When PACA Says Thirty Days, it Means . . . Thirty Days. Ignore This at Your Peril, Appellants!

Know the Rules, and especially the Statute!  And pay close attention to the progress, or lack thereof, of your case.  This is the warning that any PACA litigator must take seriously when prosecuting or defending a formal reparation proceeding before the Department of Agriculture (USDA). 

In Brahm Foods v. DR Asian Produce, Case No. 20-cv-63, U.S. District Court, Eastern District of New York (March 31, 2021), the USDA, following an administrative hearing, entered an order of reparation in favor of DR Asian Foods and against Respondent Brahm, in the amount of $52,701.39 (plus interest and an additional $500).  Pursuant to PACA, Brahm then appealed this order to the District Court, almost five months after the date of entry of the reparation order.   DR Asian moved to dismiss appeal, arguing that the appeal was filed more than 30 days after the reparation order was entered, and more than 30 days after the hearing officer denied a motion for reconsideration.

In its Petition in the District Court, Brahm argued that it did not receive a copy of the reparation order until months after it was entered.  Without citing any supporting facts, Brahm argued that the order was sent to its prior attorney, and that Brahm did not become aware of it until approximately three and a half months after its entry.  Brahm then argued that any delay on its part was inadvertent.

In granting DR Asian’s motion to dismiss Brahm’s petition and appeal, which motion, significantly and inexplicably, Brahm did not oppose (?!), the court held that it lacked subject matter jurisdiction to hear the appeal.  It noted that the applicable provisions of PACA provide that an appeal from a reparation order must, among other things, be filed within 30 days after the entry of the order (or after the denial of a petition for reconsideration), and must be accompanied by a bond in twice the amount of the order plus an estimated attorneys’ fee for the other side if the appeal is denied. 

Failure to comply with these statutory mandates deprives the reviewing court of subject matter jurisdiction to hear the case.  So ruled the court in Brahm.  Applying the law to the case before it, the court denied Brahm’s petition to appeal, and about four months later entered an order awarding DR Asian attorney’s fees in the amount of $2,476.02.

Left unsaid in the case is whether any reason, however factually justified, can excuse a party’s non-compliance with PACA’s statutory jurisdictional requirements.  Sadly, for aggrieved parties, the answer appears to be no.  Citing one case, for example, the court in Brahm noted that a reviewing court does not even have the authority to grant a request for an extension of time to perfect an appeal.  

So the bottom line for any PACA litigator is:  read the statute; know its requirements, both as to timing and substance; and follow them to the letter.  Remember:  a deadline to file an appeal is not the same thing as a statute of limitations which can, in some instances (not to be encouraged, of course) be extended or waived.  In the case of the filing of an appeal, as the Brahm case aptly illustrates, he or she who hesitates is indeed lost, totally and irrevocably.