Birkenfield v. United States

• Decision Date: 10 November 1966
• Docket Number: No. 16009.,16009.
• Citation: 369 F.2d 491
• Parties: Harry BIRKENFIELD, Appellant, v. UNITED STATES of America and Orville Freeman, Secretary of Agriculture.
• Court: U.S. Court of Appeals — Third Circuit

369 F.2d 491 (1966)

Harry BIRKENFIELD, Appellant, v. UNITED STATES of America and Orville Freeman, Secretary of Agriculture.

No. 16009.

United States Court of Appeals Third Circuit.

Argued September 12, 1966.

Decided November 10, 1966.

Harvey A. Miller, Jr., Pittsburgh, Pa. (Miller & Miller, Pittsburgh, Pa., on the brief), for appellant.

Morton Hollander, Chief, Appellate Section, U. S. Dept. of Justice, Washington, D. C. (John W. Douglas, Asst. Atty. Gen., Gustave Diamond, U. S. Atty., Jack H. Weiner, Attorney, Department of Justice, Washington, D. C., on the brief), for appellees.

Before STALEY, Chief Judge, and McLAUGHLIN and KALODNER, Circuit Judges.

OPINION OF THE COURT

STALEY, Chief Judge.

Appellant, Harry Birkenfield, has brought this suit to enjoin the Secretary of Agriculture and his agents from interfering with appellant's employment in the field of marketing perishable agricultural commodities. The issue presented is whether the Secretary's actions, undertaken without providing the appellant a trial-type hearing, violated appellant's right to due process. The district court granted summary judgment for the defendants and we affirm.

The complained-of actions arise out of proceedings against the Fort Pitt Tomato & Produce Co., Inc. (hereinafter referred to as "Fort Pitt"), a licensed commission merchant, dealer and broker under the Perishable Agricultural Commodities Act of 1930 (hereinafter referred to as "P.A.C.A."), 46 Stat. 531, as amended, 7 U.S.C. § 499a et seq. Certain sellers complained to the Secretary of Agriculture that Fort Pitt had not paid for shipments of potatoes and onions received during the summer of 1965. Under P.A.C.A. § 6, 7 U.S.C. § 499f, the Secretary initiated reparation proceedings against Fort Pitt. However, Fort Pitt did not answer the complaints and default orders were subsequently issued. Fort Pitt went into receivership in October, 1965, and did not appeal or pay the reparation awards.

Appellant Birkenfield had been treasurer and a member of the board of directors of Fort Pitt, and had owned more than 10 per cent of the company's outstanding shares of stock. After the initiation of the reparation proceedings, Birkenfield became concerned about the effect on him of a possible finding that Fort Pitt had violated the P.A.C.A., for under the Act

"(b) 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 —

* * * * *

(2) who has been found after notice and opportunity for hearing to have committed any flagrant or repeated violation of section 499b * * * or

(3) against whom there is an unpaid reparation award issued within two years subject to his right of appeal under section 499g(c) of this title." P.A.C.A. § 8, 7 U.S.C. § 499h(b). (Emphasis supplied.)

The Act defines "person" to include "individuals, partnerships, corporations, and associations." P.A.C.A. § 1, 7 U.S.C. § 499a(1). Therefore, if Birkenfield were "responsibly connected" with Fort Pitt, upon the company's failure to pay any reparation award, Birkenfield could not be employed by another licensee under the P.A.C.A. for a minimum of two years without the approval of the Secretary of Agriculture and the posting of a bond in an amount satisfactory to the Secretary. P.A.C.A. § 8, 7 U.S.C. § 499h(b).

Appellant communicated with officials of the Department of Agriculture's Consumer Marketing Service and was informed that the Department would consider him "responsibly connected" with Fort Pitt should the latter fail to pay the reparation awards. The Department explained to him that this would necessarily follow because the Act provides that

"When used in this chapter —

* * * * *

"(9) The term `responsibly connected\' means affiliated or connected with a commission merchant, dealer, or broker as * * * (B) officer, director, or holder of more than 10 percentum of the outstanding stock of a corporation or association." P.A.C.A. § 1, as amended 7 U.S.C. § 499a(9).

When Fort Pitt failed to defend the first reparation complaint and a default order was entered, a copy of the order was served on Birkenfield and he was again advised, by letter, of the effect on his employment opportunities of Fort Pitt's failure to pay. Before the reparation award became final, Birkenfield, through counsel, talked with Department of Agriculture officials and stated that he could prove that he was not in fact "responsibly connected" with Fort Pitt. However, the material submitted in due course to the Department did not controvert the facts that Birkenfield was an officer, director and significant shareholder — the three criteria of "responsibly connected" under the Act. The thrust of Birkenfield's contention before the Department, as well as in the district court, was that he was only nominally such an official or shareholder, and that actual authority was vested in others. The Department of Agriculture informed appellant's counsel that it considered the appellant to be "responsibly connected within the meaning of the Act."

When the default reparation order became final, with no appeal having been taken or payment made, the Department of Agriculture issued a press release pursuant to P.A.C.A. § 8(a), 7 U.S.C. § 499h (a), and 7 C.F.R. 46.36 (Supp. 1966). The release stated that Fort Pitt had failed to pay a reparation award issued under the Act; that the company and its officers, directors, or stockholders, including Harry Birkenfield, were not entitled to conduct business subject to the Act until the award was satisfied; and that these individuals could not be employed by another P.A.C.A. licensee without the Department's approval.

Appellant sought employment with certain licensees. The Department informed these persons by letter and by telephone of the conditions under which appellant could be employed, including the necessity for the Secretary's approval and the posting of satisfactory bond. Moreover, the Department stated to at least one licensee that the Department had initiated disciplinary action against Fort Pitt for "repeated and flagrant" violations of the Act, and that under a finding adverse to Fort Pitt, Birkenfield "will become ineligible for employment with a licensee, with or without bond, for a period of one year following the effective date of such disciplinary order." This licensee was also informed that "To employ Mr. Birkenfield without having posted an acceptable bond and obtaining approval of his employment may result in the suspension or revocation of your license." Appellant then brought this action in the district court.

Defendants moved...