Opposition Brief — Terry v. Tyson Farms, Inc.

Supreme Court, U.S.

FILED

DEC 22 2019

OFFICE OF THE CLERK |

No. 10-542

IN THE

Supreme Court of the United States

ALTON T. TERRY,

Petitioner,

Vv.

TYSON FARMS, INC.,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Sixth Circuit

BRIEF IN OPPOSITION

ROGER W. DICKSON

TRAVIS R. MCDONOUGH*

ZACHARY H. GREENE

MILLER & MARTIN PLLC

832 Georgia Avenue

Chattanooga, TN 37402

(423) 756-6600

tmcdonough@millermartin.com

Counsel for Respondent

December 22, 2010 * Counsel of Record

naa NAC NN NETCARE ROR NIC UN

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 — WASHINGTON, D C 20002

QUESTIONS PRESENTED

1. Under subsections 202(a) and (b) of the

Packers and Stockyards Act, 7 U.S.C. § 192(a), (b),

did the court of appeals correctly conclude, given the

language, context, and purpose of the Act as an

antitrust law, that a plaintiff must plead and prove

an anticompetitive effect from the defendant’s

challenged conduct?

2. Whether the court of appeals correctly declined

to give Chevron deference to the Secretary of

Agriculture’s interpretation of subsections 202(a) and

(b) of the Packers and Stockyards Act, 7 U.S.C.

§ 192(a), (b), when the federal courts of appeals

previously have held that Congress’s intention in

these subdivisions was clear from their plain

language?

RULE 29.6 CORPORATE DISCLOSURE

STATEMENT

Tyson Farms, Inc. is a wholly-owned subsidiary of

Tyson Foods, Inc. No publicly held company owns

10% or more of Tyson Foods, Inc.

TABLE OF CONTENTS

QUESTIONS PRESENTED

RULE 29.6 CORPORATE DISCLOSURE

STATEMENT

ST PARe eas CF PUT TRICE 6 RO ose sevescosecsasccpencexceceas

INTRODUCTION

STATEMENT OF THE CASE :

REASONS FOR DENYING THE PETITION

I. CERTIORARI [S UNWARRANTED BE-

CAUSK THE FEDERAL COURTS OF

APPEALS UNIFORMLY REQUIRE A

SHOWING OF ACTUAL OR THREAT-

ENED COMPETITIVE INJURY UNDER

SUBSE CTIONS 202(a) AND (b) OF THE

A. The Sixth Circuit Has Joined Every

Other Federal Circuit Court That Has

Addressed This Issue In Holding That

Subsections 202(a) And (b) Require A

Showing Of An Anticompetitive Effect

From The Challenged Conduct

_Petitioner Cannot Demonstrate A

Conflict That Warrants This Court’s

Review

. THE SIXTH CIRCUIT CORRECTLY

HELD THAT A SHOWING OF ACTUAL

OR LIKELY ANTICOMPETITIVE

EFFECT IS NECESSARY TO STATE A

CLAIM UNDER SUBSECTIONS 202(a)

AND (b) OF THE PSA

(111)

1V

TABLE OF CONTENTS—-continued

Page

Il. THE SECOND QUESTION PRESENTED

WAS NOT PASSED ON BY THE COURT

BELOW AND DOES NOT WARRANT

CERTIORARI IN ANY EVENT.................. . 26

Se MIT 4s cee a cavenscias sas ciacovacivenseinecpvsckickieraees 30

y

TABLE OF AUTHORITIES

CASES Page

Armour & Co. v. United States, 402 F.2d

712 (7th Cir. 1968) 8, 9, 16, 20, 29

Bakal Bros., Inc. v. United States, 105 F.3d

1085 (6th Cir. 1997) 27

Beecham v. United States, 511

(1994) 21

Been v. O.K. Indus., Inc., 495 F.3d 1217

(10th Cir. 2007) passim

Carolene Prods. Co. v. United States, 323

U.S. 18 (1944)

Chevron U.S.A. Inc. v. Natural Res. Def.

Council, Inc., 467 U.S. 837 (1984)........... 26, 28

De Jong Packing Co. v. USDA, 618 F.2d

1329 (9th Cir. 1980) ................. 9, 10, 14, 15, 20

Dolan v. United States Postal Serv., 546

a cercanas 1, 6,

7

l

Duncan v. Walker, 533 U.S. 167 (2001) 22

Farrow v. USDA, 760 F.2d 211 (8th Cir.

10

Gratz, 253 U.S. 421 (1920),

overruled in part on other grounds by

FTC v. Brown Shoe Co., 384 U.S. 316

(1966)

Forest Grove Sch. Dist. v. T.A., 129 S. Ct.

2484 (2009)

FTC v. Sperry & Hutchinson Co., 405 U.S.

233 (1972)

Halbert v. Michigan, 545 U.S. 605 (2005)....

IBP, Inc. v. Glickman, 187 F.3d 974 (8th

Cir. 1999)

ICC v. Ala. Midland Ry., 168 U.S. 144

(1897)

ICC v. Chi. Great W. Ry., 209 U.S. 108

(1908)

Vi

TABLE OF AUTHORITIES—continued

Lindahl v. Office of Personnel Mgmt., 470

U.S. 768 (1985)

London v. Fieldale Farms Corp., 410 F.3d

Page

79)

—

1295 (11th Cir. 2005) Rh, oe, Ot,

Mahon v. Stowers, 416 U.S. 100 (1974)

Morrissette v. United States, 342 U.S. 246

(1952)

Moskal v. United States, 498 U.S. 103

(1990)

Nat'l Cable & Telecomms. Ass'n v. Brand X

Internet Servs., 545 U.S. 967 (2005)

Norfolk Redevelopment & Hous. Auth. v.

Chesapeake & Potomac Tel. Co. of Va.,

464 U.S. 30 (1983)

Norton v. S. Utah Wilderness Alliance, 542

U.S. 55 (2004)

Pac. Trading Co. v. Wilson & Co., 547 F.2d

367 (7th Cir. 1976)

Philson v. Goldsboro Milling Co., 164 F.3d

625 (4th Cir. 1998), available at 1998 WL

709324

Pickett v. Tyson Fresh Meats, Inc., 420 F.3d

1272 (11th Cir. 2005)

Singleton v. Wulff, 428 U.S. 106 (1976)

Skinner & Eddy Corp. v. United States,

249 U.S. 557 (1919)............ PERC PRA AP oA aN

Spencer Livestock Comm’n Co. v. Dep't of

Agric., 841 F.2d 1451 (9th Cir. 1988)

Stafford v. Wallace, 258 U.S. 495 (1922).... 1

Swift & Co. v. United States, 196 U.S. 375

(1905)

Swift & Co. v. Wallace, 105 F.2d 848 (7th

Cir. 1939)

Texas & Pac. Ry. Co. v. ICC, 162 U.S. 197

(1896)

8, ;

Vil

TABLE OF AUTHORITIES—continued

Page

Treesh v. Bagley, 612 F.3d 424 (6th Cir.

IEE wenioatiee teu ab eeh cles NRMP eRe mAh eee 21

Wheeler v. Pilgrim’s Pride Corp., 591 F.3d

Ee et 12, 14, 27

STATUTES AND REGULATIONS

Interstate Commerce Act of 1887, ch. 104,

Rs aR er geen ae eon nE RIN nama es Sem 18

Federal Trade Commission Act of 1914, ch.

ee ie NS BE © vakisessackstacéeeeccerccame SE 19

Packers and Stockyards Act, 1921, ch. 64,

I se cles oce fuicas sa nub pada oiabannnils 25

Ty ee ys das cid ote scaccercasnasssascetactaeucesas 4,17, 18

§ 2DIBD-2 oo. .eccecceccccescecceccescccseescseesees 23

3: Pe eee caausaaeaueou 3

9 C.F.R. § 201.108-1(e)(4)....cccceccccecceseeeeeeeeeee:

Implementation of Regulations Required

Under Title XI of the Food, Conservation

and Energy Act of 2008; Conduct tin

Violation of the Act, 75 Fed. Reg. 35,338

(proposed June 22, 2010) .................... cece. 16

RULE

Pe, ie BU Bs GENIE OF nesoxseucesacddsancunncodscescnnes 14

LEGISLATIVE HISTORY

EE. Wes RON. BOO, GS F-7 2 CEBELD cosccccccsevccccssccsess. 19

OTHER AUTHORITY

Eugene Gressman et al., Supreme Court

PVGEEICE COC OG. DOOT) ....ccccrccescsessccvscccccsess 26

INTRODUCTION

Petitioner cannot demonstrate a conflict among the

federal courts of appeals on whether subsections

202(a) and (b) of the Packers and Stockyards Act

(“PSA”), 7 U.S.C. § 192(a), (b), require a plaintiff to

plead and prove an injury to competition. In the

decision below, the Sixth Circuit noted that “seven

circuits—the Fourth, Fifth, Seventh, Eighth, Ninth,

Tenth, and Eleventh Circuits—have now weighed in

on this issue, with unanimous results.” Pet. App. lla.

And the court below specifically joined this “tidal

wave” of authority, id. at 10a, explaining that “the

vast body of cohesive precedent” made_ the

“construction of this nearly 90-year old statute ... a

matter of settled law,” id. at 14a.

Given the uniform agreement among the courts of

appeals on this issue, petitioner can merely raise the

same statutory interpretation arguments that the

Sixth Circuit and seven other circuit courts have now

rejected. Petitioner would read the terms of

subsections 202(a) and (b) of the Act without regard

to the context or purpose of the PSA. But this

contravenes basic principles of statutory construction.

Dolan v. United States Postal Serv., 546 U.S. 481, 486

(2006). As this Court has recognized, the PSA is an

antitrust statute through which Congress intended to

stop practices that hindered competition in the meat

packing industry. Indeed, the specific terms used—

unfair, unjustly discriminatory, or unreasonable

preferences—were borrowed from prior antitrust

legislation at a time when this Court interpreted

those terms to require a consideration of competition

in assessing a violation of these laws. The settled

interpretation of subsections 202(a) and (b) does not

warrant this Court’s intervention.

y

The Court should also decline to address the second

question presented because the court below did not

pass on the question whether the Secretary of

Agriculture’s interpretation of subsections 202(a) and

(b) deserves Chevron deference. As a result, the

question is not properly presented here. In all events,

petitioner has raised no conflict among the courts on

this issue. That is because Chevron deference is

unwarranted. The federal courts of appeals have long

held that the plain language of subsections 202(a)

and (b)—which further Congress’s antitrust aims,

and which incorporate language from prior antitrust

legislation—require that a challenged action have an

anticompetitive effect.

The Court should deny the petition.

STATEMENT OF THE CASE

l. Tyson Farms, Inc. is the nation’s largest

poultry processing firm. Pet. App. 2a. To produce its

poultry products, Tyson contracts with independent

growers to raise Tyson’s broiler chickens. Jd. at 4a.

Under these contracts, Tyson supplies the chicks,

feed, and technical advice. Id. The grower provides

farm facilities, farm equipment, utilities, labor, and

know-how to raise the chicks to a target weight, at

which point the matured birds are returned to Tyson

for processing. Id.

In 2001, petitioner purchased a poultry-growing

farm from one of Tyson’s independent growers in

Tennessee and took over management of the farm’s

poultry flock. Pet. App. 5a, 35a. According to

petitioner's complaint, he soon learned of problems

that growers had with Tyson and other poultry

integrators. Jd. at 5a, 35a. After attending a

conference in 2002 addressing these problems,

petitioner allegedly began trying to organize growers

3

in his area. Jd. at 5a, 35a-36a. In 2004, he was elected

chairman and director of a Tennessee-based growers

association. Id. at 5a, 36a. In this role, petitioner

catalogued and reported grower complaints against

Tyson and educated growers about their rights. Jd.

Petitioner alleged that as a grower he became

concerned that Tyson was not promptly weighing his

poultry upon arrival at Tyson’s plant. Pet. App. 5a,

36a. On two different occasions in 2004, Tyson

supposedly denied petitioner access to its plant, in

violation of federal regulations, when he attempted to

watch the weighing of his birds. /d. at 5a-6a, 36a; 9

C.F.R. § 201.108-1(e)(4) (poultry growers are entitled

to observe weighing).

Petitioner alleges that in 2005 he _ again

unsuccessfully attempted to observe the weighing of

his chickens at Tyson’s plant. Pet. App. 6a, 36a.

According to his complaint, he arrived at 2:00 a.m.

with his delivery of poultry but was informed that his

birds would not be weighed until after 4:00 a.m. /d.

When he returned at 4:00 a.m., Tyson supposedly

denied him access to the plant. Jd.

Later in the week, petitioner met with local Tyson

managers. Pet. App. 6a, 37a. Afterward, Tyson

allegedly delayed placement of broilers with

petitioner for a full flock rotation, costing him

$30,000 in lost compensation. Jd. At a second meeting

with Tyson’s managers, petitioner learned of Tyson’s

“company decision” to discontinue placement of birds

at his farm. Jd. In early 2006, Tyson informed

petitioner that it would not renew its contract with

him.

2. Petitioner sued Tyson in January 2008. Pet.

App. 37a. He alleged that Tyson violated the

Agricultural Fair Practices Act, 7 U.S.C. § 2301 et

1

seq., by discriminating against him based on his

membership in an association of producers. Pet. App

37a. He also alleged that Tyson violated subsections

202(a) and (b) of the PSA, 7 U.S.C. § 192(a), (b), by

refusing to allow petitioner to observe the weighing of

his poultry, delaying placement of his flock, and

terminating his contract. Pet. App. 37a-38a, 49a

The district court granted ‘T'yson’s motion to

dismiss both causes of action. It agreed that

petitioner's Tennessee-based growers association was

not an “association of producers” as that term was

defined at the time in the Agricultural Fair Practices

Act. Pet. App. 44a-45a.

The district court also agreed that petitioner failed

to state a claim under the PSA because he failed to

allege that Tyson's allegedly “wrongful actions

affected or were likely to affect competition.” Pet.

App. 50a. The court agreed that the terms “unfair,

unjustly discriminatory, or deceptive practice or

device” in subsection 202(a) of the Act, 7 U.S.C.

§ 192(a), and “undue or unreasonable preference or

advantage” in subsection 202(b), id. § 192(b), must be

read in light of Congress’s purpose in passing the

PSA, namely to curb the destruction of competition in

the packing industry. Pet. App. 46a-47a. Accordingly,

the trial court concurred with every other federal

court of appeals that has “addressed the issue in

holding that §202 requires a_ showing of

anticompetitive effect in order to sustain a cause of

action.” Id. at 47a, 49a.

In so holding, the district court analyzed and

rejected petitioner's argument that there is a circuit

split on this issue. Pet. App. 48a. The court explained

that, contrary to petitioner’s argument, the Ninth

Circuit's decision in Spencer Livestock Commission

Co. v. Department of Agriculture, 841 F.2d 1451, 1455

(9th Cir. 1988), could not create a circuit split on

whether section 202 requires a_ showing of

anticompetitive effect because that decision

addressed section 213 of the PSA, not section 202

Pet. App. 48a. According to the court, “the Ninth

Circuit has held, consistent with the majority of other

circuits, that §202 requires a_ showing that

defendant's actions had an anticompetitive effect.” Id

at 48a (discussing De Jong Packing Co. v. Dept of

Agriculture, 618 F.2d 1329, 1331 (9th Cir. 1980)).

After examining petitioner's complaint in the light

most favorable to him, the district court concluded

the “complaint does not allege that [Tyson's] actions

had an anticompetitive effect” as required by a long

line of precedent. Pet. App. 50a. Instead, petitioner

“focuses solely on how [Tyson’s] action harmed him as

an individual grower.” Jd. Accordingly, petitioner

failed to allege that Tyson’s actions “affected or were

likely to affect competition” as _ required’ by

subsections 202(a) and (b).

3. Petitioner appealed to the Sixth Circuit,

challenging, among others, the district court’s

conclusion that subsections 202(a) and (b) required

him to plead that Tyson’s actions had an effect on

competition. Pet. App. 7a-8a. The Sixth Circuit

affirmed. /d. at 8a, 15a. It noted that this issue “is

not novel to other courts” and “has been addressed by

seven ... sister circuits, with consonant results.” Jd.

at 8a. As the court explained, “[a]ll of these courts of

appeals unanimously agree that an anticompetitive

effect is necessary for an actionable claim under

subsections (a) and (b).” Jd.

After examining the “rationale employed by [its]

sister circuits,” the Sixth Circuit found the decisions

“well-reasoned and grounded on sound principles of

statutory construction.” Pet. App. 14a. The court of

6

appeals thus chose to join what it characterized as a

“tidal wave” of authority on this issue, :d. at 10a, and

specifically declined petitioner's invitation to “deviate

from the course taken by the seven other circuits that

have spoken on this issue, thus creating a conflict.”

Id. at 12a. The Sixth Circuit held “that in order to

succeed on a claim” under subsections 202(a) or (b) of

the PSA, “a plaintiff must show an adverse effect on

competition.” Id. at 14a.

REASONS FOR DENYING THE PETITION

Petitioner makes no effort to allege any conflict

among the federal courts of appeals on the first

question presented. Nor could he. As the Sixth

Circuit recognized, the federal circuit courts to

address the issue have unanimously agreed that

subsections 202(a) and (b) of the PSA require a

plaintiff to demonstrate an anticompetitive effect

from the defendant’s challenged conduct. Petitioner

thus cannot present any disagreement or lack of

uniformity that warrants this Court’s attention. On

that basis alone, the Court should deny the petition.

Petitioners arguments on the merits do _ not

warrant this Court’s intervention, especially when, as

the Sixth Circuit acknowledged, “the construction of

this nearly 90-year-old statute [is] a matter of settled

law.” Pet. App. 14a. Petitioner's entire argument

requires reading subsections 202(a) and (b) without

considering the context or purpose of the PSA. That

approach contravenes settled principles of statutory

interpretation, which require courts to “consider[ }

the purpose and context of the statute, and [to]

consult[ ] any precedents or authorities that inform

the analysis.” Dolan v. United States Postal Serv.,

546 U.S. 481, 486 (2006). This Court has explained

that the PSA is an antitrust law through which

7

Congress intended to target practices that hinder

competition. Indeed, the specific terms of subsections

202(a) and (b) originated in prior antitrust

legislation, which this Court had interpreted to

require a consideration of competition.

The second question presented likewise does not

warrant this Court’s review. The Sixth Circuit did not

pass on the issue, which makes this case a poor

vehicle for raising the question in this Court.

Moreover, the lower courts are in agreement on the

issue. Every court of appeals to consider this issue

has correctly refused to give Chevron deference to the

Secretary of Agriculture’s interpretation of

subsections 202(a) and (b). Nor is any deference

warranted, because the competitive injury

requirement under these subsections arises from the

clearly expressed intention of Congress.

The petition should be denied.

I. CERTIORARI IS UNWARRANTED _ BE-

CAUSE THE FEDERAL COURTS OF

APPEALS UNIFORMLY REQUIRE A

SHOWING OF ACTUAL OR THREATENED

COMPETITIVE INJURY UNDER SUB-

SECTIONS 202(a) AND (b) OF THE PSA.

Petitioner cannot demonstrate a need for this

Court’s intervention because every federal court of

appeals to address whether subsections 202(a) and (b)

of the PSA require a showing of competitive injury

has held that they do. As the Sixth Circuit

recognized, “seven. circuits—the Fourth, Fifth,

Seventh, Eighth, Ninth, Tenth, and _ Eleventh

Circuits—have now weighed in on this issue, with

unanimous results.” Pet. App. lla. With the Sixth

Circuit joining this “tidal wave” of authority, id. at

10a, eight circuits now uniformly require proof of

8

competitive injury under subsections 202(a) and (b).

Given this cohesion among the circuit courts, the

Sourt should deny the petition on this basis alone.

A. The Sixth Circuit Has Joined Every

Other Federal Circuit Court That Has

Addressed This Issue In Holding That

Subsections 202(a) And (b) Require A

Showing Of An Anticompetitive Effect

From The Challenged Conduct.

Starting with the Seventh Circuit, the federal

courts of appeals have consistently required a

showing of anticompetitive effect to establish a

violation of subsections 202(a) and (b) of the PSA. The

Seventh Circuit first addressed the meaning of

subsections (a) and (b) more than seventy years ago,

in Swift & Co. v. Wallace, 105 F.2d 848 (7th Cir.

1939). In Swift, the court of appeals set aside a

finding by the Secretary of Agriculture (“Secretary”)

that charging different prices was unjustly

discriminatory or unreasonable under subsections

202(a) and (b). Jd. at 857. The court held that the

Secretary erred by failing to consider the influence of

or effect upon competition from these practices. Id. at

854, 857. The court explained that subsections 202(a)

and (b) of the PSA must be interpreted consistently

with similarly worded provisions of other antitrust

legislation, such as the Interstate Commerce Act. Id.

at 856-57.

The Seventh Circuit solidified its interpretation of

subsections 202(a) and (b) in Armour & Co. v. United

States, 402 F.2d 712 (7th Cir. 1968). There, the court

again set aside a determination by the Secretary

because the Secretary “erroneously construed”

subsections 202(a) and (b). Id. at 727. The court

explained that the PSA was an antitrust law

designed to halt the destruction of competition in the

9

meat packing industry and that Congress had used

familiar terms from prior antitrust legislation. [d. at

717, 720 (citing H.R. No. 66-1297, at 11 (1921)). This

“statutory language,” according to the court,

“enjoin{s] the Department and courts to apply a rule

of reason in determining the lawfulness of a

particular practice under Section 202(a) and (b).” Jd.

at 717 (emphasis added). That is, liability under

these provisions requires a showing of “intent to

eliminate competition or ... the effect of ... lessen[ing]

competition.” /d. at 720, 725-26; see also Pac. Trading

Co. v. Wilson & Co., 547 F.2d 367, 369 (7th Cir.

1976).

Since Armour, the federal courts of appeals that

have addressed this issue have uniformly agreed with

the Seventh Circuit, holding that a violation of

subsections 202(a) and (b) requires a showing that

the challenged conduct has an actual or likely effect

on competition. In 1980, the Ninth Circuit agreed

with the Seventh Circuit’s reading of section 202. In

De Jong Packing Co. v. USDA, 618 F.2d 1329 (9th

Cir. 1980), the court affirmed the Secretary’s finding

that a conspiracy to “coerce a change in marketing

practices by concerted action” violated subsection

202(a). Id. at 1335. The court explained that Ҥ 202 of

the Packers and Stockyards Act may have been made

broader than antecedent antitrust legislation [but] it

nonetheless incorporates the basic antitrust blueprint

of the Sherman Act and other pre-existing antitrust

legislation.” Id. at 1335 n.7. Relying on Armour, the

court therefore followed “the courts that have

considered § 202 [and] have consistently looked to

decisions under the Sherman Act for guidance.” /d.;

see also id. at 1335-36. The Ninth Circuit then

concluded, consistent with the Seventh Circuit, that

“unfair practices under § 202 are not confined to

10

those where competitive injury has already resulted,

but includes those where there is a_ reasonable

likelihood that the purpose will be achieved and that

the result will be an undue restraint on competition.”

Id, at 1337.

Five years later, the Eighth Circuit first considered

whether section 202 requires a_ showing of

anticompetitive harm. In dicta, the court stated that

subsection 202(a) “authorize[s] the Secretary of

Agriculture to regulate anticompetitive trade

practices in the ... meat industry in accord with ‘the

basic antitrust blueprint of the Sherman Act and

other pre-existing antitrust legislation.” Farrow v.

USDA, 760 F.2d 211, 214 (8th Cir. 1985) (quoting De

Jong Packing, 618 F.2d at 1335 n.7). The Eighth

Circuit later confirmed the plain import of this

reasoning—that subsection 202(a) and (b) require a

showing of actual or potential anticompetitive harm.

IBP, Inc. v. Glickman, 187 F.3d 974 (8th Cir. 1999).

In IJBP, the court followed its earlier statements in

Farrow, reviewing only whether the record supported

a USDA finding that particular practices had “the

effect or potential effect of suppressing or reducing

competition.” Jd. at 976-77. Because substantial

evidence did not support a finding of actual or

potential anticompetitive effect, the court vacated the

USDA’s decision. Id. at 977, 978

The Fourth Circuit in an unpublished decision

briefly addressed this issue in 1998. In Philson v.

Goldsboro Milling Co., 164 F.3d 625 (4th Cir. 1998),

available at 1998 WL 709324, the court of appeals

considered whether a district court had properly

instructed the jury on claims under subsection 202(a).

The court of appeals held that while this subsection

does not necessarily require proof of “actual

injury ... a plaintiff must nonetheless establish that

1]

the challenged act is likely to produce the type of

injury that the Act was designed to prevent.” Id. at

*

4.

Consistent with these other circuits, the Eleventh

Circuit held in 2005 “that in order to prevail under

[subsections 202(a) or (b) of the] PSA, a plaintiff must

show that the defendant’s deceptive or unfair practice

adversely affects competition or is likely to adversely

affect competition.” London v. Fieldale Farms Corp..,

410 F.3d 1295, 1304 (11th Cir. 2005). The Eleventh

Circuit specifically joined the other circuits that have

addressed this issue, construing subsections 202(a)

and (b) in light of the purpose of the PSA—.e.,

“halting a general course of action for the purpose of

destroying competition.” Jd. at 1302 (quoting Armour,

402 F.2d at 720) (internal quvtation marks omitted).

The court noted the absurdity of construing these

subsections without considering the context and

purpose of the PSA: “Failure to require a competitive

impact showing would subject dealers to lability

under the PSA for simple breach of contract or for

justifiably terminating a contract with a grower who

has failed to perform as promised.” Id. at 1304. The

Eleventh Circuit reaffirmed its adherence to this rule

in Pickett v. Tyson Fresh Meats, Inc., 420 F.3d 1272,

1280 (11th Cir. 2005).

The Tenth Circuit joined its sister circuits in Been

v. O.K. Industries, Inc., 495 F.3d 1217 (10th Cir.

2007). There, the court held that subsection 202(a)

“requires a plaintiff who claims that a defendant’s

conduct was ‘unfair’ to show that such conduct results

in or is likely to result in an injury to competition.”

Id. at 1238. In harmony with the other circuits on

this issue, the Tenth Circuit read section 202 in light

of its purpose, td. at 1228, and rejected the argument

(raised anew by petitioner) that because subsections

12

(c), (d), and (e) of section 202 specifically prohibit

practices that restrain commerce or _ create

monopolies, “the absence of similar language in

§ 202(a) conclusively means that proof of a

competitive injury is not required,” id. at 1229. The

court read subsection 202(a) as a “catchall” because

Congress “could not list the full panoply of unfair,

unjustly discriminatory, or deceptive practices or

devices” that it intended to prohibit. Id.

The last circuit to address this issue before the

court below was the Fifth Circuit. In Wheeler v.

Pilgrim’s Pride Corp., 591 F.3d 355 (5th Cur. 2009)

(en banc), the Fifth Circuit sitting en banc ruled that

to “support a claim that a= practice violates”

subsections 202(a) or (b), “there must be proof of

injury, or likelihood of injury, to competition.” Jd. at

363. Like the other circuits to address this topic, the

Fifth Circuit concluded that section 202 must be

construed according to the “whole statutory text,

considering the purpose and ... precedents or

authorities that inform the analysis.” Id. (quoting

Dolan, 546 U.S. at 486). Also, after examining the

numerous decisions from the courts of appeals, the

Fifth Circuit noted that “up to 2002, Congress has

amended [section 202] seven times without making

any changes that would affect the many court

interpretations.” Jd. at 361. Accordingly, the Fifth

Circuit concluded that “congressional silence in

response to circuit unanimity ‘after years of judicial

interpretation supports adherence to the traditional

view.” Id. at 362 (quoting Gen. Dynamics Land. Sys.,

Inc. v. Cline, 546 U.S. 581, 593-94 (2004)).

The decision below explicitly joined these circuits,

holding “that in order to succeed on a claim under

[subsections 202(a) and (b),] a plaintiff must show an

adverse effect on competition.” Pet. App. 14a. The

13

Sixth Circuit based its holding on the view that “the

rationale employed by our sister circuits is_ well-

reasoned and grounded on sound principles of

statutory construction.” Jd. The court also “deem|[ed]

the construction of this nearly 90-year-old statute to

be a matter of settled law.” Id.

Because the Sixth Circuit’s decision is consistent

with the unanimous decisions of the other circuit

courts, and because all of the circuit courts that are

likely to address this issue have spoken, the Court

should deny the petition.

B. Petitioner Cannot Demonstrate A Con-

flict That Warrants This Court’s Review.

Despite the uniform construction of section 202 by

the courts of appeals, petitioner suggests that two

conflicts warrant intervention by this Court. Pet. 17,

19, 24. This argument ts incorrect.

1. Petitioner argues that the Sixth Circuit

erroneously disregarded “the Ninth Circuit's

conflicting decision in Spencer Livestock.” Pet. 24. As

petitioner implicitly—and the district court below

explicitly—acknowledges, the Ninth Circuit’s decision

in Spencer Livestock cannot create a conflict on the

issue presented because that case dealt with section

213 of the PSA, not section 202. Id. at 19, 24

(acknowledging that Spencer Livestock dealt with

section 213); Pet. App. 48a. Rather, in conformity

with the other circuits addressing the meaning of

section 202, the Ninth Circuit in De Jong Packing

held that a claim under section 202 requires a

14

showing of actual or likely injury to competition. 618

F.2d at 1337; see also rd. at 1335 n.7.!

Petitioner's veiled attempt at undercutting the

Ninth Circuit’s holding in De Jong Packing is

unavailing. In a brief sentence and a _ footnote,

petitioner tries to incorporate a dissenting opinion

from Wheeler v. Pilgrim’s Pride Corp., in which Judge

Garza argued that decisions from the Eighth and

Ninth Circuits can be read in a manner that does not

join the other circuits in uniformly construing

subsections 202(a) and (b). Pet. 24 & n.20.

Petitioner's argument fails.

In dissenting from the majority in Wheeler, Judge

Garza tried to distinguish De Jong Packing by

suggesting that the Ninth Circuit “did not hoid that

the PSA only prohibits anticompetitive conduct.”

Wheeler, 591 F.3d at 381. As the majority in Wheeler

recognized, this argument is mistaken. The Ninth

Circuit specifically stated that the PSA “incorporates

the basic antitrust blueprint” of “other pre-existing

antitrust legislation” and followed the approach

taken by the Seventh Circuit in Armour, which

required an actual or likely injury to competition. De

Jong Packing, 618 F.2d at 1335 n.7. More

importantly, the Ninth Circuit specifically held that

“unfair practices under § 202 are not confined to

those where competitive injury has already resulted,

1 As the district court recognized, there is no conflict between

the Ninth Circuit’s decisions in Spencer Livestock and De Jong

Packing. Moreover, even if there were tension between these

holdings, that would be a matter for the Ninth Circuit sitting en

banc, see Fed. R. App. P. 35(a)(1), not this Court, especially

when the Ninth Circuit's standard under section 202 is

consistent with the standard in every other federal court of

appeals to address the issue.

15

but includes those where there is a reasonable

likelihood that the purpose will be achieved and that

the result will be an undue restraint on competition.”

Id. at 1337. The only tenable reading of this holding

is that a showing of either actual or likely harm to

competition is necessary under section 202. Had the

court intended to suggest that no demonstration of

injury to competition is necessary at all—as

petitioner contends here—it would have done so

directly, rather than list the two harms actionable

under this provision.

Similarly, petitioner mistakenly asserts that the

Eighth Circuit’s decision in [BP v. Glickman was

equivocal. Pet. 24 & n.20 (citing Wheeler, 591 F.3d at

381 (Garza, J. dissenting)). Petitioner claims that the

Eighth Circuit merely suggested that a showing of

actual or likely harm to competition may be sufficient

under section 202, but did not indicate it was

necessary. Id. That too is wrong. In JBP, the Eighth

Circuit explicitly followed its earlier statements in

Farrow that a showing of either an actual or likely

effect on competition is necessary under the Act. JBP,

187 F.3d at 977. Because there was insufficient

evidence that the practice there actually or would

“potentially suppress or reduce competition,” the

Kighth Circuit vacated the USDA’s decision. Id.

2. Petitioner's second alleged conflict likewise

does not warrant this Court’s intervention.

Petitioner argues that the Secretary of Agriculture’s

interpretation of section 202 in various Agriculture

Decisions conflicts with those of the unanimous

federal courts of appeals, and that this conflict

warrants the Court’s review of the issue. Pet. 17, 19.

But the Secretary’s position on the interpretation of

section 202 provides an affirmative reason for this

16

Court to decline review of the question presented in

this case.

Whatever the Secretary’s prior position may have

been in various orders, the Secretary recently

proposed and requested comment on new regulations

addressing the very issue of whether an actual or

likely anticompetitive injury is necessary to violate

subsections 202(a) and (b) of the PSA. See

Implementation of Regulations Required Under Title

XI of the Food, Conservation and Energy Act of 2008;

Conduct in Violation of the Act, 75 Fed. Reg. 35,338

(proposed June 22, 2010). And in the Secretary’s

view, “the new regulations fon the very question

presented in the petition] constitute a material

change in circumstances that warrants judicial

reexamination of the issue.” Jd. at 35,341. Although

Tyson has demonstrated in comments on _ the

proposed rules that the Secretary is bound to follow

the holdings of the courts of appeals on the plain

meaning of subsections 202(a) and (b), see, e.g.,

Armour, 402 F.2d at 717, and therefore the proposed

new regulations should be rejected, the Secretary’s

inchoate stance on the requirements of subsections

202(a) and (b) is an affirmative reason for this Court

to decline review of the issue until that position has

been solidified and the lower courts have considered

it.

Il. THE SIXTH CIRCUIT CORRECTLY HELD

THAT A SHOWING OF ACTUAL OR

LIKELY ANTICOMPETITIVE EFFECT IS

NECESSARY TO STATE A CLAIM UNDER

SUBSECTIONS 202(a) AND (b) OF THE

PSA.

Unable to demonstrate a conflict that would

warrant this Court’s review, petitioner principally re-

argues the merits of his appeal. These arguments,

17

however, do not merit review by this Court. The Sixth

Circuit correctly concluded that subsections 202(a)

and (b) require a showing of anticompetitive effect.

l. Petitioner's main quarrel with the Sixth

Circuit's conclusion is his assertion that the court of

appeals failed to read the language of subsections

202(a) and (b) according to its plain definitional

meaning, so that these subsections stop all “unjustly

discriminatory,’ or “deceptive” practices, and all

“unreasonable preference[s]” by live poultry dealers

without regard to any anticompetitive effect. 7 U.S.C

§ 192(a), (b); Pet. 20-25. Contrary to petitioner's

argument, the Sixth Circuit followed well established

law on statutory interpretation. As this Court has

instructed, the bare meaning “of words in

isolation ... is not necessarily controlling in statutory

construction.” Dolan, 546 U.S. at 486. A word or

phrase “may or may not extend to the outer limits of

its definitional possibilities.” Jd. Proper statutory

interpretation “depends upon reading the whole

statutory text, considering the purpose and context of

the statute, and consulting any precedents or

authorities that inform the analysis.” Id.; see also

Norfolk Redevelopment & Hous. Auth. v. Chesapeake

& Potomac Tel. Co. of Va., 464 U.S. 30, 36 (1983) (“As

in all cases of statutory construction, our task is to

interpret the words of th[e] statutie] in light of the

purposes Congress sought to serve.” (alterations in

original) (quoting Chapman v. Houston Welfare

Rights Org., 441 U.S. 600, 608 (1979))

The context and purpose of the PSA prove that a

showing of anticompetitive effect is necessary to state

a claim under subsections 202(a) and (b). This Court

has stated consistently that the PSA is an antitrust

statute through which Congress intended to prevent

anticompetitive behavior in the meat production and

18

processing industry. See Mahon v. Stowers, 416 U.S

100, 106 (1974) (per curiam); Stafford v. Wallace, 258

U.S. 495, 514-15 (1922). In 1922, just one year after

Congress passed the PSA, this Court stated that the

“chief evil” the Act is designed to counter “is the

monopoly of the packers, enabling them unduly and

arbitrarily to lower prices to the shipper who sells

and unduly and arbitrarily to increase the price to

the consumer who buys.” Stafford, 258 U.S. at 514

15, 524-25. The Court explained that “what Congress

had in mind primarily was to prevent” the type of

antitrust “conspiracies” addressed in Swift & Co. v

United States, 196 U.S. 375 (1905), “by supervision of

the agencies which would be likely to be employed in

it,” Stafford, 258 U.S. at 520

Unsurprisingly, given the PSA’s antitrust aims,

Congress used language in subsections 202(a) and (b)

that originated in prior antitrust legislation and that

had been interpreted by this Court to require a

particular consideration of the effect of competition

[In particular, the language in subsections 202(a) and

(b) mirrors language in the Interstate Commerce Act

of 1887, ch. 104, §§ 2, 3, 24 Stat. 379, 379-80, which

prohibited “unjust discrimination” and “any undue or

unreasonable preference or advantage.” Compare id

with 7 U.S.C.- §192(a), (b) (prohibiting “unfair,

unjustly discriminatory, or deceptive practice or

device” and “any undue or unreasonable preference or

advantage’). By the time Congress enacted the PSA,

this Court had interpreted these specific phrases of

the Interstate Commerce Act to require a

consideration of competition in assessing a violation

of that Act. See Skinner & Eddy Corp. v. United

States, 249 U.S. 557, 566, 567-68 (1919): ICC v. Chi

Great W. Ry., 209 U.S. 108, 119, 122 (1908); ICC v

ila. Midland Ry., 168 U.S. 1 164 (1389

Pac. Ry. v. ICC, 162 U.S 233 (1896)

The term “unfair section 202(a) similarly,

had its origins in antitrust legislation that required a

consideration of competition in determining whether

re | violation had heen committed The Federal ‘Tra

Commission Act of 1914 (“FTCA”), ch. 311

Stat. 717, 719, used the term “unfair

Suprem«¢ Court, just two years prior to the pa

the PSA, interpreted it as targeting pra

have a dangerou tendency unduly

competition or create monopoly, /FTJf

| ‘ 1 | 4°)'/ ss (1 1991))

rT} where

Petitioner

i¢ Purp 4¢ aru

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20

Ultimately, the context, purpose, and language

used in subsections 202(a) and (b) make clear that

Congress intended to target only those practices that

do or could adversely affect competition. This

conclusion is reinforced by the presumption that

Congress “knows and adopts the cluster of ideas that

were attached to each borrowed word” from similar

legislation. Morrissette v. United States, 342 U.S. 246,

263 (1952); see also Moskal v. United States, 498 U.S.

193, 121 (1990); Carolene Prods. Co. v. United States,

323 U.S. 18, 26 (1944).

These are the same “sound principles of statutory

construction” that the court below found in the

decisions of the courts of appeals that it followed. Pet.

App. 14a. For instance, the Ninth Circuit specifically

concluded that section 202 “incorporates the basic

antitrust blueprint of ... other pre-existing antitrust

legislation” and thus looked to decisions under that

legislation for interpretive guidance. De Jong

Packing, 618 F.2d at 1335 n.7. And as early as 1939,

the Seventh Circuit had concluded that whether

“preferences or discriminations are unreasonable”

should be interpreted consistently between the PSA

and the Interstate Commerce Act. Swift & Co., 105

F.2d at 856. The Seventh Circuit later held that the

terms “unfair and ‘unjustly’ in Section 202(a) and

‘undue’ and ‘unreasonable’ in Section 202(b),” with

their antitrust ancestry, “enjoin the Department and

courts to apply a rule of reason in determining

lawfulness” under these sections. Armour, 402 F.2d

at 717.

When read in context and according to the PSA’s

purpose, the prohibitions in subsections 202(a) and

(b) require a plaintiff to plead and prove an

anticompetitive effect from a defendant’s challenged

conduct.

21

2. Petitioner launches several attacks on this

natural reading of the PSA. None is availing.

The nub of petitioner's argument that subsections

202(a) and (b) require no showing of an

anticompetitive effect is that “subdivisions (c), (d), (e),

and (f) [of section 202] explicitly refer to

anticompetitive conduct” but (a) and (b) do not. Pet.

21. Contrary to petitioner’s contention, however, the

fact that other subdivisions of section 202 require a

showing of anticompetitive conduct confirms that

(a) and (b) require the same. A basic rule of statutory

interpretation is that when “several items in a list

share an attribute ... the other items” should be

interpreted “as possessing that attribute as well.”

Beecham v. United States, 511 U.S. 368, 371 (1994);

see also Norton v. S. Utah Wilderness Alliance, 542

U.S. 55, 63 (2004) (“the interpretive canon of eyusdem

generis would attribute to the last item ... the same

characteristic of discreteness shared by all the

preceding items’). Because the _ prohibitions in

subdivisions (c)-(e) relate only to conduct that has an

anticompetitive effect, subsections (a) and (b) are

properly read to do the same.

Nor does requiring an anticompetitive effect under

subsections 202(a) and (b) make an absurdity of

section 202. See Pet. 20-23. Rather, as the Tenth

Circuit recognized, subsections (a) and (b) are catch-

all prohibitions designed to capture all of the

anticompetitive “acts that Congress could not, at the

time of enactment, have foreseen and _ specified.”

Been, 495 F.3d at 1229.

Perhaps most important, petitioner’s contrary

construction would render most of section 202

superfluous. If subsections 202(a) and (b) are read-

as petitioner proposes—to prohibit all activity that is

“unfair, unjustly discriminatory, or deceptive,” or that

22

PS)

provides any “undue or unreasonable preference or

advantage,” regardless of any anticompetitive harm,

then these provisions would swallow all of the specific

prohibitions in subdivisions (c) through (e), and much

more. Petitioner's construction contravenes’ the

fundamental rule that a statute should be read so

that “no clause, sentence, or word shall be

superfluous, void, or insignificant.” Duncan v.

Walker, 533 U.S. 167, 174 (2001) (internal quotation

marks omitted).

Even worse, this construction would bring within

the PSA, and the federal jurisdiction of district

courts, issues that are purely matters of state law

and that Congress could not have intended to fall

within its purview. As the Eleventh Circuit

recognized, “[fJailure to require a competitive impact

showing would subject dealers to lability under the

PSA for simple breach of contract or for justifiably

terminating a contract with a grower who has failed

to perform as promised.” London, 410 F.3d at 1304.

Almost any economic practice can be considered

subjectively unfair, undue, or unreasonable. Without

requiring a showing that a _= practice harms

competition, petitioner's broad reading of these terms

would permit all such practices to be challenged

under the PSA. But Congress did not intend to

provide every farmer with an opportunity to convince

a jury in tederal court that his or her own beliefs

about the economic unfairness of any particular

action are correct, without any demonstration that

these individual economic theories are related to

preserving competition in the marketplace.

Petitioner also argues that Congress’s subsequent

amendments of the PSA support his expansive

reading of the Act. Pet. 25-27. Not so. “Congress is

presumed to be aware of [a] ... judicial interpretation

23

of a statute and to adopt that interpretation when it

reenacts a statute without change.” Lindahl v. Office

of Personnel Mgmt., 470 U.S. 768, 782 n.15 (1985)

(quoting Albemarle Paper Co. v. Moody, 422 U.S. 405,

414 n.8 (1975)); accord Forest Grove Sch. Dist. v. T.A.,

129 S. Ct. 2484, 2494 n.11 (2009). As petitioner notes

(at 4), Congress has amended the PSA 23 times over

its 90-year history, but it has remained silent on the

showing necessary under subsections 202(a) and (b)

in the face of numerous federal circuit court decisions

interpreting these subsections to require a

demonstration of an anticompetitive effect from

challenged practices. As petitioner emphasizes (at 8,

26), Congress even extended the protections of section

202 to poultry sellers and growers, but did nothing to

change the decisions of the courts of appeals

requiring an actual or likely anticompetitive effect to

establish a violation under subsections (a) and (b).

The only permissible conclusion is that Congress

intended to ratify this commonsense requirement,

rather than make every activity that someone deems

“unfair” the subject of a federal lawsuit.

In an attempt to get around the clear antitrust

ancestry and purpose of the PSA, petitioner argues

Stafford does not clearly indicate “that

anticompetitive conduct was the only evil to which

those provisions could be applied.” Pet. 25. Not true.

3 Petitioner contends that requiring a_ showing of

anticompetitive effect under subsections 202(a) and (b) would

nullify the prohibitions against the “unfair practices” of false

weighing and failure promptly to pay poultry producers that

Congress recently enacted. Pet. 26-27. This argument is baffling

Congress provided specific enforcement mechanisms for these

offenses, mechanisms entirely separate from subsections 202(a)

and (b). See 7 U.S.C. § 228b-2.

24

The Court upheld the PSA against a Commerce

Clause challenge specifically because the PSA was

aimed at monopolistic and anticompetitive activities.

The Court found a sufficient effect on interstate

commerce because “Congress has found an evil to be

apprehended and to be prevented by the act here in

question, in the use and control of stockyards and the

commission men to promote a packers’ monopoly of

interstate commerce.” Stafford, 258 U.S. at 524-25

(emphasis added). The PSA satisfied the Commerce

Clause because the “act finds and imports this

injurious direct effect of such agencies’—1.e., those

that promote a monopoly—‘upon interstate

commerce.” Id. at 525.

Moreover, in the course of deciding this issue, this

Court made clear that Congress designed the PSA

specifically to combat anticompetitive conduct. While

the Court noted that Congress intended to stop evils

other than the “chief evil” that “is the monopoly of the

packers,” the other evils identified were “all made

possible by collusion between the _ stockyards

management and the commission men, on the one

hand, and the packers and dealers on the other.” Id.

at 514-15. And each of the other harms identified by

the Court were anticompetitive in nature. As

examples, the Court noted collusion, market players

joining forces to impose an “undue burden on

commerce” in the form of “exorbitant or

unreasonable” charges, “duplication of commissions,”

and the “deceptive practices in respect of prices.” Id.

at 515.

Nothing in the Court’s discussion suggests that the

PSA or section 202 in particular extended beyond the

anticompetitive concerns that motivated Congress to

pass the Act. And the Court’s decision certainly does

not suggest-—as petitioner contends—that Congress

intended to make every subjectively “unreasonable”

or “discriminatory” practice a matter of federal law no

matcer how much it promotes healthy competition or

how intrastate it may be.

Thus, petitioner is wrong in baldly asserting that

the PSA “is not an antitrust law.” Pet. 27. As Stafford

and numerous courts of appeals have acknowledged,

the PSA is just such a law. Nor does petitioner’s

citation to section 405 of the PSA support his

assertion. As he acknowledges (at 27), that provision

only states that the PSA will not “prevent or interfere

with the enforcement of, or the procedure under” pre-

existing antitrust laws. Packers and Stockyards Act,

1921, ch. 64, § 405, 42 Stat. 159, 168 (codified as

amended at 7 U.S.C. § 225). That Congress had to

address whether the PSA would interfere with other

antitrust legislation supports the view that the PSA

was aimed at addressing the same harm.

Petitioner also argues that reading the PSA

according to its purpose of targeting practices that

hinder competition will disregard the notion that the

PSA was meant to be “more than a mirror of the

antitrust laws.” Pet. 16. But as the Tenth Circuit

explained, in requiring a showing that “a practice has

injured or is likely to injur[e] competition,” federal

circuit courts “have not required a showing that the

defendant engaged in the unfair practice with the

intent to cause the injury or other unlawful effect,” as

required under antitrust laws. Been, 495 F.3d at

1231. A _ plaintiff need only show that “specific

practices have the effect of injuring competition or are

likely to do so.” Id.

Finally, petitioner contends that requiring a

plaintiff to show an anticompetitive effect will leave

growers without any remedy for abusive practices.

Pet. 18. This argument falls flat. Growers have no

26

shortage of state law remedies to cure perceived

abuses. For instance, growers can resort to breach of

contract claims. After all, petitioner contends that

“the legal foundation” for an “enormous sector of the

agricultural economy is the production contract.” Id.

at 16. Similarly, growers can turn to state laws that

protect against abusive or deceptive business

practices.

In sum, petitioner presents no basis for this Court’s

intervention, and the petition should be denied.

Hl. THE SECOND QUESTION PRESENTED

WAS NOT PASSED ON BY THE COURT

BELOW AND DOES NOT WARRANT

CERTIORARI IN ANY EVENT.

The Court should decline to review the second

question presented because the courts below did not

pass on it, and because it seeks error correction that

does not warrant this Court’s attention.

1. Petitioner seeks review of the question

whether, under Chevron U.S.A. Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837 (1984),

the lower courts should have deferred to the

Secretary of Agriculture’s interpretation of

subsections 202(a) and (b). Pet. i, 29. But neither the

Sixth Circuit nor the district court passed on this

issue, and “rais[ing] questions that were not decided

by the court below .... is ordinarily fatal to the

petition.” Eugene Gressman et al., Supreme Court

Practice 506 (9th ed. 2007). After all, “[ijt is the

general rule ... that a federal appellate court does not

consider an issue not passed upon below.” Singleton

v. Wulff, 428 U.S. 106, 120 (1976).

As petitioner notes (at 33), the Secretary submitted

an amicus brief before the Sixth Circuit advocating

for Chevron deference. But petitioner, the party to

27

the appeal, only advocated for Chevron deference in a

single sentence in his opening brief. See Final Br. of

the Appellant at 14-15, Terry v. Tyson Farms, Inc.,

No. 08-5577 (6th Cir. filed Oct. 9, 2008). Accordingly,

the Sixth Circuit declined to pass on the issue,

presumably having concluded that petitioner forfeited

this argument by failing to raise it adequately in his

briefs. See Treesh v. Bagley, 612 F.3d 424, 434 (6th

Cir. 2010) (“It is a settled appellate rule that issues

adverted to in a perfunctory manner, unaccompanied

by some effort at developed argumentation, are

deemed waived.” (internal quotation marks omitted)).

And having concluded that petitioner failed to raise

this argument, the court presumably declined to

reach an issue raised by an amicus but not the party

it supperts. Bakal Bros., Inc. v. United States, 105

F.3d 1085, 1090 (6th Cir. 1997) (“Because the

argument” by an amicus “was not raised by plaintiff,

we are not required to pass upon the claim.”).

Because the second question presented was not

passed on by the lower courts, the Court should

decline to review it.

2. In all events, petitioner's second question

presented does not warrant this Court's review

because it seeks mere error correction and is

ultimately meritless.

Petitioner does not suggest that the courts of

appeals are in conflict on whether the Secretary’s

interpretation of subsections 202(a) or (b) deserves

Chevron deference. Nor can he. The federal circuit

courts to address this specific issue have all held that

Chevron deference is unwarranted. See Wheeler, 591

F.3d at 362; London, 410 F.3d at 1304; Been, 495 F.3d

28

at 1227.4 Rather, he argues in essence that the Sixth

Circuit erred in failing to defer to the Secretary’s

construction. Pet. 18, 29-31. But this Court does not

sit as a court of error correction. See Halbert v.

Michigan, 545 U.S. 605, 611 (2005).

The Court’s review is also unwarranted because the

Secretary's interpretation of subsections 202(a) and

(b) is not entitled to Chevron deference. When “the

intent of Congress is clear, that is the end of the

matter; for the court, as well as the agency, must give

effect to the unambiguously expressed intent of

Congress.” Chevron, 467 U.S. 842-43. As explained

above, the plain language of subsections 202(a) and

(b), in light of the context and purpose of the PSA,

requires a showing of anticompetitive effect to state a

claim. See supra pp. 16-26; see also Chevron, 467 U.S.

at 843 n.9 (“If a court, employing traditional tools of

statutory construction, ascertains that Congress had

an intention on the precise question at issue, that

intention is the law and must be given effect.”).

Because Congress's intention is clear, there has been

no delegation of authority to the Secretary that

requires deference. Chevron, 467 U.S. at 841-42.

Moreover, contrary to petitioner's suggestion (at

31), this is precisely a situation in which a “court’s

prior judicial construction of a statute trumps an

agency construction” because “the prior court decision

[held] that its construction follows from the

unambiguous terms of the statute and thus leaves no

4As some of these courts have recognized, no Chevron

deference is due to the Secretary’s interpretation in part because

Congress has not delegated authority to the Secretary to

adjudicate violations of section 202 by live poultry dealers. See,

e.g., London, 410 F.3d at 1304.

29

room for agency discretion.” Natl Cable &

Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S.

967, 982 (2005). In Armour, for example, the Seventh

Circuit specifically held that the Secretary had

“erroneously construed” subsections 202(a) and (b) of

the PSA and that “the statutory language” of the Act

“enjoin[ed] the Department and courts to apply a rule

of reason.” 402 F.2d at 717, 727. In other words, the

court held that its conclusion followed from the

unambiguous terms of the statute.

5 Petitioner's concern (at 30) over a possible conflict between

the courts’ and Secretary's constructions of subsections 202(a)

and (b) is no basis for certiorari. As explained above, the

Secretary has. initiated a rulemaking concerning its

interpretation of subsections 202(a) and (b). See supra pp. 15-16

Moreover, on several occasions, the federal circuit courts have

set aside the Secretary’s interpretation of these subsections

because the Secretary failed to construe them properly. See, e.g.,

Armour, 402 F.2d at 727. The conflict arises from the Secretary’s

unwillingness to comply with the plain language of the PSA, not

the courts’ failure to give deference where it is due

30

CONCLUSION

For these reasons, this Court should deny the

Petition for a Writ of Certiorari

Respectfully yours,

ROGER W. DICKSON

TRAVIS R. MCDONOUGH*

ZACHARY H. GREENE

MILLER & MARTIN PLLC

832 Georgia Avenue

Chattanooga, TN 37402

(423) 756-6600

tmcdonough@millermartin.com

Counsel for Respondent

December 22, 2010 * Counsel of Record