* The Honora ble Will iam W Schwarzer, Senior Unit ed States Distr ict Judge for the Northern District of Californi a, sit

ting by designat ion.

1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2003 FED App . 0319P (6th C ir.) File Name: 03a03 19p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________

H.C. M AC C LAREN , I NC ., Petitione r,

v.

U NITED S TAT ES D EPARTMENT

OF A GRICULTURE , Responde nt. X - - - -

> , - - - - N No. 02-3006

On Ap pe al fr om an Or de r o f t he Se cr et ar y, United States Department of Agriculture.

No. D-99-0012.

Argued: June 11, 2003

Decided and Filed: September 4, 2003

Befor e: MOORE a

nd GIBBONS, Circuit Judg es; SCHWARZER, Senior District Judge. * 2 H.C. MacClaren, Inc. v. United States Dep’t of Agric. No. 02-3006

_________________ COUNSEL

ARGUED: Stephen P. McCarron, McCARRON & DIES S, Washington, D.C., for Petitioner . S te ph en M. Re il ly, OFFI CE OF GENERAL COU NSE L, UNI TED STATES DEPARTMENT OF AGRICUL TURE, Washington , D.C

., fo r Responde nt. O N BRIE F: Stephen P. McCarron, McCARRON & DIESS , Wa shington, D.C., for Petitioner. Steph enM. R eil ly, O FFIC E OF GEN ER AL CO UNS EL, UNITED ST ATES DEPARTMENT OF AGRICUL TURE, Washingt on, D.C., f

or Respon

dent.

_________________ OPINION

_________________ JU LIASMITH

GIB BONS, Cir

cuit Judge . Petitione

r H.C. MacClaren, Inc. (MacClare n), a wholesale produce bro k er, appeals a final order of the Secretary of Agriculture revoking its license

pursuant

to the Perishable Agricultural Commodities Act (PACA) , 7 U. S.C. §§ 499a-499s. The Secretary determined that the sanction of licens e r evocation

was appropr

iate aft e r c oncluding that MacClaren had committed

sixty- one viola

tio ns of PA CA . S pe ci fi ca ll y, MacClaren

employees

admitted t

o altering fifty

-three United States Department of Agriculture (USDA or “ the agency ”) inspectioncertificates and issuing e ight fa

lse acc ounts of sa

le for a fraudulent purpose. MacClaren conte nds that in i mposin g the sanction of license revocation, the Secretar y erred in failing to consider the remedial purpose of PACA and all relevant circumstances and imposed a sanction t h at is withoutjustification in fact. For the reasons set forth below, we affirm the decision of the Secretary

.No. 02-3006 H.C. MacClaren, Inc. v. United States Dep’t of Agric. 3

I.

MacC laren

began doing business in the 1920s and wa s issued a PACA license in 1974. Since 1974, MacClaren’s license has been renewed annually

. MacClaren operates out of Detroit, Michigan, and

is owned and managed by Gregory MacClar en, president, director and fifty -one percent stockholder, and Darrell Moccia, vice-preside nt, director, and forty-nine percen t stockhol der. I

n additio n to G regory MacClaren

and Darrel l Mo ccia, du ring the releva nt time period Mac Claren e

mploy ed four s alespersons, Nor

man Old s , AlanJohnston, Frederick Gottlob and Daniel Schmidlin, who

were pa id on commission. All six individuals purchased fruits and vegeta bles (pe rishable commoditie s) from shippers throughout

the country and

resold the produce to local jobbers

an d wholesa lers. The y w orked in t

he same a rea with rais e d dividers separating their desks and toget her handled about 400 transactions per month.

Prior to the violations atissue, MacClaren had no record of violations of PACA. D

uring 19 94 through 1996, however, three MacClaren empl o yees committed sixty -one violations of PA CA. Olds, Johnston and Gottlob admitted to altering fifty-three inspectioncertificates resulting in underp ay

ments totaling $130,903.00 to twenty-two suppliers. I n addition, Olds and Gottlob admitted to issuing eight

false accounts of sale to seven suppliers resulting in underpay ments of $6,599.15.

The admissions by MacClaren employees re sulted

from the investigation of a nother company suspe cted of altering inspectioncertificates. In D ecember 1996, USDA investigators visited MacClaren to examine MacClaren’s file relatingto a tran saction w ith the company unde r investigation. Upon examining the file, t he investigators discovered

two copie s of the sa me USD A inspection certifi catecontaini ng conflicting entries. Neither Gregory MacClaren

nor Da rr el l M oc ci a c ou ld ex pl ai n t he di sc re pa nc y. 4 H.C. MacClaren, Inc. v. United States Dep’t of Agric. No. 02-3006

1 The USDA concedes that MacC laren repaid “most but not al l of the unde rpaym ents.” T he investigators then reviewed thirty -six files and f

oun d discrepancies in eleven of the files handled by Olds, Gottlob and Johnston.

Gregory MacClaren

and Dar rell Mocc ia

denie d know ledge of the alte rations a

nd told inve stigators that the y w anted to
coopera te and investigate

the matter internally. The y initiated

an interna

l review and had their employe es revie w all pas t f iles for altered inspection certificates. The inter nal investigation

uncovered nu

mero us additional altered inspectioncertificates which Gregory MacClaren

and Dar rell Moccia turned over to investigators. Olds, Gottlob and Johnston voluntarily ga

ve statements to the investigators admitting that they

had altered USDA inspection certificates and denying that Gregory

MacClaren or Darrell Moccia we re

aware of their a

ctions. Gottlob alsoadmitted to issuing seven falseaccoun

ts of sale, and Olds admitted to issuing one such false a ccount.
Gregory MacClar

en personally

conta c ted the suppliers affected by the altere d

ins pection c ertific ates and false

accoun ts t o express MacClaren’s intent to make restitution. According

to MacC lar en, the company returned almost one hundred percent of the amounts it underpa id shi ppers as a result of the alter ations an d false a ccountin gs. 1

Despite their admissions of improper conduct, MacClaren continued to employ

Old s and Go ttlob on the condition that they reimburse MacClaren for the restitution that it intended
to pay the shippers. I

n addi tion, Olds and Gottlob were directed to call each shipper

affected by

the altered inspection certifi cates, explain the ir action s and advise th e sh ipper that MacClaren

intended to make restitu tion for any losses the shipper suffered. Olds cont inued working for MacClaren, andNo. 02-3006 H.C. MacClaren, Inc. v. United States Dep’t of Agric. 5

2 Gottl ob obtainedimmunity f rom criminal prosecution in r eturn for his testi mony at the USD A hearing. Old s testified at the hearin g, but d id
not rec eive im munity. throu gh payche ck

d eductions he reimbursed MacClaren for the restitution on the ins pection c ertific ate s he a ltered. Gottlob, however, only c ontinued working for MacClaren

for about a month an

d a half u ntil he wa s termina ted for poor work performance. Gottlob did not repay Mac Claren any of the restitution amount.

OnJune 17, 1999, the USDA issued a complaint charging MacClaren

wit h violating PACA by altering fifty-three USDA inspection certif

icates a nd submitting

false a ccounts to seven suppliers. The Complai nt r equested that MacClaren’s license be revoked due t o its “ willful, flagrant and repeated violations” of PACA. On September 20 and 21, 2000, Administrative Law Judge (AL J) J a mes W. Hunt conducted

a hearing in Detroit, Michigan. I n his decision and order finding that Mac Claren vi olated PA CA as alleg ed in the complaint, the ALJ noted that MacClaren “did not deny that 53 USDA inspection certificates had been altered .” He he ld that because “these unlawful act s w ere committed by [MacClar en’s] salesmen

in the cou

rse of th eir employme

nt, they are deemed to be the acts of [MacClaren].” I n deciding the appropriate sanction for theviolations, the ALJ found that it had not been shown that

MacClar en “was irresponsibleor unscrupulous and no evidence was provided to show that license revocation or suspension would hav e a greater beneficial effect on the industry than a m onet ary fine .” According

to the ALJ, MacClaren “acted r esponsibly when

it became aware of the fraudulent practices of its salesmen” and “took promptmeasures to provide restitution to the shippers.” Moreover, the ALJ recognized that ne ither O lds or Gottlob

was c r iminally prosecuted for altering federal inspections under 7 U.S.C. § 499n(b). 2 Therefore, the AL J imposed a civil penalty of $50,000. 6 H.C. MacClaren, Inc. v. United States Dep’t of Agric. No. 02-3006

3 The Secretary of Agricul ture has delegated authorit y to the Judici al Offic er to act as final dec iding o fficer in the U SD A’s adjudi catory proceedi ngs s ubject

to 5 U.S .C. §§ 556 & 557. 7 C. F.R. § 2.35. The agency

appealed the ALJ’s decision to the J udicial Officer, ac ti ng fo r t he Se cr et ar y of Ag ri cu lt ur e, on Ma y 2 3, 2001. 3 Amo ng o th er t hi ngs , t he a gen cy arg ued th at t he A LJ erred in failing

to find Ma

cClaren ’s viola

ti ons willful and therefore further erred b y imp osing a s anction o f a civil monetary penalty rather than lice

nse revo cati on. On November

8, 2001, without conducting an additional hearin g, Judicial Office

r Willia m G . Jenson issued a decision and order in w hic h he ag ree d with the ma

jor ity of t he A LJ’ s finding s. The decision, however, differed fr om the opinion of the ALJ in two significant areas. First, in the finding s of fact, the Judicial Officer concluded that Gregory Mac C laren and Darrel l Moccia, MacC laren’s owners, “did not know, but should have k nown, durin g the pe riod o f Jun e 1994 throu gh November

1996, that the United S tate s Department of Agriculture inspection certificates . . . were a ltered and that the false accou

nts of sales . . . were made.” I n addition, the Judicial Officer disagreed w it h the sanc

tion of a c ivil monetary penalty and instead imposed the sanction

of licen se revocation. Ma cC laren f iled its pe

tition for review i n this
court on January

2, 2002, w

hich was within sixty

day s of issuance of the final agency order as required

under 28 U.S.C. § 2344.

II.

In1930, Congress enacted PACA “for the purpos e of regulating

the interstate busin ess of shipping and handling perishabl e agricultural commodities such as fresh fruit and vegetables.” Allred’s Produce v. United State s Dep’t of Agric.

, 178 F. 3d 743 , 745 ( 5th C ir. 19 99) (q uoti ng George Steinber g and Son, Inc. v. B utz , 491 F.2d 988 (2d Cir. 1974)). PACA was “de signed t

o ensure t hat comme

rce in agriculturalNo. 02-3006 H.C. MacClaren, Inc. v. United States Dep’t of Agric. 7

commodities is conducted in an atmospher e of f inancial responsibility.” Kanowitz Fruit and Produce Co, Inc., v. United S tates Dep’t of Agric. , No. 97-4 224, 1 998 WL 863340, at *1 (2d C ir. Oct. 29, 1998). It provides “a measure of control over a branch of ind ustry

which is a

lmost exclusive ly

in in terst ate com merce, is hi gh ly competitive, and present s many opportunities for shar p prac t ice and irresponsiblebusinessconduct.” Allred’s Produce , 178 F.3d
at 745 (quoting Zwick v. Freeman , 373 F.2d 110, 116 (2d Cir. 1967)). To achieve this control, PACA establishes a strict licensing system and subjects all de aler s of peri shable agriculturalcommodities to severe sanctions for violations of PACA’s requirements. Id. ; 7 U.S.C. §§ 499c(a) & 499h. The USDA is designa

ted with a uthority to administer and enforce PACA.
Under PACA, dealers are subject to a number of statutory require ments including making full pay ment promptly for all purchases of per isha ble agr icultura l commoditi es. 7 U.S.C

. § 499b(4). In addition, it is unlawful for any de aler “to make, for a fraudulent purpose, any false or misleading statement

in connection

with any

transactio n involving

any perisha ble agriculturalcommodity” and “to fa il or refuse [to] truly and

correc tl y . . . account for such transactions.” Id. Violations of PA CA’s requirements may result in sanctions. The Se cretar y may publish the facts and c ircumstances of violations and suspe

nd the lic ense of t

he violat or for up to ninety days, or, if a violation is fla grant or repeated, the Secretary may revoke

the violator’s license. 7 U .S.C

. § 499h(a). In 1995, Congress amended PACA to provide for the alternative sanction of a civil monetary pen al ty n ot to exceed $2 ,0 00 pe r v io la ti on or $2 ,0 00 ea ch da y a viol ation continues. 7 U.S.C. § 499h(e).

The USDA set forth the standard governing the deci sion to imposea particular sanction in In re S.S. Farms Linn County, Inc. : 8 H.C. MacClaren, Inc. v. United States Dep’t of Agric. No. 02-3006

[R] eliance will no long er be pla ced on the

“se vere ” sanctionpolicy

set forth in many prior dec isions. Rather, the sanction in each case will be determin ed by examining the nature of the violations in relation to the remedial purposes of the regulatory statut e inv olved, along with all relevant circumstances, alway s giving
appr op riateweight to the recommendations of the administrative officia

ls charg ed with the

responsi bility for achieving the congr

essional purpose.

50 Agric. De c. 476, 497 (1991) (citations omitted), aff’d

, 1993 WL 1288 89 (9th

Cir. 1993). Accordingly , the Secretary
must consider all rele

vant cir cumstanc es, inclu

ding both mitigating and aggravating circumstances, when selecting the
appropr iate sanction. See Tambone v. United States Dep’t of Agric. , 50 F.3d 52, 55 (D.C. Cir. 1995).

MacClaren

first contends that the Secret ary, actin g throu gh the Judicial Of

ficer, failed to

apply the proper

USDA standard for determin ing sanc tions in deciding to revoke MacClaren’s license. Whether the Secre tary applied t he corr ect standard is

a questi on o f law subject to de novo review. Potato Sales Co., Inc. v. Dep’t of Agric. , 92 F.3d 800, 803 (9th Cir. 1996) (“[a]nagency ’s conclusions of law are subject to de novo review”). Our rev iew of the Secretary ’s decision indicates that the Secretary

applied the correct legal standar d for de t ermining the appropriate sanction as set forth in S.S. Farms Linn County, Inc.

MacClaren

next claims that the Secretary a pplied the legal standard incorre ctly and therefore imposed an improper sanctionbecause the Secretary did not examine the nature of the vi olatio ns in rela

tion to the r

emedial p urpose of PACA and did not consider all relevant circumstances. Our r eview of an admini strative agenc

y de cision is na

rrow, a nd we will
up hold the deci sion unles s it is “ar bitrary , capric ious, a n abuseof discretion, or otherwise not in accordance with the law.” Allred’s Produ ce , 17 8 F.3d at 746 (quoti

ng 5 U.S. C.No. 02-3006 H.C. MacClaren, Inc. v. United States Dep’t of Agric. 9

§ 706(2)(A)). Specifically , we review whether the Secretary mis applied

the sanction stand

ard for an abuse of discr eti on , and we may not overt urn the Se c retary ’s choice of sanction unless it is unwarr anted in l aw or wit

hout justif

ication in fact. See Havana P otatoe s of New York Corp. v. United States Dep’t of Agric. , 136 F.3d 89, 91, 93 (2d Cir. 1997) (considering

under an abuse o f discretion standard whether the Secretary ’s choice of sanction was based on an err oneous policy regarding sanction s and whether the Judicial Officer misapplied the USDA sanction standard, and noting that the Secretary ’s choice of

sanction is not to be overt

urned un less it is unwarr

anted in l aw or wit

hout justif

icati on in fact ); Nor insberg

Corp. v. United States Dep’t of Agric. , 47 F.3 d 1224, 1228 (D.C. Cir. 1995) (analy zing appellant’s argument that the Secr etary failed to consider all relevant circumstances for an abuse of discretion and recognizing that

the Secretary ’s choice of sanction cannot be overturned unless it is unwarranted in law or unjustified in fact).
According

to MacClaren, the remedial purpose o f PACA is
to “assure

that only

financi ally

responsi ble bro kers ar

e in businessso that growers are paid for the pr oduc e they

su pp ly. ” MacCl aren admits in its reply brief , however, that “deterring irresponsible an

d unscrup ulous cond

uct” is a lso
par tof PACA’s

“remed ial purpo se.” Mac Claren po ints ou t that its action s of

investigating the wrongdoing and making restitution indica te f

inancial responsibility. MacClare n argues that the Secreta

ry ’s decis ion to impose the sanction of revocation, as opposed to a civil monetary pena lty, did not
proper ly con si de r t he be ne fi ts of a c iv il mo ne ta ry p en al ty, including promoting the remedial purposes of PACA and encouraging

dealers suspected of violations to coopera te with investigators and mak e re stitution. Moreover, MacClaren contends that the Secretary ignored relevant circumstance s suchas “who will be most aff ecte d by the sanction, the deception of the salesmen’s acts and the lack of a ny prior violations by the company .” 10 H.C. MacClaren, Inc. v. United States Dep’t of Agric. No. 02-3006

Before determining the appropriate sanction ag ai nst MacClaren, the Secr

etary fully set forth the sanction policy a s de scribed in S.S. Farms Linn County, Inc. While the Secretary did not explicit

ly describe the remedial purposes of PACA, the Secr

etary noted tha t “[t]he pur

pose of a sanction ina PACA administrative disciplinary proc eeding is to deter the vio lator and other potential violators from future violations of the PACA.” Considering this purpose, the Secreta ry conclude d that a c ivil monetar y pe nalty would not sufficie ntly deter MacClaren and ot her p otential violators fromfuture violatio ns of P ACA and that license revocation
was necessary

to deter such violations.

The sanction policy states that it is “the nature of the violations ” that is to be examined “in relation to the remedial
purposes ” of PACA, not the acti ons taken after the violations,

w h ichcould be, and were, considered as re levant circumst ances. The nature of the violations at issue, altering inspectioncertificates and fals ify ing acc ounts res

ulting in losses to shippers in excess of $136,000, indica tes tha t MacClaren

was not a financially

responsible dealer. The Secretary set forth the specific violations of PACA and noted that the number

of v iolations and the seriousness of the violations were factors in determining that re vocat ion o f MacClaren’s license

was warranted. Therefore , the Secretary properl y considered

the nature of

the viola tions in re lation to the remedial pur

poses of the PACA. Cf. ABL Produce, Inc.

v. United States Dep’t of Agric. , 25 F.3d 641, 646 (8th Cir. 1994) (noting that “consideration of the ‘releva nt circumst ances’ should inc lude cons ideration of the st a tut e’s purpose” an d finding that license revocation was not appropriate after examining all relevant c ircumstances).

MacClaren

also claims that the Secreta ry failed to consider all releva nt circu mstance s before

deciding to revoke

its license. MacClar

en compla

ins that th e sancti on of lice nse revocation

falls exclusively on Greg ory MacClaren and Darrel l Moccia, while Olds and Gottlob are not subject to anyNo. 02-3006 H.C. MacClaren, Inc. v. United States Dep’t of Agric. 11

pe na lt y. The sanction, howe ver, fa lls entire ly

on MacClaren

as a c om pa ny. Furthermore, because Olds, Gottlob and Johnst onwere acting within the scope of their e mploymen

t when they knowing ly a

nd willful ly violated PA CA, their knowing and willful violations are deemed to be knowing and willf ul violations

by M acClare

n. Under PACA, “the

act, omission, or failure of any agent, officer, or other p er son actingfor or employe d

by any commission merchant, dealer,

or broker, within the scope of his emp loy ment or of

fice, shall in every case be deemed t he act, omission, or failure of such commission merchant, dealer, or broker as tha tof such ag ent, officer, or other person.” 7 U.S.C. § 49 9p. According to the SixthCircuit, acts are “willful” when “knowingly taken by

one subject to the statutory provisions in disreg ard of th e action’s legality .” Hodgins v. United States Dep’t

of Agric.

, No. 97-3899, 2000 WL 1785733 (6th Cir. Nov . 20, 2 000) (quotationomitted). “Actions taken in reckless disregard of statutory provision s may

also be c onsidere d ‘willfu l. ’” Id

. (quotationand citations omitted). The MacClaren employ ees admitted to altering USDA inspection certificatesand issuing f als e accoun

ts of sale in knowing

disreg ard of their acti ons’ le ga li ty. Accord

ingly, their wi llf

ul violations are deemed willful violations by MacClaren.

MacClaren asserts that all of theaggravating factors listed by the Secretary

were caused by

the salesmen with the exception of MacCla

ren’s ne glige

nt superv

ision and i

ts reten tion of the salespersons who engag ed in the unlawful conduct, and, accord

ing to MacClar

en, cons ideration of these
two factors is inapp ropriate . MacClaren fails to cite any authority supportin

g its ar gument t hat these factors are not relevant or otherwise should not be considered. According to MacClaren, the Secreta

ry improper ly e stablishe d a new du

ty under PACA that supervisors re view some undesignated
portion of a salespe

rson’s f iles and that failur

e to do so constitutes neglig ent sup ervision. The Secretary , however, properl y consider ed the ma

nageme nt and supervision of employees in a hig

hly reg ulated industry asa relevant factor 12 H.C. MacClaren, Inc. v. United States Dep’t of Agric. No. 02-3006

to be weighed in a sanction determination. See gen era l ly, Norinsberg

, 47 F.3d at 1227 (cons id ering relevant

c ircumstances such as the compan y’ s financ ial diffi culties, accords reache d with supp liers, and the potential harm to the company’s

creditors from suspending its license). Si mi la rl y, whi le retention of employe es who commit violations of PACA is not directly prohibited by PACA, the retention o f suchemployees may

be considered relevant in determining whether license suspension or revocation is required to deter future violations. Moreover, as no ted ab ove, Mac Claren is deemed to have committed the knowing and w illful violations committed

by its employ

ees, and, therefore, the

Se cretary properl y considered the aggra

vating factors inherent in the employ ees’ violations . Accor

din gl y, the Secreta

ry considere d all rele vant c ircumstances as required in S.S. Farms Linn Cou nty, In c. in decidi

ng to impo se the sa

nction of license revocation.

MacClaren

next claims that the Secretary erred in imposing

a s anction o f license

revoca tion as a r

esult of Ma

cCla ren’ s violations of PACA. As we previously noted, the Secretary ’s d ecisionregarding an appr opriate sanction may

onl y b e overtur ned if it is

found tobe unwarranted in law or without justification in fact. Butz v. Glover Livestock Comm’ n Co., Inc.

, 411 U.S. 18 2, 185-86(1973); Harry Klein Produce Corp. v. United States Dep’t of Agric. , 831 F.2d 403, 406 (2d Cir. 1987). An appellate court may not reweigh the evidence

or substitute its judgment for that of the Secretary

. Havana Potatoes , 136 F.3d at

91. “The fashioni

ng of a n appropriate

an d reasonable remedy

is for the Secretary , not the court.” Glover Livestock Comm’n Co. , 411 U.S. a t 188- 89. “The
court may decide

only whether unde

r the pertinent

statute and relevant facts, the Secr

etary made ‘a n allowab le judgment in (his) choice of the remedy .’” Id. at 189 (quot ing Jacob Siegel Co. v. Federal Trade Comm’n , 327 U.S. 608, 612 (1946)).

MacClaren

argues that the sanction i mpos ed is without justification in fact. Specific al ly, MacClaren c laims that thereNo. 02-3006 H.C. MacClaren, Inc. v. United States Dep’t of Agric. 13

is no evidence t o sup port the Secretary ’s determination that license revoca tion is necessa

ry to deter future violations. MacClaren

asserts that

it has acted to rectify

the wrongdoing and prevent future v iolations and argues that these remedial actions should be taken into c ons ideration. In addition, MacClaren

contends that the Secretary ’s finding that Gregory MacClaren

and Dar rell Mocc ia would

have known

about the altered inspections and fals e accoun tings if t hey had prop erly supervised their salesmen is without justification in fact.

Lic en se revocation under PACA is authorized where the violation is “flagrant or repeated.” 7 U. S.C. § 499h(a); Norinsberg

Corp.

, 47 F.3d at 1225. In determining whether violations are “ flagr ant” under PACA, the court considers

“ the number of violations, the amount of money invo lved

, andth e time period during which the violations occurred

. ” Allre d's Produce , 178 F.3d at 748. “Repe ated” violations under PACA are

vio lat ions that are not committed simultaneou sl y. Id. The Secretary found that MacClaren’s violations of PACA were both flagrant and re peated. Th e Secretary ’s findings are supported by the re cord. Three of MacClaren’s four sal esme n ad mitted to altering fifty- three inspectioncertificates ove r a twenty-nine month period resulting in underpayments totaling $130,903 to twenty-two supplier s. These violations meetthe definitions of flagrant and repeated. Therefore, the r evocation of MacClaren’s license was well within the S ec retary ’s authority and discretion. See Allred’s Produce , 178 F.3d at 747 (agreeing with the Secretary

that Allred’s violations of PACA were flagrant and repeated and therefore holding that the Secretary did not abuse his discretion in revoking a dealer’s license ).

Moreover, t he Se cretar

y’ s legal conclusi ons that lic ense revocation

was necessary

to dete r future violations and that Gr egory MacClaren and Darrell Moccia we re negligent

i n failing to reviewtransaction files prepar ed by their salesmen 14 H.C. MacClaren, Inc. v. United States Dep’t of Agric. No. 02-3006

4 MacClaren argues that t here is li ttle in this case t o suggest that license revo cation

, ra ther than a civil mo netary p enalty, is nec essary to deter it or others from future vi olations of PACA. MacC laren points out that a civil monetary pena lty woul d see m esp ecially ap pro priate in this

c ase where the impositi on of such a penalty, as opposed to revocation,

wou ld encourage other d ealers to cooperat e wit h in vest igat ors a nd at tempt
t o make rest itu tion. We recognize the merit in MacClaren’ s argumen t

. We do note, howev er, t hat a whi le i mposing a civil mone tary penalt y as opposed to licens e revo cation may en cou rage c oop eratio n, it woul d not be as effect ive a deterrent because violators might believ e that they c ould

com mit violati ons and, i f caugh t, s imply cooperate and pay restit ution and monetary penalt ies. In th e inst ant cas e, we ar e li mited t o det ermin ing only whet her t he Secr etar

y made an allo wab le judgme nt i n th e choi ce of

reme dy. Glover Livest

ock Comm’n Co. , 411 U.S. at 189. Both re vocat ion and a civil pe nalty wer e pro per p ossib le remedies in thi s case. We are not
at liberty

to reexamine the aggra vating a nd m itigating ev idenc e to determine whether

we would have arri ved at some l esser sancti on, such as a civil p enalty. See Havana Po tatoes , 136 F. 3d at 91. are sufficie

ntly supported by

fa ct s s et fo rt h b y th e S ec re ta ry. 4 With reg ard to de

terrence, the Se cretar

y f ound as fo llows:

[I]n light of the number of [Mac Claren’s] willful violations

, the seriousness of [MacClaren’s] willful violations

, the 29-month period during which the violations occurr

ed, the nu

mber of [Ma

cCl aren ’s] employees

who altered United States Department of Agriculture inspection certif icates a nd made f

alse

accoun ts of sales, the amount of mon ey wh ich [MacClaren] underpa

id its pr oduce suppliers and/or br okers, [M acClaren’s] retention of the salespersons who engaged in the unlawful con duc t, and [Mac Claren’ s] principal’s failure to review transaction files prepared by [its] salespe

rsons, I conclude a civil penalty would not be sufficie nt to deter [MacClaren] and other potential violators from future violations of the PACA.

Indetermin

ing whe ther Gre gory

MacCla r en and Da

rrell Moccia were negligent in failing to review t

heir s alesmen’s transaction

files, the Secretary

considered the requirements ofNo. 02-3006 H.C. MacClaren, Inc. v. United States Dep’t of Agric. 15

PACA, testimony from an experience d manag er in the produce s ales industry, and testimony from the USDA

sanc tion witness. Based on the prohibitions set forth i n PACA and the te stimo ny t ha t a pp ro pr ia te su pe rv is io n b y a manager includes reviewing a salesperson’s transaction files

, at least on a random sampling basis, the Secretary concluded that “failure to review a

least a portion of the transaction files prepared by . . . salespersons

con stitutes gross negligence.” Becau se these legalconclusions are sufficiently supported by evidence in the re cord, the Secreta ry ’s d ecisio n to revoke MacClaren’s PACA license was justified in fact and was not an abuse of discretion.

III.

Fo r all the re asons set

forth ab ove, we a

ffirm the decisi o n of the Secretary

.