Fleming Companies v. Dept of Agriculture, No. 04-40802 (5th Cir. 2006)

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United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT February 1, 2006 )))))))))))))))))))))))))) Charles R. Fulbruge III Clerk No. 04-40802 )))))))))))))))))))))))))) 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pursuant to Chevron U.S.A., Inc. * Pursuant to 5TH CIRCUIT RULE 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIRCUIT RULE 47.5.4. 1 7 C.F.R. § 46.2(u) (2005). 2 7 U.S.C. § 499a s (1996). 1 v.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. 3 467 U.S. 837 (1984). 4 5 U.S.C. § 706(2)(A) (1996). 2

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