                 IN THE UNITED STATES COURT OF APPEALS

                         FOR THE FIFTH CIRCUIT

                     _____________________________

                              No. 92-7420
                     _____________________________

MISSISSIPPI POULTRY ASSOCIATION,
INC., ET AL.,

                                           Plaintiffs-Appellees,

                                versus

EDWARD R. MADIGAN, Secretary of the
United States Department of
Agriculture, ET AL.,
                                         Defendants-Appellants.
         _________________________________________________

           Appeal from the United States District Court
             for the Southern District of Mississippi

         _________________________________________________
                        (November 16, 1993)


BEFORE REAVLEY, KING, and WIENER, Circuit Judges.

WIENER, Circuit Judge.

     The majority opinion in this case, filed on May 28, 1993 and

reported at 992 F.2d 1359, is amended by the addition thereto of

the following:

     Alternatively, if we accept arguendo the foundation of the

Secretary's argumentSQthat the phrase "the same as" is ambiguousSQwe

conclude that the Secretary's interpretation of that phrase must

fail.   The reason it must fail is that the second prong of Chevron,

U.S.A v. Natural Resources Defense Council requires the court to

determine "whether the agency's answer is based on a permissible
construction of the statute."1                   To determine here whether the

Secretary's interpretation of "the same as" to be synonymous with

"at least equal to" is permissible, we must look to the statute as

a whole.         In the statute, we find that Congress deliberately and

consistently used the words "at least equal to" as a term of art to

define the standards that a state poultry inspection process must

meet       in    order   to   be    substituted      for   the   federal    inspection

process.2 And just as deliberately and consistently, Congress used

the words "the same as" as a term of art to define the standard

that a foreign poultry inspection process must meet for its poultry

to be imported here. Therefore, the use of these different phrases

in    the       PPIA   signals     an   intention    to    distinguish     between   the

inspection standards to be met by state inspection standards on the

one    hand        and   foreign        inspection    standards     on     the   other.

Consequently, for the Secretary to construe "the same as" as an

interchangeable synonym of "at least equal to," when the latter

phrase is deliberately used in the statute to distinguish that

which it refers to from that which the former phrase refers to, is

simply not permissible statutory construction.3

       1
        Chevron, U.S.A. v. Natural Resources Defense Council,
467 U.S. 837, 843, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694, 703
(1984).
       2
            21 U.S.C. §§ 454(c), 460(e).
       3
        See Russello v. United States, 464 U.S. 16, 23, 104
S.Ct. 296, 300, 78 L.Ed.2d 17, 24 (1983) ("Where Congress
includes particular language in one section of a statute but
omits it in another section of the same Act, it is generally
presumed that congress acts intentionally and purposely in the
disparate inclusion or exclusion.") (quoting United States v.
Wong Kim Bo, 473 F.2d 720, 722 (5th Cir. 1972)).

                                             2
      As ambiguity is the sole underpinning of the Secretary's

position, it is important to take another hard look at that issue.

A reading of Webster's preferred definitions of "same" reveals that

it means "resembling in every way" and "corresponding so closely as

to be indistinguishable."         Webster also gives "same" as a synonym

for   "identical."     Admittedly,        if   we    do    not    stop   reading    at

preferred, synonymous definitions but keep going far enough down

the list of secondary and tertiary alternative definitions, we

eventually    find   language     suggesting        that   some     variations     are

possible and that "equivalent" is also a synonym.

      Nevertheless,    if   the    mere    existence       of     slightly   varying

secondary or tertiary definitions were permitted to constitute

ambiguity for Chevron purposes, Congress could never write an

unambiguous statute.        A quick glance at any dictionary confirms

that very few words have but a single meaning.                   Certainly workaday

adjectives such as "same" are never disposed of with one lonely

definition.

      If we were to follow the Secretary's primrose path by equating

ambiguity     with   differences     between        primary       definitions      and

secondary or tertiary definitions in the dictionary, the core issue

of this case would be reduced to absurdity:                        For the agency

interpretation to trump Congress, the agency must be entitled to

deference; for the agency to be entitled to deference, there must

be ambiguity; if every word for which secondary and tertiary

meanings are to be found in some English language dictionary is

deemed to be ambiguous for Chevron purposes, essentially every


                                       3
non-technical word in every statute would have the potential of

being ambiguous; consequently, the agency's definition would trump

Congress's word usage every time, no matter how cynical or perverse

the agency's frustration of the will of Congress might be.                 Q.E.D.

     This also demonstrates the fallacy of over-emphasizing the

dictum in National Railroad Passenger Corp. v. Boston & Maine

Corp., out of context.4          Under National Railroad, alternative

dictionary definitions, "each making sense under the statute,"

merely indicate that we should question the language for ambiguity;

they do not compel a per se conclusion of ambiguity.            When we thus

"question"    the   language   of    the   instant   statute    we    are    led

inescapably to conclude that even if the phrase "the same as" might

be ambiguous in other contexts, it cannot be ambiguous here.                 The

reason, as stated at the outset of this supplemental opinion, is

that here a carefully crafted statute purposefully employs "the

same as" as a precise term of art and at the same time employs the

Secretary's   chosen   synonym      phrase,   "at   least   equal    to"    as a

precise, distinguishing term of art.          Irrespective of what other

synonyms the Secretary might be entitled to choose in implementing

"the same as" for measuring foreign inspection processes, the one

that is not available is "at least equal to."                  For Congress

preempted that phrase by choosing to use it in the statute to apply

to state processes and declining to use it to apply to foreign


     4
             U.S.     , 112 S.Ct. 1394, 1402, 118 L.Ed.2d 52, 66
(1992) ("The existence of alternative dictionary definitions . .
. itself indicates that the statute is open to interpretation.")
(emphasis added).

                                       4
processes.

      We also reiterate that the instant case does not invite a

search for legislative intent.           We would be putting the proverbial

cart before the horse if we were first to consider legislative

intent in testing for ambiguity.             For only after the language of a

statute is found to be ambiguous are we entitled to launch an

extra-statutory search for Congressional intent.                    The threshold

inquiry in a Chevron analysis is, of course, whether Congress's

intent is clear ("If the intent of Congress is clear, that is the

end of the matter; where the court, as well as the agency, must

give effect to the unambiguously expressed of Congress").5                   Here,

the plain wording of the PPIA makes the intent of Congress clear as

a matter of law.       If the language used is clear on its face, "then

the   first    canon      is   also   the       last:   `Judicial     inquiry   is

complete.'"6    In Bank of Connecticut v. Germain, the Court rejected

the bank's reference to a statute's legislative history, stating

simply that interpretation of the statute begins with its words

and, if those words are clear, the inquiry is over.

      Finally, we reiterate that we cannot accept the proposition

that, under the circumstances of the instant case, we should not at

least     consider   as    instructive      a    subsequent   Act   of   Congress.

Basically, we find Pierce v. Underwood so distinguishable from the


      5
          Chevron, 467 U.S. 842-43.
      6
        Connecticut Nat'l. Bank v. Germain,      U.S.     , 112
S.Ct. 1146, 1149, 117 L.Ed.2d 391, 398 (1992) (quoting Rubin v.
United States, 449 U.S. 424, 430, 101 S.Ct. 698, 701, 66 L.Ed.2d
633, 638 (1989)).

                                         5
instant situation as to be inapposite.7   The subsequent legislative

pronouncement in Pierce was found in nothing more substantial than

a House of Representatives Committee Report, not, as here, in an

Act of Congress.   In fact, when rejecting the probative value of

the committee report in Pierce, Justice Scalia emphasized that it

spoke at most for but one committee of but one house of Congress.

That is significantly distinguishable from the instant situation in

which a majority of the full membership of both houses of Congress

voted to enact a full-fledged statute in which the Secretary's

interpretation of "the same as" in § 46(d) was expressly rejected.

     We continue to adhere to our affirmance of the district

court's summary judgment.



REAVLEY, Circuit Judge, dissents.




     7
         487 U.S. 552, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988).

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