Ruckelshaus v. Monsanto Co.

*1021 Justice O’Connor,

concurring in part and dissenting in part.

I join all of the Court’s opinion except for Part IV-B and the Court’s conclusion, ante, at 1013, that “EPA’s consideration or disclosure of data submitted by Monsanto to the agency prior to October 22, 1972 . . . does not effect a taking.” In my view public disclosure of pre-1972 data would effect a taking. As to consideration of this information within EPA in connection with other license applications not submitted by Monsanto, I believe we should remand to the District Court for further factual findings concerning Monsanto’s expectations regarding interagency uses of trade secret information prior to 1972.

It is important to distinguish at the outset public disclosure of trade secrets from use of those secrets entirely within EPA. Internal use may undermine Monsanto’s competitive position within the United States, but it leaves Monsanto’s position in foreign markets undisturbed. As the Court notes, ante, at 1007, n. 11, the likely impact on foreign market position is one that Monsanto would weigh when deciding whether to submit trade secrets to EPA. Thus a submission of trade secrets to EPA that implicitly consented to further use of the information within the agency is not necessarily the same as one that implicitly consented to public disclosure.

It seems quite clear — indeed the Court scarcely disputes— that public disclosure of trade secrets submitted to the Federal Government before 1972 was neither permitted by law, nor customary agency practice before 1972, nor expected by applicants for pesticide registrations. The Court correctly notes that the Trade Secrets Act, 18 U. S. C. § 1905 , flatly proscribed such disclosures. The District Court expressly found that until 1970 it was Government “policy that the data developed and submitted by companies such as [Monsanto] be maintained confidentially by the [administrative agency] and was not to be disclosed without the permission of the data submitter.” Monsanto Co. v. Acting Administrator, EPA, 564 F. Supp. 552, 564 (1983). Finally, the Court, ante, at *1022 1009, n. 14, quotes from a 1972 statement by the National Agricultural Chemicals Association that “registration information submitted to the Administrator has not routinely been made available for public inspection.” It is hard to imagine how a pre-1972 applicant for a pesticide license would not, under these circumstances, have formed a very firm expectation that its trade secrets submitted in connection with a pesticide registration would not be disclosed to the public.

The Court’s analysis of this question appears in a single sentence: an “industry that long has been the focus of great public concern and significant government regulation” can have no reasonable expectation that the Government will not later find public disclosure of trade secrets to be in the public interest. Ante, at 1008. I am frankly puzzled to read this statement in the broader context of the Court’s otherwise convincing opinion. If the degree of Government regulation determines the reasonableness of an expectation of confidentiality, Monsanto had as little reason to expect confidentiality after 1972 as before, since the 1972 amendments were not deregulatory in intent or effect. And the Court entirely fails to explain why the nondisclosure provision of the 1972 Act, §10, 86 Stat. 989 , created any greater expectation of confidentiality than the Trade Secrets Act. Section 10 prohibited EPA from disclosing “trade secrets or commercial or financial information.” No penalty for disclosure was prescribed, unless disclosure was with the intent to defraud. The Trade Secrets Act, 18 U. S. C. §1905 , prohibited and still prohibits Government disclosure of trade secrets and other commercial or financial information revealed during the course of official duties, on pain of substantial criminal sanctions. The Court acknowledges that this prohibition has always extended to formal and official agency action. Chrysler Corp. v. Brown, 441 U. S. 281, 298-301 (1979). It seems to me that the criminal sanctions in the Trade Secrets Act therefore created at least as strong an expectation of privacy before 1972 as the precatory language of § 10 created after 1972.

*1023 The Court’s tacit analysis seems to be this: an expectation of confidentiality can be grounded only on a statutory nondisclosure provision situated in close physical proximity, in the pages of the United States Code, to the provisions pursuant to which information is submitted to the Government. For my part, I see no reason why Congress should not be able to give effective protection to all trade secrets submitted to the Federal Government by means of a single, overarching, trade secrets provision. We routinely assume that wrongdoers are put on notice of the entire contents of the Code, though in all likelihood most of them have never owned a copy or opened a single page of it. It seems strange to assume, on the other hand, that a company like Monsanto, well served by lawyers who undoubtedly do read the Code, could build an expectation of privacy in pesticide trade secrets only if the assurance of confidentiality appeared in Title 7 itself.

The question of interagency use of trade secrets before 1972 is more difficult because the Trade Secrets Act most likely does not extend to such uses. The District Court found that prior to October 1972 only two competitors’ registrations were granted on the basis of data submitted by Monsanto, and that Monsanto had no knowledge of either of these registrations prior to their being granted. 564 F. Supp., at 564 . The District Court also found that before 1970 it was agency policy “that the data developed and submitted by companies such as [Monsanto] could not be used to support the registration of another’s product without the permission of the data submitter.” Ibid. This Court, however, concludes on the basis of two cited fragments of evidence that “the evidence against the District Court’s finding seems overwhelming.” Ante, at 1010, n. 14. The Court nevertheless wisely declines to label the District Court’s findings of fact on this matter clearly erroneous. Instead, the Court notes that the “District Court did not find that the policy of the Department [of Agriculture] was publicly known at the time [before 1970] or that there was any explicit guarantee of exclusive use.” Ibid. This begs exactly the right question, but the *1024 Court firmly declines to answer it. The Court simply states that “there is some evidence that the practice of using data submitted by one company during consideration of the application of a subsequent applicant was widespread and well known.” Ante, at 1009 (footnote omitted). And then, without more ado, the Court declares that with respect to pre-1972 data Monsanto “could not have had a ‘reasonable investment-backed expectation’ that EPA would . . . use [the data] exclusively for the purpose of considering the Monsanto application in connection with which the data were submitted.” Ante, at 1010.

If one thing is quite clear it is that the extent of Monsanto’s pre-1972 expectations, whether reasonable and investment-backed or otherwise, is a heavily factual question. It is fairly clear that the District Court found that those expectations existed as a matter of fact and were reasonable as a matter of law. But if the factual findings of the District Court on this precise question were not as explicit as they might have been, the appropriate disposition is to remand to the District Court for further factfinding. That is the course I would follow with respect to interagency use of trade secrets submitted by Monsanto before 1972.