UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


CHIRON CORP

v.

NTSB


98-1558a

D.C. Cir. 1999


*	*	*


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


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


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


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


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


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


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


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


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


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,


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


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


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.


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


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.