Marvin Tragash Co., Inc. v. U.S. Dept. of Agr., No. 75-1481

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore BROWN, Chief Judge, RIVES and BELL; BELL
Citation524 F.2d 1255
PartiesMARVIN TRAGASH CO., INC., Petitioner, v. UNITED STATES DEPARTMENT OF AGRICULTURE, Earl Butz, Secretary of Agriculture, Respondent.
Decision Date24 December 1975
Docket NumberNo. 75-1481

Page 1255

524 F.2d 1255
MARVIN TRAGASH CO., INC., Petitioner,
v.
UNITED STATES DEPARTMENT OF AGRICULTURE, Earl Butz,
Secretary of Agriculture, Respondent.
No. 75-1481.
United States Court of Appeals,
Fifth Circuit.
Dec. 24, 1975.

Michael A. Shapiro, Robert Dixon, Miami, Fla., for petitioner.

Earl L. Butz, Sec. of Agriculture, U. S. Dept. of Agriculture, Judith S. Feigin, William Kanter, Appellate Sec., Civil Div., Dept. of Justice, Washington, D. C., for respondent.

Page 1256

Petition for Review of an Order of the United States Department of Agriculture (Florida Case).

Before BROWN, Chief Judge, RIVES and BELL, Circuit Judges.

BELL, Circuit Judge.

Petitioner Marvin Tragash Co., Inc., seeks review of a final decision and order by the Secretary of Agriculture which found that petitioner's failure to make full and prompt payment for 35 lots of fruits and vegetables constituted willful, flagrant, and repeated violation of Section 2 of the Perishable Agricultural Commodity Act, 7 U.S.C.A. § 499b. We deny the petition for review and affirm the order below.

Marvin Tragash Co., Inc., was a Florida corporation licensed under Section 3 of the Act, 7 U.S.C.A. § 499c. Between June 1971 and March 1972, the corporation purchased, received, and failed to pay for 35 lots of fruits and vegetables from ten sellers. On April 11, 1972, the corporation filed a petition for arrangement under Chapter XI of the Bankruptcy Act, 11 U.S.C.A. § 701 et seq. The corporation successfully solicited outside investors to finance a plan of arrangement, and on June 15, 1972, an order confirming the plan was approved. Pursuant to 7 U.S.C.A. § 499d, the corporation's license automatically terminated on that date. The plan of arrangement provided that the corporation would pay 15 per cent of the money owed to all its unsecured creditors in two equal installments of 7.5 per cent each. The creditors, including the ten commodity sellers, agreed to and approved the plan and the bankruptcy court enjoined the corporation from paying any of its obligations except through the plan of payment.

On November 15, 1972, the Secretary of Agriculture filed a complaint and following a hearing the hearing officer found that the corporation's failure to make full payment promptly constituted willful, flagrant, and repeated violations of Section 2 of the Act, 7 U.S.C.A. § 499b. 1 The Judicial Officer subsequently adopted the administrative law judge's decision and Tragash appealed to this court.

Petitioner presents five allegations of error, only one of which merits any extended discussion. The primary contention is that the Perishable Agricultural Commodities Act, insofar as it imposes penalties on petitioner for flagrantly and repeatedly failing to pay its debts, conflicts with the purpose of the Bankruptcy Act under which petitioner entered the plan of arrangement. This issue has been addressed by the Second Circuit Court of Appeals in Zwick v. Freeman, 2 Cir., 1967, 373 F.2d 110, cert. denied, 389 U.S. 835, 88 S.Ct. 43, 19 L.Ed.2d 96. The Second Circuit found no unconscionable or excessive conflict between the Commodities Act and the Bankruptcy Act. As we agree with the Second Circuit's reasoning and conclusion, we quote extensively from its opinion:

The Bankruptcy Act is intended to relieve an honest debtor of liability for his past obligations and to allow him to start afresh. Williams v. United States Fid. & Guar. Co., 236 U.S. 549, 554-555, 35 S.Ct. 289, 59 L.Ed. 713 (1915). The Perishable Agricultural Commodities Act is designed to protect the producers of perishable agricultural products who in many instances must send their products to a buyer or commission merchant who is thousands of miles away. It was enacted to provide a measure of control over a branch of industry which is almost exclusively in interstate commerce, is highly competitive, and presents many opportunities for sharp practice and irresponsible

Page 1257

business conduct. H.Rept. No. 1196, 84th Cong. 1st Sess. 2 (1955).

(13) The measures which petitioners object to in the Commodities Act would seem, to some extent, to conflict with the policy of the Bankruptcy Act. They prevent petitioners from shortly making a fresh debt-free start in the industry in which they had been earning their livelihood, although they...

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14 practice notes
  • Hood v. Smith's Transfer Corp., No. C 87-0527-L(B).
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Western District of Kentucky
    • April 25, 1991
    ...and a state law, not when it involves a conflict between two federal statutes. Marvin Tragash Co. v. United States Dept. of Agriculture, 524 F.2d 1255, 1257 (5th Cir.1975). When a case presents a conflict between two federal statutes, it is not within the preemption doctrine. New York Tel. ......
  • Johnson v. U.S., No. 79-1154
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • May 8, 1980
    ...that the Air Force had taken from five witnesses. See id. at 158. Accord, Marvin Tragash Co. v. United States Department of Agriculture, 524 F.2d 1255, 1258 (5th Cir. 1975); Brown v. Macy, 340 F.2d 115, 117 (5th Cir. 1965). Congress never instructed the Commission to follow the rules of evi......
  • Girardier v. Webster College, No. 76-1922
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • August 24, 1977
    ...the Supremacy Clause). The courts appear not to have gone beyond this, however. In Marvin Tragash Co. v. U. S. Department of Agriculture, 524 F.2d 1255 (5th Cir. 1975), the court held that 7 U.S.C. § 499b(4) does not conflict to an improper degree with the Bankruptcy Act, following the reas......
  • In re Adana Mortg. Bankers, Inc., Bankruptcy No. 80-00324A.
    • United States
    • United States Bankruptcy Courts. Eleventh Circuit. U.S. Bankruptcy Court — Northern District of Georgia
    • August 14, 1980
    ...110 (2d Cir. 1967), cert. den. 389 U.S. 835, 88 S.Ct. 43, 19 L.Ed.2d 96 (1967); and Tragash v. United States Department of Agriculture, 524 F.2d 1255 (5th Cir. 1975). All of these cases are inapposite to the present fact situation. Cullen v. Bowles was decided on the single holding that "th......
  • Request a trial to view additional results
14 cases
  • Hood v. Smith's Transfer Corp., No. C 87-0527-L(B).
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Western District of Kentucky
    • April 25, 1991
    ...and a state law, not when it involves a conflict between two federal statutes. Marvin Tragash Co. v. United States Dept. of Agriculture, 524 F.2d 1255, 1257 (5th Cir.1975). When a case presents a conflict between two federal statutes, it is not within the preemption doctrine. New York Tel. ......
  • Johnson v. U.S., No. 79-1154
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • May 8, 1980
    ...that the Air Force had taken from five witnesses. See id. at 158. Accord, Marvin Tragash Co. v. United States Department of Agriculture, 524 F.2d 1255, 1258 (5th Cir. 1975); Brown v. Macy, 340 F.2d 115, 117 (5th Cir. 1965). Congress never instructed the Commission to follow the rules of evi......
  • Girardier v. Webster College, No. 76-1922
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • August 24, 1977
    ...the Supremacy Clause). The courts appear not to have gone beyond this, however. In Marvin Tragash Co. v. U. S. Department of Agriculture, 524 F.2d 1255 (5th Cir. 1975), the court held that 7 U.S.C. § 499b(4) does not conflict to an improper degree with the Bankruptcy Act, following the reas......
  • In re Adana Mortg. Bankers, Inc., Bankruptcy No. 80-00324A.
    • United States
    • United States Bankruptcy Courts. Eleventh Circuit. U.S. Bankruptcy Court — Northern District of Georgia
    • August 14, 1980
    ...110 (2d Cir. 1967), cert. den. 389 U.S. 835, 88 S.Ct. 43, 19 L.Ed.2d 96 (1967); and Tragash v. United States Department of Agriculture, 524 F.2d 1255 (5th Cir. 1975). All of these cases are inapposite to the present fact situation. Cullen v. Bowles was decided on the single holding that "th......
  • Request a trial to view additional results

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