Amicus Curiae Brief — Excel Corp. v. Estate of Kriefall

MOTION FILED :

)

FEB 13 2004 ee

No. 03-862

Jn the Supreme Court of the Gnited States

EXCEL CORPORATION,

Petitioner,

V.

ESTATE OF BRIANNA KRIEFALL, ET AL.,

Respondent.

On Petition for a Writ of Certiorari to the

Court of Appeals of Wisconsin

MOTION FOR LEAVE TO FILE BRIEF AS AMICI

CURIAE AND BRIEF OF THE AMERICAN MEAT

INSTITUTE, THE NATIONAL CHICKEN COUNCIL,

THE NATIONAL FOOD PROCESSORS

ASSOCIATION, THE NATIONAL MEAT

ASSOCIATION, THE NATIONAL TURKEY

FEDERATION, THE NORTH AMERICAN MEAT

PROCESSORS ASSOCIATION, AND THE

SOUTHWEST MEAT ASSOCIATION AS AMICI

CURIAE IN SUPPORT OF PETITIONER

Roy T. ENGLERT, JR.*

ALAN E. UNTEREINER

ALISON C. BARNES

Robbins, Russell, Englert,

Orseck & Untereiner LLP

1801 K Street, N.W.

Suite 411

Washington, D.C. 20006

(202) 775-4500

* Counsel of Record

MOTION FOR LEAVE TO FILE BRIEF

AS AMICI CURIAE

Under Rule 37.2 of the Rules of this Court, the American

Meat Institute, the National Chicken Council, the National Food

Processors Association, the National Meat Association, the

National Turkey Federation, the North American Meat Proces-

sors Association, and the Southwest Meat Assaciation move for

leave to file the accompanying brief in support of the petition

for a writ of certiorari. Counsel for petitioner has consented to

the filing of this brief, but counsel for certain of respondents

have declined to grant consent.

The issue presented by the petition — whether the Food

Safety and Inspection Service, acting on delegated authority

from the U.S. Secretary of Agriculture, is “powerless” (Pet.

App. 19a) to decide that there is a distinction between intact and

non-intact meat in deciding what meat is “adulterated” under the

Federal Meat Inspection Act (FMIA) — is of profound impor-

tance to the meat and poultry industry and to consumers nation-

wide. Members of amici curiae include hundreds of meat

processors and packers that are subject to pervasive federal reg-

ulation, including mandatory continuous inspection, by the U.S.

Department of Agriculture (USDA) or state programs that

USDA deems at least equivalent. Under the Wisconsin Court

of Appeals’ novel interpretation, members of amici curiae are

subject to civil and criminal liability for supplying meat that

complies fully with federal requirements. Amici curiae are well

situated to assist the Court in understanding the enormous

practical importance of the FMIA issue presented.

Amicus curiae American Meat Institute (AMI) is a national

trade association representing packers, processors, suppliers,

and distributors of meat and meat food products. AMI has been

a force in the meat processing community since 1906 — the year

the first federal meat inspection statute was passed.

Amicus curiae National Chicken Council (NCC) is a

national, nonprofit trade association representing the chicken

industry, including producers, processors, and distributors of

chicken and chicken products. NCC members account for more

than 95 percent of the chicken produced in the United States.

Amicus curiae National Food Processors Association

(NFPA) is the principal scientific and technical trade association

for the food industry. NFPA members process and package

fruits, vegetables, meat, fish, and speciality food products.

Amicus curiae National Meat Association (NMA) is a

national trade association that has been advocating the interests

of the meat industry since 1946. NMA members include pack-

ers, processors, and distributors of meat and meat products.

Amicus curiae National Turkey Federation (NTF) is the

only national trade association representing the turkey industry

exclusively. NTF represents more than 95 percent of the turkey

industry in the United States, including breeders, hatchery own-

ers, growers, and processors.

Amicus curiae the North American Meat Processors Asso-

ciation (NAMP)-— founded in 1942 — is an international, not-for-

profit trade association representing the needs of meat, poultry,

seafood, and game processors.

Amicus curiae Southwest Meat Association (SMA) is a

trade association representing packers and processors of meat

and meat food products. SMA’s members are located in Texas,

Louisiana, Oklahoma, Arkansas, and New Mexico.

Amici-—who collectively represent more than 95 percent of

all companies engaged in processing beef, chicken, turkey, pork,

lamb, and veal products in the United States — have a strong in-

terest in persuading this Court to grant review, given the detri-

mental effect the Wisconsin Court of Appeals’ decision, if al-

lowed to stand, would have on the meat processing industry.

The court below disregarded some of the FMIA’s principal

purposes as well as the enormous harm to the industry that

would result from the court of appeals’ decision to strip the

Secretary of Agriculture of her power to interpret the FMIA’s

key term — “adulterated.” In reaching its decision, the court

completely disregarded the contradictory interpretation reached

by the Secretary as well as scientific research supporting the

Secretary’s view. The court’s approach was wrong and in

conflict with this Court’s teachings. See Chevron U.S.A. Inc. v.

NRDC, 467 U.S. 837, 842-843 (1984) (holding that a court

should take an administrative interpretation of an ambiguous

statutory term into account); Alaska Dep’t of Envtl. Conserva-

tion v. EPA, 2004 WL 86284, *16 (U.S. Jan. 21, 2004) (“We

normally accord particular deference to an agency interpretation

:

of long-standing duration, recognizing that well-reasoned views

of an expert administrator rest on a body of experience and in-

formed judgment to which courts and litigants may properly re-

sort for guidance.”) (internal citations and quotations omitted).

Members of amici are subject to the FMIA and its imple-

menting regulations when engaged in their core business of

meat processing and packing. And, if this Court denies review,

they will be faced with possible civil and criminal penalties for

distributing products that comply with USDA standards and

pass federal inspection. Such a sweeping invalidation of the

Secretary’s longstanding, sophisticated, and nuanced interpreta-

tion of “adulterated” is of great concern to amici, who respect-

fully submit that its implications are far reaching enough, and

its incorrectness clear enough, to cry out for this Court’s review.

Amici should therefore be granted leave to file the attached

brief.

Respectfully submitted.

ROY T. ENGLERT, JR.

Counsel of Record

ALAN E. UNTEREINER

ALISON C. BARNES

Robbins, Russell, Englert,

Orseck & Untereiner LLP

1801 K Street, N.W.

Suite 41]

Washington, D.C. 20006

(202) 775-4500

FEBRUARY 2004

TABLE OF CONTENTS

Page

TABLE GP AUTRES och n cecwsvndevcbuevees il

INTEREST OF THE AMICI CURIAL .. wwe csccccssces l

STATE 60d vei yer eeete Giese ee eee l

A. Federal Regulation Of The Meat Industry ...... l

B. Foodborne Diseases And E. Coli O157:H7...... a

C. ‘Tie PROCS IO go onc ck ns ee oko ds ees 7

SUMMARY OF ARGUMENT .....0cccsescccasccees 8

Pits |. eee eee eee ee ener yee 9

I. This Court Has Jurisdiction To Review The

Wisconsin Court of Appeals’ Decision ......... 9

II. IfLeft Undisturbed, The Court Of Appeals’ Deci-

sion Would Have Serious, Harmful, and Unjusti-

fied Effects On The Meat Industry And Consum-

PRPS CRP Tor rer re ere ere eee 11

A. The Decision Below Would Destroy The

Uniformity And Certainty That The Current

System Was Designed To — And Does —

PUNO sc ic Se cae Soe eee A ee 12

B. The Decision Below Would Increase Cost

and Confusion Without A Corresponding

pre rere 15

C. The Decision Below Lacks A Valid Scien-

os eacesoeeceeeee 17

D. The Decision Below Is Blatantly Incorrect

Because It Fails To Defer to the Secretary

And To Consider The Statutory Objectives

CI ink hh ea keen ee 19

CONC ATIIRIS, 6 obs bas caa ude tees see edneeeae ees 20

ee oe Tne Ae A wmTERED

(ii)

TABLE OF AUTHORITIES

Page(s)

Cases:

Alaska Dep’t of Envtl. Conservation v. EPA,

2004 WL 86284 (U.S. Jan. 21, 2004) ............. 19

Armour & Co. v. Ball, 468 F.2d 76 (6th Cir. 1972),

cert. denied, 411 U:S. 981 (1973) .......0.ceceeee 12

Belknap, Inc. v. Hale, 463 U.S. 491 (1983) ............ 11

Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984) ..... 20

Cox Broadcasting Corp. v. Cohn, 420 U.S. 469

ES Eee ee Pr re org 8, 9,10

Goodyear Atomic Corp. v. Miller, 486 U.S. 174 (1988) .. 11

Local No. 438 Constr. & General Laborers Union v.

Mie BOS Se) | rr er re 1]

Mathews v. Eldridge, 424 U.S. 319 (1976) ............. 9

Mississippi Power & Light Co. v. Mississippi,

ee PORE oc vive edaedacanesedeseacus 1]

National Broiler Council v. Voss, 44 F.3d 740

err er re rae ears aT 13

PBGC v. LIV Corp., 496 U.S. 633 (1990) ............ 20

Rodriguez v. United States, 480 U.S. 522 (1987) ....... 20

Schuetz v. Banc One Mortgage Corp., 292 F.3d 1004

(9th Cir. 2002), cert. denied, 537 U.S. 1171 (2003) .. 19

(iii)

TABLE OF AUTHORITIES—Continued

Page(s)

Southland Corp. v. Keating, 465 U.S. 1 (1984) ......... 11

United States v. Mead Corp., 533 U.S. 218 (2001) ...... 19

Statutes and Regulations:

Egg Products Inspection Act,

eh UA GB TGBT-TGSS 5 oon cece cccvccscvesees 13

Federal Meat Inspection Act,

Bh A FR GUIS onc cscscvccnccccsacess passim

Poultry Products Inspection Act,

Fe ee, ey oe 13

28 U.S.C. § 1257 . havea heen dae eee ee sneer 8,9

pate FO ee: | ee ee ee 3

set | & re er rr 3

a ee Ot ee re ee ey ee eee 4

Fe OE bd nbs sox ooun cena stance aausacudees 4

Pee UES sce sae cesdeekaaeuiessdeweeween 6

i es ET hv da bb ee ne ced ae ens neue eweecas 4

Pe TUE 6 oo aap anh oe keke eon va cuusweckean 4

8 en eee one nae 4

(iv)

TABLE OF AUTHORITIES—Continued

Page(s)

FSIS Directive 5420.1 (March 17, 2003),

available at http://www.fsis.usda.gov/OPPDE/

rdad/FSISDirectives/5420 l.pdf ................ 15

Miscellaneous:

Fiona Bushell, Food, Food, Food, ENVTL.

HEALTH J., Dec. 2001, available at http://www.ehj-

online.com/archive/2000/december200 1/december4. html

CENTER FOR SAFETY & APPLIED NUTRITION,

FOODBORNE PATHOGENIC MICROORGANISMS

AND NATURAL TOXINS HANDBOOK, available at

http://cfscan.fda.gov/~mow/chap15.html .......... 19

60 Fed. Reg. 6774 (Feb. 3, 1995) ..........2000. 2,4, 14

61 Fed. Reg. 38,806 (July 25, 1996) .................. 1

64 Fed. Reg. 2803, (Jan. 19, 1999) .........cccscvees 18

G7 Fed. Reg. 62,325 (Oct. 7, 2002) ... 2.20. ccceses passim

Blaine Harden, Protein Diet Craze, Thin Supply of

Cattle Fatten Ranchers’ Wallets, WASH. POST,

Sa Be CS 54a o esx wee eee reas eens 17

Amanda Hesser, Squeaky Clean? Not Even Close,

N.Y. TaneeS, Jam. ZB, 2004, 06 D1 ow. cctccces 17

http://www.cdc.gov/ncidod/dbmd/diseaseinfo/

SE. BT ono hbo bck ers ce ceases ess 6

(Vv)

TABLE OF AUTHORITIES—Continued

Page(s)

Institute of Food Technologists, JFT Expert

Report on Emerging Microbiological

Food Safety Issues: Implications for

Control in the 21st Century, March 2002,

available at http://www. ift.org/pdfs/microfs/

WIRE 9 6:0%b 0 chad an eeaeoeneeeks 5, 6, 17, 19

DENNIS R. JOHNSON & THE FOOD INSTITUTE,

HACCP & U.S. FOOD SAFETY

Se ED oy oa cd usceatnecuecee kes 4, 18, 19

Letter from Richard E. Lyng, Secretary of

Agriculture, to George Deukmejian,

Governor of California (June 12, 1987) .......... 13

Meat and Poultry Inspection: Report of the

Secretary of Agriculture to the U.S.

Congress for Fiscal Year 2000 (FSIS

Feb. 2003), available at http://fsis.usda.gov/

oa/congress/congress.htm. ................2005- 14

National Institute of Allergy & Infectious Disease,

Foodborne Diseases, April 2002, available at

http://www.niaid.nih.gov/factsheets/

i eer er re eee 19

Margaret Webb Pressler, Cattle Tracing System

Will Face Obstacles, WASH. POST,

Se ey ES ons eke dese ek cede cakes 15, 16

Report to Cong. on the Consumer Safety Officer

Initiative (FSIS Feb. 15, 2000), available at

http://fsis.usda.gov/oa/congress/cso_report.htm... 4, 18

(vi)

TABLE OF AUTHORITIES—Continued

Page(s)

ROBERT L. STERN, EUGENE GRESSMAN, STEPHEN

M. SHAPIRO & KENNETH S. GELLER,

SUPREME COURT PRACTICE (8th ed. 2002).......... 9

USDA, Assessment of the Cattle and Hog Industries,

Calendar Year 2001, available at http://www.

usda.gov/gipsa/pubs/0 1lassessment/

ree rere eee ee 16, 17

James Harvey Young, The Long Struggle for the

1906 Law, FDA CONSUMER, June 1981,

available at http://vm.cfscan.fda.gov/

A. 6 6456s oo das os ene kee ee hak ae 2

BRIEF OF AMICI CURIAE IN SUPPORT OF

PETITIONER

INTEREST OF THE AMICI CURIAE'

The interest of the amici curiae is described in the

accompanying motion for leave to file this brief.

STATEMENT

The decision reached by the Wisconsin Court of Appeals

— that any raw meat containing natural pathogens such as E. coli

O157:H7 bacteria is adulterated and therefore unfit for human

consumption — directly contradicts applicable U.S. Department

of Agriculture (USDA) standards. The lower court’s complete

disregard for the expert agency’s views calls into question the

continuing power of the federal government to set the standards

for meat sold in interstate commerce, opens the door for States

to adopt widely varying and inconsistent interpretations of the

Federal Meat Inspection Act, and undermines the extensive —

and nationally uniform — system of federal meat inspection and

oversight that has been in place for decades pursuant to

Congress’s desire to “prevent and eliminate burdens upon

[interstate or foreign] commerce” while also protecting

consumer health. 21 U.S.C. § 602.

A. Federal Regulation Of The Meat Industry

For nearly a century, federal authorities have been respon-

sible for helping to ensure the safety of the Nation’s food sup-

ply through (among other things) prevention of the sale of

“adulterated” food products.” The meat industry — including

' Pursuant to Rule 37.6 of the Rules of this Court, amici state that no

counsel for a party has written this brief in whole or in part and that

no person or entity, other than the amici, their members, or their

counsel, has made a monetary contribution to this brief.

? In 1906, in response to publication of Upton Sinclair’s famous book

The Jungle (a graphic exposé of unsanitary conditions prevalent in the

meat industry), Congress passed two statutes — the Pure Food and Drugs

Act and the Federal Meat Inspection Act -- that prohibited the sale of

2

entities involved in all aspects of meat preparation, from

slaughter of livestock to sale of meat in retail establishments —

is subject to the Federal Meat Inspection Act (FMIA or Act), 21

U.S.C. §§ 601-695, which establishes a comprehensive, uni-

form, national system for oversight of the preparation and sale

of meat food products.

In enacting the FMIA, Congress recognized the importance

of meat to the Nation’s food supply and the dangers associated

with insufficient oversight:

Unwholesome, adulterated, or misbranded meat and meat

food products impair the effective regulation of meat and

meat food products in interstate or foreign commerce, are

injurious to the public welfare, destroy markets for

wholesome, not adulterated, and properly labeled and

packaged meat and meat food products, and result in

sundry losses to livestock producers and processors of meat

and meat food products, as well as injury to consumers.

* * * [Rjegulation by the Secretary and cooperation by the

States and other jurisdictions as contemplated by this

chapter are appropriate to prevent and eliminate burdens

upon such commerce, to effectively regulate such com-

merce, and to protect the health and welfare of consumers.

21 U.S.C. § 602. Since the Act’s passage in 1906, Congress has

amended it repeatedly — most significantly in 1967 — to ensure

that the federal system is up to date and to withdraw all but the

most limited power from the States. See 60 Fed. Reg. 6774,

6776 (Feb. 3, 1995) (describing the history of the FMIA).

The FMIA strives to accomplish all these objectives simul-

taneously by, among other things, prohibiting the sale of “adul-

terated” meat. 21 U.S.C. § 602. It defines “adulterated,” in

pertinent part, as follows:

“adulterated” food. See James Harvey Young, The Long Struggle for the

1906 Law, FDA CONSUMER, June 1981, available at http://vm.cfscan.

fda.gov/~Ird/history2.html.

3

The term “adulterated” shall apply to any carcass, part

thereof, meat or meat food product under one or more of

the following circumstances:

(1) if it bears or contains any poisonous or deleterious

substance which may render it injurious to health; but in

case the substance is not an added substance, such article

shall not be considered adulterated under this clause if the

quantity of such substance in or on such article does not

ordinarily render it injurious to health;

(2)(A) if it bears or contains (by reason of adminis-

tration of any substance to the live animal or otherwise)

any added poisonous or added deleterious substance * * *

which may, in the judgment of the Secretary, make such

article unfit for human food;

* * *

(3) if it consists in whole or in part of any filthy,

putrid, or decomposed substance or is for any other reason

unsound, unhealthful, unwholesome, or otherwise unfit for

human food; [or]

(4) if it has been prepared, packed, or held under

insanitary conditions whereby it may have become contam-

inated with filth, or whereby it may have been rendered

injurious to the health.

21 U.S.C. § 601(m); see also 9 C.F.R. § 301.2 (adopting para-

graphs (1), (3), and (4) of the definition of “adulterated”).

To prevent adulterated meat from entering the food supply,

Congress created a detailed, extremely intrusive federal over-

sight and inspection system and placed the responsibility for it

in the hands of the Secretary of Agriculture, who in turn has

delegated authority to the Food Safety and Inspection Service

(FSIS). See 21 U.S.C. §§ 603, 604, 606, 608, 621, 678; 7

C.F.R. § 2.53(a)(2)(ii). In addition, Congress charged the

Secretary with broad responsibility for establishing rules and

regulations under the Act. See, e.g., id. §§ 602, 608, 621.

ee ee as RN

4

Pursuant to that authority, the Secretary - among other things

— prescribes rules regarding manufacturing processes and pace,

sets plant sanitation standards, and employs agents at each and

every federally inspected establishment to inspect meat at

various stages of the preparation process. 60 Fed. Reg. at 6775;

see generally 21 U.S.C. §§ 603-610, 612-613, 615; 9 C.F.R.

§§ 307.1-.5, 310.1, 416.2-.6; 61 Fed. Reg. 38,806, 38,855

(July 25, 1996). Federal inspectors ensure compliance with the

agency’s sanitation standards, and refuse to allow the sale of

meat products from facilities that fail inspection. 21 U.S.C.

§ 608.

Petitioner and members of amici are not merely subject to

federal standards; they must have federal inspectors in their

plants to examine livestock before slaughter, carcasses after

slaughter, and meat products before distribution. See Pet. 5

(citing 60 Fed. Reg. at 6775-6777). The inspectors’ organo-

leptic inspections (using sight, touch, and smell), which have

been employed by federal inspectors for decades, are supple-

mented by sampling and statistical process methods identified

in each facility’s individualized plan.’ Report to Cong. on the

Consumer Safety Officer Initiative (FSIS Feb. 15, 2000),

available at http://fsis.usda.gov/oa/congress/cso_report.htm.

All “products found not to be adulterated” by the inspectors are

marked “[iJnspected and passed,” while all “products found

> These plans — called Hazard Analysis and Critical Control Point

(HACCP) plans — are hazard analysis systems that promote food safety

by methodically identifying specific hazards in advance of processing so

that they may be controlled. DENNIS R. JOHNSON & THE FOOD INSTI-

TUTE, HACCP & U.S. FOOD SAFETY GUIDE § 5.3 (1996). In the late

1990s, the Secretary required each federally inspected plant to conduct

a “hazard analysis” to “determine the food safety hazards reasonably

likely to occur in the production process and identify the preventive

measures the establishment can apply to reduce those hazards.” 9 C.F.R.

§ 417.2(a). Each plant was then required to submit a written plan. Jd.

§§ 417.2-.3, 417.8 Plans accepted by USDA function like reguiations in

that all products from a noncompliant facility can be deemed

“adulterated.” Jd. § 417.2(e).

2

adulterated” are marked “[iJnspected and condemned.” 21

U.S.C. § 606. Those who violate the Act or USDA’s regula-

tions are subject to civil and criminal liability as well as a vast

array oi administrative sanctions, including the seizure and con-

demnation of meat and the withdrawal of federal inspection at

an offending facility (thus shutting it down). Jd. §§ 671-676.

In sharp contrast to the Secretary’s broad power, the States’

power is extremely limited: the Secretary and the States share

power over products that are “adulterated or misbranded” under

the federal scheme and that have left processing plants; and the

States are permitted to have their own inspection programs if

they are “at least equal to” federal standards. Id. §§ 661(c),

678,. Importantly, any state requirement that is “in addition to,

or different” from, those issued by the Secretary is expressly

preempted. Jd. § 678.

B. Foodborne Diseases and E. Coli 0157:H7

The United States’ food supply is extremely safe, but food-

borne diseases will always present challenges to our national

food safety system. Institute of Food Technologists, JFT Expert

Report on Emerging Microbiological Food Safety Issues:

Implications for Control in the 21st Century (IFT Report),

March 2002, available at http://www.ift.org/pdfs/microfs/

webreport.pdf.* Microbiological disease-causing organisms

such as E. coli are among the hardest sources of foodborne

illness to detect and control.

* In its report (at 4), the Institute of Food Technologists explains:

Foodborne illness is not a simple problem in need of a solution; it

is a complex combination of factors that must be managed on a con-

tinual basis. Aside from the inherent ability of pathogens them-

selves to evolve, pathogens’ victims and the microbial environment

play a role in the changing nature of foodborne illnesses, opening

new niches and creating new vulnerabilities. No matter how so-

phisticated and complex a system is developed, food safety manage-

ment is never finished or complete, because change is constant.

6

Like many pathogens, E. coli is a species of bacteria that

naturally exists in warm-blooded animals, usually without

causing illness to the host. Pet. 8; IFT Report at 27. The type

of E. coli at issue in this case — O157:H7 (hereinafter E. coli

O157) — is an elusive and virulent strain first reported as a

foodborne pathogen in 1982. Jbid. And, although it is

estimated that as many as half of all cattle carry E. coliO157 at

some time in their lives, there is nevertheless a “low incidence

of disease” associated with this bacterium. Jd. at 28.

Despite that low incidence of disease, USDA and other

public health organizations have long recommended that con-

sumers take steps to protect themselves from illness caused by

E. coli O157. To that end, federal authorities have repeatedly

explained that proper cooking kills harmful bacteria in meat

products (see Pet. 8), and have consistently advised consumers

of the need to wash any dish, utensil, or surface that comes into

contact with raw meat to prevent cross-contamination. See 9

C.F.R. § 317.2(1) (requiring proper handling and safe cooking

instructions on labels of packaged raw meat); http://www.cdc.

gov/ncidod/dbmd/diseaseinfo/escherichiacoli_g.htm.

In 1994, USDA decided to take an additional protective

measure: it declared ground beef containing E. coli 0157 to be

“adulterated” within the meaning of the FMIA, and began

testing ground beef samples for the presence of this bacterium.

See 67 Fed. Reg. 62,325, 62,326 (Oct. 7, 2002). USDA

announced that ground meats containing E. coli O157 are

adulterated, whereas intact cuts of meat bearing E. coli 0157

are not. 64 Fed. Reg. 2804 (Jan. 19, 1999).°

Since that pronouncement, USDA has continued to gather

information about E. coli O157 and its prevalence in meat.

Recent scientific research and improvements in testing

* The Secretary recently reaffirmed the safety of properly cooked intact

cuts of meat, describing the risk of illness associated with E. coli 0157

as “minuscule, regardless of the initial contamination level or

susceptibility of the consumer.” 67 Fed. Reg. 62,334 (Oct. 7, 2002).

7

techniques have led the agency to conclude that the bacterium

is more common than previously thought. 67 Fed. Reg. 62,326.

Consequently, in 2002, the FSIS instructed federally inspected

processing plants to reassess their HACCP plans to ensure that

they include measures designed to “prevent, eliminate, or

reduce the presence of E£. coli O157:H7 in their products.” Jd.

at 62,332. Significantly, however, the Secretary left unchanged

the rule that intact meat bearing E. coli O157 is not adulterated.°

C. The Proceedings Below

This case arises from injuries suffered by patrons of an

E&B Sizzler restaurant who allegedly ate food from the salad

bar that had become cross-contaminated with E. coli O157.

Pet. 11. Respondents filed a common law tort action against

numerous parties, including petitioner Excel Corporation.

Excel supplied intact cuts of raw meat to the Sizzler fran-

chise at issue. Pet. App. 10a-1la. Before leaving Excel’s

facility, the meat had passed USDA inspection and was labeled

with safe handlizg instructions. See id. at 17a.

Excel was granted summary judgment in the trial court.

Pet. App. 52a. The court relied on the Secretary’s determina-

tion that intact meat containing surface E. coli O157 is not adul-

terated within the meaning of the FMIA. Pet. App. 48a-49a.

The trial court ruled that the Act and its comprehensive regula-

tory scheme preempt contrary state laws, including “civil suits

against meat processors like Excel.” Jd. at 50a.

The Wisconsin Court of Appeals reversed, holding that

intact cuts of meat containing E. coli O157 are adulterated. Pet.

App. 19a-27a. The court of appeals arrived at that conclusion

after determining that no deference would be given to the Secre-

° Contrary to the lower court’s suggestion (Pet. App. 35a), the Secretary

has never ruled that E. coli O157 must be eliminated altogether from

meat processing facilities and meat products. She has ruied, however,

that inspectors must have “zero tolerance” for visible contaminants. See

Pet. 10 n.2.

ee eI Ei

8

tary’s rules regarding E. coliO157 because Congress delegated

no power to interpret the statutory term “adulterated” to the

Secretary (except in one limited area not applicable to this

case). /d. at 13a, 16a, 19a. Without taking either the Secre-

tary’s views or longstanding industry practice into account, the

appellate court concluded that any cut of meat containing any

E. coli O157 is adulterated and unfit for human consumption.

Pet. App. 14a. The state supreme court denied review without

explanation. Jd. at 44a.

SUMMARY OF ARGUMENT

I. This Court has jurisdiction, under 28 U.S.C.§ 1257, to

review the Wisconsin Court of Appeals’ decision that USDA is

“powerless” (Pet. App. 19a) to interpret the meaning of

“adulterated” under the FMIA. See Cox Broadcasting Corp. v.

Cohn, 420 U.S. 469, 477 (1975). The decision below is the last

word from a state court on an important federal issue that is

potentially dispositive — indeed, was dispositive in the tral

court — of the claims against petitioner. If review is denied,

there may be no subsequent opportunity for this Court to

address the court of appeals’ decision because petitioner may

prevail on non-federal grounds.

II. Review should be granted to protect the meat industry

and consumers from the drastic consequences that would ensue

if this nonsensical decision were permitted to stand. Apparently

deeming itself better situated to interpret the non-self-defining

term “adulterated” than the agency that has been regulating

meat for 98 years, the Wisconsin Court of Appeals has disre-

garded the statutory and regulatory framework of the FMIA as

well as years of experience and research by writing out of exist-

ence USDA’s interpretation of “adulterated” — the single most

important term in the FMIA -— and replacing it with an

unscientific and rigid interpretation of the statute. The court’s

reading destroys the national uniformity Congress intended to

create and invites States to adopt interpretations of the FMIA

that are in conflict.

9

To avoid potential liability, meat producers may have to

comply — to the extent that they can — with divergent (and

perhaps conflicting) standards from across the country, many of

which — like the court of appeals’ — would lack a valid scientific

basis. The potential for harm — to meat processors and packers,

including members of amici; to purchasers of meat products, in-

cluding wholesalers, retailers, and restaurants that resell meat

products; to consumers themselves; and to interstate commerce

and the national economy — is difficult to overstate. The danger

of the potential harms can be avoided only if the court of

appeals’ decision is reversed.

ARGUMENT

I. THIS COURT HAS JURISDICTION TO REVIEW

THE WISCONSIN COURT OF APPEALS’

DECISION

This Court’s certiorari jurisdiction over decisions of the

state courts is conferred by 28 U.S.C. § 1257, which authorizes

review of any “[f]inal judgment{[] or decree[] rendered by the

highest court of a State in which a decision could be had.”’ The

Court has long eschewed a “mechanical” interpretation of the

requirement of “finality.” Cox Broadcasting Corp. v. Cohn,

420 U.S. 469, 477 (1975). Instead, the Court has applied an

“intensely practical approach” to determining “finality.”

Mathews v. Eldridge, 424 U.S. 319, 332 n.11 (1976); see also

Cox Broadcasting, 420 U.S. at 478 & n.7 (“[T]he requirement

of finality is to be given a practical rather than a technical

construction.”) (internal quotations omiited). See generally

STERN & GRESSMAN at 145, 152-154.

’ The judgment of an intermediate state court is reviewable under 28

U.S.C. § 1257 when the highest state court declines to take the case. See

ROBERT L. STERN, EUGENE GRESSMAN, STEPHEN M. SHAPIRO &

KENNETH S. GELLER, SUPREME COURT PRACTICE 163, 165-167 (8th ed.

2002) (STERN & GRESSMAN).

10

In Cox Broadcasting, this Court noted four categories of

cases in which it has treated decisions of the state courts as

“final” even though “there [we]re further proceedings in the

lower state courts to come.” 420 U.S. at 477. As petitioner

correctly points out (Pet. 16 n.4), this case falls squarely within

the fourth category: cases in which (1) “the federal issue has

been finally decided in the state courts with further proceedings

pending in which the party seeking review here might prevail

on the merits on nonfederal grounds, thus rendering unneces-

sary review of the federal issue by this Court”; (2) “reversal of

the state court on the federal issue would be preclusive of any

further litigation on the relevant cause of action rather than

merely controlling the nature and character of, or determining

the admissibility of evidence in, the state proceedings still to

come”; and (3) “a refusal immediately to review the state court

decision might seriously erode federal policy.” 420 US. at

482-483.

Each of those conditions is satisfied here. First, the Secre-

tary’s power to interpret the critical term “adulterated” under

the FMIA was fully considered — and squarely resolved —

below. And, if review is denied, it is possible that petitioner

eventually will prevail on the merits on nonfederal grounds.

See Pet. App. 4a (“We conciude that federal preemption does

not close the doors of Wisconsin’s courts to the claims against

Excel; the merits of those claims still have to be determined.”).

Second, if this Court were to reverse the decision below by

holding that the Secretary’s interpretation of “adulterated” is

entitled to judicial respect, respondents’ claims against petition-

er could be finally resolved. That is precisely what the trial

court decided, which led that court to enter judgment for peti-

tioner on all claims against it. Pet. App. 52a-54a.

Third, the federal policy underlying the FMIA and its

preemption clause would be seriously undermined if this Court

declines to exercise immediate review. As its title suggests, the

FMIA, including its express preemption clause, is aimed at

ensuring nationwide uniformity in the standards for meat

11

produced for human consumption. See 21 U.S.C. § 602. The

decision below destroys that uniformity by allowing state courts

— and possibly state regulators as well — to impose additional or

different requirements on meat producers.

In similar circumstances, this Court has repeatedly applied

Cox Broadcasting to grant immediate review. See, e.g., Missis-

sippi Power & Light Co. v. Mississippi, 487 U.S. 354, 270 n.11

(1988) (explaining that the “critical federal question” was “ripe

for review” even though a state court had decided the federal

preemption question and remanded for further proceedings);

Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 179-180

(1988) (granting review of a federal preemption question

despite the pendency of additional state proceedings because

leaving the state decision unreviewed would have threatened to

undermine vital federal policies); Southland Corp. v. Keating,

465 U.S. 1, 6-7 (1984) (reviewing a state-court decision

regarding federal preemption, even though claims had not yet

been tried on the merits); Belknap, Inc. v. Hale, 463 U.S. 491,

497 n.5 (1983); Local No. 438 Constr. & General Laborers

Union v. Curry, 371 U.S. 542, 548-551 (1963).

Il. If LEFT UNDISTURBED, THE COURT OF AP-

PEALS’ DECISION WOULD HAVE SERIOUS,

HARMFUL, AND UNJUSTIFIED EFFECTS ON THE

MEAT INDUSTRY AND CONSUMERS

The Wisconsin Court of Appeals failed to appreciate the

magnitude and probable effects of its decision not only to strip

the Secretary of her power to interpret key provisions of the

FMIA but also to adopt a new judicial definition of “adulterat-

ed” without the benefit of the Secretary’s experience, expertise,

and guidance. The decision below does violence to the compre-

hensive, longstanding system of federal regulation in this area

by eliminating the Secretary’s power to interpret many provi-

sions in the FMIA, leaving courts and state regulators to reach

their own conclusions, and creating a regulatory leadership void

in this important national industry. Failure to review it would

result in the absence of the clarity, uniformity, and efficacy that

12

the statute plainly seeks and the current scheme provides. And

the resulting uncertainty and inevitable confusion would

adversely affect the price and availability of meat, and would

lead to a fragmented, decentralized system under which the

Nation’s food supply will be /ess — not more — safe.

A. The Decision Below Would Destroy The Uniformity

And Certainty That The Current System Was Designed

To — And Does — Provide

Much of the statutory and regulatory structure of the FMIA

turns on the interpretation of the term “adulterated.” Under the

FMIA, “adulterated” is the term used to describe meat that, for

various reasons, must be condemned and destroyed. 21 U.S.C.

§§ 604, 606. Meat that is deemed adulterated cannot be shipped

or sold under the Act. Jd. § 601. Processors who ship or sell

adulterated meat face potential civi] and criminal liability under

federal law (id. §§ 671-676), and under state law (see id. § 678).

See Armour & Co. v. Ball, 468 F.2d 76, 84 (6th Cir. 1972), cert.

denied, 411 U.S. 981 (1973).

The meaning of “adulterated,” however, cannot be gleaned

from the statute alone. Indeed, the statutory definition of this

crucial term encompasses meat that is “injurious to health,”

“filthy, putrid, or decomposed,” or “insanitary,” (21 U.S.C.

§ 601(m)(1), (3), (4)) — all terms whose meaning is far from

clear from text alone unguided by science or experience. De-

spite the statute’s lack of textual clarity, the meaning of “adul-

terated” was perfectly clear until the court of appeals issued its

jarring decision: it was exactly as the Secretary prescribed

based on experience and careful attention to the statute’s

various goals, including the protection of interstate commerce.

Indeed, meat processing facilities across the country — as well

as federal inspectors — have, until now, faithfully applied the

Secretary’s interpretation. Without the Secretary’s guidance,

meat processors could not possibly have predicted what would

constitute “adulterated” meat.

13

Yet thai is exactly the situation that meat processors will

face if the decision below stands. If unable to rely on the Secre-

tary’s interpretation of “adulterated,” meat processors are faced

with great uncertainty — and enormous potential liability —

regarding their production and sale of meat that USDA deems

unadulterated. The court of appeals’ decision opens the door to

courts and regulators in other States to reach their own

decisions regarding the meaning of “adulterated” and other key

FMIA terms. It thus creates the distinct possibility that meat

processors will be subject (after the fact) to as many as fifty sets

of standards, some of which may conflict — as the standard

adopted below does — with interpretations from the federal gov-

ernment and other States. Such a fragmented and decentralized

scheme is perilous for a meat processor trying to ensure that its

products comply with the laws.

Meat processors would not be the only group with this

problem. Poultry and egg producers — who are subject to stat-

utes with similar or identical language — may very well face the

same dilemma. See Pet. 25-26 (citing the Poultry Products

Inspection Act (PPIA), 21 U.S.C. §§ 451-471); Egg Products

Inspection Act, 21 U.S.C. §§ 1031-1056. That is why amici

representing the poultry industry join this brief.

Congress did not envision such a decentralized system, as

the FMIA itself reveals. In the statute, Congress delegated to

the Secretary the responsibility for prescribing certain rules and

regulations (21 U.S.C. §§ 602, 608), for implementing and

conducting on-site federal inspections (id. §§ 603, 604, 606,

621), and for taking action against violators of the statute and

USDA regulations (id. §§ 671-676). Congress also prohibited

States from imposing requirements that are “in addition to, or

different” from, federal requirements imposed under the FMIA.

See id. § 678; National Broiler Council v. Voss, 44 F.3d 740

(9th Cir. 1994) (holding that the PPIA and USDA’s policy

statements interpreting it preempted inconsistent state labeling

laws); Letter from Richard E. Lyng, Sec’y of Agric., to George

Deukmejian, Governor of Cal. (June 12, 1987) (“regulation by

14

the Secretary of Agriculture and cooperation by the States and

other jurisdictions as contemplated [in the FMIA and PPIA] are

appropriate to prevent and eliminate burdens upon and

effectively regulate [interstate and foreign] commerce as well

as to protect the health and welfare of consumers (21 U.S.C.

451 and 602)”). These provisions indicate Congress’s unmis-

takable intent to develop a detailed and uniform regulatory

regime administered by the Secretary. Indeed, establishing

uniform national requirements and preventing States from

enforcing their own standards were the motivations for the 1967

amendments to the FMIA. See 60 Fed. Reg. 6774 (“The

Wholesome Meat Act of 1967 * * * amended the basic laws

governing mandatory meat * * * inspection to assure uniformity

in the regulation of products shipped in interstate, intrastate, and

foreign commerce.”). The court of appeals’ decision threatens

to disassemble this regime.

The comprehensive federal regulatory regime that has de-

veloped serves its purpose well. Under the current scheme, ap-

proximately 7000 federal inspectors are stationed at thousands

of federally inspected establishments. See Meat and Poultry In-

spection: Report of the Sec’y of Agric. to the U.S. Cong. (Fiscal

Year 2000) (FSIS Feb. 15, 2003), at 47, available at http://fsis.

usda.gov/oa/congress/congress.htm. These inspectors monitor

the slaughter and preparation of all meat and poultry products

prepared for interstate commerce to ensure safety, whole-

someness, and accurate labeling and packaging. Jbid. In Fiscal

Year 2000, FSIS inspected nearly 134 million head of livestock

and more than 8.5 billion birds, and detained nearly 28 million

pounds of adulterated meat and poultry products. Jd. at 47, 35.

The inspectors throughout the country conducted their inspec-

tions with a common understanding of the terms of the FMi/,,

including “adulterated.” In the wake of the court of appeals’

ruling, the certainty resulting from federal inspections would be

abolished. Indeed, the definition of “adulterated” used by

federal inspectors might bear little resemblance to the

interpretation given to the term by officials in the State where

15

a cut of meat is eventually shipped or sold. Under that scenario,

federal inspection is cold comfort to meat processors.

The court of appeals’ decision also calls into question the

Secretary’s ability to set national priorities for the meat indus-

try. Historically, the Secretary has been able to guide the meat

industry by passing nationally implemented regulations and

issuing informal guidance to facilities across the country. In

response to those directives, meat processors have shifted re-

sources towards the priorities set by the Secretary. See, e.g., 67

Fed. Reg. 62,326 (interpretation designed to limit the prev-

alence of E. coli 0157 in ground beef). The court of appeals’

decision severely undercuts the Secretary’s prospective ability

to set national priorities for the meat industry. And, in light of

the ever-present threat of terrorist actions against our national

food supply* and the recent discovery of the first U.S. case of

bovine spongiform encephalopathy (mad cow disease), the need

for strong centralized authority could not be greater.’

By reading the FMIA in a way that eliminates USDA’s

power to interpret it, the court of appeals invites States to set

their own food safety priorities. And those priorities, which

would inevitably reflect local — not national — concerns, would

lead to the demise of the national regulatory system.

B. The Decision Below Would Increase Cost and

Confusion Without A Corresponding Improvement In

Food Safety

If the meat industry adopts the court of appeals’ inter-

pretation of “adulterated” — as it may be forced to do if review

* See FSIS Directive 5420.1 (March 17, 2003), available at http://www.

fsis.usda.gov/OPPDE/rdad/FSISDirectives/5420_1.pdf (explaining pro-

cedures in the event of a terrorist threat to the Nation’s food supply).

* Federal initiatives designed to control the spread of mad cow disease —

including the creation of a national cattle tracing system — can be accom-

plished only at the national level. See Margaret Webb Pressler, Cattle-

Tracing System Will Face Obstacles, WASH. POST, Jan. 3, 2004, at El.

16

is not granted — the effects on the meat industry and consumers

will be significant. The court of appeals’ decision would

replace uniformity and predictability with uncertainty and

confusion, leading to a decrease in the availability and

affordability of meat products, hardship for the meat industry,

and a less safe national meat supply. The court of appeals was

wrong to believe that its interpretation of “adulterated” would

serve the supposedly “overriding congressional purpose” of

“public safety” (Pet. App. 10a).

To comply with the court’s interpretation of “adulterated,”

all entities that sell meat — including slaughterhouses, meat pro-

cessing plants, wholesalers, and retail establishments — would

have to change complex production processes — even though

such measures cannot guarantee that no E. coli O157 (or other

natural pathogens) will exist on the meat when it reaches the

ultimate consumer. Changes in the production process would

raise production costs and lengthen production time. As a

practical matter, the court of appeals’ decision would mean that

processing facilities would have to purchase the same number

of animals, and run the same number of production lines, but

would end up with fewer “unadulterated” cuts of raw meat

(even though the “adulterated” meat poses little or no health

risk). With higher costs and less product to sell, the industry —

already known for its low profit margins’? — would face even

lower profitability, putting the entire industry in economic

Straits.

The increases in production costs that would be necessitat-

ed by the court’s decision would inevitably be passed on to the

consumer. See USDA, Assessment of the Cattle and Hog Indus-

tries, Calendar Year 2001 (2001 Assessment), 5, available at

http://www.usda.gov/gipsa/pubs/0 1 assessment/0 1 assessment.

pdf (“Retail prices reflect the total cost of producing, process-

ing, distributing, and marketing meat and poultry products.”).

And all of this would occur at a time when the cost of beef is at

'© See Pressler, supra note 9, at El.

17

an all-time high and the supply is at a seven-year low. See

Blaine Harden, Protein Diet Craze, Thin Supply of Cattle

Fatten Ranchers’ Wallets, WASH. POST, Dec. 22, 2003, at Al.

Cost increases could adversely affect consumers’ ability to buy

meat, leading to decreased consumption of it, especially in

poorer segments of the population. See 2001 Assessment at 5

(changes in meat prices affects per capita consumption). And

decreasing meat consumption can have negative nutritional and

health consequences. See Fiona Bushell, Food, Food, Food,

ENVTL. HEALTH J., Dec. 2001, available at http://www.ehj-

online.com/archive/2000/december2001/december4.html.

C. The Decision Below Lacks A Valid Scientific Basis

What makes this parade of horribles all the worse is that

there is no sound scientific basis for the Wisconsin Court of

Appeals’ approach. The court simply determined, without the

benefit of expert, industry, or USDA assistance, that E. coli

O157 on raw intact meat renders that meat “adulterated” be-

cause the bacteria may cause injury. Pet. App. 14a. The Secre-

tary’s interpretation, in contrast, is the product of cutting-edge

scientific research and reasoned debate.

There is no valid scientific basis for the court’s conclusion

that raw intact cuts of meat with E. coli O157 present a

significant health risk. The risk of illness from intact meat

bearing E. coli 0157 is “minuscule, regardless of the initial

contamination level or susceptibility of the consumer,” when

the meat is adequately cooked. 67 Fed. Reg. 62,334; see also

IFT Report at 27-28 (reporting a “low incidence of disease”

associated with E. coli 0157).'’ This scientific information

formed the basis of the Secretary’s decision to declare E. coli

O157 an adulterant in ground — but not intact — beef products.

See 64 Fed. Reg. 2804. Indeed, the Secretary explained that she

'' Indeed, the real problem — and the one that occurred in this case — is

that preparers of raw meat often fail to take the recommended precau-

tions to prevent cross-contamination. See Amanda Hesser, Squeaky

Clean? Not Even Close, N.T. TIMES, Jan. 28, 2004, at D1.

18

“carefully considered the deliberations of the National Advisory

Committee on Microbiological Criteria for Foods (NACMCF)”

— an entity that makes scientific recommendations for the

benefit of FSIS and the FDA” — before reaching the conclusion

that “cuts of intact muscle (steaks) should be safe” if cooked

properly because there is “a low probability of pathogenic

bacteria being present in or migrating from the exterior surface

to the interior of the beef muscle.” Jd. at 2803.

As it did when developing that standard, USDA continually

monitors scientific developments and formulates reasoned

approaches designed to control or, when possible, eliminate

foodborne pathogens, which continue to evolve and mutate.

The FSIS described its approach as follows:

The Agency’s continuing goal is to focus its efforts on

addressing the true human health risks associated with

meat, poultry, and egg products, as has been recommended

by the National Academy of Sciences. We believe that this

is best approached using a farm-to-table approach to

microbial risk assessment to identify significant food safety

hazards and identify potential strategies to prevent, reduce,

or eliminate those hazards. * * * FSIS is working with

other agencies and institutions to develop appropriate

quantitative risk assessment methods and to support studies

to fill data gaps needed to enhance the precision and reduce

the uncertainty in risk characterizations.

Report to Cong. on the Consumer Safety Officer Initiative

(FSIS Feb. 15, 2000), available at http://fsis.usda.gov/oa/

congress/cso_report.htm. In addition to its relationship with »

NACMCF, FSIS obtains valuable information from the Centers

for Disease Prevention and Control, the FDA’s Center for Safe-

ty and Applied Nutrition, USDA’s Agricultural Research

Service, and the National Institute of Allergy and Infectious

Disease. See 67 Fed. Reg. at 62,325-62,334; see generally

CENTER FOR SAFETY & APPLIED NUTRITION, FOODPORNE

'2 JOHNSON, supra note 3, § 6.2.

19

PATHOGENIC MICROORGANISMS AND NATURAL TOXINS HAND-

BOOK, available at http://cfscan.fda.gov/~mow/chap15.html;

National Institute of Allergy and Infectious Disease, Foodborne

Diseases, April 2002, available at http://www.niaid.nih.gov/

factsheets/foodbornedis.htm.

Unlike the Secretary’s considered judgment, the court of

appeals’ conclusion is based on nothing more than a simplistic

analysis of ambiguous statutory text. In a world where the

elimination of all foodborne pathogens is impossible,'*? USDA

does the next best thing: it uses cutting-edge scientific

information to develop standards for acceptable levels of harm-

ful bacteria.

D. The Decision Below Is Blatantly Incorrect Because It

Fails To Defer To The Secretary And To Consider The

Statutory Objectives Collectively

Petitioner has adequately demonstrated the error of the de-

cision below, but amici add a few words. The Wisconsin Court

of Appeals was wrong in failing to defer to the Secretary’s in-

terpretation of “adulterated.” The absence of formal rulemak-

ing was certainly no excuse for failing to defer. See Alaska

Dep’t of Envtl. Conservation v. EPA, 2004 WL 86284, *16

(U.S. Jan. 21, 2004) (“Cogent administrative interpretations

* * * not [the] product of formal rulemaking * * * nevertheless

warrant respect.”); United States v. Mead Corp., 533 U.S. 218,

234 (2001) (deference should be given to agency guidance,

“given the ‘specialized experience and broader investigations

and information’ available to the agency * * * and given the

value of uniformity in its administrative and judicial under-

standings of what a national law requires”) (citations omitted);

Schuetz v. Banc One Mortgage Corp., 292 F.3d 1004, 1012-14

(9th Cir. 2002) (granting deference to an agency’s policy

statements that were published in the Federal Register but not

the subject of formal rulemaking or adjudication), cert. denied,

537 U.S. 1171 (2003).

'? See generally IFT Report at 1-12; JOHNSON, supra note 3, § 3.6.

20

Technicalities of the Chevron/Mead doctrine aside — and

the court below did not purport to rest its judgment on any such

technicalities — the decision below reflects a woeful failure to

recognize the sometimes-competing policy aims that ambiguous

statutory language often reflects and that federal agencies may

and must reconcile in light of experience. The court below

reasoned that “/t/he focus of” the relevant subsections “is on

people’s health and safety.” Pet. App. 19a (emphasis added).

That singular focus blinded the court to the other statutory

objectives — namely, promoting the national market for whole-

some meat and protecting the meat industry from losses. See 21

U.S.C. § 602. “Deciding what competing values will or will not

be sacrificed to the achievement of a particular objective is the

very essence of legislative choice — and it frustrates rather than

effectuates legislative intent simplistically to assume that what-

ever furthers the statute’s primary objective must be the law.”

PBGC v. LTV Corp., 496 U.S. 633, 646-647 (1990) (quoting

Rodriguez v. United States, 480 U.S. 522, 525-526 (1987)). So

tco in the area of administrative interpretations of statutes,

when “Congress intended to accommodate [multiple] interests,

but did not do so itself on the level of specificity presented by”

a case, it is not the business of non-expert judges to reach their

own preferred reconciliation, let alone to pretend that one statu-

tory goal trumps all others. Chevron U.S.A. Inc. v. NRDC, 467

U.S. 837, 865 (1984).

The Wisconsin court did violence to an effective and

proven statutory and administrative scheme, and did so on the

basis of its own simplistic statutory analysis. This Court should

not allow that result to stand.

CONCLUSION

The petition for a writ of certiorari should be granted.

a

21

Respectfully submitted.

ROY T. ENGLERT, JR.

Counsel of Record

ALAN E. UNTEREINER

ALISON C. BARNES

Robbins, Russell, Englert

Orseck & Untereiner LLP

1801 K Street, N.W.

Suite 41]

Washington, D.C. 20006

(202) 775-4500

FEBRUARY 2004