Lockyer v. Mirant Corp.Lockyer v. Mirant Corp.
Case Information
*1 FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT (cid:252)
B ILL L , Attorney General of the State of California; T HE
S TATE OF ALIFORNIA , ex rel,
Plaintiffs-Appellants, and
D EPARTMENT OF W ATER R ESOURCES , No. 04-15024 Plaintiff, (cid:253) D.C. No. v. CV-02-01787-VRW M IRANT C ORPORATION ; M IRANT OPINION A MERICAS , I NC .; M IRANT C ALIFORNIA I NVESTMENTS , I NC .;
M IRANT C ALIFORNIA , L.L.C.;
M IRANT A MERICAS E NERGY
M ARKETING LP; M IRANT D ELTA , L.L.C.; M P OTRERO , L.L.C., (cid:254) Defendants-Appellees.
Appeal from the United States District Court for the Northern District of California Vaughn R. Walker, District Judge, Presiding Argued and Submitted
September 14, 2004—San Francisco, California Filed February 10, 2005
Before: William A. Fletcher, Raymond C. Fisher, Circuit Judges, and B. Lynn Winmill,* District Judge. *The Honorable B. Lynn Winmill, Chief United States District Judge, District of Idaho, sitting by designation.
Opinion by Judge William A. Fletcher COUNSEL Harvey I. Saferstein and Nada I. Shamonki, Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, Santa Monica, California; Damon M. Connolly, Thomas Greene, Catherine A. Jackson, and Tamar Pachter (argued), Office of the California Attorney General, San Francisco, California, for the plaintiffs- appellants.
Bryan A. Merryman, Robert P. Pongetti, and John A. Stur- geon, White & Case, Los Angeles, California; Robert B. Pringle (argued), Thelen Reid & Priest, San Francisco, Cali- fornia, for the defendants-appellees.
OPINION
W. FLETCHER, Circuit Judge:
The Attorney General of California, Bill Lockyer, sues
under section 16 of the Clayton Act,
divestiture by the Mirant defendants (collectively, “Mirant”)
of three electrical generating plants. The district court granted
a stay pursuant to
Landis v. North American Co
., 299 U.S.
248 (1936), pending the resolution of Mirant’s Chapter 11
petitions in a bankruptcy court in Texas. We hold that the dis-
trict court had jurisdiction to determine whether the automatic
stay of the Texas bankruptcy court applied to the Attorney
General’s suit, and that the Attorney General’s suit comes
within the “police or regulatory power” exception of
I. Background
In 1996, California passed Assembly Bill 1890, which required large investor-owned utilities to divest certain elec- trical generating plants as part of the state’s deregulation of its electrical generation industry. Pursuant to this mandatory divestiture, Pacific Gas & Electric in 1999 sold its Pittsburg and Contra Costa Power Plants in Contra Costa County, as well as its Potrero Power Plant in San Francisco, to Mirant Delta, LLC and Mirant Potrero, LLC. The Attorney General alleges that the combined generating capacity of these three plants amounts to approximately 44 percent of the northern California wholesale spot electricity market.
On April 15, 2002, the Attorney General sued Mirant in
federal district court, alleging that Mirant’s ownership of the
plants gives it the incentive and ability to exercise market
power in violation of section 7 of the Clayton Act.
See
U.S.C. § 18. The Attorney General sought equitable relief and
damages under both the Clayton Act and California Business
& Professions Code § 17204. The district court dismissed the
claims for violation of California Business & Professions
Code § 17204 and for damages under the Clayton Act, but
found that the allegations in the complaint were sufficient to
state a claim for injunctive relief under section 16 of the Clay-
ton Act.
See
On July 14 and July 15, 2003, Mirant filed voluntary peti- tions to reorganize under Chapter 11 in the United States Bankruptcy Court for the Northern District of Texas. Subse- quently, Mirant moved in the bankruptcy court for an order modifying the automatic stay to allow three suits, including two brought by the Attorney General (both separate from this suit), to proceed in the Ninth Circuit, where they were then pending on appeal. [1] The bankruptcy court granted the motion, but did not determine whether the appeals were, in fact, sub- ject to the automatic stay. Instead, it granted the motion and modified the stay only “to the extent necessary and applica- ble.”
On the same day that Mirant moved in the bankruptcy court to allow the Ninth Circuit appeals to proceed, it also filed a “Suggestion of Stay” in district court in this case, advising the court to “take . . . notice that . . . actions taken in violation of the [automatic] stay are void” and may result in the “imposi- tion of sanctions by the Bankruptcy Court.” The “Suggestion of Stay” did not explicitly argue that the Attorney General’s Clayton Act suit was subject to the automatic stay, nor did it request that the district court determine the automatic stay’s applicability.
[1]
None of these suits was related to the present suit, although all
involved issues of energy regulation. The Attorney General’s two suits
concerned, respectively, Mirant’s sale of “ancillary services” (a type of
wholesale energy capacity), and the question of whether Mirant had prop-
erly filed its wholesale electricity rates with the Federal Energy Regula-
tory Commission. These cases were consolidated, and the Ninth Circuit
affirmed their dismissal on preemption grounds.
See California v. Trans-
canada Power
,
The district court invited a noticed motion in which the par-
ties could present their positions on whether the automatic
stay was applicable. The Attorney General moved for a deter-
mination that the suit was exempt from the automatic stay
because it sought to enforce California’s “police or regulatory
power” within the meaning of
The court relied on three factors in granting the stay. First,
it found that its jurisdiction to determine the scope of the “po-
lice or regulatory power” exception under
II. Our Jurisdiction to Review the Stay
Before considering the merits, we must first decide whether
we have jurisdiction under
A. “Effectively Out of Court”
We first hold that the stay order in the district court is final
under what has come to be known as the
Moses H. Cone
doc-
trine. In
Moses H. Cone
, a hospital had sued in state court
seeking a declaration that a contract to which it was a party
did not confer a right to arbitration. The other party to the
contract then filed suit in federal district court seeking an
order compelling arbitration. The hospital successfully moved
for a stay in federal court pending resolution of the arbitration
question in state court. Relying on its earlier decision in
Idlewild
, the Supreme Court held that the district court’s stay
order was appealable under
In Idlewild , plaintiff Idlewild Liquor had sought a declara- tory judgment in federal district court that the New York Alcoholic Beverage Law was unconstitutional. Rather than convene a three-judge district court, the one-judge court stayed the action under Railroad Commission v. Pullman Co. , 312 U.S. 496 (1941), to give the New York state courts the opportunity to address the issue. The Supreme Court held that the stay order was appealable, even though it was entirely possible that Idlewild Liquor would be able to return to fed- eral district court after the state court dealt with state-law questions. Moses H. Cone , 460 U.S. at 10. Even in that cir- cumstance, where the case might well come back to federal district court, Idlewild Liquor was “effectively out of court” for purposes of appealability of the stay order. Idlewild , 370 U.S. at 715 n.2.
The stay in this case is much like the stay in Idlewild . In dealing with Mirant’s Chapter 11 petitions, the bankruptcy court may well order divestiture of the three power plants as part of a reorganization plan under Chapter 11. If Mirant’s Chapter 11 proceeding in the bankruptcy court results in divestiture of the plants, the Attorney General’s Clayton Act case in the district court will be mooted, just as Idlewild’s fed- eral constitutional claims in the district court would have been mooted if the New York state courts had granted relief on state-law grounds. See Terra Nova Ins. Co. v. 900 Bar, Inc. , 887 F.2d 1213, 1219-21 (3d Cir. 1989) (concluding that the danger that a stay would render a claim moot was equivalent to res judicata for the purposes of applying the Moses H. Cone test).
Because the bankruptcy court has not yet determined
whether Mirant’s plants will be divested as a result of the
reorganization, we cannot say with certainty that the Attorney
General’s district court suit will be moot. However, as
Idlewild
establishes, absolute certainty is not required in order
to put a party “effectively out of court” within the meaning of
the
Moses H. Cone
doctrine.
See United States v. General
Dynamics Corp.
, 828 F.2d 1356, 1361-62 (9th Cir. 1987)
(where a possibility existed that application of the collateral
estoppel doctrine might result in dismissal, the stay was
appealable under
Moses H. Cone
). Although the mooting of
Attorney General Lockyer’s Clayton Act claim is not inevita-
ble, both parties and the district court appear to view it as a
substantial possibility. Indeed, the district court explicitly
anticipated the possibility of mootness, citing the potential
waste of “significant judicial and party resources” if the bank-
ruptcy proceedings mooted the plaintiff’s claims before the
district court rendered judgment. This case is thus distinguish-
able from situations in which the district court clearly foresees
and intends that proceedings will resume after the stay has
expired.
See Cofab, Inc. v. Philadelphia Joint Bd.
, 141 F.3d
105, 109 (3d Cir. 1998) (
Moses H. Cone
did not apply where
district court had no intention to “ ‘deep six’ the suit”).
If the Attorney General’s Clayton Act claim comes
within the
B. Collateral Order
[2]
Even if the stay did not constitute a final order under
Moses H. Cone
, we would have jurisdiction under
Cohen v.
Beneficial Industrial Loan Corp
.,
In
Moses H. Cone
, the Supreme Court held in the alterna-
tive that the district court’s stay was an appealable collateral
order under
Cohen
. 460 U.S. at 11-12. The Court concluded
that the first criterion was satisfied because, although the stay
was technically open to reconsideration, “there is no basis to
suppose that the District Judge contemplated any reconsidera-
tion of the decision to defer to the parallel state-court suit.”
Id.
at 12-13. It also concluded that the second and third
Cohen
criteria were met, since “[a]n order that amounts to a refusal
to adjudicate the merits plainly presents an important issue
separate from the merits” and, because of the possibility of res
judicata, “this order would be entirely unreviewable if not
appealed now.”
Id.
at 12.
See also General Dynamics
, 828
F.2d at 1360 n.4 (“Where a district court enters a stay that can
effectively end the litigation in that court, the court’s ability
to lift the stay if it chooses would seem to be irrelevant.”)
We hold that the
Cohen
criteria are also satisfied here.
The first criterion is satisfied because, even though the stay
order could theoretically be modified, the district court did not
impose a time limit on the stay or note circumstances that
might result in its modification.
See Moses H. Cone
, 460 U.S.
at 13 (stay order was conclusive where there was “no basis to
suppose that the District Judge contemplated any reconsidera-
tion of his decision to defer to the parallel . . . suit”);
Burns
v. Watler
,
C. Aggrieved by the Stay
Mirant argues that, even if the stay order is final under Moses H. Cone or a reviewable collateral order under Cohen , the Attorney General cannot appeal because he is not “ag- grieved” by the stay. In Deposit Guaranty National Bank v. Roper, 445 U.S. 326, 333 (1980), the Court held that “[a] party who receives all that he has sought generally is not aggrieved by the judgment affording the relief and cannot appeal from it.” (Citations omitted.) Mirant contends that the Attorney General is not aggrieved because either he will receive the divestiture remedy he seeks from the bankruptcy court; or, if the bankruptcy court does not order divestiture and the district court stay is lifted, he will be allowed to seek divestiture in his Clayton Act litigation in the district court. Mirant argues that the two outcomes — divestiture pursuant to the bankruptcy proceedings and divestiture ordered by the district court — are equivalent.
Mirant’s argument fails to recognize two things. First, while it is possible that Mirant will eventually be ordered to divest itself of the three power plants, the sequence of events envisioned by Mirant may entail considerable delay. This is particularly so if the bankruptcy court does not order divesti- ture and the Attorney General must await the conclusion of the bankruptcy proceedings before being allowed to resume his Clayton Act suit in the district court. If Mirant’s owner- ship of the three power plants in fact violates the Clayton Act, northern California purchasers of electricity will have been unnecessarily injured by the delay resulting from the stay.
Second, Mirant’s argument fails to recognize that a divesti-
ture order to cure a Clayton Act violation is different from a
divestiture order entered pursuant to a bankruptcy reorganiza-
tion. The Clayton Act could possibly be raised as an issue in
the Texas bankruptcy proceeding, for any confirmable reorga-
nization plan must have been “proposed in good faith and not
by any means forbidden by law.”
order has deprived the Attorney General — at least temporar- ily and perhaps permanently — of the legal remedy he seeks against Mirant. He has thus been aggrieved within the mean- ing of Roper , and we have jurisdiction over this appeal.
III. The District Court’s
Landis
Stay
We review a district court’s stay order for abuse of discre-
tion, but this standard is “somewhat less deferential” than the
abuse of discretion standard used in other contexts.
Yong v.
INS
, 208 F.3d 1116, 1119 (9th Cir. 2000);
Intel Corp. v.
Advanced Micro Devices, Inc.
, 12 F.3d 908, 912 (9th Cir.
1993). A district court abuses its discretion if it “base[s] its
ruling on an erroneous view of the law or on a clearly errone-
ous assessment of the evidence.”
Cooter & Gell v. Hartmarx
Corp.
,
The district court gave three reasons for granting a
Landis
stay. First, it believed that its jurisdiction to determine
whether the automatic stay applied to the suit before it was
questionable. Second, it believed that the “police or regulatory
power” exception to the automatic stay under
A. Jurisdiction to Determine the Applicability
of the Automatic Stay
Relying on
Celotex Corp. v. Edwards
,
In
Celotex,
the bankruptcy court issued a § 105 injunction
preventing plaintiffs who had won a district court suit against
the debtor from executing on a supersedeas bond that would
have satisfied their judgment.
See
In
Gruntz,
Gruntz had twice been convicted in state court
of failure to pay child support. He filed for bankruptcy prior
to sentencing in the first criminal proceeding, and prior to the
institution of the second criminal proceeding. He brought an
adversary proceeding in bankruptcy court seeking a declara-
tion that the state criminal proceedings violated the automatic
stay. The bankruptcy court denied relief, holding that it was
collaterally estopped by the state court’s decision that the
automatic stay did not apply. On appeal, we held that the state
court has the power to decide whether the automatic stay
applies to its proceedings.
[5]
Celotex
and
Gruntz
both stand for familiar propositions
in bankruptcy law. Neither case casts doubt on a district
court’s ability to decide for itself whether proceedings pend-
ing before it are subject to an automatic stay.
Celotex
tells us
that a district court has no authority to modify or to disregard
a
power than a state court to decide whether its proceeding
comes within the scope of the automatic stay. Indeed, there
are a number of cases, in this circuit and elsewhere, in which
a federal court has decided whether the automatic stay applies
to a proceeding pending before it.
See, e.g.
,
NLRB v. Conti-
nental Hagen Corp
., 932 F.2d 828 (9th Cir. 1991) (NLRB
enforcement proceeding in the court of appeals comes within
the
that a district court has jurisdiction to decide whether the
automatic stay applies to a proceeding pending before it, over
which it would otherwise have jurisdiction. Specifically, as
applied to this case, we hold that the district court has juris-
diction to decide whether the Attorney General’s section 16
Clayton Act suit comes within the exception to the automatic
stay for “police or regulatory power” under
The applicability of the automatic stay, and the extent of
the “police or regulatory power” exception under
ruptcy petition does not operate as an automatic stay “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 “police or regulatory power” exception allows the
enforcement of laws affecting health, welfare, morals, and
safety despite the pendency of the bankruptcy proceeding.
The exception applies, for example, to suits to determine a
federal income tax exemption,
see id.
; to enforce federal labor
laws,
see Twin Cities Electric
, 907 F.2d at 109; to enforce
state bar disciplinary rules,
see Wade v. State Bar of Arizona
,
Mirant did not argue in the district court that the Attorney
General’s Clayton Act suit fell outside the
Mirant now makes two arguments to us. First, it argues that
the
nia official to enforce the federal Clayton Act would not be
a suit within its own authority, and that only a suit by the
United States Attorney to enforce the Clayton Act would
come within
Mirant argues explicitly that because section 16 of the
Clayton Act authorizes suits by private parties, a government
unit suing to enforce that section cannot be acting as a gov-
ernment within the meaning of
does not satisfy either of the two established tests for the “po-
lice or regulatory powers” exception of
[11]
Under the “pecuniary purpose” test, “the court deter-
mines whether the [government] action relates primarily to
the protection of the government’s pecuniary interest in the
debtors’ property or to matters of public safety and health.”
Continental Hagen,
[12] The Attorney General’s section 16 Clayton Act suit clearly satisfies the “pecuniary purpose” test. After having been trimmed down by the district court, the suit now seeks only divestiture. The Attorney General does not seek a mone- tary recovery, and asserts no interest of the state in the three power plants that are the subject of his suit. Rather, the Attor- ney General seeks only an injunction that would require Mirant to divest itself of the plants. There is nothing in this relief that would allow the Attorney General to gain an advan- tage over creditors in the bankruptcy proceeding. If granted, the only effect of the remedy would be to require that the plants be sold, with the entire proceeds going to the bank- ruptcy estate. Further, it is clear that the suit seeks to protect the welfare of electricity consumers in northern California by protecting them from the excessive charges that might result from an undue concentration of market power. Under the “public purpose” test, the court determines
whether the government seeks to “effectuate public policy” or
to adjudicate “private rights.”
NLRB v. Continental Hagen
,
932 F.2d at 833. If the government seeks the former, the
exception applies; if the government seeks the latter, it does
not.
Id.
;
see also In re State of Missouri
,
[14]
We therefore hold that the Attorney General’s section
16 Clayton Act suit comes within the “police or regulatory
power” exception under
C. Landis Stay
[15]
A district court has discretionary power to stay pro-
ceedings in its own court under
Landis v. North American
Co.
,
[A party seeking] a stay must make out a clear case of hardship or inequity in being required to go for- ward, if there is even a fair possibility that the stay for which he prays will work damage to some one else. Only in rare circumstances will a litigant in one cause be compelled to stand aside while a litigant in another settles the rule of law that will define the rights of both.
Id. at 255. The Court noted that resolution of the New York district court suit could help narrow the issues considerably:
True, a decision in the cause then pending in New York may not settle every question of fact and law in suits by other companies, but in all likelihood it will settle many and simplify them all.
Id. at 256. Nonetheless, the Court held that a stay lasting until the New York district court suit was finally resolved exceeded “the limits of a fair discretion.” Id. It then held that, in the cir- cumstances now confronting it, where the New York district court had already had its case for a year, a stay lasting only until the New York district court decided the case might be appropriate. Id. at 256-57. It therefore remanded to the Dis- trict of Columbia district court to consider whether to grant a stay of what was now likely to be fairly short duration. Id. at 259.
We have sustained, or authorized in principle, Landis stays on several occasions. In CMAX, Inc. v. Hall , 300 F.2d 265 (9th Cir. 1962), CMAX, a common carrier by air, sued Dre- wry, a shipper, in federal district court to recover $12,696.00, contending that Drewry had not paid the full amount of the government-approved tariff. At least a dozen other suits were later filed in the same district court, in which CMAX sued shippers on the same ground. The Civil Aeronautics Board (“CAB”) then instituted an administrative enforcement pro- ceeding against CMAX, contending that CMAX had charged numerous shippers, including Drewry, more than the approved tariff. The district court stayed CMAX’s suit against Drewry. CMAX sought mandamus.
Citing Landis , we set out the following framework: Where it is proposed that a pending proceeding be stayed, the competing interests which will be affected by the granting or refusal to grant a stay must be weighed. Among those competing interests are the possible damage which may result from the granting of a stay, the hardship or inequity which a party may suffer in being required to go forward, and the orderly course of justice measured in terms of the simplifying or complicating of issues, proof, and questions of law which could be expected to result from a stay.
Id. at 268. We denied mandamus. Applying the framework, we noted that CMAX sought only damages. It alleged no con- tinuing harm and sought no injunctive or declaratory relief. Delay of CMAX’s suit would result, at worst, in a delay in its monetary recovery, with possible (though by no means cer- tain) loss of prejudgment interest. Further, we noted that the CAB proceeding would provide considerable assistance in resolving CMAX’s suit against Drewry, as well as CMAX’s other suits in the district court:
[A]t the very least, the [CAB] proceeding will pro- vide a means of developing comprehensive evidence bearing upon the highly technical tariff questions which are likely to arise in the district court case. Moreover, if that proceeding should result in a revo- cation of CMAX’s operating authority, the district court will be enabled to explore the effect thereof on that carrier’s standing to collect past undercharges. . . .
To these considerations must be added the fact that several other similar cases are now pending in the same district court, and more are likely to be filed in the near future. In the interests of uniform treatment of like suits there is much to be said for delaying the frontrunner.
Id. at 269.
In Leyva v. Certified Grocers of California, Ltd. , 593 F.2d 857 (9th Cir. 1979), truck drivers sued their employer for unpaid wages under the federal Fair Labor Standards Act (“FLSA”) (count I), and under their collective bargaining agreement (count II). The district court stayed both counts under the Federal Arbitration Act. On appeal, we held that the collective bargaining count was subject to arbitration, but that the FLSA count was not. We nonetheless held that a stay of the FLSA count might be justified under Landis and related cases:
[S]ound reasons may exist . . . to support the dis- trict court’s determination to stay the action under the powers to control its own docket and to provide for the prompt and efficient determination of the cases pending before it.
* * *
A trial court may, with propriety, find it is effi- cient for its own docket and the fairest course for the parties to enter a stay of an action before it, pending resolution of independent proceedings which bear upon the case. This rule applies whether the separate proceedings are judicial, administrative, or arbitral in character, and does not require that the issues in such proceedings are necessarily controlling of the action before the court.
Id. at 863-64.
We noted that the resolution of the collective bargaining count in arbitration had the potential to advance significantly the resolution of the FLSA count:
[T]he arbitrator would no doubt make findings as to what contract documents are controlling, the hours and work pattern of the claimants, and the amount of wages paid to them. . . . These findings, as well as the documents and testimony produced during the arbitration hearing, may be of valuable assistance to the court in resolving the Fair Labor Standards Act claims presented in count I of the complaint, even under the assumption that the court is not bound and controlled by the arbitrator’s conclusions, a point we decline to address.
Id. at 863. We remanded to allow the district court to deter- mine whether the stay of the FLSA count was proper. In so doing, however, we instructed the district court to take into account “the urgent nature of the statutory right to minimum compensation” under the FLSA, and suggested that a stay might be appropriately conditioned on assurance that the arbi- tration proceedings was going forward “with diligence and efficiency.” Id. at 864. We wrote, “A stay should not be granted unless it appears likely the other proceedings will be concluded within a reasonable time in relation to the urgency of the claims presented to the court.” Id.
Finally, in
Mediterranean Enterprises, Inc. v. Ssangyong
Corp.
,
In the case now before us, the district court stayed proceed-
ings based in substantial part on its belief that its jurisdiction
to decide the scope of the automatic stay was in doubt, and
that the applicability of the
ships between the parties, nor the prospect of narrowing the factual and legal issues in the other proceeding, justifies a stay. Unlike the plaintiffs in CMAX and Leyva , who sought only damages for past harm, the Attorney General seeks injunctive relief against ongoing and future harm. Landis cau- tions that “if there is even a fair possibility that the stay . . . will work damage to some one else,” the party seeking the stay “must make out a clear case of hardship or inequity.” 299 U.S. at 255. There is more than just a “fair possibility” of harm to the Attorney General, and to the interests of the elec- tricity consumers of northern California whose interest he seeks to protect. If the Attorney General’s Clayton Act claim has merit, Mirant’s ownership of the three power plants is an ongoing illegal concentration of market power that threatens economic harm to electricity consumers. For its part, Mirant has not made out a “clear case of hardship or inequity.” To be sure, if the stay is vacated Mirant must proceed toward trial in the suit in the district court, but being required to defend a suit, without more, does not constitute a “clear case of hard- ship or inequity” within the meaning of Landis . Further, it is highly doubtful that the bankruptcy court in Texas will provide a legal resolution to the Attorney Gener- al’s Clayton Act claim. First, we note that neither the Attor- ney General nor Mirant has instituted an adversary action in the bankruptcy court seeking a determination whether the ownership of the plants by a single entity, such as Mirant, constitutes a Clayton Act violation. Second, the bankruptcy court is unlikely to consider, as part of its approval or disap- proval of a Chapter 11 reorganization plan, whether owner- ship of the plants by a single entity is legal under the Clayton Act. Indeed, it may well approve a reorganization plan per- mitting Mirant to sell off the three power plants to a single entity, on the rationale that the plants are worth more when owned by a single entity.
We are aware of no case, other than this one, in which a
district court has entered a
Landis
stay of a suit falling within
the “police or regulatory power” exception to the automatic
stay, and counsel has cited none. The very terms of the excep-
tion provide that the suit be brought by a governmental unit
in furtherance of its “police or regulatory power,” thereby
indicating that a suit qualifying under the exception will be
brought to protect an important governmental interest. Fur-
ther, the “pecuniary interest” and “public interest” tests under
which the exception is allowed are designed to ensure that a
suit qualifying under
Conclusion
We hold that the district court has jurisdiction to decide
whether the suit before it is stayed by the automatic stay of
the bankruptcy court. We hold, further, that the suit qualifies
under the exception to the automatic stay for “police or regu-
latory power” under
VACATED and REMANDED.