Appeal from a three-judge District Court's judgment rejecting
appellant's constitutional attack on § 3 of the Federal
Insecticide, Fungicide, and Rodenticide Act, governing registration
of pesticides, is dismissed for want of jurisdiction, where it
appears that the attack was, as a legal matter, on agency practice,
not on the statute, and thus that the three-judge court was
improperly convened.
PER CURIAM.
Appellant contends that the use of one submitter's data, filed
prior to 1970, in the consideration of another person's application
for registration of pesticides under § 3 of the Federal
Insecticide, Fungicide, and Rodenticide Act (FIFRA), as added by
the Federal Environmental Pesticide Control Act of 1972, 86 Stat.
979, and as amended, 89 Stat. 755, 7 U.S.C. § 136a, effects a
taking for private use and without compensation in violation of the
Fifth Amendment to the Constitution, and that the Act is, to that
extent, invalid. A three-judge court was convened under former 28
U.S.C. § 2282 (1970 ed.), and proceeded to reject these
contentions. Appellant seeks to appeal directly to this Court.
Having examined the Act and the papers before us, however, we are
convinced that whatever may be true with respect to data submitted
after January 1, 1970, the FIFRA, as amended, does not at all
address the issues of the conditions under which pre-1970 data may
be used in considering another application. It neither authorizes,
forbids, nor requires the existing agency practice with respect to
pre-1970 data. As a legal matter, then, appellant's attack is on
agency practice,
Page 439 U. S. 321
not on the statute. The three-judge court was thus improperly
convened,
William Jameson & Co. v. Morgenthau,
307 U. S. 171,
307 U. S.
173-174 (1939), and this Court does not have
jurisdiction to entertain a direct appeal from the judgment in such
case.
See 28 U.S.C. § 1253;
Norton v. Mathews,
427 U. S. 524,
427 U. S.
528-530 (1976). The appeal is accordingly dismissed for
want of jurisdiction.
So ordered.
MR. JUSTICE BLACKMUN, dissenting.
I am of the view that the 1975 amendments to FIFRA specifically
address the practices of the EPA, and permit and ratify them. The
constitutionality of the statute is therefore necessarily drawn
into question in this lawsuit.
See Flast v. Cohen,
392 U. S. 83,
392 U. S. 88-91,
and n. 3 (1968). I therefore conclude that the three-judge District
Court was properly convened. On the merits, I would affirm the
judgment of the District Court.
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