 1981). Further, in determining

whether a particular act falls within the scope of an injunction’s prohibition,

“[g]reat deference is due the interpretation placed on the terms of an injunctive

order by the court who issued and must enforce it.” Alabama Nursing Home

Association v. Harris, 617 F.2d 385, 387-88 (5th Cir. 1980) (internal citations

omitted).

Having never sought clarification or appeal of the now decade-old 2001

Final Order, Defendants “cannot now spring [their] ambiguity defense to avoid

8 See also supra, at 12, 13 (2001 Final Order required production of “all Diesel Study data requested by the Committee” and “all draft reports, publications, and draft results or risk notification materials prepared in connection with the Diesel Study”); supra, at 13 (Committee request for “all draft copies of all reports” related to the Study” and all “study data.”


31

contempt on the basis of [their] self-serving interpretation of the court’s

injunction.” Tivo Inc. v. Echostar Corp., 646 F.3d 869, 887 (Fed. Cir. 2011).

They are simply precluded from raising this argument now for the first time. This

common sense and equitable principle has been the law for over sixty years. See

McComb v. Jacksonville Paper Co., 336 U.S. 187, 192 (1949) (upholding

contempt citation against party who “could have petitioned the District Court for a

modification or clarification or construction of the order,” but instead “undertook

to make their own determination of what the decree meant [and] acted at their

peril.”)9 In any event, Defendants’ “good faith” belief that they were complying

with the 2001 Final Order is simply “not a defense.” Whitcraft, 570 F.3d at 272.

Moreover, even if the law did allow Defendants to claim that they violated

the 2001 Final Order, not because they were contemptuous but because they were

somehow “confused,” they have an insurmountable obstacle: As set forth in detail

9 See also Polo Fashions, Inc. v. Stock Buyers Int'l, Inc., 760 F.2d 698, 700 (6th Cir. 1985) (appellants “acted at their own risk [of contempt] by failing to seek the court’s interpretation of the injunction if they had any good faith doubt as to its meaning or by failing to have it set aside or amended if they thought it was defective.”); Perfect Fit Indus., Inc. v. Acme Quilting Co., Inc., 646 F.2d 800, 808 (2d Cir. 1981) (“[A] party to an action is not permitted to maintain a studied ignorance of the terms of a decree in order to postpone compliance and preclude a finding of contempt.”)

Defendants cite Piggly Wiggly Clarksville, Inc. v. Mrs. Baird’s Bakeries, 177 F.3d 380 (5th Cir. 1999) for the proposition that contempt should not be imposed if the underlying order is vague or ambiguous. But this language merely restates the Supreme Court's holding in Int’l Longshoremen’s Ass’n v. Phila. Marine Trade Ass’n, 389 U.S. 64 (1967), that unintelligible orders are not enforceable. In Longshoremen’s, the Supreme Court overturned a contempt citation where the contemnor had repeatedly stated to the trial court in the underlying action “I don’t know what this order means,” but the court refused to clarify. Id. at 70 – 71.


32

above, Defendants demonstrably complied with the 2001 Final Order for several

years by producing to the Committee and Plaintiffs exactly those categories of

documents and data that the 2001 Final Order required – until they later stopped

complying. As the Eleventh Circuit noted in rejecting a similar “ambiguity”

excuse for a party’s contempt, Defendants’ initial “compli[ance] with the

requirements” of the Order is “[t]he best evidence … that the appellants were fully

aware of their obligations.” Combs v. Ryan’s Coal Company, Inc. 785 F.2d 970,

979 (11th Cir. 1986).10

10 After first claiming that they were not required to produce Study documents and data because they did not understand the 2001 Final Order’s requirements, Defendants make a head-spinning opposite assertion. They argue that they stopped producing documents and data after “2003” because the Committee’s 2002 request “expired” when a new Congress began. Of course, this claim necessarily admits that Defendants knew exactly how broad their true obligations were.

But, this explanation is belied by Defendants’ and the Committee’s actions. If the congressional request “expired” in 2003, why did Defendants produce documents and data as late as 2005? Supra, at 14, 15. Moreover, Defendants’ argument fails to account for the renewal of these congressional requests in 2004 and 2011, supra, at 13, 14, 18, and it conveniently ignores that under the language of the 2001 Final Order itself Defendants still were required to produce “all draft reports, publications, and draft results or risk notification materials prepared in connection with the Diesel Study.” Supra, at 12, 13 (emphasis added).

In any event, the cases Defendants rely upon to support their novel contention that their duties ended with each congressional session are wholly inapposite, as they examine the time limitations of Congress’ powers to subpoena or hold people in contempt. The authority imposing duties in this case, by contrast, was a judicial order. Further, House Committee Rules X and XI and 2 U.S.C. § 190d expect that House committees and subcommittees will conduct ongoing inquiries, without need for “renewal” even after a particular congressional term adjourns. In fact, Plaintiffs are aware of no law stating that a standing congressional committee’s letter requesting information from a federal agency in its jurisdiction can be ignored simply because a new congressional term begins.


33

2. Defendants’ speculative “burden” in complying with the 2001 Final Order, as enforced by the 2011 Contempt Order, is irrelevant and of Defendants’ own making.

Defendants claim that they should not have to comply with the 2001 Final

Order (as restated in the 2011 Contempt Order) and produce the relevant

documents and data because compliance would be “too burdensome” (allegedly

taking 6-12 months to complete).11 This argument fails for several reasons. First,

Defendants’ obligations under the 2001 Final Order are not subject to appeal,

review, or modification. If Defendants believed that order was too “burdensome,”

they had every right to attempt to have it modified – in 2001. Indeed, even if they

would claim to have misunderstood an ambiguous order, they are still obligated to

follow it after the District Court’s recent clarification of its requirements.

Second, neither the 2001 Final Order nor the 2011 Contempt Order could be

reversed based on allegations of mere difficulty or burden. See S.E.C. v. Resource

Development Intern. LLC, 217 Fed.Appx. 296 (5th Cir. 2007) (quoting U.S. v.

Rylander, 460 U.S. 752, 758 (1983) (“Where compliance is impossible, neither the

moving party nor the court has any reason to proceed with the civil contempt

action. It is settled, however, that in raising this defense, the defendant has a

burden of production.”) (emphasis added).

11 Interestingly, this estimate is 75% smaller than Defendants initially contended production would take. R2 at 1120 (claiming production would take two years).


34

Moreover, “the burden on the party asserting an impossibility defense will

be particularly high because of the likelihood that any attempted compliance with

the court’s orders will be merely a charade rather than a good faith effort to

comply.” Id. (quoting FTC v. Affordable Media, LLC, 179 F.3d 1228, 1241 (9th

Cir.1999)); see also Badgley v. Santacroce, 800 F.2d 33, 37 (2nd Cir. 1986) (local

officials would be in contempt for continuing to house inmates in overcrowded

prison in violation of court order, even if compliance with the order would violate

state law or be politically difficult). Defendants do not even claim that their

mandated production is “impossible” but simply complain that it will take a few

months to complete.

Finally, even if a party could avoid an injunction because it would be

“burdensome,” all of the “burdens” Defendants allege from complying with the

2001 Final Order are of Defendants’ own making. Defendants speculate that

production will take 6-12 months to complete; that the data will not be produced in

a “useable” format; that the production will delay Defendants’ plans to create other

public use data sets; and that the production will postpone Defendants’ attempts to

publish the Studies. Defendants’ Br. at 34 – 35. Yet, none of these burdens, even if

accurate, would exist had Defendants not resolutely refused to produce documents

and data to the Committee and Plaintiffs as the Study progressed toward draft


35

reports. The Study has been ongoing since 1992! Had Defendants chosen

compliance rather than contempt all along, none of these difficulties would exist.

3. The 2011 Contempt Order did not expand Defendants’ obligations beyond those found in the 2001 Final Order.

In another backdoor attempt to re-litigate the 2001 Final Order, Defendants

argue that the 2011 Contempt Order imposes “new” obligations and restraints not

found in the original 2001 Final Order, not justified by their multiple FACA

violations, and not capable of compliance in a short amount of time. Not so. The

2011 Contempt Order merely restates what Defendants were already required to

do: “Defendants shall comply with this Court’s June 5, 2001 FINAL ORDER and

immediately produce to Plaintiffs and [the Committee] all non-confidential

documents, data, draft reports, publications, and draft results or risk notification

materials, relating to” the Study. Supra, at 20.12

Reflecting the 2011 Contempt Order’s scope, Judge Haik specifically told

Plaintiffs: “It appears that what you’re asking for is immediate compliance with the

2001 order . . . . I’m going to order that . . . . What else do you want? Immediate

12 To the extent that the 2011 Contempt Order contains language reflecting the District Court’s “effort to precisely rephrase an order when dissatisfied with an initial formulation,” this effort is “indicative of clarity, not confusion.” In re Bradley, 588 F.3d 254, 267 (2009). The Bradley court continued: “The same is often true for discussions clarifying what parties can and cannot do. In any case, [Defendants] fail[] to cite specific language suggesting [they] received contradictory instructions or that the [District Court] meant to allow the conduct it later found to be contemptuous. We reject the argument that the [District Court] failed to provide [Defendants] with clear instructions covering the conduct that led to the contempt finding.”


36

production of non-confidential data, documents, drafts, et cetera?” Plaintiffs

responded, “Yes. We consider that compliance with the 2001 order.” The Court

agreed: “I do, too. I'm going to order that.” Supra, at 20.

These duties are not new. They merely repeat the 2001 Final Order’s

obligations for Defendants to produce “all Diesel Study data requested by the

Committee” (which included all Study data) and “all draft copies of all reports,

notifications, recommendations, or alerts, related to or based on the [Diesel Study],

prior to the release or publication of such study, or portion thereof.” Supra, at 11 –

13. Any “delay” Defendants suffer results from their own procrastination. The

2011 Contempt Order does not present a new compliance burden; it simply

enforces a responsibility Defendants had all along.

B. Defendants also violated the 2001 Final Order by publicly releasing Study papers before providing them to the Committee and Plaintiffs.

Not only did Defendants fail to produce “all draft copies of all reports,” but

they provided outside third parties with final copies of reports before producing

them to Plaintiffs. This violated the 2001 Final Order’s requirement, which was

reiterated by the Committee, that “Defendants shall refrain from publicly releasing

information submitted to the Committee until 90 days after it is submitted to the

Committee.” Supra, at 13 – 14.


37

This violation in 2011 was particularly contemptuous because just one year

earlier the District Court had issued an order requiring Defendants to produce

Study drafts to Plaintiffs. In 2010, Defendants ignored this duty when they first

released Papers I – IV to the journals. As a result, the District Court issued the

2010 Order, re-emphasizing this duty while cutting defendants some “slack” by

declining to hold them in contempt. Supra, at 15 – 16, 18.

Indeed, in holding Defendants in contempt in 2011, the District Court stated:

“You should have given it to [Plaintiffs] before you sent it out…What you’re doing

this time is the same thing as you did last time [in 2010]. You sent it before you

sent it to [Plaintiffs] to give [Plaintiffs] an opportunity to review it.” Supra, at 19 –

20. Defendants were clearly on notice of their obligations; they ignored this duty

at their peril and fully earned the 2011 Contempt Order.

Nevertheless, Defendants contend that their release of Study papers to

scientific journals did not violate the 2001 Final Order because the release was not

“public.” In support of this contention, Defendants analogize to the United States

Freedom of Information Act (“FOIA”). Defendants’ Br. at 23 – 27. While FOIA

generally requires the government, upon request, to release public documents,

Exemption 5 to that law excludes from FOIA release “inter-agency or intra-agency

memorandums 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). Defendants rely on


38

Formaldehyde Institute v. Department of Health & Human Services, 889 F.2d

1118 (D.C.Cir.1989), which held that if documents (such as a scientific journal’s

comments sent to the government regarding a study) were part of the deliberative

process, it did not matter whether or not they were truly “intra-agency.”

Defendants’ analogy is a complete non-sequitor. First, this is not a FOIA

case, and none of the FOIA requirements or exemptions govern this matter or are

remotely relevant. Unlike in the FOIA context, there is no statutory exemption to

the District Court’s authority to order injunctive relief. Second, the district court

made clear that distributing Studies to scientific journals before providing the

Studies to the Committee does constitute a violation of the 2001 Order. See supra,

at 19 – 20. And, as stated above, “[g]reat deference is due the interpretation placed

on the terms of an injunctive order by the court who issued and must enforce it.”

Alabama Nursing Home Association v. Harris, 617 F.2d 385, 387-88 (5th Cir.

1980) (internal citations omitted). .

Third, Defendants failed to inform this Court that the United States Supreme

Court seriously undermined the holding in Formaldehyde in 2001, to the point that

this Court would likely determine that documents released by a government agency

to a foreign journal the agency never hired would not be considered “intra-agency”

and would instead be “publicly released” and subject to FOIA. In Department of

the Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1 (2001), the


39

Supreme Court noted that the term “intra-agency” is not a “purely conclusory term,

just a label to be placed on any document the Government would find it valuable to

keep confidential . . . .” Id. at 12. Further, while Exemption 5 may extend “to

communications between Government agencies and outside consultants hired by

them” the Court expressly declined to decide whether consultants' reports generally

“may qualify as intra-agency under Exemption 5.” Id. at 10, 12 (emphasis added).

Indeed, the Klamath Court held that even if some communications from paid

agency consultants could qualify for Exemption 5 protection, the communications

at issue could not so qualify because they were made by the agency to an outside

entity which represented its own interests. Id. at 14. See also National Institute of

Military Justice v. Department of Defense, 512 F.3d 677, 694 (D.D.C. 2008)

(internal citations omitted) (Judge Tatel dissent) (noting that Klamath “so clearly

undermines Formaldehyde that even under the expansive definition of ‘intra-

agency’ … Formaldehyde would have come out the opposite way.”)

Thus, under this recent line of Supreme Court precedent, Defendants’

submission of Study papers to foreign scientific journals deserves no more

protection under a FOIA request than it did under the 2001 Final Order.

Obviously, foreign journals are not government agencies. See Klamath, 532 U.S.

at 9 (agency means “each authority of the Government of the United States,” §

551(1), and “includes any executive department, military department, Government


40

corporation, Government controlled corporation, or other establishment in the

executive branch of the Government . . . or any independent regulatory agency.”)

(citing 5 U.S.C. § 552(f)).

Nor can the journals be considered “consultants.” Under Klamath an outside

entity is not an agency “consultant” unless there is an arrangement between the

agency and the outside party by which the outside party provides services or

support for the agency while representing the interests of the agency. Id. at 11.

Scientific journals are not hired to provide consulting services to the agency;

rather, the journals are wholly independent and represent their own commercial

interests in vetting and publishing research papers. Indeed, Defendants stress the

journals’ independent interests, including a “vested financial interest in being the

first to publish” research papers. RE 45 at 11 (emphasis added).

While a journal may decide to submit comments to Defendants and publish

the Study, it is under no obligation to do so.13 Indeed, the publication of the Study

13 See Annals of Occupational Hygiene, Instructions for Authors, located at http://www.oxfordjournals.org/our_journals/annhyg/for_authors/general.html, last visited October 31, 2011) Instructing authors that the journal’s review and acceptance of the paper is purely at the discretion of the journal:

After considering reviewers’ comments, the editor will inform the author whether or not the paper is acceptable, and what modifications, if any, are necessary. Reviewers’ anonymised comments will be transmitted to the author with the editor’s decision. The decision will reflect not only technical considerations, but the priority of the material, bearing in mind pressure on space. The editor may make minor editorial changes to accepted material.… The decision of the editor is normally final, but an author may appeal …Because we


41

papers is uncertain: “Currently, journals have indicated a willingness (with

varying degrees of firmness) to publish the final three papers of the study.” [RE 45

at 10.] The journals are independent third parties. Defendants’ submission of

Study papers to those journals constituted a “public release” of those documents.

As such, the District Court properly held Defendants in contempt of the 2001 Final

Order, which prohibited such public release.

Finally, Defendants hide behind “guidelines” issued by the Office of

Management and Budget (“OMB”), which define the “dissemination” of

information but exempt sending papers to scientific journals for peer review under

certain conditions. Neither the guidelines generally nor the “dissemination”

exemption apply here. These mere guidelines were never referenced by any of the

prevailing court orders in this case, nor did the orders discuss “dissemination,” the

defined term in the OMB bulletin on which Defendants hang their argument, nor

do such guidelines bind the journals here.

In any case, guidelines certainly cannot trump a district court order, and

Defendants have not said that they followed each of the necessary steps required

receive many more papers than we have room for, the editors have to make a judgment on the importance of a paper, and appeals against this judgment are not normally useful.


42

by the guidelines for the exemption to apply.14 The fact that the exemption was

written at all suggests that OMB, too, believes submitting papers for peer review

would constitute publicly releasing those documents in the absence of such an

exemption and compliance with the mandated procedures.

CONCLUSION

For all the reasons stated above, this Court should determine that the District

Court did not abuse its discretion and should affirm the 2011 Contempt Order.

Dated: November 4, 2011 Respectfully submitted,

Patton Boggs LLP /s/ Henry Chajet

Henry Chajet Ed Wisneski Avi Meyerstein Erik Dullea Lesley Sachs Gregory M. Louer 2550 M Street, NW

14 The OMB document is merely guidance offered to help agencies implement a peer review process. It cannot be useful in interpreting the 2001 Final Order because the OMB document did not even exist when that order was issued, and the district court has made clear it saw no “peer review exemption” to the order. The OMB guidelines require particular disclaimer language to accompany documents sent for peer review in order for the exemption to apply. They also require the agency to make available to the public the written charge to the peer reviewers, the peer reviewer’s names, the peer reviewers’ report(s), and the agency’s response to the peer reviewers’ report(s). 70 Fed. Reg. 2664, 2665 (Jan. 14, 2005). Defendants have not even alleged that they complied with these conditions in order for the exemption to apply.


43

Washington, DC 20037 Telephone: 202-457-6000 Facsimile: 202-457-6315 Email: [email protected] Lemoine & Associates L.L.C. /s/ Joseph L. Lemoine Jr. Joseph L. Lemoine, Jr., La. Bar. No. 8,307 1018 Harding Street Suite 102B Lafayette, LA 70503 Telephone: 337-233-6200 Facsimile: 337-233-6521 Email: [email protected] Attorneys for Appellees


CERTIFICATE OF SERVICE

I hereby certify that on November 4, 2011, I electronically filed and served the foregoing brief with the Clerk of the Court for the United States Court of Appeals for the Fifth Circuit by using the CM/ECF system.

/s/ Henry Chajet


CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION, TYPEFACE REQUIREMENTS,

AND TYPE STYLE REQUIREMENTS

1. This brief complies with the type-volume limitation of Fed. R. App. P.

32(a)(7)(B) because this brief contains 10,237 words, excluding the parts of the

brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii), or

2. This brief complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this

brief has been prepared in a proportionally spaced typeface using Microsoft Office

Word 2003 (11.8328.8341) SP3 in 14-point Times New Roman font.

/s/ Henry Chajet Attorney for Plaintiffs-Appellees Dated: Nov. 4, 2011


no. 11-30812 in the united states court of … · case: 11-30812 document: ... in connection with a...

Documents