Appeal from a judgment of the United States District Court for the Southern District of New York (Mary Johnson Lowe, Judge), granting respondents-appellees' motion to dismiss the petition of plaintiff-appellant for lack of subject matter jurisdiction. Reversed and remanded.
Newman and Altimari, Circuit Judges, and Griesa, District Judge.*fn*
Plaintiff-appellant G. & T. Terminal Packaging Co., Inc. ("G. & T.") appeals from a judgment of the United States District Court for the Southern District of New York (Mary Johnson Lowe, Judge), granting defendants-appellees' motion to dismiss as untimely G. & T.'s appeal under the Perishable Agricultural Commodities Act of 1930, 7 U.S.C. § 499g(c) (1982)("PACA"), and for costs and attorneys' fees. G. & T. sought review in the district court of a decision and amended order of the Secretary of Agriculture, awarding reparation to appellees in the amount of $33,220.30. At issue in this appeal is whether the amended order or its predecessor was the final order for purposes of review in the district court. Because we find the Secretary's amended order was the final order, we reverse.
On March 5, 1985, Phillip A. Hawman and Hawman Farms, Inc. ("the Hawmans") initiated proceedings before the United States Secretary of Agriculture pursuant to PACA section 499f(a), in which they sought $67,740.78 from G. & T. in connection with the sale on August 3 and August 4, 1984 of five carlots of potatoes. G. & T. answered that it had paid the Hawmans the undisputed amount due of $34,520.30, and denied further liability. A hearing was held on August 19, 1985, on the basis of which the Secretary determined that a portion of the payment was still outstanding. Two years later, by order dated September 11, 1987, the Secretary directed that G. & T. pay the Hawmans $33,220.30 "with interest thereon at the rate of 13% per annum from 1984 until paid."
On September 22, 1987 the Secretary, acting sua sponte, issued an "Amended Order." The amended order stated that, through the Secretary's inadvertence, the month from which interest was to be paid had been omitted from the September 11 order. Accordingly, the September 11 order was amended to read as follows:
Within 30 days from the date of this order, [G. & T.] shall pay to [the Hawmans], as reparation, $33,220.30 with interest thereon at the rate of 13% per annum from September 1, 1984 until paid. . . .
G. & T. received the amended order on September 28, 1987, along with an attached letter from J. D. Flanagan, Chief of the Department of Agriculture PACA Branch Fruit and Vegetable Division ("PACA Branch"). The letter stated, in pertinent part, that "the reparation awarded in the order of September 11, 1987, as thus amended, shall be paid within 30 days from the date of this order or on or before October 22, 1987." (Emphasis added). The letter went on to state that "unless we are advised of payment of the reparation award or that an appeal has been filed in United States District Court, the order becomes final on October 22, 1987." The Hawmans received the amended order, but not the cover letter. Subsequently, G. & T. received a mailgram from the PACA branch dated October 16, 1987 indicating that unless the order was "appealed to court by October 22, or paid by October 28," G. & T.'s license would be suspended.
Under section 499g(c) of PACA, a party who is "adversely affected" by the entry of a reparation order is entitled to appeal the decision in the district court. The appeal is perfected by filing a petition and bond in an amount double that awarded by the Secretary within 30 days of the date of the order. G. & T. filed its notice of appeal and supersedeas bond on October 22, 1987. The appeal was filed within 30 days of the amended order, but 41 days from the date of the original order. The Hawmans moved in the district court to dismiss the appeal for lack of subject matter jurisdiction. They argued that the Secretary's September 11 decision was the final order from which the appeal should have been taken, and the appeal was therefore untimely.
Notwithstanding the apparent position of the Secretary that the amended order was properly appealable, the district court deemed the final order to be the one dated September 11. Relying on Carter/Mondale Presidential Comm., Inc. v. Federal Election Comm'n., 229 U.S. App. D.C. 1, 711 F.2d 279 (D.C. Cir. 1983), the court found September 11 to be the "critical date" on which the "obligation of payment was imposed and the practical relationship between the parties affected." Accordingly, the court found the appeal to be untimely and granted the Hawmans' motion to dismiss. The court also awarded the Hawmans their costs and attorneys' fees.
On appeal from the judgment of dismissal, G. & T. contends that the court erred as a matter of law in finding the September 11 decision to be the agency's final order. It argues that under the "pragmatic approach to finality" articulated by ...