finding that court of appeals in which stayed litigation is pending has jurisdiction to decide not only its own jurisdiction but also the issue whether stay even applies
How later courts described this case
- finding that court of appeals in which stayed litigation is pending has jurisdiction to decide not only its own jurisdiction but also the issue whether stay even applies
- holding that NLRB's unfair labor practices proceeding was exercise of government's police and regulatory power and therefore not subject to automatic stay
- The court held that "a governmental unit which determines that its police power or regulatory proceeding is excepted from the automatic stay under § 362(b)(4) is not required to petition the bankruptcy court for relief from the stay prior to continuing its proceeding.-"
- circuit court has jurisdiction to determine applicability of automatic stay to unfair labor practice proceeding
Written by the judges who cited it.
Distinguished
Distinguished by In Re Qimonda AG, 425 B.R. 256 (2010)
128 F.3d at 1297, or to “adjudicate private rights,” Edward Cooper Painting, 804 F.2d at 942(internal quotation marks omitted), then the exception is inapplicable.
Distinguished by U.S. EEOC v. CTI Global Solutions, Inc., 422 B.R. 49 (2010)
804 F.2d at 942 (internal quotation marks omitted), then the exception is inapplicable.
Distinguished by In Re Cutting Edge Enterprises, Inc., 372 B.R. 255 (2007)
804 F.2d at 942 (internal quotation marks omitted), then the exception is inapplicable.
Distinguished by a later decision, 274 F.3d 846 (2001)
On the other hand, if the purpose of the law relates "to the protection of the government's pecuniary interest in the debtor's property," Universal Life Church, 128 F.3d at 1297, or to "adjudicate private rights," Edward Cooper Painting, 804 F.2d at 942 (internal quotation marks omitted), then the exception is inapplicable.
The opinion
CONTIE, Senior Circuit Judge,
concurring.
While I agree with the majority’s disposition of this case and its analysis in Parts I, II and III, I do not join in Part IV of the majority’s opinion concluding that we have jurisdiction to consider the effect of Henry Edward Cooper’s discharge in bankruptcy. 1
Whereas the “Plea in Abatement Due to Bankruptcy” can be construed as drawing into question the issue of the automatic stay, it is clear that the effect of the discharge in bankruptcy was never raised below, probably in view of the fact that the discharges occurred in the course of the proceedings before the Board. The failure of respondent to raise particular issues before the Board deprives this court of jurisdiction to consider such contentions. Woelke & Romero Framing, Inc. v. NLRB, 456 U.S. 645, 665-66 , 102 S.Ct. 2071, 2082-83 , 72 L.Ed.2d 398 (1982). Pursuant to 29 U.S.C. § 160 (e), “[extraordinary circumstances for these purposes exist only if there has been some occurrence or decision that prevented a matter which should have been presented to the Board from having been presented at the proper time.” NLRB v. Allied Products Corp., 548 F.2d 644, 654 (6th Cir.1977). Since the respondent did not raise the discharge issue in the proceedings below, and there are no “extraordinary circumstances” for having failed to present this issue to the Board, I would conclude that we lack jurisdiction to consider this argument on appeal.
. I do not, however, disagree with the majority’s conclusion in Part IV that there is substantial evidence to support the Board's finding that Cooper & Cooper is an alter ego of the Cooper Corporation. See NLRB v. Allcoast Transfer, Inc., 780 F.2d 576 (6th Cir.1986).