United States: Food Law: What Deference Does It Make? The Fifth Circuit And How To Cook A $5,000 Egg

Last Updated: January 21 2014
Article by Michael A. Walsh

In May 2013, Elgin Nursing and Rehabilitation Center (Elgin) ended a lengthy legal battle over an egg when the Fifth Circuit refused to defer to an agency determination of its own vague regulations. (opinion here).

The saga began in February 2010 when the Texas Department of Aging and Disability ("TDAD") investigated Elgin and "observed two breakfast plates with egg yolk 'smeared around the plate.'" The investigation "confirmed that five of Elgin's residents requested eggs served "soft cooked" and found Elgin residents in "immediate jeopardy." 

Elgin's problems got serious when the Center for Medicare and Medicaid Services ("CMS") adopted TDAD's findings and brought the full weight of its substantial enforcement muscle to bear, imposing a number of penalties, including:

  • a civil monetary fine of $5,000;
  • termination of Elgin's provider-of-care agreement;
  • denial of payment for new admissions; and
  • withdrawal of Elgin's approval to conduct nurse training.

An administrative law judge ("ALJ") affirmed the determination by the CMS, and the Department of Health and Human Services ("DHHS") upheld the ruling of ALJ.

What Deference Does It Make?

At issue was whether the Fifth Circuit should defer to agency interpretations of: (1) federal regulations (2) the CMS State Operations Manual (SOM) and (3) "dueling" cooking requirements in the SOM. The Court stated DHHS's interpretation and implementation of the statute promulgated in the CFR is given Chevron deference. (i.e. "if a statute is ambiguous, and if the implementing agency's construction is reasonable, Chevron requires a federal court to accept the agency's construction of the statute, even if the agency's reading differs from what the court believes is the best statutory interpretation." Citing Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 980 (2005)).   

In reviewing CMS's interpretation of the SOM, the Court found CMS's interpretation was entitled to Seminole Rock deference (Bowles v. Seminole Rock & Sand Co.,  325 U.S. 410 (1945) In Seminole Rock, the Supreme Court ruled that "a court must accept an agency's interpretation of its own regulations unless it is "plainly erroneous. Thus, the degree of deference granted the agency's interpretation of its own regulation, was given greater deference. 

Limiting the Power of Federal Regulators

According to the Court, CMS went too far in asking the Court to "defer to its interpretation of its manual interpreting its interpretive regulation." The Court stated that it had "never granted such extraordinary deference to an agency, and we decline to do so now." The Court was of the view that

"[a]ccepting DHHS's request for such deference would lead to problematic outcomes. In the first place, it would make it possible for agencies not only to issue ambiguous regulations, but also to write and enforce ambiguous interpretations of them. It would also require courts to interpret not only interpretations, but also interpretations of interpretations."

The Court noted that "Several Justices have expressed concern regarding agencies' strategically drafting vague regulations to maximize agency power and beat the "cumbersome rulemaking process." The Court further observed that "where courts defer completely to agency interpretations of their own regulations, 'the incentive is to speak vaguely and broadly, so as to retain 'flexibility' that will enable 'clarification' with retroactive effect.'" Citations omitted.

The Court was further concerned that permitting unfettered deference to the decisions of governmental agencies would remove the role of the Courts and "effectively insulate agency action from judicial review. It is not within the province of the Executive Branch to determine the final meaning of a vague document interpreting a regulation..."

Fair Notice

The Court rejected the notion that an agency could interpret agency interpretations of agency regulations. The Court cautioned that such deference "would allow agencies to punish 'wrongdoers' without first giving fair notice of the wrong to be avoided."  This potential was particularly troubling to the Court considering the monetary penalties at stake and the potential repercussions of a finding of deficiency, including, in this case, losing all access to Medicare and Medicaid reimbursement.

Citing Christopher v. SmithKline Beecham Corp., 132 S. Ct. 2156 (2012), the Court observed that refusing to defer to an agency determination "creates a risk that agencies will promulgate vague and open-ended regulations that they can later interpret as they see fit." The Fifth Circuit observed:

It is one thing to expect regulated parties to conform their conduct to an agency's interpretations once the agency announces them; it is quite another to require regulated parties to divine the agency's interpretations in advance or else be held liable when the agency announces its interpretations for the first time in an enforcement proceeding and demands deference. Citing Christopher  at 2168.  

The Court further refused to "[afford[ deference to agency interpretations of ever more ambiguous regulations [that] would allow the agency to function not only as judge, jury, and executioner [and to do so while crafting new rules." Affording deference to an agency's interpretations of its own rules "encourages the agency to enact vague rules which give it the power, in future adjudications, to do what it pleases. This frustrates the notice and predictability purposes of rulemaking, and promotes arbitrary government." Citing Talk Am., Inc. v. Mich. Bell Tel. Co., 131 S. Ct. 2254, 2266 (2011) (Scalia, J., concurring).

Fifth Circuit – How to Cook an Egg

Court applied "traditional tools of textual interpretation to determine the fair meaning" of the regulations and SOM. Applying the fully power of its collective reasoning powers, the Fifth Circuit concluded "an egg must be either cooked at 145° F. for 15 seconds or cooked until the white is set and the yolk congealed." 

The Food Safety Modernization Act (FSMA) greatly increased FDA's oversight over how food is grown, processed, distributed, prepared and sold in the United States.  As the FDA marches forward implementing the sweeping changes in FSMA through new regulations, guidance, changes in procedural manuals and the Food Code, compliance becomes more complex and the penalties that can be levied more expansive. In Elgin, the Fifth Circuit, applying recent Supreme Court authority, ensured that governmental agencies are not promulgating vague and open-ended regulations and interpreting those regulations in arbitrary and unfair ways. Elgin suggests that the Courts are pulling the reins of governmental agencies, who no longer can expect unfettered power to interpret and enforce vague regulations.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Michael A. Walsh
Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions