Davis v. United Airlines, Inc., ARB No. 02-105, ALJ No. 2001-AIR-5 (ARB Jan. 14, 2003)

U.S. Department of Labor

Administrative Review Board 200 Constitution Avenue, N.W. Washington, D.C. 20210

ARB CASE NO. 02-105
ALJ CASE NO. 01-AIR-5
DATE: JAN 14, 2003

In the Matter of:

GEORGE T. DAVIS, JR, and
DIANE DAVIS,
   COMPLAINANTS,

   v.

UNITED AIRLINES, INC.,
   RESPONDENT.

BEFORE:THE ADMINISTRATIVE REVIEW BOARD

   Complainants George and Diane Davis have petitioned the Administrative Review Board (Board) for review of an Administrative Law Judge's Order Denying Relief in this case arising under Section 519 of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR 21), 49 U.S.C.A. § 42121 (West 1997). In response, we issued a Notice of Appeal and Order Establishing Briefing Schedule. On December 17, 2002, we received Respondent United Airlines, Inc.'s Suggestion of Bankruptcy, in which Respondent stated:

Pursuant to 11 U.S.C. § 362(a), the Debtor's filing of their respective voluntary petitions operates as a stay, applicable to all entities, of, among other things: (a) the commencement or continuation of all judicial, administrative, or other actions or proceedings against the Debtors (i) that were or could have been commenced before the commencement of the Debtors' cases or (ii) to recover any claims against the Debtors that arose before the commencement of the Debtors' cases; (b) the enforcement, against the Debtors or against any property of the Debtors' bankruptcy estates, of a judgment obtained before the commencement of the Debtors' cases, or (c) any act to obtain possession of property of or from the Debtors' bankruptcy estates, or to exercise control over property of the Debtors' bankruptcy estates.

   The Board has not previously addressed the application of this "automatic stay provision" to cases arising under AIR 21.¹ We have held that the automatic stay provision applies to cases arising under the Surface Transportation Assistance Act, 49 U.S.C.A. § 31105 (West 1997), e.g., Hauboid v. KTL Trucking Co., ARB No. 00-065, ALJ No. 2000-STA-35 (ARB Aug. 10, 2000), and the Energy Reorganization Act, 42 U.S.CA. § 5851 (1995), e.g., Hasan v. Stone & Webster Engineers and Constructors, Inc., ARB No. 01-007, ALJ No. 2000-ERA-10 (ARB May 30, 2001). However, in a case arising under AIR 21, a Department of Labor Administrative Law Judge found that the automatic stay did not apply because the proceeding "is exempt from the automatic stay provisions as it arises under regulations enacted to promote public health and safety." Bodine v. International Total Services, ALJ No. 2001-AIR-00004, slip op. at 3 (Nov. 20, 2001). Section 362(b)(4) of the Bankruptcy Code exempts from the stay the commencement or continuation of an action or proceeding by a governmental unit to enforce such governmental unit's police or regulatory power. 11 U.S.C.A. § 362(b)(4) (West 1993). The ALJ reasoned that regulations interpreting AIR 21, which regulate commercial air travel, were intended to protect public safety. Bodine v. International Total Services, slip op. at 4. The Judge also noted that the Department of Labor filed a notice of appearance in the case indicating that if litigation ensued, the Department would be represented by counsel. Id. at 5.

   Accordingly, given the possible conflict between the Board's precedent under the STAA and ERA and the ALJ's decision under AIR 21, we order the Complainant and Respondent and request the Assistant Secretary, Occupational Safety and Health Administration,² to submit briefs no later than thirty (30) days following the date on which this order is issued, addressing the issue whether the automatic stay provision is applicable to this case arising under AIR 21 and, the effect, if any, of the fact that the Department of Labor did not choose to actively participate in this case in the administrative proceedings before the ALJ.

FOR THE ADMINISTRATIVE REVIEW BOARD:

Janet R. Dunlop
General Counsel

¹ This issue is currently pending in Taylor v. Express One International, Inc., ARB No. 02-054, ALJ No. 01-AIR-2.

² The Assistant Secretary, Occupational Safety and Health may participate as a party or amicus curiae at any time in the administrative proceedings under AIR 21. 29 C.F.R. §§ 1979.101, 1979.108(a)(1) (2002).