Furthermore, assuming this Office had jurisdiction over this matter and the Secretary's findings had not become final on August 15, 2001, this Recommended Decision and Order would not be stayed by section 362(a)(1), since this proceeding is exempt from the automatic stay provisions as it arises under regulations enacted to promote public health and safety.

    Subsection 362(b)(4) provides that a bankruptcy petition does not act as a stay "under subsection (a)(1) of this section, of the commencement or continuation of an action or proceeding by a governmental unit to enforce such governmental unit's police or regulatory power." The Senate Report accompanying the Bankruptcy Reform Act of 1978 explains that the purpose of the automatic stay provision is to allow debtors the ability to restructure or reorganize without the added difficulty of being subject to ongoing litigation.

   The Senate Report states that:

The automatic stay is one of the fundamental debtor protections by the bankruptcy laws. It gives the debtor a breathing spell from his creditors. It stops all collection efforts, all harassment, and all foreclosure actions. It permits the debtor to attempt a repayment or reorganization plan, or simply to be relieved of the financial pressures that drove him to bankruptcy.

   Senate Report No. 95-989, 95th Cong., 2d sess., 1978 U.S. Code Cong. and Adm. News at 5840.

   However, the exemption is not without limits, particularly in regards to governmental agencies enforcing regulations that protect public health and safety. In addressing the exemption to the automatic stay provision contained at section 362(b)(4), the House Report accompanying the Bankruptcy Reform Act of 1978 states:

This section is intended to be given narrow construction in order to permit governmental units to pursue actions to protect the public health and safety and not to apply to actions by a governmental unit to protect pecuniary interest in property of the debtor or property of the estate.

   House Report No. 95-595, 95th Cong., 2d Sess., 1978 U.S. Code and Cong. and Adm. News at 5787.

   In light of this legislative history, subsection 362(b)(4) has been construed as an exemption for equitable actions brought by governmental units to correct violations of regulatory statutes enacted to promote health and safety. See Brock v. Marysville Body Works, Inc., 829 F.2d 383 (3d. Cir. 1987)(enforcement of an OSHA citation permitted); Brock v. American Messenger Service, Inc., 65 B.R. 670 (D.N.H. 1986)(enforcement proceeding under Fair Labor Standards Act at Department of Labor exempt from automatic stay); E.E.O.C. v. Rath Packing Co., 787 F.2d 318 (8th Cir. 1986), cert. denied 479 U.S. 910 (1987)(judgment may be entered against debtor in a Title VII discrimination suit); In re Perez, 61 B.R. 367 (E.D. Cal. 1986)(assessment of civil monetary penalty under Migrant and Seasonal Agricultural Worker Protection Act permitted); Brock v. Rusco Industries, Inc., 842 F.2d 270 (11th Cir. 1988), cert. denied, 109 S. Ct. 221 (determination of liability for back wages under Fair Labor Standards Act permitted); N.L.R.B. v. P*I*E* Nationwide, Inc., 923 F.2d 506 (7th Cir. 1991(fair labor standards); and Eddleman v. U.S. Dept. of Labor, 923 F.2d 782 (10th Cir. 1991).

   In this case, Respondent, who is engaged in airport security operations, fired Complainant after he reported certain alleged "security breaches" by Respondent to various authorities. After an investigation into the complaint, the Secretary found that the "complainant [was] protected' under the law for providing information to regulatory agencies about violations or alleged violations of any order, regulation or standard related to air carrier safety." There is no greater example of regulations designed to ensure public safety than those of the AIR which regulate commercial air travel. Certainly, the Department's exercise of their power to investigate and enforce this power through sanctions and other assessments is not subject to the automatic stay provisions of the Bankruptcy Code. Such reasoning would go against the very purpose of the AIR and the automatic stay provision of the Bankruptcy Act.

   In Nelson v. Walker Freight Lines, Inc., 87-STA-24 (Sec'y July 26, 1988), an analogous case arising under the Surface Transportation Assistance Act of 1982 (STAA), 49 U.S.C. app.§ 2305 (1982), the Secretary found that the automatic stay provisions did not apply to the proceedings since the statutory language and legislative history of the STAA encompass Section 2305 actions. The Secretary reasoned that even though these actions do not require the filing of a complaint by a federal administrative unit, these whistleblower actions were nonetheless "proceedings by a governmental unit"within the meaning of the automatic stay exemption since they are actions to enforce our national safety policy.

   In this case, like the complaint in Nelson, the Department of Labor notified this Office that the complainant's complaint was investigated under the AIR and was found to have merit. Further, the Department of Labor filed an notice of appearance, stating that if any litigation ensued, the Department would be represented by an associate regional solicitor from the Denver, Colorado office. Therefore, the automatic stay provisions of the bankruptcy code are inapplicable to this complaint since the Department's action was within it's regulatory power to protect and promote our national air safety policy and constitutes "proceedings by a governmental unit" within the meaning of the automatic stay exemption.

   Accordingly,

       Thomas M. Burke
       Associate Chief Judge

Washington, DC