Here, however, the Assistant Secretary is not involved in the prosecution of Torres'
complaint. The record reveals that, after investigation of Torres' complaint, the Regional
Administrator, acting for the Assistant Secretary, issued findings that the complaint had no merit
and dismissed the complaint subject to Complainant's right to file objections and request a
hearing. Complainant exercised his right to pursue his claim by requesting a hearing.
See 29 C.F.R. § 1978.105 (1990). The question before me, therefore, is whether
the exception for governmental units is inapplicable because the Assistant Secretary decided the
complaint had no merit and was absent from this proceeding.
As noted in Nelson, Congress recognized that Section 2305
of the STAA "was considered necessary to encourage whistleblowing employees" in
order to ensure enforcement of commercial vehicle safety laws and regulations.
Nelson, slip op. at 6. Enforcement of the Federal government's police or regulatory
power, however, is not enough to convert what is essentially a private proceeding to a
"proceeding by a governmental unit." Thus, in In re Revere Copper
andBrass. Inc., Hudson River Sloop Clearwater. Inc. v. Revere Copper Products.
Inc., 32 Bankr. 725 (S.D.N.Y. 1983), it was held that corporations pursuing a citizen's suit
under the Clean Water Act were not "governmental units" notwithstanding the fact
that they may have been acting as "private attorney generals seeking to enforce the
environmental laws." 32 Bankr. at 727. The court concluded that "[c]learly, both the
[Page 3]
statutory language and the legislative history [of Section 362(b)(4)] demonstrate that the term
'governmental unit' in the bankruptcy code refers exclusively to actual governmental groups and
not to organizations acting in a governmental capacity." Id. See alsoIn Re Colin, Hochstin Co., 41 Bankr. 322 (Bankr. S.D.N.Y. 1984), holding that the
New York Stock Exchange and its enforcement division are not governmental units exempt from
the automatic stay provision even though they act in the national public interest to protect
investors and the general public in the securities market.
Accordingly, I find that, because of the determination of the Assistant
Secretary that Torres' complaint is without merit and because of the ensuing absence of the
Assistant Secretary either as the prosecuting party or as an intervener, continuation of the
proceeding on Torres' STAA complaint must be stayed pursuant to Section 362(a)(1) of the
Bankruptcy Act.
It does not follow from the stay of Torres' STAA proceeding, however,
that Torres' complaint is to be automatically dismissed. The stay remains in effect only until a
final disposition of the bankruptcy case, see 11 U.S.C. § 362(c), which may or
may not result in the discharge of Transcon from all of its debts. The fact that the bankruptcy
proceeding is a Chapter 7 liquidation proceeding and there has been appointed a Trustee, whose
duties include the liquidation and the expeditious closing of the bankruptcy estate, see
11 U.S.C. § 204(1), presupposes that the bankruptcy court will discharge Transcon from
all of its debts on liquidation of its assets. There is, however, nothing in the record to indicate
that this has occurred. Until the bankruptcy court orders the discharge of Transcon from all its
debts, Complainant Torres has a viable (albeit stayed) claim.
Accordingly, this case is remanded to the ALJ, and further action on
Torres' STAA complaint is stayed pending disposition of the bankruptcy proceeding. The Trustee
for the bankruptcy estate of Transcon is requested to advise the ALJ within fifteen days of receipt
of this order as to the current status of Transcon's bankruptcy case, and to submit to the AL] the
final order of the bankruptcy court as soon as it becomes available. Thereupon the ALJ shall act
promptly to conclude his review of this case,consistent with this order.
SO ORDERED.
Acting Secretary of Labor
Washington, D.C.
[ENDNOTES]
1There is presently a vacancy in the
Office of Secretary of Labor. The Deputy Secretary is authorized to "perform the duties of
the Secretary until a successor is appointed. . . ." 29 U.S.C. § 552 (1988).
2The definition provision of the
Bankruptcy Act provides that
"governmental unit" means United States; State;
Commonwealth; District; Territory; municipality; foreign state; department, agency, or
instrumentality of the United States (but not a United States trustee while serving as a
trustee in a case under this title), a State, a Commonwealth, a District, a Territory, a
municipality, or a foreign state; or other foreign or domestic government;
11 U.S.C. § 101(26).
3It is only when Complainant
objects to the preliminary finding that the complaint lacks merit that the Assistant Secretary is
not the prosecuting party, although the Assistant Secretary retains the right to intervene as a
party. 29 C.F.R. § 1978.107(b).
