Chiron Corp. v. National Transportation Safety Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 15, 1999 Decided December 21, 1999

No. 98-1558

Chiron Corporation and

PerSeptive Biosystems, Inc.,

Petitioners

v.

National Transportation Safety Board, et al.,

Respondents

On Petition for Review of an Order of the

United States Department of Transportation

Jerry W. Cox argued the cause for petitioners. With him

on the briefs were Richard S. Odom and Martin Shulman

Peter R. Maier, Attorney, U.S. Department of Justice,

argued the cause for respondents. With him on the brief

were David W. Ogden, Acting Assistant Attorney General,

Leonard Schaitman, Attorney, and Wilma A. Lewis, U.S.

Attorney. Mark E. Nagle, Assistant U.S. Attorney, entered

an appearance.

Before: Edwards, Chief Judge, Silberman and Henderson,

Circuit Judges.

Opinion for the Court filed by Chief Judge Edwards.

Edwards, Chief Judge: The National Transportation Safety

Board ("NTSB" or "Board") is an independent federal agency

charged with investigating airplane accidents. The agency

does not function as a traditional regulatory or adjudicatory

body; rather, its principal missions are to determine the

probable cause of accidents and make recommendations that

will help prevent future accidents. Private parties who are

involved in an accident (other than just as victims) may be

designated to participate in an NTSB investigation, but their

involvement is voluntary and it does not include an adjudica-

tion of individual claims.

In the instant case, petitioners, Chiron Corporation ("Chi-

ron") and PerSeptive Biosystems, Inc. ("PerSeptive"), partici-

pated as parties in an NTSB investigation of an accident

involving Federal Express Flight 1406. Concerned that they

might be found responsible for the accident and eventually

face claims of liability in a civil suit, petitioners asked NTSB

for a copy of the cargo list for Flight 1406. The Board

refused to disclose the cargo list, in part because Federal

Express viewed the data as privileged, business information.

Petitioners then filed this law suit, claiming injury from

NTSB's refusal to release the requested information and

seeking an order requiring its production. We dismiss the

petition for review, because petitioners lack standing.

Petitioners first argue that NTSB's denial of information

injures them, because it may disadvantage them as defen-

dants in a civil suit that Federal Express has filed against

them. However, any possible injury to petitioners as defen-

dants in a civil law suit is not legally cognizable here, because

it is not an injury that petitioners will suffer as a consequence

of their participation in the NTSB investigation. In other

words, in order to have standing to bring this law suit,

petitioners must have suffered an injury related to their

involvement as parties to the NTSB investigation. They

cannot show this.

Furthermore, there is little likelihood that petitioners will

suffer any injury of the sort that they claim. Petitioners are

concerned that NTSB's report may be admitted as evidence

in a lawsuit that Federal Express has filed against them.

They hope that the information they seek will reveal new

evidence that they can use to convince NTSB to change its

report so that it will not adversely affect them in the pending

lawsuit. This is an idle concern, for Congress has made it

clear that NTSB reports, including probable cause determina-

tions, are not admissible as evidence in a civil lawsuit. Thus,

the Board's report will not control the results in any civil

litigation over Flight 1406.

Petitioners also argue that, as parties to the investigation,

they have a legal right to the plane's cargo information.

Petitioners contend that such a right may be found in the

Board's regulations and in a written Guidance given to them

as parties to the investigation. Thus, according to petition-

ers, NTSB's denial of their request for the cargo list caused

them an informational injury. This claim fails, however,

because there is no statute, regulation, or any other source of

law that secures for parties to an NTSB investigation unfet-

tered access to all information garnered by the Board. In

short, petitioners have no legal basis for the alleged rights

that they seek to enforce.

Because petitioners lack standing to bring this suit, their

petition for review is dismissed.

I. Background

A. NTSB Investigations

NTSB is a uniquely independent federal agency responsible

for investigating airplane accidents, determining the probable

cause of accidents, and making recommendations to help

protect against future accidents. See 49 U.S.C. ss 1131,

1132, 1135 (1994). NTSB neither promulgates nor enforces

any air safety regulations. Nor does the agency adjudicate

claims over liability for accidents. Rather, it simply analyzes

accidents and recommends ways to prevent similar accidents

in the future.

Congress has endowed NTSB with broad powers to accom-

plish its missions, because the work of the agency is viewed

as extremely important. See S. Rep. No. 101-450, at 2 (1990)

("The NTSB's mission ... is critical."). An officer or employ-

ee of the Board can enter a site where an accident has

occurred and "do anything necessary to conduct an investiga-

tion." 49 U.S.C. s 1134(a)(1) (1994). The Board may inspect

and test any aircraft, aircraft engine, or property on an

aircraft that has been involved in an accident, and the Board

has sole discretion to determine how those tests are to be

conducted. See 49 U.S.C. s 1134(b), (d) (1994). Most impor-

tantly, the Board's investigations have "priority over any

investigation by another department, agency, or instrumental-

ity of the United States Government." 49 U.S.C. s 1131(a)(2)

(1994). The Board has used these broad powers wisely,

achieving notable successes in its work and receiving high

praise for the integrity of its investigative processes. See

S. Rep. No. 104-324, at 2 (1996) ("The Safety Board's reputa-

tion for impartiality and thoroughness has enabled it to

achieve such success in shaping transportation safety im-

provements that more than 80 percent of its recommenda-

tions have been implemented.").

Although NTSB investigations are conducted by agency

staff, outside individuals may be designated to participate as

well. Only the Federal Aviation Administration ("FAA") has

a right to participate in an investigation; however, the

Board's regulations allow the individual in charge of an

investigation to designate private parties to participate if

their involvement would assist the investigation. See 49

C.F.R. s 831.11 (1998). The regulations specify that "parties

shall be limited to those persons, government agencies, com-

panies, and associations whose employees, functions, activi-

ties, or products were involved in the accident or incident."

Id.

It is often the case that corporations or individuals suspect-

ed of causing an accident will be invited to participate in an

investigation, whereas victims of the accident will not. The

rationale for this approach is that parties who may have

caused an accident will provide investigators with valuable

information; they may also learn how to improve the safety

of their products or activities to avoid future accidents. The

same cannot be said of accident victims. See John W.

Simpson, Use of Aircraft Accident Investigation Information

in Actions for Damages, 17 J. Air L. & Com. 283, 290 (1950)

("[R]epresentatives of industry and employee groups are

often permitted to participate in the investigation and thus

have access to much information, while the representatives of

the victims seldom participate in the investigation. These

procedures are absolutely necessary in order to determine

the probable cause of an accident.").

Moreover, an NTSB investigation is a "fact-finding pro-

ceeding[ ] with no formal issues and no adverse parties. [It

is] ... not conducted for the purpose of determining the

rights or liabilities of any person." 49 C.F.R. s 831.4 (1998).

Board regulations and policies are explicit in providing that

parties participating in an investigation are involved in NTSB

processes only to assist the safety mission and not to prepare

for litigation. Parties are required to sign a "Statement of

Party Representatives to NTSB Investigation," which re-

quires them to agree that their "participation is not for the

purposes of preparing for litigation," but, rather, "for the

purpose of providing technical assistance to the [NTSB]."

Statement of Party Representatives to NTSB Investigators

reprinted in 1 Deferred Appendix, at 435; see also 49 C.F.R.

s 831.11(b) (requiring parties to sign the "Statement of Party

Representatives to NTSB Investigation" in order to partici-

pate in the investigation).

Parties assist the investigation in a variety of ways. See

"Information for the Guidance of Parties to Safety Board

Investigations of Accidents" ("Guidance"), reprinted in Br.

for Respondents at 1c; see also "Guidance for Party Coordi-

nators and Other Participants in the Investigation of Aircraft

Accidents," 2 National Transportation Safety Board Aviation

Investigation Manual, app. D (containing much of the same

information). They provide information about their products

or activities. They may also join various groups organized

for the investigation, such as a group organized to investigate

hazardous materials. They report to the investigator in

charge, who, in turn, provides the groups and parties with

information about any developments in the investigation.

These groups may then write a report at the end of the

investigation detailing their findings and suggestions. Par-

ties may also submit their own report at the end of the

investigation suggesting the probable cause of the accident.

In addition to the reports submitted by the investigation

groups and the parties, NTSB investigators also prepare

factual accident reports that are submitted to the Board.

Public hearings are sometimes held. From this information,

the Board compiles and publishes a final accident report that

contains factual findings, a probable cause finding, and safety

recommendations.

B. The Investigation of Flight 1406

On September 5, 1996, Federal Express Flight 1406's cargo

caught fire. Unable to control it, the crew made an emergen-

cy landing, but smoke and fire destroyed the plane and most

of its cargo. NTSB immediately began an investigation,

which quickly focused on a DNA synthesizer as the possible

source of the fire's ignition. Chiron, who owns the synthesiz-

er, and PerSeptive, who manufactures it, were invited to

participate in the investigation. Both Chiron and PerSeptive

were actively involved in the investigation, but neither was

happy with its progress.

Chiron and PerSeptive have maintained that something

other than the DNA synthesizer may have started the fire on

Flight 1406. When they were unable to convince NTSB

investigators to focus on other possibilities, Chiron and Per-

Septive resolved to explore these possibilities on their own.

To that end, they sought to discover what else Federal

Express was carrying on Flight 1406. NTSB, however, re-

fused to disclose the cargo list. Chiron and PerSeptive then

filed formal petitions requesting the cargo information.

Their petitions were denied. The Board explained that party

status did not grant parties a right to information and that it

was withholding the information because Federal Express

considered the information to be a trade secret. See Letter

from Daniel D. Campbell, General Counsel, National Trans-

portation Safety Board, to Jay E. Grover, Director, Environ-

mental Health and Safety, Chiron Corp. (Oct. 31, 1997),

reprinted in Respondent's Appendix at 139-40; Letter from

Daniel D. Campbell, General Counsel, National Transporta-

tion Safety Board, to Jerry W. Cox (May 4, 1998), reprinted

in Respondent's Appendix at 151. This petition for review

followed.

II. Analysis

The first and, as it turns out here, only issue before the

court is a question of standing. If, as we hold, petitioners

lack standing, then this court is without jurisdiction to decide

the merits of their claims. See Steel Co. v. Citizens for a

Better Env't, 523 U.S. 83, 94-95 (1998). In order to establish

their standing, petitioners must show that they have suffered

a particularized injury to a cognizable interest, which is fairly

traceable to the Board's actions, and that a favorable judicial

decision will redress the injury. See Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560-61 (1992). The problem facing

petitioners in this case is that they have suffered no injury.

Petitioners argue that they are injured in two ways by the

Board's refusal to give them a copy of the cargo list. First,

they argue that the denial of information injures them, be-

cause they need the information to correct the Board's faulty

report, which may be used against them in a civil suit.

Second, they contend that they have suffered an information-

al injury, because, they claim, they have a legal right to

obtain the cargo list. These arguments are meritless.

A. Injury By Virtue of Civil Litigation

Petitioners apparently are afraid that the factual portion of

NTSB's report may be admitted as evidence in a lawsuit that

Federal Express has filed against them. See Joint Br. for

Petitioners at 21 ("[S]ome day a judge and/or a jury may be

asked to rely on supposedly 'factual' evidence from an NTSB

investigation that did not include all pertinent material.").

Petitioners object to the report as written, and they hope that

the information they seek will reveal new evidence that they

can employ to convince the NTSB to change its report so that

it will not be so damaging to them in the pending lawsuit.

This alleged injury is not cognizable, because petitioners

bring this petition for review as parties to an NTSB investi-

gation, and, as parties, they cannot claim injuries that they

might suffer as defendants in an entirely separate civil law-

suit.

As an initial matter, we reject the premise that NTSB's

report itself is admissible in a civil lawsuit. Congress has

quite explicitly provided that,

[n]o part of a report of the Board, related to an accident

or an investigation of an accident, may be admitted into

evidence or used in a civil action for damages resulting

from a matter mentioned in the report.

49 U.S.C. s 1154(b) (1994). The simple truth here is that

NTSB investigatory procedures are not designed to facilitate

litigation, and Congress has made it clear that the Board and

its reports should not be used to the advantage or disadvan-

tage of any party in a civil lawsuit. In our view, this

congressional mandate could not be clearer.

Petitioners point out that, despite the statute's clear lan-

guage, some early circuit court opinions held that NTSB

"factual findings" were admissible in civil litigation. Joint Br.

for Petitioners at 20 (citing authority). A careful review of

these opinions, however, shows that these early cases actually

focused only on the admissibility of investigators' reports

which were mislabeled by the courts as "report[s] of the

Board." See, e.g., American Airlines, Inc. v. United States,

418 F.2d 180, 196 (5th Cir. 1969) (allowing admission of

graphs that were based on information from a safety commit-

tee's report); Berguido v. Eastern Air Lines, Inc., 317 F.2d

628, 631-32 (3d Cir. 1963) (allowing testimony of witness

based on investigator's report); Lobel v. American Airlines,

Inc., 192 F.2d 217, 220 (2d Cir. 1951) (allowing admission of

an investigator's report of his examination of the plane wreck-

age). Because of this judicial mislabeling, these circuits

created what they supposed was an "exception" to s 1154(b)

for factual data from NTSB investigations in order to protect

the interests of alleged victims. See, e.g., Berguido, 317 F.2d

at 631-32 (finding testimony based on an investigator's report

admissible, despite the statute, because of the need to "com-

promise between the interests of those who would adopt a

policy of absolute privilege ... and the countervailing policy

of making available all accident information to litigants in a

civil suit"). In short, the need to insure that victims had

access to investigators' factual data surrounding an accident

prompted the courts in the early years to allow admission of

what they labeled as a "report of the Board."

When faced with the judiciary's literal distortion of the

statute, the Board, in 1975, responded by amending its regu-

lations to make clear that investigators' reports--the very

reports that some courts were already admitting--are not

"reports of the Board" for the purpose of s 1154(b). Section

835.2 defines the Board's accident report as "the report

containing the Board's determinations, including the probable

cause of an accident." 49 C.F.R. s 835.2 (1998). No part of

this report "may be admitted as evidence or used in any suit

or action for damages growing out of any matter mentioned

in such reports." Id. (using almost the exact language of 49

U.S.C. s 1154(b)). A "factual accident report," on the other

hand, is "an investigator's report of his investigation of the

accident." Id. Because this report is not a "report of the

Board," it is not barred by the statute and is therefore

admissible. As counsel for NTSB made clear during oral

argument, the only reports that are admissible "are the

factual reports that investigators do, not the Board's findings,

either factual or probable cause, but what individual investi-

gators find.... [T]hose reports of these factual develop-

ments are made part of the record and parties can get that."

Audio-tape of Oral Arguments (Nov. 15, 1999). Thus, be-

cause investigators' reports are now plainly admissible under

agency regulations, victims have access to necessary factual

information. Therefore, courts no longer need to employ an

"exception" to the statute to protect parties in litigation.

Our research indicates that, since the promulgation of the

Board's 1975 rule, only two circuit court opinions have failed

to recognize that the admissibility of investigators' reports

obviates the need for a judicial exception to the statute. See

Mullan v. Quickie Aircraft Corp., 797 F.2d. 845, 848 (10th

Cir. 1986) ("[E]xpert witness properly relied on the factual

portions of the NTSB report."); Curry v. Chevron, USA 779

F.2d 272, 274 (5th Cir. 1985) (acknowledging judicial gloss of

the statute "that allow[s] factual portions of the report to be

admitted"). In each case, the courts distinguished between

the "factual portions" of Board reports and "parts of NTSB

reports which contain agency conclusions on the probable

cause of accidents." Mullan, 797 F.2d at 848. However,

neither opinion is weighty authority, even for the limited rule

enunciated, because there are later decisions from both cir-

cuits that adhere to the strict terms of the statute. Subse-

quent to Mullan, the Tenth Circuit has held that, "[c]onsis-

tent with its fact-finding mission that is litigation neutral,

NTSB reports are barred as evidence in court." Thomas

Brooks v. Burnett, 920 F.2d 634, 639 (10th Cir. 1990); accord

Jetcraft Corp. v. Flight Safety Int'l, 16 F.3d 362, 366 (10th

Cir. 1993). And even more recently, in 1998, the Fifth Circuit

has noted that:

Federal law flatly prohibits the NTSB accident report

from being admitted into evidence in any suit for dam-

ages arising out of accidents investigated by the NTSB.

Campbell v. Keystone Aerial Surveys, Inc., 138 F.3d 996,

1001 (5th Cir. 1998).

We agree with these recent decisions from the Fifth and

Tenth Circuits, and also a decision from the Ninth Circuit, see

Benna v. Reeder Flying Serv., Inc., 578 F.2d 269, 271 (9th

Cir. 1978), holding that, under the plain terms of the statute,

NTSB reports are inadmissible in civil litigation. When the

statute was interpreted broadly to include investigators' re-

ports, there may have been a public policy justification for

admitting factual information. However, once the statute was

interpreted more narrowly, no justification remained for any

exception to s 1154(b).

Moreover, as this case demonstrates, admitting Board re-

ports into civil litigation can have the unsavory affect of

embroiling NTSB in the interests of civil litigants. Thus, the

statute means what it says: No part of the Board's actual

report is admissible as evidence in a civil suit. See Universal

Airline, Inc. v. Eastern Air Lines, Inc., 188 F.2d 993, 1000

(D.C. Cir. 1951) (noting that the Board should not be com-

pelled to produce its reports). Because it is the Board's

actual report that petitioners hope to change, they are not

injured by their inability to change it, because it is not

admissible in a civil suit.

Even if the report were admissible, however, petitioners'

injury as civil litigants is simply not cognizable in this case.

Petitioners bring this suit as parties to an NTSB investiga-

tion. As parties, they signed a statement agreeing that their

participation would be for the purpose of assisting NTSB's

investigation and would not be for the purpose of preparing

for litigation. See Statement of Party Representatives to

NTSB Investigation, reprinted in 1 Deferred Appendix at

435. Furthermore, NTSB's investigations are fact-finding

proceedings; they are not conducted for the purpose of

determining the rights or liabilities of any party. Therefore,

the injuries petitioners might suffer as civil defendants are

not relevant to their status as parties. Accordingly, because

petitioners bring this suit as parties to an NTSB investiga-

tion, their injuries as civil litigants are not legally cognizable.

Whatever data they may require in litigation, apart from the

Board's report, may be obtained through the normal course of

discovery.

B. Informational Injury

Petitioners also argue that NTSB's denial of information

has caused them an informational injury. Petitioners rely

principally on Cummock v. Gore, 180 F.3d 282 (D.C. Cir.

1999), which held that, as a member of a committee regulated

by the Federal Advisory Committee Act ("FACA"), Cummock

had a right of participation that created a right to informa-

tion, and that "she suffered an injury under FACA insofar as

the Commission denied her requests for information that it

was required to produce." 180 F.3d at 290. Petitioners

argue that, "as parties to an NTSB investigation," they have

"judicially-enforceable Cummock rights" that entitle them to

the information they seek. Joint Br. for Petitioners at 26.

Petitioners' argument fails, however, because, unlike FACA,

nothing in NTSB's statute, regulations, or other sources of

law requires NTSB to produce this information to petitioners.

Therefore, the denial of information does not give rise to an

informational injury.

Unlike FACA, NTSB's organic statute does not grant

parties to an NTSB investigation rights of participation.

FACA provides that federal advisory committees are "to be

fairly balanced" and structured to insure that the advice of

the committee reflects its "independent judgment." 5

U.S.C.A. app. 2 s 5(b)(2) (1996); id. at s (b)(3). In Cum-

mock, this court held that, "to give meaning to FACA's fair

balance and independent judgment provisions, the Act must

be read to confer on a committee member the right to fully

participate in the work of the committee to which he or she is

appointed." Id. at 291. The right of participation, the court

held, endowed committee members with a right to informa-

tion. See id. at 292. NTSB's statute does not confer any

such rights on a party to an investigation. Congress, quite

simply, provided that "[t]he National Transportation Safety

Board shall investigate or have investigated (in detail the

Board prescribes) and establish the facts, circumstances, and

cause or probable cause of--(A) an aircraft accident...." 49

U.S.C. s 1131(a)(1). The statute does not require the investi-

gation either to be balanced or even to involve any outside

persons; it places the responsibility of investigating the acci-

dent solely within NTSB's hands. Thus, nothing in the

statute gives petitioners the Cummock rights of participation

and information that they seek to enforce.

In addition, there is legislative history showing that Con-

gress did not want the interests of private parties to constrain

an NTSB investigation. The Senate Committee on Com-

merce, Science, and Transportation noted that "[c]ourts typi-

cally have recognized and appreciated the important public

purpose served by the NTSB's ability to conduct prompt

investigations without the burdens and interference that

would stem from injecting the civil litigation interests into the

NTSB's accident investigation process." S. Rep. No. 101-450,

at 5. The Committee continued, adding that

[t]he time devoted by NTSB investigations in defending

their decisions diverts the energies that they should be

directing to investigating the accidents.... [T]he com-

mittee strongly believes that the ability of the NTSB to

conduct investigations independently, thoroughly, and in

a timely manner for the benefit of the public, should not

be compromised.

Id. Equipping parties with a right to information would

"inject[ ] the civil litigation interests into the NTSB investiga-

tion process" and compromise the investigation, a prospect

against which Congress admonished. Thus, not only does the

statute fail to endow parties with a right to information,

legislative history admonishes against reading such a right

into the statute.

Neither can the right be found, as petitioners argue, in

either NTSB's regulations or a Guidance that NTSB gave

petitioners as parties to the investigation. Nothing in the

regulations speaks to the rights petitioners seek to enforce,

and the Guidance is not a source of law enforceable against

NTSB. Petitioners point to a handful of regulations that they

argue create a right to information, but they are grabbing at

straws. 49 C.F.R. s 831.11(a), which states that NTSB shall

only appoint parties who "can provide suitable qualified tech-

nical personnel actively to assist in the investigation," does

not, as petitioners argue, require NTSB to provide parties

with all the facts of an investigation. Rather, the regulation

speaks only to qualifications necessary to become a party:

The corporation or individual must provide someone who has

the time and expertise to assist the investigation. Likewise,

s 831.11(a)(4), which provides that the FAA and other quali-

fied entities will have "the same rights and privileges ... as

other parties" does not itself provide rights to any party.

Finally, s 831.14(a) cannot, as petitioners argue, endow par-

ties with any rights, because it merely says that "[a]ny

person ... may submit to the Board written proposed find-

ings to be drawn from the evidence produced during the

course of the investigation." 49 C.F.R. s 831.14(a) (1998)

(emphasis added).

Petitioners' most noteworthy argument rests on part four

of the NTSB Guidance that is given to all parties to an

investigation. The Guidance says that "[a]ll factual informa-

tion and developments of the investigation that are made

known to the [Investigator in Charge] will be passed to each

party spokesman." Guidance, reprinted in Br. for Respon-

dents at 2c. Petitioners maintain that, pursuant to this

statement in the agency's Guidance, they have a legal right to

information. Petitioners' problem, however, is that the Guid-

ance does not establish a binding legal norm.

Petitioners argue that the Guidance is binding on the

Board, because it is incorporated into the Board's regulations.

Petitioners' attempt to demonstrate this incorporation at oral

argument was, as they acknowledged, convoluted. Counsel

argued that s 831.11(b) requires parties to sign a "Statement

of Party Representatives to NTSB Investigation," and the

Statement then connects to the Guidance, which contains the

sentence endowing them with a right to the information. In

their brief, petitioners simplified the route and argued instead

that the Party Statement itself "spells out Petitioners' rights

and the procedures NTSB would follow, and promised Peti-

tioners full participation and sharing in all pertinent factual

developments and deliberations." Joint Br. for Petitioners at

11. Both versions are wrong.

The Party Statement gives petitioners no rights. It is a

one-page document that discusses their duties as parties and

requires them to waive their right to assert privilege in

litigation with respect to information or documents obtained

during the course of the investigation. It does not discuss

their rights as parties, let alone "promise[ ] Petitioners full

participation and sharing in all pertinent factual develop-

ments." It entitles petitioners to nothing. Neither does the

Party Statement incorporate the Guidance. The Party State-

ment makes no reference--either explicitly or implicitly--to

the Guidance. Thus, there is no link between the Board's

regulations and the Guidance.

Without that link, the Guidance is not a source of law;

rather it is exactly what it appears to be, a hand-out that

gives information, not rights, to parties in an NTSB investiga-

tion. While some unpublished agency pronouncements can

be binding, not every "piece of paper emanating from a

Department or Independent Agency is a regulation." Pic-

cone v. United States, 407 F.2d 866, 877 (Ct. Cl. 1969)

(Nichols, J., concurring). The general test is whether the

agency intended to bind itself with the pronouncement. See

Padula v. Webster, 822 F.2d 97, 100 (D.C. Cir. 1987). Agency

intent is "ascertained by an examination of the provision's

language, its context, and any available extrinsic evidence."

Doe v. Hampton, 566 F.2d 265, 281 (D.C. Cir. 1977). Here,

petitioners make no showing, and we can find none, that

NTSB intended the Guidance to be binding.

NTSB certainly never has stated an intention to be bound

by the Guidance. See Service v. Dulles, 354 U.S. 363, 373-74,

377-82 (1957) (finding departmental regulations to be binding

where the agency explicitly adopted the regulations to bind

its discretion). Indeed, we cannot imagine why NTSB would

ever limit its ability to collect and digest information as it

sees fit. The agency is not in the business of facilitating

private investigations by private parties, so it would make no

sense for NTSB to bind itself to serve as a repository of

information for private parties who are angling to protect

their interests in litigation. The Guidance simply indicates

that, during an investigation, parties may share in some

information gathered by the Board; however, the Guidance

guarantees nothing.

Manuals or procedures may be binding on an agency when

they affect individuals' rights. See Morton v. Ruiz, 415 U.S.

199, 235 (1974) (holding that an agency is bound by proce-

dures in its manual where an individual's entitlement to

government benefits was affected by procedures); Massachu-

setts Fair Share v. Law Enforcement Assistance Admin., 758

F.2d 708, 711 (D.C. Cir. 1985) (holding that an agency is

bound by regulations in its manual delineating procedures for

grant-funding). But see Schweiker v. Hansen, 450 U.S. 785,

789 (1981) (declining to find internal rules set forth in a

handbook binding where relief would have been inconsistent

with a published regulation). Because an NTSB investigation

does not itself determine the rights of the parties, see 49

C.F.R. s 831.4 ("Accident/incident investigations are fact-

finding proceedings.... [They] are not conducted for the

purpose of determining the rights or liabilities of any per-

son."), however, the Guidance cannot be viewed as a binding

rule on these terms.

In sum, because NTSB has never indicated an intention to

be bound by the Guidance and because the investigation does

not affect petitioners' rights, the Guidance does not endow

petitioners with any rights to seek the information at issue.

Accordingly, they have not suffered any informational injury.

III. Conclusion

Petitioners cannot demonstrate that NTSB's denial of the

information they seek has injured them. Without injury,

petitioners have no standing to bring this suit. Therefore,

the petition for review is dismissed.