7 U.S.C. § 499g — Reparation order

Page 426 TITLE 7—AGRICULTURE § 499g AMENDMENTS 1995—Pub. L. 104–48, § 7(d)(1), substituted ‘‘Com- plaints, written notifications, and investigations’’ for ‘‘Complaint and investigation’’ in section catchline. Subsec. (a). Pub. L. 104–48, § 8(a), inserted subsec. heading, designated existing provisions as par. (1), in- serted par. (1) heading, and added par. (2). Subsec. (b). Pub. L. 104–48, § 7(a), inserted heading and amended text generally. Prior to amendment, text read as follows: ‘‘Any officer or agency of any State or Ter- ritory having jurisdiction over commission merchants, dealers, or brokers in such State or Territory and any employee of the United States Department of Agri- culture or any interested person may file, in accord- ance with rules and regulations of the Secretary, a complaint of any violation of any provision of this chapter by any commission merchant, dealer, or broker and may request an investigation of such complaint by the Secretary.’’ Subsec. (c). Pub. L. 104–48, § 7(b), inserted heading and amended text generally. Prior to amendment, text read as follows: ‘‘If there appear to be, in the opinion of the Secretary, any reasonable grounds for investigating any complaint made under this section, the Secretary shall investigate such complaint and may, if in his opinion the facts warrant such action, have said com- plaint served by registered mail or by certified mail or otherwise on the person concerned and afford such per- son an opportunity for a hearing thereon before a duly authorized examiner of the Secretary in any place in which the said person is engaged in business: Provided, That in complaints wherein the amount claimed as damages does not exceed the sum of $15,000, a hearing need not be held and proof in support of the complaint and in support of respondent’s answer may be supplied in the form of depositions or verified statements of fact.’’ Subsec. (d). Pub. L. 104–48, § 7(c), (d)(2), inserted head- ing and substituted ‘‘$30,000’’ for ‘‘$15,000’’ in two places in text. Subsec. (e). Pub. L. 104–48, § 7(d)(3), inserted heading. 1991—Subsecs. (c), (d). Pub. L. 102–237 inserted a pe- riod at end of subsec. (c) and substituted a period for semicolon at end of subsec. (d). 1982—Subsec. (e). Pub. L. 97–352 inserted ‘‘or by a resi- dent of the United States to whom the claim of a non- resident of the United States has been assigned,’’ after ‘‘In case a complaint is made by a nonresident of the United States,’’. 1981—Subsecs. (c), (d). Pub. L. 97–98 substituted ‘‘$15,000’’ for ‘‘$3,000’’. 1972—Subsec. (c). Pub. L. 92–231 substituted ‘‘$3,000’’ for ‘‘$1,500’’. Subsec. (d). Pub. L. 92–231 substituted ‘‘$3,000’’ for ‘‘$1,500’’ wherever appearing. 1962—Subsec. (c). Pub. L. 87–725 substituted ‘‘$1,500’’ for ‘‘$500’’. Subsec. (d). Pub. L. 87–725 substituted ‘‘$1,500’’ for ‘‘$500’’ wherever appearing. 1960—Subsec. (c). Pub. L. 86–507 inserted ‘‘or by cer- tified mail’’ after ‘‘registered mail’’. 1937—Subsec. (b). Act Aug. 20, 1937, § 8, substituted ‘‘section 499b of this title’’ for ‘‘this chapter’’. Subsec. (e). Act Aug. 20, 1937, § 9, inserted ‘‘and any reparation award that may be issued by the Secretary of Agriculture against the complainant on any counter claim by respondent’’ and proviso. 1934—Subsec. (c). Act Apr. 13, 1934, § 8, inserted pro- viso. Subsec. (d). Act Apr. 13, 1934, § 9, substituted ‘‘com- plaints’’ for ‘‘a complaint’’ after ‘‘on’’ and inserted ‘‘where damages claimed do not exceed the sum of $500 not requiring hearing as provided herein’’ after ‘‘com- plaints’’. Subsec. (e). Act Apr. 13, 1934, § 10, among other changes, inserted ‘‘formal’’ before ‘‘action’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1982 AMENDMENT Pub. L. 97–352, § 3, Oct. 18, 1982, 96 Stat. 1667, provided that: ‘‘The amendment made by section 2 [amending this section] shall not apply with respect to complaints made under section 6(e) of the Perishable Agricultural Commodities Act, 1930 [7 U.S.C. 499f(e)], before the date of enactment of this Act [Oct. 18, 1982].’’ EFFECTIVE DATE OF 1981 AMENDMENT Amendment by Pub. L. 97–98 effective Dec. 22, 1981, see section 1801 of Pub. L. 97–98, set out as an Effective Date note under section 4301 of this title. FILING AND HANDLING FEES DURING FISCAL YEARS 1995 AND 1996 Pub. L. 103–276, § 1, July 5, 1994, 108 Stat. 1406, during fiscal years 1995 and 1996, directed Secretary of Agri- culture to require filing fee of $60 per petition for peti- tions alleging violation of section 499b of this title and handling fee of $300 for petitions that warrant further action, which handling fee was to be included in deter- mining amount of damages, with both fees to be depos- ited into the Perishable Agricultural Commodities Act Fund, prior to repeal by Pub. L. 104–48, § 8(c), Nov. 15, 1995, 109 Stat. 429. See subsec. (a)(2) of this section. § 499g. Reparation order (a) Determination by Secretary of Agriculture of amount of damages; order for payment If after a hearing on a complaint made by any person under section 499f of this title, or without hearing as provided in subsections (c) and (d) of section 499f of this title, or upon failure of the party complained against to answer a complaint duly served within the time prescribed, or to ap- pear at a hearing after being duly notified, the Secretary determines that the commission mer- chant, dealer, or broker has violated any provi- sion of section 499b of this title, he shall, unless the offender has already made reparation to the person complaining, determine the amount of damage, if any, to which such person is entitled as a result of such violation and shall make an order directing the offender to pay to such per- son complaining such amount on or before the date fixed in the order. The Secretary shall order any commission merchant, dealer, or broker who is the losing party to pay the pre- vailing party, as reparation or additional rep- aration, reasonable fees and expenses incurred in connection with any such hearing. If, after the respondent has filed his answer to the com- plaint, it appears therein that the respondent has admitted liability for a portion of the amount claimed in the complaint as damages, the Secretary under such rules and regulations as he shall prescribe, unless the respondent has already made reparation to the person com- plaining, may issue an order directing the re- spondent to pay to the complainant the undis- puted amount on or before the date fixed in the order, leaving the respondent’s liability for the disputed amount for subsequent determination. The remaining disputed amount shall be deter- mined in the same manner and under the same procedure as it would have been determined if no order had been issued by the Secretary with respect to the undisputed sum. (b) Failure to comply with order of Secretary; suit to enforce liability; order as evidence; costs and fees If any commission merchant, dealer, or broker does not pay the reparation award within the time specified in the Secretary’s order, the com- plainant, or any person for whose benefit such Page 427 TITLE 7—AGRICULTURE § 499g order was made, may within three years of the date of the order file in the district court of the United States for the district in which he re- sides or in which is located the principal place of business of the commission merchant, dealer, or broker, or in any State court having general ju- risdiction of the parties, a petition setting forth briefly the causes for which he claims damages and the order of the Secretary in the premises. The orders, writs, and processes of the district courts may in these cases run, be served, and be returnable anywhere in the United States. Such suit in the district court shall proceed in all re- spects like other civil suits for damages, except that the findings and orders of the Secretary shall be prima-facie evidence of the facts therein stated, and the petitioner shall not be liable for costs in the district court, nor for costs at any subsequent state of the proceedings, unless they accrue upon his appeal. If the petitioner finally prevails, he shall be allowed a reasonable attor- ney’s fee, to be taxed and collected as a part of the costs of the suit. (c) Appeal from reparation order; proceedings Either party adversely affected by the entry of a reparation order by the Secretary may, within thirty days from and after the date of such order, appeal therefrom to the district court of the United States for the district in which said hearing was held: Provided, That in cases han- dled without a hearing in accordance with sub- sections (c) and (d) of section 499f of this title or in which a hearing has been waived by agree- ment of the parties, appeal shall be to the dis- trict court of the United States for the district in which the party complained against is lo- cated. Such appeal shall be perfected by the fil- ing with the clerk of said court a notice of ap- peal, together with a petition in duplicate which shall recite prior proceedings before the Sec- retary and shall state the grounds upon which the petitioner relies to defeat the right of the adverse party to recover the damages claimed, with proof of service thereof upon the adverse party. Such appeal shall not be effective unless within thirty days from and after the date of the reparation order the appellant also files with the clerk a bond in double the amount of the reparation awarded against the appellant condi- tioned upon the payment of the judgment en- tered by the court, plus interest and costs, in- cluding a reasonable attorney’s fee for the ap- pellee, if the appellee shall prevail. Such bond shall be in the form of cash, negotiable securi- ties having a market value at least equivalent to the amount of bond prescribed, or the under- taking of a surety company on the approved list of sureties issued by the Treasury Department of the United States. The clerk of court shall immediately forward a copy thereof to the Sec- retary of Agriculture, who shall forthwith pre- pare, certify, and file in said court a true copy of the Secretary’s decision, findings of fact, con- clusions, and order in said case, together with copies of the pleadings upon which the case was heard and submitted to the Secretary. Such suit in the district court shall be a trial de novo and shall proceed in all respects like other civil suits for damages, except that the findings of fact and order or orders of the Secretary shall be prima- facie evidence of the facts therein stated. Appel- lee shall not be liable for costs in said court and if appellee prevails he shall be allowed a reason- able attorney’s fee to be taxed and collected as a part of his costs. Such petition and pleadings certified by the Secretary upon which decision was made by him shall upon filing in the district court constitute the pleadings upon which said trial de novo shall proceed subject to any amendment allowed in that court. (d) Suspension of license for failure to obey rep- aration order or appeal Unless the licensee against whom a reparation order has been issued shows to the satisfaction of the Secretary within five days from the expi- ration of the period allowed for compliance with such order that he has either taken an appeal as herein authorized or has made payment in full as required by such order his license shall be suspended automatically at the expiration of such five-day period until he shows to the satis- faction of the Secretary that he has paid the amount therein specified with interest thereon to date of payment: Provided, That if on appeal the appellee prevails or if the appeal is dis- missed the automatic suspension of license shall become effective at the expiration of thirty days from the date of the judgment on the appeal, but if the judgment is stayed by a court of com- petent jurisdiction the suspension shall become effective ten days after the expiration of such stay, unless prior thereto the judgment of the court has been satisfied. (June 10, 1930, ch. 436, § 7, 46 Stat. 534; Apr. 13, 1934, ch. 120, §§ 11–13, 48 Stat. 587, 588; June 19, 1936, ch. 602, § 3, 49 Stat. 1534; Aug. 20, 1937, ch. 719, § 10, 50 Stat. 728; June 23, 1938, ch. 599, 52 Stat. 953; May 14, 1940, ch. 196, 54 Stat. 214; Pub. L. 87–725, §§ 9, 10, Oct. 1, 1962, 76 Stat. 675; Pub. L. 92–231, § 2, Feb. 15, 1972, 86 Stat. 38; Pub. L. 102–237, title X, § 1011(5), Dec. 13, 1991, 105 Stat. 1898.) Editorial Notes CODIFICATION Section was formerly classified to section 557 of this title. AMENDMENTS 1991—Subsecs. (a) to (c). Pub. L. 102–237 substituted periods for semicolons at end of subsecs. (a) to (c). 1972—Subsec. (a). Pub. L. 92–231 directed the Sec- retary to order commission merchants, dealers, or bro- kers who are the losing party to pay the prevailing party, as reparation or additional reparation, reason- able fees and expenses incurred in connection with hearings. 1962—Subsec. (c). Pub. L. 87–725, § 9, limited time for filing the bond to within 30 days from and after the date of the reparation order, and required such bond to be in cash, negotiable securities having a market value of at least equivalent to the amount of bond prescribed or the undertaking of a surety company on the ap- proved list of sureties issued by the Treasury Depart- ment. Subsec. (d). Pub. L. 87–725, § 10, lengthened period upon the expiration of which the license is suspended from ten to thirty days, and provided that if the judg- ment is stayed by a court of competent jurisdiction the suspension becomes effective ten days after the expira- tion of such stay. 1940—Subsec. (c). Act May 14, 1940, inserted proviso in first sentence. Page 428 TITLE 7—AGRICULTURE § 499h 1938—Subsec. (a). Act June 23, 1938, inserted last two sentences. 1937—Subsec. (a). Act Aug. 20, 1937, among other changes, inserted ‘‘or without hearing as provided in section 499f of this title, paragraphs (c) and (d), or upon failure of the party complained against to answer a complaint duly served within the time prescribed, or to appear at a hearing after being duly notified’’ after ‘‘section 499f’’. Subsec. (b). Act Aug. 20, 1937, among other changes, substituted ‘‘pay the reparation award’’ for ‘‘comply with an order for the payment of money’’. Subsec. (c). Act Aug. 20, 1937, inserted ‘‘together with a bond in double the amount of the reparation award conditioned upon the payment of the judgment entered by the court plus interest and costs, including a reason- able attorney’s fee for the appellee, if the appellee shall prevail’’ after ‘‘upon adverse party’’ and struck out proviso in first sentence and ‘‘by registered mail’’ after ‘‘adverse party’’. Subsec. (d). Act Aug. 20, 1937, inserted proviso. 1936—Subsec. (c). Act June 19, 1936, inserted proviso in first sentence and ‘‘by registered mail’’ after ‘‘ad- verse party’’. 1934—Subsec. (b). Act Apr. 13, 1934, § 11, inserted after first sentence ‘‘The orders, writs and processes of the district courts may in these cases run, be served, and be returnable anywhere in the United States.’’ Subsecs. (c), (d). Act Apr. 13, 1934, §§ 12, 13, added sub- secs. (c) and (d). § 499h. Grounds for suspension or revocation of license (a) Authority of Secretary Whenever (1) the Secretary determines, as pro- vided in section 499f of this title, that any com- mission merchant, dealer, or broker has violated any of the provisions of section 499b of this title, or (2) any commission merchant, dealer, or broker has been found guilty in a Federal court of having violated section 499n(b) of this title, the Secretary may publish the facts and cir- cumstances of such violation and/or, by order, suspend the license of such offender for a period not to exceed ninety days, except that, if the violation is flagrant or repeated, the Secretary may, by order, revoke the license of the of- fender. (b) Unlawful employment of certain persons; re- strictions; bond assuring compliance; ap- proval of employment without bond; change in amount of bond; payment of increased amount; penalties Except with the approval of the Secretary, no licensee shall employ any person, or any person who is or has been responsibly connected with any person— (1) whose license has been revoked or is cur- rently suspended by order of the Secretary; (2) who has been found after notice and op- portunity for hearing to have committed any flagrant or repeated violation of section 499b of this title, but this provision shall not apply to any case in which the license of the person found to have committed such violation was suspended and the suspension period has ex- pired or is not in effect; or (3) against whom there is an unpaid repara- tion award issued within two years, subject to his right of appeal under section 499g(c) of this title. The Secretary may approve such employment at any time following nonpayment of a reparation award, or after one year following the revoca- tion or finding of flagrant or repeated violation of section 499b of this title, if the licensee fur- nishes and maintains a surety bond in form and amount satisfactory to the Secretary as assur- ance that such licensee’s business will be con- ducted in accordance with this chapter and that the licensee will pay all reparation awards, sub- ject to its right of appeal under section 499g(c) of this title, which may be issued against it in connection with transactions occurring within four years following the approval. The Secretary may approve employment without a surety bond after the expiration of two years from the effec- tive date of the applicable disciplinary order. The Secretary, based on changes in the nature and volume of business conducted by the li- censee, may require an increase or authorize a reduction in the amount of the bond. A licensee who is notified by the Secretary to provide a bond in an increased amount shall do so within a reasonable time to be specified by the Sec- retary, and if the licensee fails to do so the ap- proval of employment shall automatically ter- minate. The Secretary may, after thirty days notice and an opportunity for a hearing, suspend or revoke the license of any licensee who, after the date given in such notice, continues to em- ploy any person in violation of this section. The Secretary may extend the period of employment sanction as to a responsibly connected person for an additional one-year period upon the deter- mination that the person has been unlawfully employed as provided in this subsection. (c) Fraud in procurement If, after a license shall have been issued to an applicant, the Secretary believes that the li- cense was obtained through a false or mis- leading statement in the application therefor or through a misrepresentation, concealment, or withholding of facts respecting any violation of this chapter by any officer, agent, or employee, he may, after thirty days’ notice and an oppor- tunity for a hearing, revoke said license, where- upon no license shall be issued to said applicant or any applicant in which the person responsible for such false or misleading statement or mis- representation, concealment, or withholding of facts is financially interested, except under the conditions set forth in section 499d(b) of this title. (d) Injunction In addition to being subject to the penalties provided by section 499c(a) of this title, any commission merchant, dealer, or broker who en- gages in or operates such business without a valid and effective license from the Secretary shall be liable to be proceeded against in any court of competent jurisdiction in a suit by the United States for an injunction to restrain such defendant from further continuing so to engage in or operate such business, and, if the court shall find that the defendant is continuing to engage in such business without a valid and ef- fective license, the court shall issue an injunc- tion to restrain such defendant from continuing to engage in or to operate such business without such license.