F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
DEC 23 1997
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
In re: YELLOW CAB
COOPERATIVE ASSOCIATION,
Debtor.
-----------------------------------------
YELLOW CAB COOPERATIVE No. 96-1443
ASSOCIATION,
Plaintiff - Appellant,
v.
METRO TAXI, INC., a Colorado
corporation; COLORADO
TRANSPORTATION, INC., a
Colorado corporation dba American
Cab Company,
Defendants,
and
BRUCE SMITH, in his official
capacity of Executive Director of the
Public Utilities Commission;
LELAND SMITH, in his official
capacity; PHILIP SMITH, in his
official capacity; RONALD JACK, in
his official capacity; GRAY
GRAMLICK, in his official capacity;
GORDON KING, in his official
capacity; WEST TWOMEY, in his
official capacity; BOB LAWS, in his
official capacity; COLORADO
PUBLIC UTILITIES COMMISSION,
an agency of the State of Colorado;
ROBERT J. HIX, in his capacity as
commissioner; VINCENT
MAJKOWSKI, in his capacity as
commissioner; CHRISTINE E.M.
ALVAREZ, in her capacity as
commissioner,
Defendants - Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. NO. 96-K-256)
E. Hil Margolin, Denver, Colorado, attorney for appellant.
Neil L. Tillquist, Assistant Attorney General (Gale A. Norton, Attorney General,
with him on the brief), Denver, Colorado, for appellees.
Before ANDERSON, KELLY, and HENRY, Circuit Judges.
ANDERSON, Circuit Judge.
Yellow Cab Cooperative Association, Inc. appeals from a district court
decision overturning an injunction entered against the Colorado Public Utilities
Commission (“PUC”) by the bankruptcy court. The district court held that the
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bankruptcy court improperly enjoined the PUC from restricting the scope of a
certificate it had issued to Yellow Cab. We affirm the district court’s order
overturning the injunction issued by the bankruptcy court, and hold that the
PUC’s action was a valid exercise of its regulatory power and, as such, was
exempt under 11 U.S.C. § 362(b)(4) and (5) from the automatic stay provisions of
the Bankruptcy Code.
BACKGROUND
Yellow Cab filed a voluntary petition under Chapter 11 of the Bankruptcy
Code on December 31, 1993. It thereafter negotiated a sale of its assets to Taxi
Associates, Inc., outside the ordinary course of business pursuant to 11 U.S.C.
§ 363(b), (f), and (m), which the bankruptcy court authorized. Among Yellow
Cab’s assets was Certificate of Public Convenience and Necessity No. 2378 & I
(“CPCN No. 2378 & I”), issued by the PUC, which authorized Yellow Cab to
operate up to 600 cabs in the Denver metropolitan area. Over the preceding five
years, however, Yellow Cab had in fact operated approximately 300 cabs under
CPCN No. 2378 & I.
Because the sale of assets involved the sale of PUC operating certificates,
the bankruptcy court directed Yellow Cab and Taxi Associates to apply to the
PUC for approval of the transfer of the certificates. Yellow Cab and an assignee
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of Taxi Associates filed a joint application before the PUC seeking authorization
to transfer Yellow Cab’s operating authority, including CPCN No. 2378 & I, to
Taxi Associates. Two other cab companies, Metro Cab and American Cab, as
well as the PUC Staff, filed written objections to the transfer application, arguing
that part of Yellow Cab’s authority to operate up to 600 cabs under CPCN No.
2378 & I had become dormant through non-use.
An administrative law judge held hearings on the application, and
subsequently issued an advisory opinion recommending that the PUC approve the
transfer of the full operating authority S up to 600 cabs S authorized by CPCN
No. 2378 & I. The PUC disagreed with the administrative law judge. It issued its
decision (“Transfer Decision”) on Yellow Cab’s transfer petition, overturning the
ALJ’s recommendation and refusing to allow the transfer of authority under
CPCN No. 2378 & I in excess of 300 cabs. The PUC held that the unused
authority under the CPCN had become dormant and transfer of the full authority
would cause destructive competition which would be against the public interest.
While proceedings were pending before the PUC, Yellow Cab initiated this
adversary proceeding in the bankruptcy court against the PUC, Metro Cab, and
American Cab, seeking an injunction prohibiting them from opposing the transfer
of the full 600 cab authority under CPCN No. 2378 & I. The bankruptcy court
ultimately issued an order permanently enjoining the PUC from enforcing the
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Transfer Decision on the ground that the Transfer Decision limiting CPCN No.
2378 & I to 300 cabs had the effect of “controlling” property of the estate in
violation of 11 U.S.C. § 362(a)(3), one of the Bankruptcy Code’s automatic stay
provisions.
The PUC filed a notice of appeal from the bankruptcy court’s order, as well
as a motion for stay pending appeal. The bankruptcy court denied the motion, and
ordered the PUC “forthwith to authorize [Yellow Cab] to transfer its total
operating authority under the [Certificate] of 600 vehicles to Taxi Associates.”
Colorado Pub. Utils. Comm’n v. Yellow Cab Coop. Ass’n (In re Yellow Cab),
194 B.R. 504, 506 (D. Colo. 1996). The PUC issued the Certificate, with the
caveat that it was “subject [to] future modifications by the United States Federal
Courts that may result from any appeal by the Public Utilities Commission of” the
bankruptcy court’s order. Id. at 507.
The following day, February 9, 1996, Yellow Cab and Taxi Associates
closed the sale of assets. One week later, the PUC filed a motion in the district
court for a stay pending appeal, which the district court granted. Colorado Pub.
Utils. Comm’n v. Yellow Cab Coop. Ass’n (In re Yellow Cab), 192 B.R. 555 (D.
Colo. 1996). Yellow Cab then filed a motion to dismiss the PUC’s appeal as
moot or, alternatively, to vacate the stay. In reliance on the stay, the PUC
reissued CPCN No. 2378 & I, with a limit of 300 cabs. The district court denied
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Yellow Cab’s motions. In re Yellow Cab, 194 B.R. at 508. In its third order, the
one from which Yellow Cab appeals in this case, the district court overturned the
bankruptcy court’s injunction, holding that two exceptions to the automatic stay
provisions, 11 U.S.C. § 362(b)(4) and (5), which exempt from the automatic stay
certain governmental action designed to enforce the government’s police or
regulatory power, applied and permitted the PUC to reduce the authority
transferred by the CPCN to 300 cabs. Colorado Pub. Utils. Comm’n v. Yellow
Cab Coop. Ass’n (In re Yellow Cab), 200 B.R. 237 (D. Colo. 1996). Yellow Cab
appeals. The PUC has filed a motion to dismiss the appeal on the ground that
Yellow Cab lacks standing and/or the case has become moot. Yellow Cab argues
that we should vacate the district court decision, as the case had become moot
prior to the issuance of that decision.
DISCUSSION
I. Standing and Mootness
We first address the PUC’s argument that Yellow Cab lacks standing and
the case has become moot. “Article III mootness is ‘the doctrine of standing set
in a time frame: The requisite personal interest that must exist at the
commencement of the litigation (standing) must continue throughout its existence
(mootness).’” Southern Utah Wilderness Alliance v. Smith, 110 F.3d 724, 727
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(10th Cir. 1997) (quoting Arizonans For Official English v. Arizona, 117 S. Ct.
1055, 1069 (1997)). Both standing and mootness are threshold jurisdictional
issues. Keyes v. School Dist. No. 1, 119 F.3d 1437, 1445 (10th Cir. 1997);
McClendon v. City of Albuquerque, 100 F.3d 863, 867 (10th Cir. 1996). To have
standing, a plaintiff must have suffered an actual injury S “‘an invasion of a
legally protected interest which is (a) concrete and particularized, and (b) actual
or imminent, not conjectural or hypothetical.’” Keyes, 119 F.3d at 1445 (quoting
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). Moreover, to have
standing a plaintiff must show that “‘it is likely that the injury will be redressed
by a favorable decision.’” Roe v. Cheyenne Mountain Conference Resort, Inc.,
124 F.3d 1221, 1229 (10th Cir. 1997) (quoting United States v. Colorado Supreme
Ct., 87 F.3d 1161, 1164 (10th Cir. 1996)). Finally, standing must be
demonstrated throughout an appeal: “a plaintiff must maintain standing at all
times throughout the litigation for a court to retain jurisdiction.” Powder River
Basin Resource Council v. Babbitt, 54 F.3d 1477, 1485 (10th Cir. 1995).
Similarly, “‘a case is moot when the issues presented are no longer “live” or the
parties lack a legally cognizable interest in the outcome.’” County of Los
Angeles v. Davis, 440 U.S. 625, 631 (1979) (quoting Powell v. McCormack, 395
U.S. 486, 496 (1969)); see also City of Albuquerque v. Browner, 97 F.3d 415, 420
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(10th Cir. 1996), cert. denied, 66 U.S.L.W. 3334, 3336 (U.S. Nov. 10, 1997) (No.
96-1587).
In this case, Yellow Cab now arguably lacks any legally cognizable interest
in the outcome. Yellow Cab closed on the sale of its assets to Taxi Associates on
February 9, 1996. The sale agreement specifically provided that no
representations and warranties concerning the transferred assets, including CPCN
2378 & I, survived the closing. No one disputes that Taxi Associates was aware
of the controversy concerning the scope of the authority granted by CPCN 2378 &
I, but nonetheless purchased Yellow Cab’s assets without reserving the right to
complain later about the scope of that authority. However, as long as the
possibility remained that Taxi Associates could collaterally attack, or attempt to
“undo,” the sale because the scope of the authority was subsequently reduced to
300 cabs, Yellow Cab remained at risk for some additional liability. Indeed, Taxi
Associates’ assignee, Denver Taxi, took just such action: it filed an application
for an administrative expense priority claim against Yellow Cab’s estate in the
amount of $437,311 for damages allegedly suffered by Denver Taxi due to the
PUC’s reduction of the CPCN’s operating authority from 600 to 300 cabs.
Subsequently, however, Denver Taxi and Yellow Cab entered into a
settlement agreement, which has been submitted for approval to the bankruptcy
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court. 1 Pursuant to the settlement agreement, Yellow Cab has agreed to continue
to prosecute this case, and Denver Taxi completely releases Yellow Cab from any
liability in connection with the sale of assets and proceedings before the PUC.
Thus, Denver Taxi has released any claim it could have against Yellow Cab based
on the scope of the authority transferred under CPCN 2378 & I. If the settlement
agreement is approved, Yellow Cab will suffer no “injury,” economic or
otherwise, no matter what the outcome of this appeal. In that event, the
controversy will indeed be moot, as far as Yellow Cab is concerned. 2
However, the record reveals that the settlement agreement, as of now, has
not been approved by the bankruptcy court, and the parties have not notified us to
the contrary. Even if approved, such approval would presumably be subject to
At oral argument of this case, we granted the PUC’s motion to supplement the
1
record with a copy of the settlement agreement.
2
Yellow Cab argues that, because the sale of its assets to Taxi Associates occurred
prior to the district court’s decision, the case has actually been moot since the date of the
closing on the sale, and therefore the district court lacked jurisdiction to overturn the
bankruptcy court’s injunction. We disagree. If the case has become moot, it is because
Yellow Cab has, subsequent to the sale, negotiated an agreement pursuant to which it will
suffer no injury whether or not the district court’s decision is upheld. The closing of the
asset purchase agreement did not by itself destroy Yellow Cab’s standing. The possibility
remained that Taxi Associates might seek to hold Yellow Cab liable for the diminished
cab authority transferred under CPCN 2378 & I. And that is precisely what Taxi
Associates’ assignee did. It is because Yellow Cab has settled that claim, assuming the
settlement agreement stands, and is no longer at risk for any judgment based on such a
claim, that Yellow Cab’s standing has evaporated, and the case between Yellow Cab and
the PUC is moot.
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challenge on appeal. We therefore cannot say with certainty that the case is moot.
We accordingly alternatively consider the merits of Yellow Cab’s appeal.
II. Exemption to Automatic Stay
11 U.S.C. § 362(a) provides in pertinent part:
Except as provided in subsection (b) of this section, a petition
filed under section 301, 302, or 303 of this title . . . operates as a
stay, applicable to all entities, of S
(1) the commencement or continuation . . . of a
judicial, administrative, or other action or proceeding
against the debtor that was or could have been
commenced before the commencement of the case under
this title;
....
(3) any act to obtain possession of property of the
estate or of property from the estate or to exercise
control over property of the estate . . . .
11 U.S.C. § 362(a)(1), (3). The bankruptcy court held that CPCN 2378 & I was
property of the estate, and that the PUC’s Transfer Decision, reducing the scope
of its authority from 600 cabs to 300 cabs, had the effect of taking property from
the estate in violation of § 362(a)(3). 11 U.S.C. § 362(b)(4) and (5) provide the
following exceptions to the automatic stay:
The filing of a petition under section 301, 302, or 303 of this
section . . . does not operate as a stay S
....
(4) under subsection (a)(1) of this section, of the
commencement or continuation of an action or
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proceeding by a governmental unit to enforce such
governmental unit’s police or regulatory power;
(5) under subsection (a)(2) of this section, of the
enforcement of a judgment, other than a money
judgment, obtained in an action or proceeding by a
governmental unit to enforce such governmental unit’s
police or regulatory power . . . .
11 U.S.C. § 362(b)(4), (5). The bankruptcy court held that the “plain language”
of §§ 362(b)(4) and (5) demonstrates that they only apply to actions under
§ 362(a)(1) and (2), not under § 362(a)(3). However, the court held that:
since virtually all actions to which the automatic stay would apply
can be characterized as actions “to obtain possession of property of
the estate or of property from the estate, or to exercise control over
the property of the estate . . .” pursuant to 11 U.S.C. § 362(a)(3), the
exceptions for police and regulatory actions contained in 11 U.S.C.
§ 362(b)(4) would be rendered meaningless if § 362(a)(3) were
allowed to stay all actions by a regulatory agency which could affect
the estate.
Yellow Cab Coop. Ass’n v. Metro Taxi, Inc. (In re Yellow Cab), No. 93 23733
DEC, slip op. at 6, Appellant’s App. at 47 [hereinafter “Order”]. The court
therefore considered the PUC’s Transfer Decision “as if [it] fell under § 362(a)(1)
or (2),” but concluded that the exceptions contained in § 362(b)(4) and (5) did not
apply. Id. Its only stated reasons for concluding that those exceptions did not
apply were that § 362(b)(4) must be construed narrowly to permit governmental
units to protect the public health and safety, as opposed to protecting a pecuniary
interest in the debtor’s property, and the PUC’s action with respect to CPCN 2378
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& I was “solely directed against the property of [Yellow Cab], which does not
protect an important public interest.” Id. at 7.
The district court disagreed with the bankruptcy court’s narrow
interpretation of § 362(b)(4), and held that, under Eddleman v. United States
Dep’t of Labor, 923 F.2d 782, 785-86 (10th Cir. 1991), the PUC’s Transfer
Decision was exempt from the automatic stay under § 362(b)(4) as governmental
regulatory action designed to serve the public interest, not to advance the
government’s pecuniary interest in Yellow Cab’s property. While not explicitly
so stating, the district court implicitly agreed with the bankruptcy court’s
determination that the Transfer Decision fell under § 362(a)(1) of the automatic
stay provision, not § 362(a)(3).
Yellow Cab argues the PUC’s Transfer Decision is properly characterized
as an action to “control” property of the estate under § 362(a)(3), and the plain
language of the exemptions contained in §§ 362(b)(4) and (5) demonstrates that
they do not apply to actions taken under § 362(a)(3). The PUC argues that its
Transfer Decision is not subject to the automatic stay of § 362(a)(3), but, even if
it were, the exceptions contained in § 362(b)(4) and (5) apply.
“Our review of the district court’s factual and legal determinations is
governed by the same standards the district court used to review the bankruptcy
court.” Taylor v. Internal Revenue Serv., 69 F.3d 411, 415 (10th Cir. 1995).
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Thus, we review de novo the legal decisions of the bankruptcy and district courts.
Morrissey v. Internal Revenue Serv. (In re EWC, Inc.), 114 F.3d 1071, 1073 (10th
Cir. 1997). We review the bankruptcy court’s factual findings for clear error.
Conoco, Inc. v. Styler (In re Peterson Distrib., Inc.), 82 F.3d 956, 959 (10th Cir.
1996). “A finding of fact is clearly erroneous if it is without factual support in
the record or if, after reviewing all of the evidence, we are left with the definite
and firm conviction that a mistake has been made.” Id.
This issue involves several subsidiary and interrelated inquiries – which
automatic stay provision applies to bar the Transfer Decision and whether the
exception for governmental regulatory authority contained in §§ 362(b)(4) or (5)
applies to exempt the Decision from the automatic stay. Either § 362(a)(1) or
(a)(3) applied to initially stay the Transfer Decision. If it was stayed under (a)(1),
§ 362(b)(4) lifted the stay, assuming the requirements of (b)(4) were met. If it
was stayed under (a)(3), we must consider whether (b)(4) has any relevance to
(a)(3) even though not explicitly referenced therein. In either event, we must
consider whether the PUC’s action was an exercise of governmental regulatory
authority under § 362(b)(4) 3, so we turn first to that question.
3
We focus primarily on § 362(b)(4), although we recognize that (b)(5) is arguably
applicable as well. Section 362(b)(5) addresses “the enforcement of a judgment . . .
obtained in an action or proceeding by a governmental unit,” while (b)(4) address the
actual “action or proceeding.” Thus, our discussion of (b)(4) will suffice to cover the
(continued...)
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A. § 362(b)(4):
In Eddleman v. United States Dep’t of Labor, 923 F.2d 782 (10th Cir.
1991) we discussed the parameters of § 362(b)(4) as follows:
[C]ourts have developed two tests for determining whether agency
actions fit within the [§ 362(b)(4)] exception. Under the “pecuniary
purpose” test, the court asks whether the government’s proceeding
relates primarily to the protection of the government’s pecuniary
interest in the debtor’s property and not to matters of public policy.
If it is evident that a governmental action is primarily for the purpose
of protecting a pecuniary interest, then the action should not be
excepted from the stay. In contrast, the “public policy” test
distinguishes between government proceedings aimed at effectuating
public policy and those aimed at adjudicating private rights. Under
this second test, actions taken for the purpose of advancing private
rights are not excepted from the stay.
Id. at 791 (citations omitted); see also Wyoming Dep’t of Transp. v. Straight (In
re Straight), 209 B.R. 540, 544 (D. Wyo. 1997). Under that test, the PUC’s
Transfer Decision would be subject to § 362(b)(4) if it effectuated public policy,
as opposed to furthering the PUC’s pecuniary interest in Yellow Cab’s property.
The bankruptcy court held, with little explanation, that “the reduction in the
number of cabs transferred represents an action solely directed against the
property of [Yellow Cab], which does not protect an important public interest. It
does not address the public welfare as does an action to stop violation of
environmental protection laws; or an action to enforce bail in a criminal
(...continued)
3
substantive application of (b)(5) as well.
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proceeding.” Order at 7, Appellant’s App. at 48 (citations omitted). The district
court held that that conclusion was reversible error and we agree.
As the district court observed, the PUC reduced the scope of the authority
contained in CPCN 2378 & I because of Yellow Cab’s non-use of its full
operating authority “and [because of] damages to other carriers or to the public
interest as a result of [any] reactivation of dormant rights.” Transfer Decision at
17-18, Appellee’s App. at 17-18. The PUC further stated, “the record is
sufficient to show that destructive competition may result by unconditional
approval of the transfer,” id. at 20, and that “[t]he record also shows that approval
of the transfer, with the right to use 600 vehicles, would likely damage other
carriers and the public interest.” Id. at 20-21. The bankruptcy court clearly erred
in holding that the PUC’s action was directed solely at Yellow Cab’s property and
not to effectuate public policy or public interest. Thus, the PUC’s Transfer
Decision is governmental regulatory action under § 362(b)(4), exempt from the
automatic stay of 362(a)(1). Because Yellow Cab argues that the stay provision
applicable to the PUC’s action was § 362(a)(3), not § 362(a)(1), we must next
address whether § 362(a)(3) permits an exception for governmental regulatory
authority under § 362(b)(4).
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B. § 362(a)(3):
11 U.S.C. § 362(a)(3) stays acts “to obtain possession of property of the
estate” or “to exercise control over property of the estate.” The control language
was added in 1984. As one court has observed, “[p]rior to this amendment, few,
if any, cases exist in which administrative action was contested under § 362(a)(3)
as compared to § 362(a)(1).” In re National Cattle Congress, Inc., 179 B.R. 588,
595 (N.D. Iowa 1995), remanded on other grounds, 91 F.3d 1113 (8th Cir. 1996).
Because many governmental regulatory actions can be characterized as exercising
control over a debtor’s property, “the addition of the control language has
sufficiently changed the focus of § 362(a)(3) to invite litigation in the area of
administrative agency action under both sections.” Id. Courts have struggled, in
particular, to reconcile the fact that governmental police or regulatory power is
clearly exempted from the stay imposed by (a)(1), but not clearly exempted from
the stay imposed by (a)(3), despite the fact that comparable governmental
administrative action might be involved. One way courts have accomplished that
reconciliation is by construing the term “control” in (a)(3) with reference to
§ 362(b)(4).
An often-cited, and thoughtful, analysis of the term “control” in § 362(a)(3)
appears in Beker Indus. Corp. v. Florida Land and Water Adjudicatory Comm’n
(In re Beker Indus. Corp.), 57 B.R. 611, 626 (Bankr. S.D.N.Y. 1986):
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In asserting coverage by § 362(a)(3) on a control theory, Beker
contends that by regulating transport from the mine, the County and
the Commission are exerting control over it. This argument has
appeal only if by employing the term “control,” Congress sought to
include state and local regulation, as opposed to the limitation on the
§ 362(b)(4) exemption applicable to the automatic stay of acts
against a debtor, such as state attempts to enforce state distribution
schemes with respect to property of the estate . . . or governmental
acts to establish or protect a pecuniary interest in estate
property . . . . To have done so through enacting the phrase and
concomitantly failing to have amended § 362(b)(4) to exempt good
faith exercise of police and regulatory power from § 362(a)(3) would
have legislatively overruled the numerous cases exempting such
governmental acts from the automatic stay . . . .
Following Beker, a number of courts narrowly interpret § 362(a)(3),
consistent with its legislative history, to apply “to prevent dismemberment of the
estate” and to assure its orderly distribution. H.R. Rep. No. 595, 95th Cong., 1st
Sess. 340, 341 (1977), reprinted in 1978 U.S.C.C.A.N. at 6298. Beker concluded
that “the scope of the control provision of § 362(a)(3), as applicable to
governmental regulation, is governed by the contours of § 362(b)(4) as developed
by case authority.” In re Beker Indus. Corp., 57 B.R. at 626.
We agree with those courts which have held that the governmental
regulatory or police power exception of § 362(b)(4) applies to actions stayed
under § 362(a)(3). We recognize that there is some disagreement on this point,
but conclude that the better reasoned view is that expressed in Beker. See Javens
v. City of Hazel Park (In re Javens), 107 F.3d 359, 369 (6th Cir. 1997) (“[T]he
universe of actions that trigger an automatic stay under § 362(a)(3) does not
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include those governmental actions entitled, under § 362(b)(4), to an exception
from an automatic stay.”); Universal Life Church, Inc. v. United States (In re
Universal Life Church, Inc.), 191 B.R. 433, 442 (Bankr. E.D. Cal. 1995)
(rejecting the view that § 362(b)(4) applies only to stays under § 362(a)(1)), aff’d
in part and appeal dismissed in part, 128 F.3d 1294 (9th Cir. 1997); In re National
Cattle Congress, Inc., 179 B.R. at 595 (agreeing with Beker); Official Comm. of
Unsecured Creditors v. PSS Steamship Co. (In re Prudential Lines, Inc.),107 B.R.
832, 843 (Bankr. S.D.N.Y. 1989) (agreeing with Beker); cf. Slater v. Town of
Albion (In re Albion Disposal, Inc.), 203 B.R. 884, 887 (Bankr. W.D.N.Y. 1996)
(“[S]ome exercises of control by a governmental entity are so inextricably linked
to (or otherwise are indistinguishable from) the type of (a)(1) action that (b)(4)
forgives, that (a)(3) should be ignored entirely when the (b)(4) defense is found to
exist.”), aff’d in part and remanded in part, 1997 WL 461997 (W.D.N.Y. Aug. 11,
1997). But see Hillis Motors, Inc. v. Hawaii Auto. Dealers’ Ass’n, 997 F.2d 581,
591 (9th Cir. 1993) (“There is no governmental powers exception to section
362(a)(3). . . .”). 4
4
The Supreme Court’s decision in Board of Governors v. MCorp Fin., Inc., 502
U.S. 32 (1991) indirectly supports our view. While in bankruptcy, MCorp sought to
enjoin two administrative proceedings brought against it by the Federal Reserve Board.
Among the arguments MCorp made was that § 362(a)(3) stayed the administrative
proceedings. The Supreme Court rejected that argument, not on the ground that (b)(4) did
not apply to (a)(3), but on the ground that the automatic stay provisions do not apply to
(continued...)
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To sum up, we hold that: the PUC’s conduct in reducing the scope of the
authority transferred by CPCN 2378 & I was governmental regulatory action
under § 362(b)(4); whether § 362(a)(1) or (a)(3) was the stay provision applicable
to the PUC’s action, in either event, § 362(b)(4) exempted that action from the
automatic stay and authorized the Transfer Decision. We therefore AFFIRM the
district court’s order overturning the injunction issued by the bankruptcy court.
4
(...continued)
ongoing, nonfinal administrative proceedings.
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