61 Agric. Dec. 275

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petition filed 23 days after the initial decision and order became final); In re Queen City Farms, Inc., 57 Agric. Dec. 813 (1998) (dismissing the respondent's appeal petition filed 58 days after the initial decision and order became final); In re Gail Davis, 56 Agric. Dec. 373 (1997) (dismissing the respondent's appeal petition filed 41 days after the initial decision and order became final); In re Field Market Produce, Inc., 55 Agric. Dec. 1418 (1996) (dismissing the respondent's appeal petition filed 8 days after the initial decision and order became effective); In re Ow Duk Kwon, 55 Agric. Dec. 78 (1996) (dismissing the respondent's appeal petition filed 35 days after the initial decision and order became effective); In re New York Primate Center, Inc., 53 Agric. Dec. 529 (1994) (dismissing the respondents' appeal petition filed 2 days after the initial decision and order became final); In re K. Lester, 52 Agric. Dec. 332 (1993) (dismissing the respondent's appeal petition filed 14 days after the initial decision and order became final and effective); In re Amril L. Carrington, 52 Agric. Dec. 331 (1993) (dismissing the respondent's appeal petition filed 7 days after the initial decision and order became final and effective); In re Teofilo Benicta, 52 Agric. Dec. 321 (1993) (dismissing the respondent's appeal petition filed 6 days after the initial decision and order became final and effective); In re Newark Produce Distributors, Inc., 51 Agric. Dec. 955 (1992) (dismissing the respondent's appeal petition filed after the initial decision and order became final and effective); In re Laura May Kurjan, 51 Agric. Dec. 438 (1992) (dismissing the respondent's appeal petition filed after the initial decision and order became final); In re Kermit Breed, 50 Agric. Dec. 675 (1991) (dismissing the respondent's late-filed appeal petition); In re Bihari Lall, 49 Agric. Dec. 896 (1990) (stating the respondent's appeal petition, filed after the initial decision became final, must be dismissed because it was not timely filed); In re Dale Haley, 48 Agric. Dec. 1072 (1989) (stating the respondents' appeal petition, filed after the initial decision became final and effective, must be dismissed because it was not timely filed); In re Mary Fran Hamilton, 45 Agric. Dec. 2395 (1986) (dismissing the respondent's appeal petition filed with the Hearing Clerk on the day the initial decision and order had become final and effective); In re Bushelle Cattle Co., 45 Agric. Dec. 1131 (1986) (dismissing the respondent's appeal petition filed 2 days after the initial decision and order became final and effective); In re William T. Powell, 44 Agric. Dec. 1220 (1985) (stating it has consistently been held that, under the Rules of Practice, the Judicial Officer has no jurisdiction to hear an appeal after the initial decision and order becomes final); In re Toscony Provision Co., Inc., 43 Agric. Dec. 1106 (1984) (stating the Judicial Officer has no jurisdiction to hear an appeal that is filed after the initial decision becomes final), aff'd, No. 81-1729 (D.N.J. Mar. 11, 1985) (court reviewed merits notwithstanding late administrative appeal), aff'd, 782 F.2d 1031 (3d Cir. 1986) (unpublished); In re Dock Case Brokerage Co., 42 Agric. Dec. 1950 (1983) (dismissing the respondents' appeal petition filed 5 days after the initial decision and order became final); In re Veg-Pro Distributors, 42 Agric. Dec. 1173 (1983) (denying the respondent's appeal petition filed 1 day after the default decision and order became final); In re Samuel Simon Petro, 42 Agric. Dec. 921 (1983) (stating the Judicial Officer has no jurisdiction to hear an appeal that is filed after the initial decision and order becomes final and effective); In re Yankee Brokerage, Inc., 42 Agric. Dec. 427 (1983) (dismissing the respondent's appeal petition filed on the day the initial decision became effective); In re Charles Brink, 41 Agric. Dec. 2146 (1982) (stating the Judicial Officer has no jurisdiction to consider the respondent's appeal dated before the initial decision and order became final, but not filed until 4 days after the initial decision and order became final and effective), reconsideration denied, 41 Agric. Dec. 2147 (1982); In re Mel's Produce, Inc., 40 Agric. Dec. 792 (1981) (stating since the respondent's petition for reconsideration was not filed within 35 days after service of the default decision, the default decision became final and neither the administrative law judge nor the Judicial Officer has jurisdiction to consider the respondent's petition); In re Animal Research Center of Massachusetts, Inc., 38 Agric. Dec. 379

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8

Order as to Samuel K. Angel became final on March 8, 2002, 3 days prior to the date Respondent filed an appeal petition with the Hearing Clerk. Therefore, I have no jurisdiction to hear Respondent's appeal.

The United States Department of Agriculture's construction of the Rules of Practice is, in this respect, consistent with the construction of the Federal Rules of Appellate Procedure. Rule 4(a)(1)(A) of the Federal Rules of Appellate Procedure provides, as follows:

Rule 4. Appeal as of Right-When Taken

(a) Appeal in a Civil Case.

(1) Time for Filing a Notice of Appeal.

(A) In a civil case... the notice of appeal required by Rule 3 must be filed with the district clerk within 30 days after the judgment or order appealed from is entered.

As stated in Eaton v. Jamrog, 984 F.2d 760, 762 (6th Cir. 1993):

We have repeatedly held that compliance with Rule 4(a)(1) is a mandatory and jurisdictional prerequisite which this court may neither waive nor extend. See, e.g., Baker v. Raulie, 879 F.2d 1396, 1398 (6th Cir. 1989) (per curiam); Myers v. Ace Hardware, Inc., 777 F.2d 1099, 1102 (6th Cir. 1985). So strictly has this rule been applied, that even a notice of appeal filed five minutes late has been deemed untimely. Baker, 879 F.2d at 1398.[9]

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(1978) (stating failure to file an appeal petition before the effective date of the initial decision is jurisdictional); In re Willie Cook, 39 Agric. Dec. 116 (1978) (stating it is the consistent policy of the United States Department of Agriculture not to consider appeals filed more than 35 days after service of the initial decision).

*See section 1.142(c)(4) of the Rules of Practice (7 C.F.R. § 1.142(c)(4)) and the Decision and Order as to Samuel K. Angel at third unnumbered page.

"Accord Budinich v. Becton Dickinson & Co., 486 U.S. 196, 203 (1988) (stating since the court of appeals properly held petitioner's notice of appeal from the decision on the merits to be untimely filed, and since the time of an appeal is mandatory and jurisdictional, the court of appeals was without jurisdiction to review the decision on the merits); Browder v. Director, Dep't of Corr. of Illinois, 434 U.S. 257, 264 (1978) (stating under Fed. R. App. P. 4(a) and 28 U.S.C. § 2107, a notice of appeal in a civil case must be filed within 30 days of entry of the judgment or order from which the appeal is taken; this 30-day time limit is mandatory and jurisdictional), rehearing denied, 434 U.S. 1089 (1978); Martinez v. Hoke, 38 F.3d 655, 656 (2d Cir. 1994) (per curiam) (stating under the Federal Rules of Appellate Procedure, the time for filing an appeal is mandatory and jurisdictional and the court of (continued...)

61 Agric. Dec. 275

The Rules of Practice do not provide for an extension of time (for good cause or excusable neglect) for filing a notice of appeal after an initial decision and order has become final. Under the Federal Rules of Appellate Procedure, the district court, upon a showing of excusable neglect or good cause, may extend the time to file a notice of appeal upon a motion filed no later than 30 days after the expiration of the time otherwise provided in the rules for the filing of a notice of appeal.10 The absence of such a rule in the Rules of Practice emphasizes that no such jurisdiction has been granted to the Judicial Officer to extend the time for filing an appeal after an initial decision and order has become final. Therefore, under the Rules of Practice, I cannot extend the time for Respondent's filing an appeal petition after the ALJ's Decision and Order as to Samuel K. Angel became final.

Moreover, the jurisdictional bar under the Rules of Practice, which precludes the Judicial Officer from hearing an appeal that is filed after an initial decision and order becomes final, is consistent with the judicial construction of the Administrative Orders Review Act ("Hobbs Act"). As stated in Illinois Cent. Gulf R.R. v. ICC, 720 F.2d 958, 960 (7th Cir. 1983) (footnote omitted):

The Administrative Orders Review Act ("Hobbs Act") requires a petition to review a final order of an administrative agency to be brought within sixty days of the entry of the order. 28 U.S.C. § 2344 (1976). This sixty-day time limit is jurisdictional in nature and may not be enlarged by the courts. Natural Resources Defense Council v. Nuclear

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appeals has no authority to extend time for filing); Price v. Seydel, 961 F.2d 1470, 1473 (9th Cir. 1992) (stating the filing of notice of appeal within the 30-day period specified in Fed. R. App. P. 4(a)(1) is mandatory and jurisdictional, and unless appellant's notice is timely, the appeal must be dismissed); In re Eichelberger, 943 F.2d 536, 540 (5th Cir. 1991) (stating Rule 4(a) of the Federal Rules of Appellate Procedure requires that a notice of appeal be filed with the clerk of the district court within 30 days after entry of the judgment; Rule 4(a)'s provisions are mandatory and jurisdictional); Washington v. Bumgarner, 882 F.2d 899, 900 (4th Cir. 1989) (stating the time limit in Fed. R. App. P. 4(a)(1) is mandatory and jurisdictional; failure to comply with Rule 4(a) requires dismissal of the appeal and the fact that appellant is incarcerated and proceeding pro se does not change the clear language of the Rule), cert. denied, 493 U.S. 1060 (1990); Jerningham v. Humphreys, 868 F.2d 846 (6th Cir. 1989) (Order) (stating the failure of an appellant to timely file a notice of appeal deprives an appellate court of jurisdiction; compliance with Rule 4(a) of the Federal Rules of Appellate Procedure is a mandatory and jurisdictional prerequisite which this court can neither waive nor extend).

10 See Fed. R. App. P. 4(a)(5).

Regulatory Commission, 666 F.2d 595, 602 (D.C. Cir. 1981). The purpose of the time limit is to impart finality into the administrative process, thereby conserving administrative resources and protecting the reliance interests of those who might conform their conduct to the administrative regulations. Id. at 602.11

Accordingly, Respondent's appeal petition must be denied, since it is too late for the matter to be further considered. Moreover, the matter should not be considered by a reviewing court since, under the Rules of Practice, “no decision shall be final for purposes of judicial review except a final decision of the Judicial Officer upon appeal” (7 C.F.R. § 1.142(c)(4)).

For the foregoing reasons, the following Order should be issued.

ORDER

Respondent's appeal petition filed March 11, 2002, is denied. The Decision and Order as to Samuel K. Angel, filed by Administrative Law Judge Dorothea A. Baker on September 26, 2001, is the final decision and order as to Respondent Samuel K. Angel in this proceeding.

In re: JERRY GOETZ, d/b/a JERRY GOETZ AND SONS.

BPRA Docket No. 94-0001.

Order Lifting Stay.

Filed January 17, 2002.

Sharlene A. Deskins, for Complainant.

David R. Klaassen, for Respondent.

Order issued by William G. Jenson, Judicial Officer.

PROCEDURAL HISTORY

On November 3, 1997, I issued a “Decision and Order": (1) concluding that Jerry Goetz, d/b/a Jerry Goetz and Sons [hereinafter Respondent], willfully violated the Beef Promotion and Research Order and the Rules and

11Accord Jem Broadcasting Co. v. FCC, 22 F.3d 320, 324-26 (D.C. Cir. 1994) (stating the court's baseline standard long has been that statutory limitations on petitions for review are jurisdictional in nature and appellant's petition filed after the 60-day limitation in the Hobbs Act will not be entertained); Friends of Sierra R.R. v. ICC, 881 F.2d 663, 666 (9th Cir. 1989) (stating the time limit in 28 U.S.C. § 2344 is jurisdictional), cert. denied sub nom. Tuolumne Park & Recreation Dist. v. ICC, 493 U.S. 1093 (1990).

61 Agric. Dec. 282

Regulations (7 C.F.R. §§ 1260.101-.316) [hereinafter the Beef Order]; (2) ordering Respondent to cease and desist from violating the Beef Promotion and Research Act of 1985 (7 U.S.C. §§ 2901-2911) (hereinafter the Beef Act] and the Beef Order; (3) assessing Respondent a $69,244.51 civil penalty; and (4) ordering Respondent to pay past-due assessments and late-payment charges of $66,577 to the Kansas Beef Council. In re Jerry Goetz, 56 Agric. Dec. 1470 (1997).

On November 12, 1997, Kenneth C. Clayton, Acting Administrator, Agricultural Marketing Service, United States Department of Agriculture [hereinafter Complainant], filed "Complainant's Motion for Reconsideration," and on November 17, 1997, Respondent filed a "Petition for Reconsideration of the Decision of the Judicial Officer." On April 3, 1998, I issued an “Order Denying Respondent's Petition for Reconsideration and Denying in Part and Granting in Part Complainant's Petition for Reconsideration." In re Jerry Goetz, 57 Agric. Dec. 426 (1998) (Order Denying Respondent's Pet. for Recons. and Denying in Part and Granting in Part Complainant's Pet. for Recons.). Based on my granting Complainant's Motion for Reconsideration in part, I did not reinstate the Order in the Decision and Order issued November 3, 1997, but, instead, issued a new Order: (1) ordering Respondent to cease and desist from violating the Beef Act and the Beef Order; (2) assessing Respondent a $69,804.49 civil penalty; and (3) ordering Respondent to pay past-due assessments and late-payment charges of $66,913 to the Kansas Beef Council. In re Jerry Goetz, 57 Agric. Dec. 426 (1998) (Order Denying Respondent's Pet. for Recons. and Denying in Part and Granting in Part Complainant's Pet. for Recons.).

On June 22, 1998, Respondent filed a "Motion for an Order Staying Enforcement" [hereinafter Motion for a Stay] requesting a stay pending proceedings for judicial review of In re Jerry Goetz, 56 Agric. Dec. 1470 (1997), as modified by In re Jerry Goetz, 57 Agric. Dec. 426 (1998) (Order Denying Respondent's Pet. for Recons. and Denying in Part and Granting in Part Complainant's Pet. for Recons.), and pending final disposition of Respondent's appeal of Goetz v. Glickman, 920 F. Supp. 1173 (D. Kan. 1996). On June 25, 1998, I issued a "Stay Order" granting Respondent's Motion for a Stay pending the outcome of proceedings for judicial review of In re Jerry Goetz, 56 Agric. Dec. 1470 (1997), as modified by In re Jerry Goetz, 57 Agric. Dec. 426 (1998) (Order Denying Respondent's Pet. for Recons. and Denying in Part and Granting in Part Complainant's Pet. for Recons.), and pending final disposition of Respondent's appeal of Goetz v.