George Steinberg and Son, Inc. v. Butz, 218

• Citation: 491 F.2d 988
• Decision Date: 11 February 1974
• Docket Number: No. 218,Docket 73-1226.,218
• Parties: GEORGE STEINBERG AND SON, INC., Petitioner, v. Earl L. BUTZ, Secretary of Agriculture, and United States of America, Respondents.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

491 F.2d 988 (1974)

GEORGE STEINBERG AND SON, INC., Petitioner, v. Earl L. BUTZ, Secretary of Agriculture, and United States of America, Respondents.

No. 218, Docket 73-1226.

United States Court of Appeals, Second Circuit.

Argued December 17, 1973.

Decided February 11, 1974.

Robert A. Katz, New York City (Joseph Einhorn, New York City, of counsel), for petitioner.

Judith S. Feigen, Dept. of Justice, Washington, D. C. (Irving Jaffe, Acting Asst. Atty. Gen., Kathryn H. Baldwin, Dept. of Justice, Washington, D. C., on the brief), for respondents.

Before LUMBARD, FRIENDLY and OAKES, Circuit Judges.

OAKES, Circuit Judge:

Petitioner, a corporation, seeks review of an order issued by the Secretary of Agriculture finding petitioner in "flagrant and repeated violation" of the Perishable Agricultural Commodities Act (PACA or Act) and denying its application for a license thereunder. The Secretary's "Judicial Officer" found the petitioner corporation to have committed such violations of PACA by failure to make full payment on 283 lots of commodities purchased from 19 sellers in violation of 7 U.S.C. § 499b(4). Petitioner makes four main arguments: (1) that the administrative complaint in this action was not signed by the proper official in the Department of Agriculture; (2) that because the hearing officer (as opposed to the judicial officer) found that the record did not establish willfulness with respect to the transactions involved, petitioner was therefore entitled to a so-called "second chance" under § 9(b) of the Administrative Procedure Act, 5 U.S.C. § 558(c), providing that the withdrawal or suspension of a license is lawful only if the licensee has been given written notice of the conduct warranting suspension and opportunity to demonstrate compliance with all lawful requirements; (3) that Paul Steinberg, a stockholder and employee of petitioner, cannot be deprived of his right to obtain employment without due process; and (4) that there should be a remand to the Department for a new hearing on the question of willfulness. We reject each of petitioner's arguments and deny review.

Before briefly recounting the underlying factual background of this case, it is well to recall that PACA was originally enacted by Congress in 1930 for the purpose of regulating the interstate business of shipping and handling perishable agricultural commodities such as fresh fruit and vegetables. See generally 1962 U.S.Code Cong. & Admin.News p. 2749. Zwick v. Freeman, 373 F.2d 110 (2d Cir.), cert. denied, 389 U.S. 835, 88 S.Ct. 43, 19 L.Ed.2d 96 (1967). The essential need for regulation arose in the unfair activities of commission merchants, dealers and brokers who received shipments from growers and shippers. Upon receiving a shipment of perishable commodities, the commission merchants, dealers and brokers would wrongfully reject the shipment, in many cases making the false claim that the commodities had arrived in a damaged condition or some other claim permitting rejection of the shipment. These fraudulent rejections were made when the market for the commodity was declining so that the commission merchant, dealer or broker would have suffered a loss had he accepted the shipment and paid the contract price. See H.R.Rep. 1041, 71st Cong.2d sess., H.R.Rep. 1546, 87th Cong. 2d sess.

Essentially the Act provides a system of licensing and penalties for violations. Under § 2, 7 U.S.C. § 499b, it is unfair for a commission merchant, dealer or broker to engage in listed unfair practices, including in subsection (4) failure to "make full payment promptly." Section 3 of the Act, 7 U.S.C. § 499c, requires them to obtain a license from the Secretary of Agriculture as a condition of doing business, and § 4 as amended, 7 U.S.C. § 499d, governs the issuance of licenses. Under § 5 of the Act as amended, 7 U.S.C. § 499e, a violator of § 2 is liable for damages to the injured party which may be obtained in an action before the Secretary or by a separate lawsuit, while §§ 6 and 7 of the Act, 7 U.S. C. §§ 499f, 499g, relate to complaints to the Secretary for investigation and hearing and provide for the issuance of reparation orders requiring a violator to pay damages. Section 8 as amended, 7 U.S.C. § 499h, provides in subsection (a) the grounds for revocation of licenses by the Secretary for violation and in subsection (b) empowers the Secretary to limit employment within the industry of "any person who is or has been responsibly connected with" such violators.¹

Petitioner, George Steinberg and Son, Inc., was a New York corporation licensed under § 3 of the Act, 7 U.S.C. § 499c. Its officers, each of whom owned 50 per cent of the stock, were George Steinberg, president, and Paul Steinberg, secretary. Between April, 1968, and May, 1969, the corporation purchased, received and failed to pay for 328 lots of perishable agricultural commodities with a total value of $67,641.96. On November 19, 1968, a petition for involuntary bankruptcy was filed against the corporation. At that time George Steinberg retired from the corporation and full and complete control was vested in Paul Steinberg, for whom relief is sought in this petition. On January 8, 1969, a voluntary plan under Chapter XI of the Bankruptcy Act was entered but this was abandoned on June 2, 1969, and the corporation was adjudicated bankrupt. Its license to do business terminated on June 28, 1969, and due to its bankruptcy the corporation failed to renew it.

In July, 1969, the Secretary of Agriculture first learned of the corporation's failure to pay for purchased commodities. An investigation was begun, and notice was sent to the corporation on April 21, 1970, allowing an opportunity to demonstrate or achieve compliance with all of the requirements of the Act. The corporation did not respond to this notice, probably owing to its prior bankruptcy. By complaint filed July 1, 1970, and signed by the director of the Fruit and Vegetable Division, the Steinberg corporation was charged with flagrant and repeated violations of § 2 of PACA by reason of its failure to pay the more than $67,000 owed, as previously recounted. The corporation failed to respond, although the complaint notified it that failure to answer would constitute admission of the facts alleged and that failure to request a hearing would constitute waiver of the hearing. Again petitioner alleges that it did not receive the complaint, which does not seem unlikely in light of its defunct state. A default order against the petitioner was entered but was vacated on January 13, 1971, by the issuance of an order reopening the proceeding. On February 5, 1971, petitioner filed an answer in which it did not deny the failure to make full payment on perishable agricultural commodities received and accepted in interstate commerce. On March 24, 1971, the corporation applied for a new license under the Act. Paul Steinberg, listing himself as vice president of the corporation, applied for the license in an effort to secure the procedural advantages conferred on parties who are licensed on the day that the complaint is filed. It was specifically stated, however, that the applicant did not seek a license to conduct business and would not conduct business under it until the further approval of the Secretary. The director of the Fruit and Vegetable Division issued a notice to show cause why the license should not be denied, the notice setting forth the alleged failure of the corporation to make full payment promptly for the 328 lots of commodities previously referred to. By an order dated April 26, 1971, the disciplinary proceeding and the proceeding on the notice to show cause why the license should not be denied were consolidated.

During the subsequent hearing, witnesses affiliated with three unpaid creditors of the corporation testified that their companies had not received payments on more than 30 shipments, and one witness testified that a check for over $3,000 signed by Paul Steinberg to a creditor had been returned for insufficient funds in 1968. Thereafter the parties stipulated that the corporation had purchased from creditors in interstate commerce perishable agricultural merchandise and admitted violations of § 2 of the Act on 328 separate occasions. However, the corporation denied that Paul Steinberg had personal knowledge or involvement in the transactions. Thereafter the Department determined not to pursue violations occurring after January 8, 1969, the date on which the corporation consented to an adjudication in bankruptcy, so that the stipulation was effective only as to 283 violations covering the period from April 24, 1968, through January 7, 1969.

It is an interesting sidelight here that the hearing examiner recommended that respondent's license application should be denied, but also felt that the complaint in the disciplinary proceeding should be dismissed on the basis that the corporation had not been given the "second chance" under § 9(b) of the Administrative Procedure Act, 5 U.S.C. § 558(c)² because there had been no allegation of willfulness in the complaint, relying on In re American Fruit Purveyors, Inc., 30 A.D. 1542 (1971). The judicial officer, however, in reviewing the matter, requested the corporation to specify any proof which might concern lack of willfulness as that term is defined in American Fruit Purveyors, supra; whether any sellers had waived their right to be paid in full; to what extent if any the sellers had been paid; whether there had been any other mitigating circumstances; and on what date if any prior to January 8, 1969, a trustee had been appointed or a committee established with power to direct the actions of the corporation, as opposed to its being directed by Paul Steinberg. The corporation's response indicated that if the case were remanded it would offer proof to show that George Steinberg had a chronic cardiac condition which prevented him from attending to business regularly during ...