262 PERISHABLE AGRICULTURAL COMMODITIES ACT COURT DECISION PMD PRODUCE BROKERAGE CORP. v. USDA. No. 02-1134. Decided May 13, 2003. (Cite as: 2003 WL 21186047 (D.C.Cir.)) PACA - Untimely filing. Respondent filed his petition for review 2 days later than permitted under the Administrative hearing rules. Respondent's contention of timeliness of filing based upon a nice calculation of presumed mailing date plus an "average" number of days to deliver certified mail is inadequate to show compliance with the rules. United States Court of Appeals, District of Columbia Circuit. Before: HENDERSON, RANDOLPH and GARLAND, Circuit Judges. JUDGMENT PER CURIAM. This cause was considered on the record from the United States Department of Agriculture and on the briefs of counsel. It is ORDERED that the petition for review be dismissed for lack of jurisdiction. Under the Hobbs Act, an aggrieved party must file a petition for review of a final agency order "within 60 days after its entry." 28 U.S.C. § 2344. Here, the order at issue is date-stamped February 14, 2002. Respondents' Appendix (RA) 1. Although PMD Produce Brokerage Corp. (PMD) did not file its petition for review until sixty-two days later, on April 17, 2002, its petition was timely under the Hobbs Act, it maintains, because the date of "entry" is the date on which the Department of Agriculture (USDA) mailed the order, which it "verily believe[s] was on or about February 22, 2002." Br. for Pet'r at 11. Even assuming that the date of "entry" is the date on which a final order is mailed, however, PMD has failed to demonstrate the timeliness of its petition. To support its belief that the order at issue was mailed "on or about February 22, 2002," PMD relies solely upon the date on which it received the final 62 Agric. Dec. 262 order-February 25, 2002-and the declaration of its counsel that an employee of the United States Postal Service informed him via telephone that "certified mail with return receipt requested takes, on average, from one to three days to deliver from Washington, D.C. to New York City." RA 24. PMD's assertions are plainly insufficient to establish February 22, 2002 as the final order's date of entry, particularly in light of the documentary evidence submitted by the USDA, which uniformly supports the conclusion that the final order was entered and mailed on February 14, 2002. See RA 9-22. PMD's petition is therefore dismissed as untimely. See 28 U.S.C. § 2344. Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41. PERISHABLE AGRICULTURAL COMMODITIES ACT DEPARTMENTAL DECISIONS In re: JANET S. ORLOFF, MERNA K. JACOBSON, AND TERRY A. JACOBSON. PACA-APP Docket No. 01-0002. Decision and Order as to Merna K. Jacobson. Filed January 7, 2003. PACA-APP - Perishable agricultural commodities - Failure to make full payment promptly - Responsibly connected Active involvement in activities resulting in violations - Personal commission of prohibited activity not required. The Judicial Officer (JO) affirmed Administrative Law Judge Clifton's decision affirming the Chief of the PACA Branch's determination that Petitioner was responsibly connected with Jacobson Produce, Inc. at the time Jacobson Produce, Inc. violated the PACA. The JO found that Petitioner held more than 10% of the stock of Jacobson Produce, Inc. during the period that Jacobson Produce, Inc. violated the PACA. Thus, Petitioner met the first sentence of the definition of the term responsibly connected in 7 U.S.C. § 499a(b)(9), and the burden was on Petitioner to demonstrate by a preponderance of the evidence that she was not responsibly connected with Jacobson Produce, Inc. The JO stated that 7 U.S.C. § 499a(b)(9) provides a two-pronged test which Petitioner had to meet to demonstrate that she was not responsibly connected. First, Petitioner had to demonstrate by a preponderance of the evidence that she was not actively involved in the activities resulting in a violation of the PACA. Since the statutory test is in the conjunctive ("and"), Petitioner's failure to meet the first prong of the statutory test resulted in the Petitioner's failure to demonstrate that she was not responsibly connected, without recourse to the second prong. A petitioner who participates in activities resulting in a violation of the PACA is actively involved in those activities, unless the petitioner demonstrates by a preponderance of the evidence that his or her participation was limited to the performance of ministerial functions only. Thus, if a petitioner demonstrates by a preponderance of the evidence that he or she did not exercise judgment, discretion, or control with respect to the activities that resulted in a violation of the PACA, the petitioner would not be found to have been actively involved in the activities that resulted in a violation of the PACA and would meet the first prong of the responsibly connected test. See In re Michael Norinsberg, 58 Agric. Dec. 604, 610-11 (1999) (Decision and Order on Remand). Petitioner was the buyer of, or was responsible for buying, produce from produce suppliers which Jacobson Produce, Inc. did not pay in accordance with the PACA. The JO found Petitioner's purchase of, or responsibility for the purchase of, this produce was active involvement in activities that resulted in Jacobson Produce, Inc.'s violations of the PACA. Moreover, the JO found Petitioner did not demonstrate by a preponderance of the evidence that her participation in the purchase of produce was limited to the performance of ministerial functions only. Petitioner, as a buyer for and manager of Jacobson Produce, Inc.'s frozen foods department, decided whether to make produce purchases on behalf of Jacobson Produce, Inc. and chose to do so even though she knew or should have known that Jacobson Produce, Inc. was not paying produce suppliers for perishable agricultural commodities in accordance with the PACA. The JO rejected Petitioner's argument that in order to be actively involved in the activities resulting in a PACA licensee's violation of the PACA, a petitioner must 62 Agric. Dec. 264 actually commit the PACA violation stating a petitioner's failure to make full payment promptly is not the only activity that can result in a PACA licensee's failure to make full payment promptly in accordance with the PACA. Ruben D. Rudolph, Jr., for Respondent. Paul T. Gentile, for Petitioner. Initial decision issued by Jill S. Clifton, Administrative Law Judge. PROCEDURAL HISTORY On February 21, 2001, James R. Frazier, Chief, PACA Branch, Fruit and Vegetable Programs, Agricultural Marketing Service, United States Department of Agriculture [hereinafter Respondent], issued a determination that Merna K. Jacobson' [hereinafter Petitioner] was responsibly connected with Jacobson Produce, Inc. during June 1999 through January 2000, a period during which Jacobson Produce, Inc. violated the Perishable Agricultural Commodities Act, 1930, as amended (7 U.S.C. §§ 499a-499s) [hereinafter the PACA].2 On March 5, 2001, Petitioner filed a Petition for Review pursuant to the PACA and the Rules of Practice Governing Formal Adjudicatory Proceedings Instituted by the Secretary Under Various Statutes (7 C.F.R. §§ 1.130-.151) [hereinafter the Rules of Practice] seeking reversal of Respondent's determination that she was responsibly connected with Jacobson Produce, Inc. during the period Jacobson Produce, Inc. violated the PACA. On July 12, 2001, Administrative Law Judge Jill S. Clifton [hereinafter the ALJ] conducted a hearing in New York, New York. Paul T. Gentile, Gentile & Dickler, New York, New York, represented Petitioner. Ruben D. Rudolph, Jr., Office of the General Counsel, United States Department of Agriculture, Washington, DC, represented Respondent. On November 30, 2001, Petitioner filed "Petitioner's Brief and Proposed 'Respondent's February 21, 2001, determination letter (CARX 14) and a number of other exhibits and filings in this proceeding refer to Petitioner as "Myrna K. Jacobson." Petitioner's name is "Merna K. Jacobson" (Amendment of Case Caption, Deadlines for Filing Outstanding Evidence, Request for Settlement Documents, and Briefing Schedule). During June 1999 through January 2000, Jacobson Produce, Inc. failed to make full payment promptly to 28 sellers of the agreed purchase prices in the total amount of $584,326.83 for 153 lots of perishable agricultural commodities, which Jacobson Produce, Inc. purchased, received, and accepted in interstate and foreign commerce. Jacobson Produce, Inc.'s failures to make full payment promptly constitute willful, repeated, and flagrant violations of section 2(4) of the PACA (7 U.S.C. § 499b(4)). In re Jacobson Produce, Inc., 60 Agric. Dec. 381 (2001) (Consent Decision and Order) (CARX 15). Finding of Fact." On January 31, 2002, Respondent filed "Respondent's Proposed Findings of Fact, Conclusions of Law, and Order." On August 13, 2002, the ALJ issued a "Decision" [hereinafter Initial Decision and Order] in which the ALJ affirmed Respondent's determination that Petitioner was responsibly connected with Jacobson Produce, Inc. during June 1999 through January 2000, a period during which Jacobson Produce, Inc. violated the PACA (Initial Decision and Order at 12). On October 16, 2002, Petitioner appealed to the Judicial Officer. On November 15, 2002, Respondent filed "Respondent's Response to Petitioner's Appeal Petition." On November 18, 2002, the Hearing Clerk transferred the record to the Judicial Officer for consideration and decision. Based upon a careful consideration of the record, I agree with many of the ALJ's findings of fact and conclusions of law and the ALJ's affirming Respondent's determination that Petitioner was responsibly connected with Jacobson Produce, Inc. during June 1999 through January 2000, a period during which Jacobson Produce, Inc. violated the PACA. Therefore, pursuant to section 1.145(i) of the Rules of Practice (7 C.F.R. § 1.145(i)), I adopt with minor modifications the ALJ's Initial Decision and Order as the final Decision and Order. Additional conclusions by the Judicial Officer follow the ALJ's conclusions of law, as restated. Petitioner introduced no exhibits. Respondent introduced 17 exhibits admitted into evidence at the July 12, 2001, hearing. The 15 Certified Agency Record exhibits introduced by Respondent are designated by "CARX." Two additional exhibits introduced by Respondent are designated by "AX." Transcript references are designated by "Tr." |