Office of Administrative Law Judges 36 E. 7th Street, Suite 2525 Cincinnati, OH 45202
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Issue Date: 17 January 2003
Case No. 2002-STA-32
In the Matter of
RAYMOND C. BELT
Complainant
v.
CONSOLIDATED FREIGHTWAYS CORPORATION
Respondent
BEFORE: RUDOLF L. JANSEN
Administrative Law Judge
ORDER STAYING PROCEEDINGS
On October 8, 2002, I entered an Order which postponed the scheduled hearing and required the production of certain documents concerning the bankruptcy filing of Respondent. The Order required the Regional Administrator, Occupational Safety and Health Administration to advise as to whether she had intervened in this proceeding or had any intention of intervening in the prosecution of the complaint filed by Raymond C. Belt. In addition, the parties were directed to forward documents concerning the verification of the bankruptcy filing, as well as mail receipts verifying the complaint filing date.
In response to the Order, Benjamin T. Chinni, counsel for the United States Department of Labor, filed a statement indicating that the Assistant Secretary has not intervened in this proceeding, nor does the Assistant Secretary intend to intervene. By way of background, the Regional Administrator had previously determined it was reasonable to believe that the Respondent had not violated the Act. It was from that finding that the Complainant requested a hearing in this case.
Peter N. Kirsanow, counsel for Respondent, filed a statement indicating that the Petition in Bankruptcy was filed in the State of California and he attached a time-stamped copy of the petition with the submission. It was also noted by Mr. Kirsanow that the petition is currently pending in the United States Bankruptcy Court. By way of a later submission dated January 3, 2003, Mr. Kirsanow relates that the Respondent has not emerged from bankruptcy as of that date and that the Respondent expects to file its Plan of Liquidation during the month of April, 2003. He indicates that further updates will be provided upon the occurrence of significant events.
Raymond C. Belt did not respond to the Order of October 8, 2002.
[Page 2]
The chronology of this case is as follows. Following an investigation, the Assistant Area Director concluded that the complaint had no merit and issued her findings on April 26, 2002. The Complainant objected to the Director's findings and requested a hearing by letter dated May 20, 2002, which was received in this office on May 24, 2002. The Notice of Hearing was issued on June 28, 2002. It appears as though the voluntary petition in bankruptcy was filed in September, 2002.
The filing of a petition in bankruptcy operates to stay the commencement or continuation of any administrative proceeding against the debtor that was or could have been commenced prior to the filing of the bankruptcy case. 11 U.S.C. § 362(a)(1). The complaint in this case was filed by Mr. Belt prior to the bankruptcy filing and following adverse findings by the Regional Administrator, the Complainant appealed the matter to this office and requested a hearing. All of that activity occurred prior to the filing of the bankruptcy petition by the Respondent. Thus, Section 362(a)(1) compels that further action on Belt's complaint be stayed.
Section 362(b)(4) exempts from the automatic stay provision "the commencement or continuation of an action or proceeding by a governmental unit to enforce such governmental unit's, police or regulatory power." Actions undertaken to enforce the Surface Transportation Assistance Act fall within the exception of Section 362(b)(4) since they "are an exercise of our national safety policy" by a governmental unit. Nelson v. Walker Freight Line, Inc., Case No. 87-STA-24, Sec'y Dec. and Order, (July 26, 1988).
In this matter, the Assistant Secretary is not involved in the prosecution of the complaint by Mr. Belt. Following investigation, the Assistant Area Director concluded that the complaint had no merit and dismissed it subject to the Complainant's right to file objections and to request a hearing. Mr. Belt exercised his right to pursue his claim by requesting a hearing. Counsel for the Assistant Secretary has represented that the Assistant Secretary has not intervened in this proceeding nor does the Assistant Secretary intend to intervene. Because of the Assistant Secretary's conclusion that the complaint has no merit, and as a result, the Assistant Secretary has expressed no interest in participating in this proceeding, continuation of the proceeding in pursuing the complaint filed by Raymond C. Belt must be stayed pursuant to Section 362(a)(1) of the Bankruptcy Act. Torres v. Transcon Freight Lines, Case No. 90-STA-29, Sec'y Ord. (Jan. 30, 1991).
In view of the above, IT IS ORDERED that further action on the complaint filed by Raymond C. Belt is hereby stayed pending disposition of the bankruptcy proceeding. Peter N. Kirsanow, counsel for Respondent, is directed to advise me at 90-day intervals as to the status of the bankruptcy case.
IT IS FURTHER ORDERED that the Assistant Secretary comply with the directive contained in my Order of October 8, 2002. The Assistant Secretary was to provide to me:
Mailing receipts or file-stamped copies of documents noting the filing date of the complaint filed in this proceeding.
That data was not submitted previously and the Assistant Secretary is directed to submit it presently.
