           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                       2    H.C. MacClaren, Inc. v.                      No. 02-3006
        ELECTRONIC CITATION: 2003 FED App. 0319P (6th Cir.)                   United States Dep’t of Agric.
                    File Name: 03a0319p.06
                                                                                             _________________
UNITED STATES COURT OF APPEALS                                                                    COUNSEL
                  FOR THE SIXTH CIRCUIT                                  ARGUED: Stephen P. McCarron, McCARRON & DIESS,
                    _________________                                    Washington, D.C., for Petitioner. Stephen M. Reilly,
                                                                         OFFICE OF GENERAL COUNSEL, UNITED STATES
 H.C. MACCLAREN, INC.,         X                                         DEPARTMENT OF AGRICULTURE, Washington, D.C., for
                   Petitioner, -                                         Respondent.   ON BRIEF:         Stephen P. McCarron,
                                -                                        McCARRON & DIESS, Washington, D.C., for Petitioner.
                                -   No. 02-3006                          Stephen M. Reilly, OFFICE OF GENERAL COUNSEL,
          v.                    -                                        UNITED STATES DEPARTMENT OF AGRICULTURE,
                                 >                                       Washington, D.C., for Respondent.
                                ,
 UNITED STATES DEPARTMENT -
 OF AGRICULTURE ,                                                                            _________________
                                -
                  Respondent. -                                                                  OPINION
                                -                                                            _________________
                               N
       On Appeal from an Order of the Secretary,                            JULIA SMITH GIBBONS, Circuit Judge. Petitioner H.C.
        United States Department of Agriculture.                         MacClaren, Inc. (MacClaren), a wholesale produce broker,
                    No. D-99-0012.                                       appeals a final order of the Secretary of Agriculture revoking
                                                                         its license pursuant to the Perishable Agricultural
                     Argued: June 11, 2003                               Commodities Act (PACA), 7 U.S.C. §§ 499a-499s. The
                                                                         Secretary determined that the sanction of license revocation
            Decided and Filed: September 4, 2003                         was appropriate after concluding that MacClaren had
                                                                         committed sixty-one violations of PACA. Specifically,
        Before: MOORE and GIBBONS, Circuit Judges;                       MacClaren employees admitted to altering fifty-three United
             SCHWARZER, Senior District Judge.*                          States Department of Agriculture (USDA or “the agency”)
                                                                         inspection certificates and issuing eight false accounts of sale
                                                                         for a fraudulent purpose. MacClaren contends that in
                                                                         imposing the sanction of license revocation, the Secretary
                                                                         erred in failing to consider the remedial purpose of PACA and
                                                                         all relevant circumstances and imposed a sanction that is
                                                                         without justification in fact. For the reasons set forth below,
                                                                         we affirm the decision of the Secretary.
    *
     The Honorable William W Schwarzer, Senior United States District
Judge for the Northern District of California, sitting by designation.

                                  1
No. 02-3006                   H.C. MacClaren, Inc. v.        3    4       H.C. MacClaren, Inc. v.                         No. 02-3006
                          United States Dep’t of Agric.                   United States Dep’t of Agric.

                              I.                                  The investigators then reviewed thirty-six files and found
                                                                  discrepancies in eleven of the files handled by Olds, Gottlob
   MacClaren began doing business in the 1920s and was            and Johnston.
issued a PACA license in 1974. Since 1974, MacClaren’s
license has been renewed annually. MacClaren operates out            Gregory MacClaren and Darrell Moccia denied knowledge
of Detroit, Michigan, and is owned and managed by Gregory         of the alterations and told investigators that they wanted to
MacClaren, president, director and fifty-one percent              cooperate and investigate the matter internally. They initiated
stockholder, and Darrell Moccia, vice-president, director, and    an internal review and had their employees review all past
forty-nine percent stockholder. In addition to Gregory            files for altered inspection certificates. The internal
MacClaren and Darrell Moccia, during the relevant time            investigation uncovered numerous additional altered
period MacClaren employed four salespersons, Norman Olds,         inspection certificates which Gregory MacClaren and Darrell
Alan Johnston, Frederick Gottlob and Daniel Schmidlin, who        Moccia turned over to investigators. Olds, Gottlob and
were paid on commission. All six individuals purchased            Johnston voluntarily gave statements to the investigators
fruits and vegetables (perishable commodities) from shippers      admitting that they had altered USDA inspection certificates
throughout the country and resold the produce to local jobbers    and denying that Gregory MacClaren or Darrell Moccia were
and wholesalers. They worked in the same area with raised         aware of their actions. Gottlob also admitted to issuing seven
dividers separating their desks and together handled about        false accounts of sale, and Olds admitted to issuing one such
400 transactions per month.                                       false account.
   Prior to the violations at issue, MacClaren had no record of     Gregory MacClaren personally contacted the suppliers
violations of PACA. During 1994 through 1996, however,            affected by the altered inspection certificates and false
three MacClaren employees committed sixty-one violations          accounts to express MacClaren’s intent to make restitution.
of PACA. Olds, Johnston and Gottlob admitted to altering          According to MacClaren, the company returned almost one
fifty-three inspection certificates resulting in underpayments    hundred percent of the amounts it underpaid shippers as a
totaling $130,903.00 to twenty-two suppliers. In addition,        result of the alterations and false accountings.1
Olds and Gottlob admitted to issuing eight false accounts of
sale to seven suppliers resulting in underpayments of               Despite their admissions of improper conduct, MacClaren
$6,599.15.                                                        continued to employ Olds and Gottlob on the condition that
                                                                  they reimburse MacClaren for the restitution that it intended
  The admissions by MacClaren employees resulted from the         to pay the shippers. In addition, Olds and Gottlob were
investigation of another company suspected of altering            directed to call each shipper affected by the altered inspection
inspection certificates.     In December 1996, USDA               certificates, explain their actions and advise the shipper that
investigators visited MacClaren to examine MacClaren’s file       MacClaren intended to make restitution for any losses the
relating to a transaction with the company under                  shipper suffered. Olds continued working for MacClaren, and
investigation. Upon examining the file, the investigators
discovered two copies of the same USDA inspection
certificate containing conflicting entries. Neither Gregory           1
                                                                        The USDA concedes that MacC laren repaid “most but not all of the
MacClaren nor Darrell Moccia could explain the discrepancy.       unde rpaym ents.”
No. 02-3006                        H.C. MacClaren, Inc. v.              5    6       H.C. MacClaren, Inc. v.                          No. 02-3006
                               United States Dep’t of Agric.                         United States Dep’t of Agric.

through paycheck deductions he reimbursed MacClaren for                         The agency appealed the ALJ’s decision to the Judicial
the restitution on the inspection certificates he altered.                   Officer, acting for the Secretary of Agriculture, on May 23,
Gottlob, however, only continued working for MacClaren for                   2001.3 Among other things, the agency argued that the ALJ
about a month and a half until he was terminated for poor                    erred in failing to find MacClaren’s violations willful and
work performance. Gottlob did not repay MacClaren any of                     therefore further erred by imposing a sanction of a civil
the restitution amount.                                                      monetary penalty rather than license revocation. On
                                                                             November 8, 2001, without conducting an additional hearing,
   On June 17, 1999, the USDA issued a complaint charging                    Judicial Officer William G. Jenson issued a decision and
MacClaren with violating PACA by altering fifty-three                        order in which he agreed with the majority of the ALJ’s
USDA inspection certificates and submitting false accounts                   findings. The decision, however, differed from the opinion of
to seven suppliers.        The Complaint requested that                      the ALJ in two significant areas. First, in the findings of fact,
MacClaren’s license be revoked due to its “willful, flagrant                 the Judicial Officer concluded that Gregory MacClaren and
and repeated violations” of PACA. On September 20 and 21,                    Darrell Moccia, MacClaren’s owners, “did not know, but
2000, Administrative Law Judge (ALJ) James W. Hunt                           should have known, during the period of June 1994 through
conducted a hearing in Detroit, Michigan. In his decision and                November 1996, that the United States Department of
order finding that MacClaren violated PACA as alleged in the                 Agriculture inspection certificates . . . were altered and that
complaint, the ALJ noted that MacClaren “did not deny that                   the false accounts of sales . . . were made.” In addition, the
53 USDA inspection certificates had been altered.” He held                   Judicial Officer disagreed with the sanction of a civil
that because “these unlawful acts were committed by                          monetary penalty and instead imposed the sanction of license
[MacClaren’s] salesmen in the course of their employment,                    revocation. MacClaren filed its petition for review in this
they are deemed to be the acts of [MacClaren].” In deciding                  court on January 2, 2002, which was within sixty days of
the appropriate sanction for the violations, the ALJ found that              issuance of the final agency order as required under 28 U.S.C.
it had not been shown that MacClaren “was irresponsible or                   § 2344.
unscrupulous and no evidence was provided to show that
license revocation or suspension would have a greater                                                          II.
beneficial effect on the industry than a monetary fine.”
According to the ALJ, MacClaren “acted responsibly when it                     In 1930, Congress enacted PACA “for the purpose of
became aware of the fraudulent practices of its salesmen” and                regulating the interstate business of shipping and handling
“took prompt measures to provide restitution to the shippers.”               perishable agricultural commodities such as fresh fruit and
Moreover, the ALJ recognized that neither Olds or Gottlob                    vegetables.” Allred’s Produce v. United States Dep’t of
was criminally prosecuted for altering federal inspections                   Agric., 178 F.3d 743, 745 (5th Cir. 1999) (quoting George
under 7 U.S.C. § 499n(b).2 Therefore, the ALJ imposed a                      Steinberg and Son, Inc. v. Butz, 491 F.2d 988 (2d Cir. 1974)).
civil penalty of $50,000.                                                    PACA was “designed to ensure that commerce in agricultural


    2                                                                            3
      Gottlob obtained immunity from criminal prosecution in return for           The Secretary of Agriculture has delegated authority to the Judicial
his testimony at the USD A hearing. Olds testified at the hearing, but did   Officer to act as final deciding o fficer in the U SD A’s adjudicatory
not rec eive immunity.                                                       proceedings subject to 5 U.S.C. §§ 556 & 557. 7 C.F.R. § 2.35.
No. 02-3006                   H.C. MacClaren, Inc. v.        7    8      H.C. MacClaren, Inc. v.                     No. 02-3006
                          United States Dep’t of Agric.                  United States Dep’t of Agric.

commodities is conducted in an atmosphere of financial                [R]eliance will no longer be placed on the “severe”
responsibility.” Kanowitz Fruit and Produce Co, Inc., v.              sanction policy set forth in many prior decisions. Rather,
United States Dep’t of Agric., No. 97-4224, 1998 WL                   the sanction in each case will be determined by
863340, at *1 (2d Cir. Oct. 29, 1998). It provides “a measure         examining the nature of the violations in relation to the
of control over a branch of industry which is almost                  remedial purposes of the regulatory statute involved,
exclusively in interstate commerce, is highly competitive, and        along with all relevant circumstances, always giving
presents many opportunities for sharp practice and                    appropriate weight to the recommendations of the
irresponsible business conduct.” Allred’s Produce, 178 F.3d           administrative officials charged with the responsibility
at 745 (quoting Zwick v. Freeman, 373 F.2d 110, 116 (2d Cir.          for achieving the congressional purpose.
1967)). To achieve this control, PACA establishes a strict
licensing system and subjects all dealers of perishable           50 Agric. Dec. 476, 497 (1991) (citations omitted), aff’d,
agricultural commodities to severe sanctions for violations of    1993 WL 128889 (9th Cir. 1993). Accordingly, the Secretary
PACA’s requirements. Id.; 7 U.S.C. §§ 499c(a) & 499h. The         must consider all relevant circumstances, including both
USDA is designated with authority to administer and enforce       mitigating and aggravating circumstances, when selecting the
PACA.                                                             appropriate sanction. See Tambone v. United States Dep’t of
                                                                  Agric., 50 F.3d 52, 55 (D.C. Cir. 1995).
  Under PACA, dealers are subject to a number of statutory
requirements including making full payment promptly for all          MacClaren first contends that the Secretary, acting through
purchases of perishable agricultural commodities. 7 U.S.C.        the Judicial Officer, failed to apply the proper USDA standard
§ 499b(4). In addition, it is unlawful for any dealer “to make,   for determining sanctions in deciding to revoke MacClaren’s
for a fraudulent purpose, any false or misleading statement in    license. Whether the Secretary applied the correct standard is
connection with any transaction involving any perishable          a question of law subject to de novo review. Potato Sales
agricultural commodity” and “to fail or refuse [to] truly and     Co., Inc. v. Dep’t of Agric., 92 F.3d 800, 803 (9th Cir. 1996)
correctly . . . account for such transactions.” Id. Violations    (“[a]n agency’s conclusions of law are subject to de novo
of PACA’s requirements may result in sanctions. The               review”). Our review of the Secretary’s decision indicates
Secretary may publish the facts and circumstances of              that the Secretary applied the correct legal standard for
violations and suspend the license of the violator for up to      determining the appropriate sanction as set forth in S.S.
ninety days, or, if a violation is flagrant or repeated, the      Farms Linn County, Inc.
Secretary may revoke the violator’s license. 7 U.S.C.
§ 499h(a). In 1995, Congress amended PACA to provide for             MacClaren next claims that the Secretary applied the legal
the alternative sanction of a civil monetary penalty not to       standard incorrectly and therefore imposed an improper
exceed $2,000 per violation or $2,000 each day a violation        sanction because the Secretary did not examine the nature of
continues. 7 U.S.C. § 499h(e).                                    the violations in relation to the remedial purpose of PACA
                                                                  and did not consider all relevant circumstances. Our review
  The USDA set forth the standard governing the decision to       of an administrative agency decision is narrow, and we will
impose a particular sanction in In re S.S. Farms Linn County,     uphold the decision unless it is “arbitrary, capricious, an
Inc.:                                                             abuse of discretion, or otherwise not in accordance with the
                                                                  law.” Allred’s Produce, 178 F.3d at 746 (quoting 5 U.S.C.
No. 02-3006                    H.C. MacClaren, Inc. v.         9    10   H.C. MacClaren, Inc. v.                     No. 02-3006
                           United States Dep’t of Agric.                 United States Dep’t of Agric.

§ 706(2)(A)). Specifically, we review whether the Secretary            Before determining the appropriate sanction against
misapplied the sanction standard for an abuse of discretion,        MacClaren, the Secretary fully set forth the sanction policy as
and we may not overturn the Secretary’s choice of sanction          described in S.S. Farms Linn County, Inc. While the
unless it is unwarranted in law or without justification in fact.   Secretary did not explicitly describe the remedial purposes of
See Havana Potatoes of New York Corp. v. United States              PACA, the Secretary noted that “[t]he purpose of a sanction
Dep’t of Agric., 136 F.3d 89, 91, 93 (2d Cir. 1997)                 in a PACA administrative disciplinary proceeding is to deter
(considering under an abuse of discretion standard whether          the violator and other potential violators from future
the Secretary’s choice of sanction was based on an erroneous        violations of the PACA.” Considering this purpose, the
policy regarding sanctions and whether the Judicial Officer         Secretary concluded that a civil monetary penalty would not
misapplied the USDA sanction standard, and noting that the          sufficiently deter MacClaren and other potential violators
Secretary’s choice of sanction is not to be overturned unless       from future violations of PACA and that license revocation
it is unwarranted in law or without justification in fact );        was necessary to deter such violations.
Norinsberg Corp. v. United States Dep’t of Agric., 47 F.3d
1224, 1228 (D.C. Cir. 1995) (analyzing appellant’s argument            The sanction policy states that it is “the nature of the
that the Secretary failed to consider all relevant circumstances    violations” that is to be examined “in relation to the remedial
for an abuse of discretion and recognizing that the Secretary’s     purposes” of PACA, not the actions taken after the violations,
choice of sanction cannot be overturned unless it is                which could be, and were, considered as relevant
unwarranted in law or unjustified in fact).                         circumstances. The nature of the violations at issue, altering
                                                                    inspection certificates and falsifying accounts resulting in
  According to MacClaren, the remedial purpose of PACA is           losses to shippers in excess of $136,000, indicates that
to “assure that only financially responsible brokers are in         MacClaren was not a financially responsible dealer. The
business so that growers are paid for the produce they              Secretary set forth the specific violations of PACA and noted
supply.” MacClaren admits in its reply brief, however, that         that the number of violations and the seriousness of the
“deterring irresponsible and unscrupulous conduct” is also          violations were factors in determining that revocation of
part of PACA’s “remedial purpose.” MacClaren points out             MacClaren’s license was warranted. Therefore, the Secretary
that its actions of investigating the wrongdoing and making         properly considered the nature of the violations in relation to
restitution indicate financial responsibility. MacClaren            the remedial purposes of the PACA. Cf. ABL Produce, Inc.
argues that the Secretary’s decision to impose the sanction of      v. United States Dep’t of Agric., 25 F.3d 641, 646 (8th Cir.
revocation, as opposed to a civil monetary penalty, did not         1994) (noting that “consideration of the ‘relevant
properly consider the benefits of a civil monetary penalty,         circumstances’ should include consideration of the statute’s
including promoting the remedial purposes of PACA and               purpose” and finding that license revocation was not
encouraging dealers suspected of violations to cooperate with       appropriate after examining all relevant circumstances).
investigators and make restitution. Moreover, MacClaren
contends that the Secretary ignored relevant circumstances             MacClaren also claims that the Secretary failed to consider
such as “who will be most affected by the sanction, the             all relevant circumstances before deciding to revoke its
deception of the salesmen’s acts and the lack of any prior          license. MacClaren complains that the sanction of license
violations by the company.”                                         revocation falls exclusively on Gregory MacClaren and
                                                                    Darrell Moccia, while Olds and Gottlob are not subject to any
No. 02-3006                   H.C. MacClaren, Inc. v.      11    12   H.C. MacClaren, Inc. v.                      No. 02-3006
                          United States Dep’t of Agric.               United States Dep’t of Agric.

penalty. The sanction, however, falls entirely on MacClaren      to be weighed in a sanction determination. See generally,
as a company. Furthermore, because Olds, Gottlob and             Norinsberg, 47 F.3d at 1227 (considering relevant
Johnston were acting within the scope of their employment        circumstances such as the company’s financial difficulties,
when they knowingly and willfully violated PACA, their           accords reached with suppliers, and the potential harm to the
knowing and willful violations are deemed to be knowing and      company’s creditors from suspending its license). Similarly,
willful violations by MacClaren. Under PACA, “the act,           while retention of employees who commit violations of
omission, or failure of any agent, officer, or other person      PACA is not directly prohibited by PACA, the retention of
acting for or employed by any commission merchant, dealer,       such employees may be considered relevant in determining
or broker, within the scope of his employment or office, shall   whether license suspension or revocation is required to deter
in every case be deemed the act, omission, or failure of such    future violations. Moreover, as noted above, MacClaren is
commission merchant, dealer, or broker as that of such agent,    deemed to have committed the knowing and willful violations
officer, or other person.” 7 U.S.C. § 499p. According to the     committed by its employees, and, therefore, the Secretary
Sixth Circuit, acts are “willful” when “knowingly taken by       properly considered the aggravating factors inherent in the
one subject to the statutory provisions in disregard of the      employees’ violations. Accordingly, the Secretary considered
action’s legality.” Hodgins v. United States Dep’t of Agric.,    all relevant circumstances as required in S.S. Farms Linn
No. 97-3899, 2000 WL 1785733 (6th Cir. Nov. 20, 2000)            County, Inc. in deciding to impose the sanction of license
(quotation omitted). “Actions taken in reckless disregard of     revocation.
statutory provisions may also be considered ‘willful.’” Id.
(quotation and citations omitted). The MacClaren employees         MacClaren next claims that the Secretary erred in imposing
admitted to altering USDA inspection certificates and issuing    a sanction of license revocation as a result of MacClaren’s
false accounts of sale in knowing disregard of their actions’    violations of PACA. As we previously noted, the Secretary’s
legality. Accordingly, their willful violations are deemed       decision regarding an appropriate sanction may only be
willful violations by MacClaren.                                 overturned if it is found to be unwarranted in law or without
                                                                 justification in fact. Butz v. Glover Livestock Comm’n Co.,
  MacClaren asserts that all of the aggravating factors listed   Inc., 411 U.S. 182, 185-86 (1973); Harry Klein Produce
by the Secretary were caused by the salesmen with the            Corp. v. United States Dep’t of Agric., 831 F.2d 403, 406 (2d
exception of MacClaren’s negligent supervision and its           Cir. 1987). An appellate court may not reweigh the evidence
retention of the salespersons who engaged in the unlawful        or substitute its judgment for that of the Secretary. Havana
conduct, and, according to MacClaren, consideration of these     Potatoes, 136 F.3d at 91. “The fashioning of an appropriate
two factors is inappropriate. MacClaren fails to cite any        and reasonable remedy is for the Secretary, not the court.”
authority supporting its argument that these factors are not     Glover Livestock Comm’n Co., 411 U.S. at 188-89. “The
relevant or otherwise should not be considered. According to     court may decide only whether under the pertinent statute and
MacClaren, the Secretary improperly established a new duty       relevant facts, the Secretary made ‘an allowable judgment in
under PACA that supervisors review some undesignated             (his) choice of the remedy.’” Id. at 189 (quoting Jacob Siegel
portion of a salesperson’s files and that failure to do so       Co. v. Federal Trade Comm’n, 327 U.S. 608, 612 (1946)).
constitutes negligent supervision. The Secretary, however,
properly considered the management and supervision of              MacClaren argues that the sanction imposed is without
employees in a highly regulated industry as a relevant factor    justification in fact. Specifically, MacClaren claims that there
No. 02-3006                   H.C. MacClaren, Inc. v.      13    14       H.C. MacClaren, Inc. v.                           No. 02-3006
                          United States Dep’t of Agric.                   United States Dep’t of Agric.

is no evidence to support the Secretary’s determination that     are sufficiently supported by facts set forth by the Secretary.4
license revocation is necessary to deter future violations.      With regard to deterrence, the Secretary found as follows:
MacClaren asserts that it has acted to rectify the wrongdoing
and prevent future violations and argues that these remedial       [I]n light of the number of [MacClaren’s] willful
actions should be taken into consideration. In addition,           violations, the seriousness of [MacClaren’s] willful
MacClaren contends that the Secretary’s finding that Gregory       violations, the 29-month period during which the
MacClaren and Darrell Moccia would have known about the            violations occurred, the number of [MacClaren’s]
altered inspections and false accountings if they had properly     employees who altered United States Department of
supervised their salesmen is without justification in fact.        Agriculture inspection certificates and made false
                                                                   accounts of sales, the amount of money which
   License revocation under PACA is authorized where the           [MacClaren] underpaid its produce suppliers and/or
violation is “flagrant or repeated.” 7 U.S.C. § 499h(a);           brokers, [MacClaren’s] retention of the salespersons who
Norinsberg Corp., 47 F.3d at 1225. In determining whether          engaged in the unlawful conduct, and [MacClaren’s]
violations are “flagrant” under PACA, the court considers          principal’s failure to review transaction files prepared by
“the number of violations, the amount of money involved,           [its] salespersons, I conclude a civil penalty would not be
and the time period during which the violations occurred.”         sufficient to deter [MacClaren] and other potential
Allred's Produce, 178 F.3d at 748. “Repeated” violations           violators from future violations of the PACA.
under PACA are violations that are not committed
simultaneously. Id. The Secretary found that MacClaren’s         In determining whether Gregory MacClaren and Darrell
violations of PACA were both flagrant and repeated. The          Moccia were negligent in failing to review their salesmen’s
Secretary’s findings are supported by the record. Three of       transaction files, the Secretary considered the requirements of
MacClaren’s four salesmen admitted to altering fifty-three
inspection certificates over a twenty-nine month period               4
resulting in underpayments totaling $130,903 to twenty-two             MacClaren argues that there is little in this case to suggest that
suppliers. These violations meet the definitions of flagrant     license revocation, rather than a civil mo netary p enalty, is nec essary to
                                                                 deter it or others from future violations of PACA. MacC laren points out
and repeated. Therefore, the revocation of MacClaren’s           that a civil monetary penalty would seem esp ecially ap propriate in this
license was well within the Secretary’s authority and            case where the imposition of such a penalty, as opposed to revocation,
discretion. See Allred’s Produce, 178 F.3d at 747 (agreeing      would encourage other d ealers to cooperate with investigators and attempt
with the Secretary that Allred’s violations of PACA were         to make restitution. We recognize the merit in MacClaren’s argument.
flagrant and repeated and therefore holding that the Secretary   W e do note, however, that a while imposing a civil monetary penalty as
did not abuse his discretion in revoking a dealer’s license).    opposed to license revo cation may en courage coop eration, it would not
                                                                 be as effective a deterrent because violators might believe that they could
                                                                 com mit violations and, if caught, simply cooperate and pay restitution and
  Moreover, the Secretary’s legal conclusions that license       monetary penalties. In the instant case, we are limited to determin ing
revocation was necessary to deter future violations and that     only whether the Secretary made an allowable judgment in the choice of
Gregory MacClaren and Darrell Moccia were negligent in           reme dy. Glover Livestock Comm’n Co., 411 U.S. at 189. Both revocation
failing to review transaction files prepared by their salesmen   and a civil penalty were pro per p ossible remedies in this case. We are not
                                                                 at liberty to reexamine the aggravating and mitigating evidenc e to
                                                                 determine whether we would have arrived at some lesser sanction, such
                                                                 as a civil p enalty. See Havana Po tatoes, 136 F.3d at 91.
No. 02-3006                    H.C. MacClaren, Inc. v.         15
                           United States Dep’t of Agric.

PACA, testimony from an experienced manager in the
produce sales industry, and testimony from the USDA
sanction witness. Based on the prohibitions set forth in
PACA and the testimony that appropriate supervision by a
manager includes reviewing a salesperson’s transaction files,
at least on a random sampling basis, the Secretary concluded
that “failure to review a least a portion of the transaction files
prepared by . . . salespersons constitutes gross negligence.”
Because these legal conclusions are sufficiently supported by
evidence in the record, the Secretary’s decision to revoke
MacClaren’s PACA license was justified in fact and was not
an abuse of discretion.
                              III.
  For all the reasons set forth above, we affirm the decision
of the Secretary.
