Maldonado

Ernest Maldonado worked for decades in a Los Angeles produce company where he rose from a job loading and unloading trucks to the position of head of the vegetable department. In 1990, new owners purchased the company, looted it, and made Maldonado titular president during the company’s collapse. Maldonado here seeks review of the Department of Agriculture’s administrative order finding that he was “responsibly connected” to the company under the Perishable Agricultural Commodities Act (“PACA”), which prohibits him from working in the produce industry for a period of time without posting a bond. See 7 U.S.C. § 499h(b)(Supp.l998). We grant the petition and reverse the order *1087 because we hold that Maldonado satisfied the requirements of § 499a(b)(9), which provides that a person who is only a nominal officer and took no active part in the wrongdoing is not “responsibly connected” to a defaulting company. See 7 U.S.C. § 499a(b)(9) (Supp. 1998).

FACTS

Maldonado began working for W. Fay, the defaulting company, as a “swamper,” loading and unloading trucks, in 1957. He advanced to delivering produce, then to salesperson and became head of the vegetable department in the late…

dissenting:

The majority claims it is applying the D.C. Circuit’s PACA caselaw, but those cases do not support the majority’s conclusion. According to the D.C. Circuit, “[a] finding of liability under section 499h of [PACA] must be premised upon personal fault or the failure to ‘counteract or obviate the fault of others.’ ” Minotto v. U.S. Dep’t of Agriculture, 711 F.2d 406, 408 (D.C.Cir.1983) (quoting Quinn v. Butz, 510 F.2d 743, 756 (D.C.Cir.1975)). In Minotto , there was “[conspicuously absent from the record evidence and from the Hearing Officer’s findings of facts or conclusions ... any suggestion that Minotto knew or should have known of the Company’s misdeeds.” Id.

By contrast, the Presiding Officer here found that Maldonado should have known of Dukesherer’s wrongdoing, and that finding is well supported -by the record. Maldonado himself testified that he was aware that some producers were not getting paid. Moreover, as head of the company’s produce department, he was intimately familiar with the business and in a position to do something to prevent future harm. He could, for example, have warned producers not to throw fresh lettuce after wilted. Maldonado was known and…