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07/22/88 Anita Kaplan, v. U.S. Department of

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT


July 22, 1988

ANITA KAPLAN, PETITIONER

v.

U.S. DEPARTMENT OF AGRICULTURE AND UNITED STATES OF AMERICA, RESPONDENTS 1988.CDC.297

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

Rules of the District of Columbia Circuit Court of Appeals may limit citation of unpublished opinions. Please refer to the Rules of the United States Court of Appeals for this Circuit.

CONSOLIDATED PETITIONS FOR REVIEW FROM THE UNITED STATES DEPARTMENT OF AGRICULTURE

PER CURIAM DECISION

JUDGMENT

This case was considered on the record and on briefs filed by the parties on petitions for review of Orders of the United States Department of Agriculture. The Court had determined that the issues presented occasion no need for a published opinion. See D.C. Cir. Rule 14(c). Substantially for the reasons indicated in the Presiding Officer's decisions, In re: Anita Kaplan, PACA RC 85-1008, filed September 29, 1986, and In re: Milton Kaplan, PACA RC 85-1009, filed September 25, 1986, and in the accompanying memorandum, it is

ORDERED and ADJUDGED that the petitions for review be denied.

MEMORANDUM

Petitioners Anita and Milton Kaplan seek review of two final orders of the United States Department of Agriculture , declaring them persons "responsibly connected" to Kaplan's Fruit & Produce Co., Inc. during the five-month period in which KFP was found to be in violation of the Perishable Agricultural commodities Act , 7 U.S.C. §§ 499a et seq. (1982 & Supp. IV 1986). The court is satisfied that substantial evidence in the record supports the findings and conclusions of the Presiding Officer regarding petitioners' "responsibly connected" status. See 7 U.S.C. § 499a(9); Veg-Mix, Inc. v. United States Department of AGriculture, 832 F.2d 601, 612 n.7 (D.C. Cir. 1987); Minotto v. United States Department of Agriculture, 711 F.2d 406, 407 n.3 (D.C. Cir. 1983).

Under PACA, the rule of "responsibl[e] connect[ion] . . . is rebuttable" rather than absolute. Quinn v. Butz, 510 F.2d 743, 756 & n.84 (D.C. Cir. 1975). Petitioners thus bore the burden of rebutting the presumption raised by the weight of the evidence in the record. They failed, however, to adduce any evidence, other than self-serving testimony, to rebut the presumption.

Indeed, there is ample support in the record relative to both Kaplans' continued involvement with KFP, even after Frangipani had obtained practical control of the company. The existence of various telltale corporate records (e.g., PACA licensing documents, KFP checks, the Memorandum of Intent and the amendment thereto) undercuts petitioners' disavowal of responsibility. Moreover, the Kaplans' continued course of dealing realtive to KFP sales, shareholding and officer responsibilities also undermines their position and further buttresses the conclusion as to their "actual, significant nexus with the violating company." See Veg-Mix, Inc., 832 F.2d at 611; Martino v. United States Department of Agriculture, 801 F.2d 1410, 1414 (D.C. Cir. 1986).

As there is no reason to disturb the agency's final orders, we deny the petitions for review.

19880722

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