WILLIAM D. RUCKELSHAUS, ADMINISTRATOR, UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY, APPELLANT v. UNION CARBIDE AGRICULTURAL PRODUCTS,
CO., INC., ET AL.

   No. A-178

   In The Supreme Court Of The United States

   October Term, 1984

   Application For A Stay Of The Judgment Of The United States
District Court For The Southern District Of New York Pending
Disposition Of Direct Appeal

   Application For A Stay Of The Judgment Of The United States
District Court For The Southern District Of New York Pending
Disposition Of Direct Appeal

   Pursuant to Rules 43 and 44 of the Rules of this Court and the All
Writs Act, 28 U.S.C. 1651, the Solicitor General, on behalf of William
D. Ruckelshaus, Administrator of the United States Environmental
Protection Agency (EPA), applies for a stay pending appeal to this
Court of the judgment entered in this case by the United States
District Court for the Southern District of New York on August 7,
1984, and amended by that court on September 4, 1984.  /1/

   This case was before the Court last Term (No. 83-1564).  On July 2,
1984, the Court vacated the judgment and remanded the case for
reconsideration by the district court in light of this Court's
decision in Ruckelshaus v. Monsanto Co., No. 83-196 (June 26, 1984).

   On remand, the court below reentered its judgment declaring an Act
of Congress unconstitutional.  The statute at issue is Section
3(c)(1)(D)(ii), 7 U.S.C. 136a(e)(1)(D)(ii), a critical provision of
the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), that
provides for arbitration to determine the amount of compensation due
the submitters of pesticide data when those data are relied on by
other applicants.  The district court held that the statute violates
Article III because it bars courts from reviewing arbitrators'
decisions except in instances of "fraud, misrepresentation, or other
misconduct" (571 F. Supp. at 124).  In directing relief, the court
entered an injunction far broader than its holding warranted.  While
the constitutional defect the court found would be cured merely by
striking the limitation on judicial review, the court instead declared
the entire compensation and arbitration scheme unconstitutional, and
enjoined EPA from "permitting or implementing any use of data where
the submitter's compensation is to be determined under the said
section 3(c)(1)(D)" unless the original data submitter consents to the
use of such data (Appendix C).  The Solicitor General has authorized a
direct appeal to this Court, and the government's notice of appeal was
filed on September 6, 1984.  A stay is needed so that the statute can
remain in effect pending the disposition of the Administrator's direct
appeal to this Court under 28 U.S.C. 1252.

   1. The structure and purpose of Section 3(c)(1)(D) of FIFRA, as
amended in 1978, are discussed in detail in Monsanto.  Slip op. 5-7.
The changes to Section 3(c)(1)(D) made by the Federal Pesticide Act of
1978, Pub. L. No. 95-396, 92 Stat. 819, were designed to eliminate
needless duplicative research, and to promote competition by removing
undesired barriers to market entry.  Monsanto, slip op. 26.  To
provide extra incentives for continued innovative research, data
submitted on new active ingredients in pesticides first registered
after the date of the 1978 amendments are afforded "exclusive use"
protection for a period of ten years after the registration is
granted, i.e., other applicants cannot rely on such data without the
original submitter's consent.  Section 3(c)(1)(D)(i).  Under the 1978
amendments, all other data are made available for any applicant to
cite in support of his application, without the original submitter's
permission, although data submitted after 1969 may be cited only if
the applicant complies with the requirements of the compensation
provisions of Section 3(c)(1)(D)(ii).

   The 1978 amendments further modified the mandatory data licensing
and compensation provision of FIFRA to alter significantly the means
by which compensation disputes would be resolved.  Under the prior
statute, EPA was assigned the role of deciding the terms and amount of
compensation when an original data submitter and a later applicant
could not agree.  Under the 1978 amendments, either party may initiate
arbitration proceedings by asking the Federal Mediation and
Conciliation Service to designate an arbitrator.  Section
3(c)(1)(D)(ii).  The statute further provides that the "findings and
determination of the arbitrator shall be final and conclusive" and not
subject to judicial review "except for fraud, misrepresentation, or
other misconduct by one of the parties to the arbitration or the
arbitrator" (ibid.).  /2/

   2. Several large pesticide firms brought this action in 1976
challenging provisions of FIFRA, as amended in 1972 and 1975.
Following the 1978 amendments, plaintiffs challenged the
constitutionality of both the data consideration and data disclosure
provisions, alleging the statute violated the Fifth Amendment's Taking
and Due Process Clauses.  A preliminary injunction preventing use or
disclosure of data submitted prior to the 1978 amendments was reversed
by the Second Circuit because plaintiffs had failed to show a
likelihood of success on the merits.  Union Carbide Agricultural
Products v. Costle, 632 F.2d 1014 (1980), cert. denied, 450 U.S. 996
(1981).  Thereafter, plaintiffs stipulated to dismissal of all claims
except a due process challenge to the disclosure of data submitted
prior to 1978 and a claim that the arbitration and compensation
provisions were an unconstitutional delegation of legislative power.
Following this Court's decision in Northern Pipeline Construction Co.
v. Marathon Pipe Line Co., 458 U.S. 50 (1982), plaintiffs added a
claim that the arbitration and compensation scheme violated Article
III of the United States Constitution because the statute
impermissibly assigned judicial functions to the arbitrators and
limited judicial review.

   In 1983, the district court entered summary judgment in favor of
plaintiffs on their Article III claims (App. C).  /3/ The court first
rejected the government's contention that any challenge to the
compensation and arbitration scheme was not ripe for review until a
party had suffered concrete injury from the results of a specific
arbitration (571 F. Supp. at 123, n.2).  In the court's view, there
was no "profit" in delaying resolution of the issue;  the mere
"statutory compulsion to seek relief through arbitration" was found
sufficient to create a concrete case or controversy.  Ibid.  The court
held that the dispositive factor in determining the Article III issue
was that the arbitration procedure "commits to arbitrators the power
to resolve valuation issues utterly without judicial review" and
further held that "this absolute assignment of power to arbitrators is
an impermissible intrusion on the judiciary." Id. at 124.

   On the basis of this holding, the district court entered a broad
injunction.  Rather than striking down only the limitation on judicial
review, the court enjoined the entire statutory mechanism for
mandatory data licensing and compensation for post-1969 data.  In
effect, the injunction created a right to exclusive use of data
submitted after 1969 by all pesticide registration applicants.

   The government appealed the 1983 judgment directly to this Court
(No. 83-1564) pursuant to 28 U.S.C. 1252 and urged the Court to
dispose of the case in accordance with the anticipated decision in
Monsanto, where the same issues were presented.  83-1564 J.S. 6-13.
In Monsanto, the Court held the same Article III issue was not ripe
because the company had not participated in and been injured by an
arbitration.  Slip op. 30-31.

   3. On remand following the decision in Monsanto, plaintiffs amended
their complaint and filed motions for reentry of judgment and for a
preliminary injunction.  The amended complaint alleged that one of the
plaintiffs, Stauffer Chemical Company, had submitted data to EPA in
support of registrations for pesticides containing butylate;  that EPA
had considered those data without Stauffer's consent in granting a
registration to PPG Industries, Inc., for a pesticide containing the
same active ingredient;  that Stauffer had invoked the arbitration
provisions of FIFRA against PPG;  and that the arbitration panel made
an award on June 28, 1983, in an amount less than Stauffer had
demanded.  Amended Complaint for Declaratory and Injunctive Relief,
filed July 16, 1984.  The amended complaint, however, did not request
that the award be modified or set aside, nor did it allege any legal
defects in the award, other than the previous claim that the procedure
for reaching the award was unconstitutional.  /4/ The only requested
relief was prospective, i.e., that the statutory provisions be
declared unconstitutional and that EPA be enjoined from implementing
the data consideration scheme under which compensation is to be
determined by arbitration (ibid.).

   The district court concluded that "under the amended complaint the
issue (was) ripe as to data submitted by plaintiff Stauffer Chemical
Company post-1978 as to which there has been an award by an
arbitrator" and that there was no basis for changing its earlier
decision (App. A at 1).

   On August 16, 1984, the government filed a motion in the district
court, asking for a stay of the judgment in its entirety, pending
direct appeal to this Court pursuant to 28 U.S.C. 1252, or in the
alternative for a stay of the judgment except insofar as the judgment
applies to data submitted by the Stauffer Chemical Company, the only
plaintiff as to which the district court had made a finding that the
issues were ripe for adjudication.  On September 4, 1984, the district
court denied the Administrator's motion for stay of the judgment below
(Appendix D, infra).

   4. Rules 43 and 44 of the Rules of this Court, and the All Writs
Act, 28 U.S.C. 1651, authorize this Court or any Justice to stay a
district court judgment pending a direct appeal under 28 U.S.C. 1252.
See, e.g., Rostker v. Goldberg, 488 U.S. 1306 (1980) (Brennan, Circuit
Justice);  Graves v. Barnes, 405 U.S. 1201, 1203 (1972) (Powell,
Circuit Justice).  In considering applications for such a stay, the
Court weighs:  (1) whether there is a "reasonable probability" that
four Justices would vote to note probable jurisdiction;  (2) whether
there is a "fair prospect" that a majority of the Court would conclude
that the decision below was in error;  (3) whether irreparable harm is
likely to occur absent a stay;  and (4) the balance of the equities,
including the relative harm to the applicant, the respondent, and the
public interest.  Rostker v. Goldberg, supra.  See also Graves v.
Barnes, supra;  Republican State Central Committee v. Ripon Society,
Inc., 409 U.S. 1222, 1227 (1972).

   Since the court below has declared a significant portion of a
federal statute unconstitutional, echoing its previous judgment --
that this Court vacated on July 2, 1984 -- this case clearly satisfies
the first criterion.  For the reasons explained below, application of
the remaining criteria supports the issuance of a stay.

   a. Probability of success on the merits.  The district court's
decision is incorrect and the government is likely to prevail on
appeal.  The decision below does not adhere to the rule that
"legislative acts adjusting the burdens and benefits of economic life
come to the Court with a presumption of constitutionality * * *."
Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 15 (1979).  /5/ The
district court's opinion is inconsistent with this Court's holding in
Monsanto that this same issue is not presently justiciable (slip op.
31), is contrary to decisions of this Court upholding binding
arbitrations for statutorily created entitlements, and in any event
ignores this Court's precedents regarding the severability of
statutory provisions.

   (1). Contrary to the district court's conclusion, plaintiffs'
constitutional challenge to the arbitration and compensation scheme
does not present a justiciable case or controversy.  When this case
was before the Court last Term none of the parties had alleged or
established that it had been injured by an actual arbitration under
the statute.  In those circumstances, as the Court held in Monsanto,
the issue was not ripe for review.  Ripeness is a threshold element of
Article III's requirement of a case or controversy, see Duke Power Co.
v. Carolina Environment Study Group, Inc., 438 U.S. 59, 81 (1978);
Regional Rail Reorganization Act Cases, 419 U.S. 102, 138 (1974).
Accordingly, federal courts are without jurisdiction to adjudicate
hypothetical disagreements or abstract claims before action has been
taken that causes concrete injury to an aggrieved party.  Abbott
Laboratories v. Gardner, 387 U.S. 136, 148-149 (1967);  Toilet Goods
Association v. Gardner, 387 U.S. 158, 164 (1967).

   Nothing that has transpired since this Court vacated the earlier
judgment has materially changed the situation.  The belated allegation
that Stauffer, alone among the plaintiffs, had been a party to an
arbitration, does not create a case or controversy.  Stauffer has not
asserted that the award was inadequate or inconsistent with the
substantive or procedural requirements of the statute, nor has it
asked any court to review, increase, or set aside the award.  Indeed,
plaintiffs informed the district court that they "do not challenge the
result of any arbitration, nor does the adjudication of plaintiffs'
claims depend in any manner on the outcome of an arbitration."
Memorandum in Support of Plaintiffs' Motion for Reentry of Judgment,
July 16, 1984, at 6.  Most tellingly, in a pending action brought by
PPG for review of the award, see note 4, supra, Stauffer has
counterclaimed for enforcement of that very arbitration award and, in
the alternative, has counterclaimed for damages from PPG in the amount
of the arbitration award in the event the statutory compensation
scheme is invalidated.

   To satisfy Article III's requirement of a case or controversy, a
party must show that it has suffered (or is threatened by) an actual
injury and that the requested relief would redress the claimed injury.
 Valley Forge Christian College v. Americans United for Separation of
Church and State, Inc., 454 U.S. 464, 472 (1982);  Duke Power Co. v.
Carolina Environmental Study Group, Inc., 438 U.S. at 72-73, 81.  This
requirement serves to define the judiciary's role in the allocation of
powers among the three branches of government (Valley Forge, 454 U.S.
at 473-474), and "to assure that concrete adverseness which sharpens
the presentation of issues upon which the court so largely depends for
illumination of difficult constitutional questions." Duke Power Co.,
438 U.S. at 72 (quoting Baker v. Carr, 369 U.S. 186, 204 (1962)).

   So long as Stauffer has no quarrel with the substance of the
arbitration award -- and so long as it requests no relief that would
increase the award -- it clearly has not suffered an injury of the
sort that would make its claim in this case justiciable.  /6/ When and
if Stauffer seeks judicial review of an arbitrator's decision it may
have a justiciable case and controversy -- not before.  /7/

   (ii). Even if plaintiffs' claim were presently justiciable, the
district court erred on the merits.  Contrary to the district court's
holding, FIFRA does not offend Article III by assigning the resolution
of a compensation dispute to an arbitrator whose decision is subject
to limited judicial review.  This Court has upheld laws that
"withdr(e)w judicial review of administrative determinations in
numerous cases involving the statutory rights of private parties."
South Carolina v. Katzenbach, 383 U.S. 301, 333 (1966).  See
Switchmen's Union v. National Mediation Board, supra, 320 U-S. at
300-301, 302.  Northern Pipeline Construction Co. v. Marathon Pipe
Line Co., 458 U.S. 50 (1982), is not to the contrary.  The vice of the
1978 Bankruptcy Act was the assignment to the bankruptcy courts of the
authority to adjudicate traditional common law rights (458 U.S. at
81-86);  the challenged provisions of FIFRA deal only with a
statutorily-created right of recent vintage.  Indeed, the plurality in
Northern Pipeline reaffirmed Congress's constitutional authority to
proceed in this manner (458 U.S. at 83 (footnote omitted)):

      (W)hen Congress creates a statutory right, it clearly has the
      discretion, in defining that right, to create presumptions, or
      assign burdens of proof, or prescribe remedies;  it may also
      provide that persons seeking to vindicate that right must do so
      before particularized tribunals created to perform the
      specialized adjudicative tasks related to that right.

Thus, the court below erred in relying on Northern Pipeline to strike
down the arbitration provision.

   (iii). Finally, even if the district court had correctly found that
the statutory provision violates Article III, that conclusion would
not justify enjoining the operation of Section 3(c)(1)(D)(ii) in its
entirety.  The only appropriate relief in that event would be to
strike down the limitation on review, since there can be no doubt that
the scheme would be constitutional so long as judicial review can be
obtained in an Article III court.  See Northern Pipeline, supra, 458
U.S. at 83;  Crowell v. Benson, 285 U.S. 22, 50 (1932).  See also
United States v. Raddatz, 447 U.S. 667, 682-683 (1980);  St Joseph
Stock Yards Co. v. United States, 298 U.S. 38, 53 (1936).  /8/

   The district court's apparent conclusion that the limitation on
judicial review is integral to FIFRA's data consideration,
compensation and arbitration provisions cannot be sustained.  Whether
a statute or any of its provisions should be viewed as inseparable is
a matter of congressional intent.  INS v. Chadha, No. 80-1832 (June
23, 1983), slip op. 10-11;  Buckley v. Valeo, 424 U.S. 1, 108-109
(1976);  Tilton v. Richardson, 403 U.S. 672, 682-684 (1971);  Electric
Bond & Share Co. v. SEC, 303 U.S. 419, 434 (1938).  Here Congress has
plainly spoken, since FIFRA provides that the invalidity of "any
provision * * * or application thereof * * * shall not affect other
provisions or applications" (7 U.S.C. 136x).  The achievement of the
primary purpose of Section 3(c)(1)(D)(ii), to permit consideration of
data without the original submitter's permission and to provide a
compensation mechanism for that use of the data, is not dependent on
the limitation on judicial review.  Where, as here, "what remains
after severance 'is fully operative as a law,'" a provision will be
"presumed severable." INS v. Chadha, supra, slip op. 13, quoting
Champlin Refining Co. v. Corporation Commission, 286 U.S. 210, 234
(1932).  Moreover, there is nothing in the legislative history to
suggest that Congress would have failed to enact the provision without
such a limitation, and therefore nothing to overcome the presumption
of severability.  Accordingly, the district court failed to fulfill
its duty "to save and not to destroy" the remaining portions of the
statute.  Tilton v. Richardson, supra, 403 U.S. at 684, quoting NLRB
v. Jones & Laughlin Steel Corp., 301 U.S. 1, 30 (1937).

   b. Irreparable harm and balancing of the equities.

   (i). The injunction entered by the district court will cause
irreparable harm to the government, to the members of the regulated
pesticide industry upon whom the burden of data requirements will
fall, and to the public on whose behalf Congress acted to facilitate
market entry of new pesticide products.  If the injunction remains in
effect during review of the case by this Court, the congressional
scheme will again be thwarted.

   Since 1978, three separate injunctions in this case alone, as well
as the injunction in Monsanto, have frustrated EPA's efforts to
implement the statute.  This repeated interference with the will of
Congress is itself an injury to the functioning of our governmental
system:  "any time a State is enjoined by a court from effectuating
statutes enacted by representatives of its people, it suffers a form
of irreparable injury." New Motor Vehicle Board of California v. Orrin
W. Fox Co., 434 U.S. 1345, 1351 (1977) (Rehnquist, Circuit Justice).
There is no way to remedy such a loss after the government ultimately
prevails.  Furthermore, the government suffers a significant and
irretrievable loss when scarce administrative resources are drained
from other pressing needs in order to cope with the disruption created
by an injunction like the one entered below.

   Very real and irreparable harm will be suffered by applicants and
registrants who are not parties to this litigation if the lower court
injunction remains in effect through the next several months.  Some
applicants will not be able to enter the market.  /9/ Some registrants
may even be forced to give up existing registrations if they cannot
obtain permission to cite recently-submitted data to satisfy
conditions of their registrations imposed pursuant to Section
3(c)(7)(A) or (B), 7 U.S.C. 136a(c)(7)(A), (B).  This Court has found
that the data consideration provision of FIFRA was designed by
Congress to streamline the registration process so as to make new end
use products available to consumers more quickly, Monsanto, slip op.
26.  Because the costly duplication of government-mandated research is
also very time consuming, the operation of Section 3(c)(1)(D) during
this appeal is essential to prevent the barriers to market entry that
Congress wished to remove.  /10/

   (ii). In contrast, plaintiffs would suffer no irreparable harm
should the injunction be stayed.  The only harm plaintiffs asserted to
the district court is the possibility that they will not obtain the
statutory compensation for the use of their data while the case is
under review by this Court.  In other words, the "harm" to appellees
is that the congressional effort to confer an economic benefit upon
them may not succeed because of a constitutional infirmity.  That harm
can occur, however, only if this Court invalidates the compensation
scheme in a way that prevents plaintiffs from either invoking FIFRA's
compensation remedy or employing other remedies to obtain damages from
appropriate parties.

   That highly speculative possibility is not likely to occur.  Should
plaintiffs succeed in demonstrating that the provision for mandatory
arbitration with limited judicial review violates Article III, they
would not necessarily suffer any injury, much less irreparable harm.
As we have shown, simply striking the limitation on judicial review
would fully cure any possible constitutional infirmity;  in that
event, the statute remains capable of providing the required
compensation.  It is apparent, therefore, that the plaintiffs can make
no credible claim of irreparable injury.  /11/

                              CONCLUSION

   For the reasons stated above, the district court's judgment
enjoining operation of Section 3(c)(1)(D) should be stayed pending
appeal.  /12/

   Respectfully submitted.

   REX E. LEE

      Solicitor General

   SEPTEMBER 1984

   /1/ The district court judgment and order of August 7, 1984, is
attached to this application as Appendix A.  The district court's
Supplemental Findings of Fact, Conclusions of Law, and Order, dated
September 4, 1984, is attached as Exhibit B.  The prior opinion of the
district court is reported at 571 F. Supp. 117.  The unreported order
effectuating the prior opinion is attached as Appendix C.

   /2/ Section 3(c)(1)(D)(ii) also provides for sanctions against
parties who do not cooperate with the arbitration scheme.  If an
applicant fails to comply with the terms of a compensation agreement
or an arbitration award, its registration is subject to cancellation;
if a data submitter fails to participate or otherwise comply, it
forfeits its right to compensation.

   /3/ The due process claim was rejected and the delegation claim was
not reached by the court.

   /4/ In fact, review of the award is being sought, not by Stauffer,
but by PPG (which is not a party to the instant case).  In PPG
Industries, Inc. v. Stauffer Chemical Co., et al., Civil Action No.
83-1941 (D.D.C. filed July 7, 1983), PPG's complaint asks that the
award be set aside as excessive.  PPG claims alternatively that
Section 3(c)(1)(D) is unconstitutional under the Due Process Clause,
the Taking Clause and Article III.  Stauffer has not challenged the
award as being inadequate;  indeed, it has counterclaimed for
enforcement of the award.  In the alternative, Stauffer has
cross-claimed against EPA for a declaration that the statute violates
Article III and counterclaimed against PPG for cancellation of PPG's
registration and for damages in the amount of the award in the event
the statutory compensation scheme is invalidated.

   /5/ The "presumption of constitutionality" which is accorded a
federal statute also weighs heavily in favor of permitting the statute
to remain in effect pending a final decision on the merits by this
Court.  Marshall v. Barlow's, Inc., 429 U.S. 1347 (1977) (Rehnquist,
Circuit Justice);  Schweiker v. McClure, 452 U.S. 1301 (1981)
(Rehnquist, Circuit Justice).

   /6/ This Court held in Monsanto (slip op. 31;  emphasis added) that
"(t)he operation of the arbitration provisions affects only (the data
submitter's) ability to vindicate its statutory right to obtain
compensation from a subsequent applicant."

   /7/ Nor is any different result compelled by Stauffer's claim that
it is aggrieved by the requirement of seeking vindication of its
compensation right in a non-Article III forum.  This claim of injury
merely speculates about some possible future harm, and is barely more
than an abstract allegation that the Constitution will be violated.
As in Valley Forge, supra, such a claim is not sufficient, for it is
Stauffer's burden "to identify any personal injury suffered by (it) as
a consequence of the alleged constitutional error * * * ." 454 U.S. at
485 (emphasis in original).  Finally, the district court found
ripeness only as to Stauffer and not as to the other appellees.  Those
parties' only claim to injury was the possibility that they would be
forced to go through an arbitration;  this Court's decision in
Monsanto holds that this threatened injury is not sufficient to create
a case or controversy.

   /8/ If the review limitations alone were stricken, district courts
would have jurisdiction under 28 U.S.C. 1331 to review arbitration
decisions.  That too, however, is a question not ripe for adjudication
until district court review of a particular arbitration award is
sought.

   /9/ Persons who seek to register agricultural pesticides for sale
and use in the 1985 growing season will need to obtain EPA approval no
later than early 1985.  Most agricultural pesticides are designed for
use in the spring or early summer.  And before a product can be used,
the registrant must of course manufacture, package, label and
distribute it.

   /10/ EPA recently promulgated a final rule providing procedures for
implementing the data licensing and data compensation provisions of
Section 3(c)(1)(D).  49 Fed. Reg. 30884-30908 (August 1, 1984).  That
rule becomes effective upon completion of the 60-day statutory
congressional review period.  7 U.S.C. 136w(a)(4).  During the
pendency of the Monsanto injunction, EPA implemented the data
requirements aspects of registration through interim procedures under
which applicants could establish that they had permission to cite any
previously submitted data on which they rely.  Pesticide Registration
Notice 83-4 (and 83-4A).  See 48 Fed. Reg. 32012 (July 13, 1983).  If
the injunction is stayed, EPA will immediately modify those interim
procedures to permit applicants to establish either that they have
permission to cite previously submitted data or that they have made a
proper offer to pay for data compensation under Section 3(c)(1)(D).
Accordingly, EPA will promptly implement the enjoined provision if the
stay is granted.

   /11/ This consideration fully distinguishes Justice Blackmun's
decision to deny the government's stay application in Monsanto.
Ruckelshaus v. Monsanto Co., A-1066 (July 27, 1983).  There, Monsanto
presented a claim that data it had submitted were trade secrets;
Justice Blackmun concluded that a stay would permit disclosure and
licensing of such information, thereby breaching irrevocably any
protection Monsanto had enjoyed.  Here, however, the question is not
whether trade secret protection will be lost, but whether plaintiffs
will be prevented from recovering compensation or damages if they
prevail on the merits.

   /12/ Alternatively, should this Court determine that plaintiff
Stauffer is entitled to injunctive relief, the injunction should be
limited to Stauffer alone and should be stayed in all other respects.
Only Stauffer has been found by the district court (erroneously, in
our view) to have met the ripeness criterion established by this Court
in Monsanto.  The many other data submitters who will benefit from the
injunction are no differently situated than Monsanto, whose Article
III claim was held by this Court to be premature because of the
absence of a challenge by Monsanto to a specific arbitration award.
No different result should govern the availability of relief to other
data submitters who have never been involved in an arbitration, even
if the district court is correct in its determination that Stauffer
has presented a justiciable controversy.  See Marshall v. Barlow's,
supra, 429 U.S. at 1348.

                               APPENDIX