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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).
6