234 F.3d 48 (D.C. Cir. 2000)
PMD Produce Brokerage Corp., Petitionerv.United States Department of Agriculture and United States of America, Respondents
No. 00-1163
United States Court of Appeals  FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 14, 2000Decided December 19, 2000

On Petition for Review of an Order of the Department of Agriculture
Kevin P. Claffey argued the cause and filed the briefs for  petitioner. Paul T. Gentile entered an appearance.
M. Bradley Flynn, Attorney, U.S. Department of Agriculture, argued the cause for respondent.  With him on the brief  were James Michael Kelly, Associate General Counsel, and  Margaret M. Breinholt, Acting Assistant General Counsel.
Before:  Williams, Rogers and Tatel, Circuit Judges.
Opinion for the Court filed by Circuit Judge Rogers.
Rogers, Circuit Judge:


1
PMD Produce Brokerage Corporation challenges the dismissal, as untimely, of its appeal of an  administrative law judge's decision that it violated the Perishable Agricultural Commodities Act, 7 U.S.C.  SS 499a-s ("PACA").1  PMD contends that the Secretary of  Agriculture's Rules of Practice Governing Formal Adjudicatory Proceedings, see 7 C.F.R. SS 1.142(c), 1.145(a) (2000), are  ambiguous regarding the time to appeal and, further, that it  reasonably relied on statements of the Administrative Law  Judge and the Hearing Clerk regarding the deadline for filing  an administrative appeal.  Because SS 1.142(c) and 1.145(a)  are ambiguous, as confirmed by contrary interpretations  within the Department of Agriculture, we hold that the  Secretary did not give fair notice of his interpretation of  S 1.142(c)(2) as requiring an appeal to be filed within 30 days  of issuance of an administrative law judge's oral decision. Accordingly, because the Secretary was arbitrary and capricious in dismissing PMD's appeal, we grant the petition.

I.

2
The Secretary, acting through the Associate Deputy Administrator, Fruit and Vegetable Programs, Agricultural  Marketing Service, filed an administrative complaint on November 16, 1998, alleging that PMD had violated S 2(4) of  PACA, 7 U.S.C. S 499b(4), by willfully failing repeatedly to  make full payment promptly to 18 sellers of 633 lots of  perishable agricultural commodities that it had purchased and  received.  On November 12, 1999, the Department filed a  motion for a bench decision, a proposed findings of fact and  conclusions of law, and a proposed order, in accordance with  S 1.142(b) of the Secretary's Rules of Practice, 7 C.F.R.  S 1.142(b).2  After hearing testimony, the Administrative Law Judge orally announced his decision.  The Judge found  that PMD had violated PACA and recommended revocation  of PMD's license as a dealer and merchant of perishable  agricultural products under PACA, 7 U.S.C. SS 499c, 499h(a). The Judge directed that his decision and order be published  pursuant to the Rules of Practice and stated:  "This decision  will become final without further proceedings 35 days after  service of this decision, unless [PMD] appeals this decision,  pursuant to section 1.145 of the Rules of Practice (7 C.F.R.  S 1.145)."  The Judge thereafter excerpted his oral decision  and filed the written excerpt on November 30, 1999.


3
By letter dated December 1, 1999 to PMD's counsel, the  Hearing Clerk enclosed "a copy of the Bench Decision, issued  ... on November 30, 1999."  The letter stated that "[e]ach  party has thirty (30) days from the service of this decision  and order in which to file an appeal to the Department's  Judicial Officer."  The letter also instructed PMD "to consult  S 1.145 of the Uniform Rules of Practice (7 C.F.R. S 1.145)  for the procedure for filing an appeal."


4
On January 7, 2000, PMD filed with the Department's  Judicial Officer a petition seeking reversal of the Judge's  decision, and, alternatively, a new hearing.  Following receipt  of the Department's response, the Judicial Officer denied  PMD's appeal for lack of jurisdiction.  The Judicial Officer,  relying on SS 1.142(c)(2) & (4) of the Rules of Practice, found  that the Judge's oral decision was issued on November 17,  1999 and became effective 35 days thereafter, on December  22, 1999.  Because PMD's appeal was not filed before the  decision became effective, the Judicial Officer ruled that he  lacked jurisdiction to hear the appeal, citing Department  precedent under the Rules of Practice.3  Because he lacked  jurisdiction to hear PMD's appeal, the Judicial Officer issued  an order that the Judge's oral decision of November 17, 1999  was the final administrative order.  The Judicial Officer  denied PMD's petition for reconsideration.

II.

5
On appeal, PMD contends that the Secretary's Rules of  Practice, specifically SS 1.142(c)(4) and 1.145(a), are internally  inconsistent.4  The ambiguity arises, PMD maintains, because  the Rules of Practice do not indicate that "issuance" of an  oral decision under SS 1.142(c)(2) and (4) is to be considered  "receiving service" under S 1.145(a).  PMD points out that  S 1.142(c)(4) provides that an oral decision becomes effective  35 days after issuance, while S 1.145(a) provides that a party  has 30 days after "receiving service" of the Judge's decision  to appeal.  "Clearly," PMD contends, "receiving service of  the Judge's decision is a form of notice of entry requirement,  that requires serving a copy of the written decision on the  parties before the time to appeal begins to run."  In addition,  PMD contends that it reasonably relied on the statements by  the Judge and the Hearing Clerk that the Judge's opinion did  not become effective until 35 days after service because they  would not intentionally misinform a party about the time to  appeal.  The court reviews the Secretary's decision dismissing PMD's appeal to determine whether it was arbitrary,  capricious, an abuse of discretion, or otherwise not in accordance with law.  See 5 U.S.C. S 706(2)(A).


6
The Secretary states that he has consistently interpreted  the Rules of Practice to divest the Judicial Officer of jurisdiction to hear an appeal of an administrative law judge's  decision that has become effective.  See, e.g., In re Toscony  Provision Co., 43 Agric. Dec. 1106, 1108-09 (Dep't of Agric.  1984) (order denying late appeal) and Department orders  cited.  Further, he states that PMD had actual notice from  the Judge's oral ruling on November 17, 1999 that his decision would be final in 35 days unless an appeal was filed  pursuant to S 1.145.  Having failed to file an appeal before  December 22, 1999, the Secretary maintains that PMD's  contention that the court should disregard the jurisdictional  nature of S 1.142(c)(4) is meritless.  In other words, although  not expressly stated in his Rules of Practice, the Secretary  has interpreted "issuance" of an oral decision under  S 1.142(c)(4) to mean "receiving service" for purposes of  S 1.145(a).


7
The Secretary explains, in his brief on appeal, that the  bench decision procedures of S 1.142 are designed to allow  expedited proceedings in disciplinary cases where the violation is so patent that "the usual opportunity for the parties to  submit written findings of fact and conclusions of law is  unnecessary."  Under these circumstances, the Secretary  contends, "[n]o good reasons exist for delaying the imposition  of the order of the [J]udge."  Perhaps not.  Indeed, on the  basis of this rationale, the court could readily view the  Secretary's interpretation of S 1.142(c)(4) as reasonable.  Cf.  Veg-Mix, Inc. v. USDA, 832 F.2d 601, 608-09 (D.C. Cir.  1987).  The question before the court, however, is not whether the Secretary's interpretation of the Rules of Practice is  reasonable, but whether the Secretary has given fair notice of  his interpretation that "issuance" of an oral opinion pursuant  to S 1.142(c)(2) is "receiving service" for purposes of taking  an appeal under S 1.145(a).  See United States v. Chrysler  Corp., 158 F.3d 1350 (D.C. Cir. 1998);  Rollins Envtl. Servs.  (NJ) Inc. v. EPA, 937 F.2d 649 (D.C. Cir. 1991);  Gates & Fox  Co. v. Occupational Safety & Health Review Comm'n, 790  F.2d 154 (D.C. Cir. 1986).


8
The dismissal of PMD's appeal implicates the Secretary's  obligation to give fair notice because the sanction of dismissal  of its appeal petition as untimely forecloses relief from revocation of its license under PACA.  In Satellite Broadcasting  Co. v. FCC, 824 F.2d 1 (D.C. Cir. 1987), the court explained:


9
Traditional concepts of due process incorporated into administrative law preclude an agency from penalizing a private party for violating a rule without first providing adequate notice of the substance of the rule.  The dismissal of an application, we have held, is a sufficiently grave sanction to trigger this duty to provide clear notice.


10
Id. at 3 (citations omitted).  In that case, an applicant for  FCC licenses had failed to file its application in the proper  location.  See id. at 2-3.  The court observed that the rules,  taken as a whole, were conflicting.  Id. at 2.  Thus, while an  "agency's interpretation [of its own rule] is entitled to deference, [ ] if it wishes to use that interpretation to cut off a  party's right, it must give full notice of its interpretation." Id. at 4.  Because the FCC had not provided fair notice of its  interpretation of the relevant rules, the court held that it had  acted arbitrarily and capriciously in dismissing the license  applications, and that the applicant was entitled to reinstatement of the applications nunc pro tunc.  See id.


11
Similarly, in General Electric Co. v. EPA, 53 F.3d 1324  (D.C. Cir. 1995), the court deferred to the agency's reasonable  interpretation of its rules but held that the agency could not  fine a private party for failure to comply with a rule interpretation that was "so far from a reasonable person's understanding of the regulations that [the regulations] could not  have fairly informed GE of the agency's perspective."  Id. at  1330.  Most recently, in Trinity Broadcasting of Florida, Inc.  v. FCC, 211 F.3d 618 (D.C. Cir. 2000), the court rejected the  agency's contention that its regulation requiring an entity to  be "minority-controlled," id. at 628, provided fair notice of its  interpretation of the regulation as mandating that non-profit  organizations demonstrate de facto minority control and not  simply a majority-minority board.  See id. at 625, 628-30. The court likewise rejected the agency's contentions that  agency statements and other agency action provided fair  notice of its interpretation.  See id. at 628-31.  Therefore, the court reversed the denial of an application for renewal of a  broadcast license.  See Trinity Broad., 211 F.3d at 632.


12
Here, the question is whether the Secretary's rules gave  PMD fair notice of the time within which it had to appeal the  Judge's decision.5  Two sections of the Secretary's Rules of  Practice are implicated.  Section 1.142, addressing when an  Administrative Law Judge's decision becomes effective, provides in relevant part:


13
The Judge's decision shall become effective without further proceedings 35 days after the issuance of the decision, if announced orally at the hearing, or if the decision is in writing, 35 days after the date of service thereof upon the respondent, unless there is an appeal to the Judicial Officer by a party to the proceeding pursuant to S 1.145;  Provided, however, that no decision shall be final for purposes of judicial review except a final decision of the Judicial Officer upon appeal.


14
7 C.F.R. S 1.142(c)(4) (2000) (emphasisadded).6  Section  1.145, addressing appeals, provides in relevant part:


15
Within 30 days after receiving service of the Judge's decision, a party who disagrees with the decision, or any part thereof, or any ruling by the Judge or any alleged deprivation of rights, may appeal such decision to the Judicial Officer by filing an appeal petition with the Hearing Clerk.


16
7 C.F.R. S 1.145(a) (2000) (emphasis added).


17
As the Secretary points out, SS 1.142(c)(2) & (4) clearly  describe when a Judge's opinion, whether oral or written,  becomes effective.  Similarly, S 1.145(a) clearly states there  is a 30-day period within which to appeal the Judge's decision.  But the triggering event under S 1.145(a) is "receiving  service," and the Rules of Practice at no point state that  "issuance" of an oral opinion under S 1.142(c)(2) is deemed  "receiving service" for purposes of S 1.145(a).  In other  words, the Secretary's Rules of Practice are silent regarding  whether "issuance" of an oral decision under S 1.142(c)(2) is  "receiving service" for purposes of noting an appeal under  S 1.145(a).  Thus, PMD could not simply read the Rules of  Practice and know that this was so.  Nor would the purpose  of expedition, which the Secretary asserts is the underlying  rationale for the procedures in S 1.142(c), compel an interpretation of the regulations, much less give fair notice, that  "issuance" is to be equated with "receiving service" under  S 1.145(a).  Cf. Trinity Broad., 211 F.3d at 629-30.  At oral  argument, the Secretary agreed that the period after which  an opinion becomes effective is different from the period in  which a party may note an appeal.


18
Of course, the Secretary may utilize means other than the  language of his Rules of Practice to give adequate notice of  his interpretation.  See, e.g., General Elec., 53 F.3d at 1329. However, the Secretary points to no action, such as public  statements or pre-enforcement efforts, that would have informed PMD of the Secretary's interpretation.  Instead, the  statements by the Judge and the Hearing Clerk demonstrate  that the Rules of Practice were ambiguous regarding the time period for appealing an oral bench decision.  See id. at 133032.  Each statement erroneously referred to "service" as the  event triggering the 30-day appeal period and, consequently,  neither statement informed PMD that the appeal period had  been triggered by the Judge's oral issuance of his opinion on  November 17, 1999.  Such statements, it could be argued,  justify application of a "unique circumstances" exception. Prudential-Bache Sec., Inc. v. Fitch, 966 F.2d 981, 984-86  (5th Cir. 1992) (construing Fed. R. App. P. 4(a));  cf. Moore v.  South Carolina Labor Bd., 100 F.3d 162, 164 (D.C. Cir. 1996). Under the unique circumstances doctrine, "appellate courts  will excuse an untimely notice of appeal where the appellant  could have filed a timely notice but was mislead to delay filing  by a court order or ruling which purportedly extended or  tolled the appeal deadline."  Id. at 163.


19
In denying PMD's petition for reconsideration, the Judicial  Officer made three principal points.  First, he noted that  PMD had been furnished with a copy of the Secretary's Rules  of Practice, which are also published in the Federal Register,  and that PMD's reliance on the statement of the Hearing  Clerk was "misplaced."  Yet the Rules themselves were, at  best, unclear on the critical point for PMD.  The lack of  clarity was exacerbated by the Judge's statement, which  appeared to beconsistent with the statement of the Hearing  Clerk.


20
Second, the Judicial Officer emphasized that the only decision issued by the Judge was announced at the November 17,  1999 hearing.  The written Bench Decision later received by  PMD was merely an excerpt from the transcript of the earlier  hearing. Hence, the Judicial Officer concluded that the reference to "this decision" in the Judge's Bench Decision furnished to PMD, as well as the references in the Hearing  Clerk's December 1, 1999 letter, were all references to the  oral decision issued on November 17, 1999.  The Judicial  Officer also recognized, however, that the references to the  Judge's decision were "not without ambiguity."  Further, the  fact that the only decision in the case was the Judge's oral  decision begs the question.  The question is whether the  Rules of Practice, or other action by the Secretary, provided fair notice of which event--"issuance" or "receiving service"--triggered the appeal time under S 1.145(a).


21
Third, the Judicial Officer found that the statements by the  Judge and the Hearing Clerk that the decision would become  effective 35 days after service, rather than after issuance,  were "error" because the only decision in the case was the  oral decision issued on November 17, 1999.  Acknowledging  further that there was an ambiguity in the statements made  to PMD by the Judge and the Hearing Clerk because both  failed to distinguish between the November 17, 1999 oral  decision and the written Bench Decision when informing  PMD of the period to appeal, the Judicial Officer nevertheless  appeared to conclude that a simple reading of the Rules of  Practice sufficed to give fair notice to PMD.  In that regard,  for reasons already discussed, he erred.  Moreover, any  similarity between the Secretary's interpretation of S 1.145(a)  as a jurisdictional bar and judicial construction of Federal  Rule of Appellate Procedure 4 and the Administrative Orders  Review Act, 28 U.S.C. S 2344, as presenting jurisdictional  bars to untimely appeals, see supra n.3, does not address  whether the Secretary provided fair notice of his interpretation of S 1.142(c).


22
Accordingly, because neither the Secretary's Rules of Practice nor any other action by the Secretary provided fair notice  to PMD that "issuance" of the Judge's oral decision under  S 1.142(c) was "receiving service" for purposes of noting an  appeal under S 1.145(a), we grant the petition.



Notes:


1
  See In re PMD Brokerage Corp., PACA Docket No.  D-99-0004 (Dep't of Agric. March 31, 2000);  In re PMD Brokerage  Corp., PACA Docket No. D-99-0004, 2000 WL 202696 (Dep't of  Agric. Feb. 18, 2000).


2
  Section 1.142(b) provides, in relevant part:
Prior to the Judge's decision, each party shall be afforded a reasonable opportunity to submit for consideration proposed findings of fact, conclusions, order, and brief in support thereof.
7 C.F.R. S 1.142(b) (2000).


3
  The Judicial Officer noted that the Secretary's interpretation  of his Rules of Practice, treating time limits as jurisdictional, is  consistent with the judicial construction of Federal Rule of Appellate Procedure 4(a)(1) and 4(a)(5)(A) and the Administrative Orders  Review Act, see 28 U.S.C. S 2344, as interpreted in Illinois Central  Gulf Railroad Co. v. ICC, 720 F.2d 958, 960 (7th Cir. 1983).  See  Kidd v. District of Columbia, 206 F.3d 35, 38 (D.C. Cir. 2000); Energy Probe v. United States Nuclear Regulatory Comm'n, 872  F.2d 436, 437 (D.C. Cir. 1989);  see also Marine Mammal Conservancy, Inc. v. USDA, 134 F.3d 409, 410-11 (D.C. Cir. 1998).


4
  Although PMD's brief refers to S 1.142(a)(4), there is no such  subsection and it is obvious that PMD intends to refer to  S 1.142(c)(4).


5
  On appeal, the Secretary has abandoned the Judicial Officer's  alternative position, in denying reconsideration, that PMD's appeal  was untimely because it was filed 31 days after PMD was furnished  a copy of the Bench Decision by the Hearing Clerk. PMD claims  first, that it did not receive the Bench Decision until December 7,  1999, and second, that under agency precedent, the Judicial Officer  can grant an extension of time "if an appeal [i]s inadvertently filed  up to 4 days late, e.g., because of a delay in the mail system...." In re Scamcorp, Inc., 55 Agric. Dec. 1395, 1996 WL 678862, at *6  (Dep't of Agric. Nov. 7, 1996);  see also id. at *7.


6
  Section 1.142 also provides:
If the [Administrative Law Judge's] decision is announced orally, a copy thereof, excerpted from the transcript or recording, shall be furnished to the parties by the Hearing Clerk. Irrespective of the date such copy is mailed, the issuance date of the decision shall be the date the oral decision was announced.
7 C.F.R. S 1.142(c)(2) (2000).


