Fleming Companies, Inc. v. Department of Agriculture

* Pursuant to 5TH CIRCUIT RULE 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIRCUIT
RULE 47.5.4.
1 7 C.F.R. § 46.2(u) (2005).
2 7 U.S.C. § 499a–s (1996).
1
United States Court of Appeals
Fifth Circuit
F I L E D
February 1, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 04-40802
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FLEMING COMPANIES, INC.,
Plaintiff–Appellant,
v.
DEPARTMENT OF AGRICULTURE,
Defendant–Appellee.
Appeal from the United States District Court
for the Eastern Division of Texas
4:03-CV-380-RAS
Before SMITH, DENNIS, and PRADO, Circuit Judges.
EDWARD C. PRADO, Circuit Judge:*
In this appeal, Plaintiff–Appellant Fleming Companies, Inc.
challenges the “Batter-Coating Rule,”1 a regulation promulgated by
the U.S. Department of Agriculture (“USDA”) pursuant to the
Perishable Agricultural Commodities Act (“PACA”),2 on two grounds:
first, that the rule is invalid pursuant to Chevron U.S.A., Inc.

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3 467 U.S. 837 (1984).
4 5 U.S.C. § 706(2)(A) (1996).
2
v. National Resources Defense Council, Inc.;3 second, that the
USDA’s decision-making with regard to the Batter-Coating Rule was
“arbitrary and capricious” in violation of the Administrative
Procedures Act (“APA”).4 Essentially for the reasons articulated
by the district court in its comprehensive opinion on motions for
summary judgment, Fleming Companies, Inc. v. U.S. Department of
Agriculture, 322 F.Supp.2d 744 (E.D.Tex. 2004), we AFFIRM.

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