United States DC Circuit

In a suit challenging the USDA's refusal to allow plaintiff-beef producer to purchase and use kits to test for bovine spongiform encephalopathy in its cattle, summary judgment for defendant-USDA on one count is affirmed, and for plaintiff on a second count is reversed, where, under a Chevron analysis, the USDA was authorized by the Virus-Serum-Toxin Act to regulate the use of biological products, including the test kits, and to restrict their distribution and sale.

Appellate Information

• Argued 05/09/2008
• Decided 08/29/2008
• Published 08/29/2008

Judges

• Before:  SENTELLE, Chief Judge, HENDERSON and ROGERS, Circuit Judges.

Court

• United States DC Circuit

Counsel

• For Appellees:
  
• Eric Fleisig-Greene, Attorney, United States Department of Justice, argued the cause for the appellants/cross-appellees.  Jeffrey S. Bucholtz, Acting Assistant Attorney General, Jeffrey A. Taylor, United States Attorney, and Mark B. Stern and Michael S. Raab, Attorneys, United States Department of Justice, were on brief.  James J. Gilligan, Attorney, United States Department of Justice, and R. Craig Lawrence, Assistant United States Attorney, entered appearances., Russell S. Frye argued the cause for the appellee/cross-appellant. Peter C. Choharis entered an appearance.