Memorandum

LAURIE SELBER SILVERSTEIN, UNITED STATES BANKRUPTCY JUDGE.

Before the Court is Alfred Barr's filing titled Interested Party Motion to Lift Automatic Stay or in the Alternative to Annul or Modify the Automatic Stay for Hire-Right Solutions Inc. ("Barr Motion").2 Mr. Barr is proceeding pro se.3 The reorganized debtors filed an objection to the Barr Motion,4 and Mr. Barr filed a memorandum of law in support of his motion.5 At a hearing on September 21, 2016, both parties agreed to proceed by way of argument in the first instance to determine whether the matter could be disposed of on undisputed facts.6 Accordingly, on November 9, 2016 — a date agreed to by the parties — I heard argument on the Motion; no evidence was taken.7 Nonetheless, I have reviewed each filing, including the exhibits attached to them. And, I have also reviewed and considered Mr. Barr's post-hearing filing titled 11 U.S.C. § 362(b)(4) Judicial Notice of Code of Federal Regulations To Be Considered.8 This is my ruling on the Barr Motion.

Background

A. The Bankruptcy Filing

HireRight Solutions Inc. ("HireRight" or "Debtor"), together with certain of its affiliates, filed voluntary bankruptcy petitions under chapter 11 of title 11 of the United States Code on February 8, 2015. HireRight is a "leading provider of employment background screening, drug/ health screening and employment eligibility solutions."9 On February 25, 2015, a committee of unsecured creditors was appointed.10

HireRight filed its bankruptcy schedules on March 20, 2015.11 Debtor listed Mr. Barr on its Schedules as a general unsecured creditor holding a contingent, unliquidated and disputed claim.12 Also on March 20, 2015, I entered an order establishing April 30, 2015, as the last date by which all creditors were to file proofs of claim with the claims agent.13 The docket reflects that Mr. Barr was served with notice of the bar date.14 He did not file a proof of claim.15

On August 14, 2015, I entered an order (the "Confirmation Order") confirming the Amended Joint Chapter 11 Plan of Altegrity, Inc., et al. (the "Plan").16 The Plan constituted a separate chapter 11 plan of reorganization for each debtor. Under the Plan, holders of general unsecured claims against the Operating Debtors (which includes HireRight) receive their pro rata share of $1,250,000 in cash. Recoveries for this class were projected to be 11.9% based on the Debtors' estimated midpoint amount of allowed claims excluding amounts for litigation claims, contract damages claims or other contingent or unliquidated claims.17 The Plan went effective on August 31, 2015. The docket reflects that Mr. Barr was served with notice of the confirmation hearing,18 and the effective date of the Plan.19

B. Mr. Barr's prepetition litigation

Mr. Barr is a truck driver. On December 31, 2012, Mr. Barr filed a complaint with the Regional Administrator, Occupational Safety and Health Administration ("OSHA") under the employee protection provisions of Section 405 of the Surface Transportation Assistance Act ("STAA") against CTL Transportation, Inc. and Comcar Industries, Inc. (the "STAA Action"). In the complaint, Mr. Barr alleges that CTL and Comcar terminated his employment as a truck driver in retaliation for expressing safety concerns, refusing to drive unsafe vehicles and complaining about hours of service.20

The filing of the complaint automatically triggered an investigation by the Secretary of Labor, through OSHA.21 In a letter dated November 22, 2013, OSHA advised Mr. Barr that, after investigation, the Secretary of Labor found "that there is no reasonable cause to believe that Respondent [CTL] violated STAA." The Secretary made multiple findings in support of his conclusion, and dismissed Mr. Barr's complaint.22 In this letter, OSHA advised Mr. Barr of his right to file objections to the Secretary's findings and request a hearing before an administrative law judge. OSHA also advised Mr. Barr that the Department of Labor would not represent any party in that hearing, but rather it would be an adversarial proceeding presided over by an administrative law judge. Mr. Barr apparently exercised his right to take exception to the findings made by OSHA, and a September 9, 2014 hearing date was initially set.23

In the meantime, on February 13, 2013, Mr. Barr emailed an amended complaint to OSHA which sought relief against not only CTL, but HireRight.24 The amended complaint generally describes a series of actions taken by CTL against Mr. Barr, including a retaliatory firing, false reporting to HireRight and the failure to correct information. But, it also includes an allegation of blacklisting by both CTL and Hire-Right.25 The Administrative Review Board has recognized that blacklisting, in response to an employee engaging in protected activity, may be a basis for relief under the STAA.26

HireRight objected to being designated a respondent in the STAA Action. Hire-Right argued, among other things, that: (i) as HireRight did not have an employment relationship with Mr. Barr, it has no liability under the STAA and thus is not a proper respondent; (ii) the factual inaccuracies in Mr. Barr's declaration preclude a finding of blacklisting; (iii) the addition of HireRight as a respondent is unnecessary to prevent prejudicing the public interest or Mr. Barr's rights; and (iv) any remedy against HireRight lies under the Fair Credit Reporting Act and not the STAA.27 The administrative law judge assigned to the case ("ALJ") rejected HireRight's arguments and approved the addition of HireRight as a respondent in the action. In doing so, the ALJ found that HireRight was a proper respondent based on the language of the regulations promulgated under the STAA, and also because of Hire-Right's "unique position as a consumer reporting agency in the trucking industry."28 Specifically, the ALJ stated:

HireRight also moved for summary judgment on similar grounds, which the ALJ denied.

When HireRight filed its bankruptcy petition, it notified the ALJ. The ALJ recognized the applicability of the automatic stay, and determined, in the interest of judicial economy, to hold the entire proceeding in abeyance pending the completion of the bankruptcy case.30 HireRight later notified the ALJ of the discharge it received by operation of the Confirmation Order and section 1141 of the Bankruptcy Code, and requested that the complaint be dismissed on that basis. In response, on June 29, 2016, the ALJ issued an Order to Show Cause31 why the case should not be dismissed as to HireRight and provided parties with thirty days in which to respond. Mr. Barr sought, and received, an extension of time to respond to the Order to Show Cause. He also filed the instant motion.

Discussion

In the Barr Motion, Mr. Barr seeks relief so that he may proceed with litigation. His filings are somewhat inconsistent with respect to the proceedings he seeks to continue to prosecute, but he mentions four: (i) the STAA Action; (ii) litigation before the United States District Court for the District of Columbia styled U.S. v. HireRight Solutions, Inc., Civil Action No. 12-1313 resulting in a stipulated final judgment on August 28, 2012 (the "Federal Trade Commission Lawsuit");32 (iii) U.S. Department of Transportation v. CTL Transportation, LLC, No. 2014-1485; and (iv) an as-yet unfiled action that Mr. Barr seeks to bring in the United States District Court for the Middle District of Florida under various theories.33

I have two preliminary observations. First, while Mr. Barr's papers and the argument, to some extent, mention the four pieces of litigation just listed, only the STAA Action merits discussion. I will not grant relief from the discharge injunction with respect to the Federal Trade Commission Lawsuit as Mr. Barr was not a party to that suit, and the civil docket for this case reflects that it was terminated on August 29, 2012.34 Mr. Barr has cited no law that suggests that he may appear and/or re-open that action. Similarly, I will not grant Mr. Barr relief from the discharge injunction with respect to the matter involving the U.S. Department of Transportation to which Mr. Barr is not a party. Further, I will not grant relief from the discharge injunction to permit Mr. Barr to file a case not yet filed.

Second, I am treating the Barr Motion as a request for relief from the discharge injunction to proceed with litigation.35 As the Confirmation Order was entered on August 14, 2015, and HireRight was granted a discharge, the automatic stay is no longer in place.36 The question, therefore, is whether Mr. Barr should be granted relief from the discharge injunction to pursue the STAA Action.37

Mr. Barr makes several arguments in support of his request, but they boil down to two. His primary argument is that he should be permitted to continue with the STAA Action because it is a police or regulatory action conducted by a governmental agency pursuant to 11 U.S.C. § 362(b)(4), and as such should go forward. His secondary argument is that he should be granted relief from the discharge injunction for "cause."

HireRight contends that, as Mr. Barr did not file a proof of claim in the bankruptcy case, Mr. Barr is not entitled to any monetary recovery against HireRight because any debt has been discharged, therefore no relief should be granted. HireRight also contends that the STAA Action is not a governmental agency's exercise of its police or regulatory powers, but rather private litigation being prosecuted by Mr. Barr before the ALJ. HireRight also asks me to find that the STAA Action should not go forward because there is no effective relief that Mr. Barr can obtain in that litigation as HireRight is merely a "middleman" who facilitates background investigations, not the drafter of any employment history.

Two of these arguments are easily dispensed with. First, I conclude that the STAA Action does not fall within the police powers exception of section 362(b)(4). This section excepts from the reach of the automatic stay the commencement or continuation of actions "by a governmental unit ... to enforce such governmental unit's ... police and regulatory power"38 The term "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."39

Mr. Barr does is not a governmental unit, and his individual claims in the STAA Action seeking monetary damages are not on behalf of any governmental unit.40 And, while Mr. Barr insists that an investigation is being conducted by a governmental agency in the STAA Action, nothing in the documents he submitted supports this statement. Rather, the documents submitted, in particular the 11/22/13 Letter and the ALJ 9/3/14 Decision, show that governmental involvement in the investigation has concluded, and that the government — through the Office of Administrative Law Judges — is now acting as an adjudicatory body.41 The ALJ confirms this in his Order to Show Cause when he writes that no statutory exception to the operation of the automatic stay exists in the STAA Action noting that this exception "does not apply to STAA cases where the employee is the sole prosecuting party."42 The only reading of this statement is that Mr. Barr, and not the government, is alone in prosecuting the action against HireRight, a conclusion supported by each document supplied by both parties. Accordingly, an argument based on section 362(b)(4) does not support the relief Mr. Barr seeks.

Second, I decline to deny the Barr Motion based on the argument that HireRight has been improperly kept in the STAA Action or that Mr. Barr cannot receive effective relief against HireRight in the STAA Action. The ALJ has considered and rejected both of these arguments in his decisions approving the joinder of Hire-Right as a respondent and denying summary judgment. I will not second guess those decisions, assuming I could.

But, HireRight's argument that Mr. Barr should be denied relief from the discharge injunction to pursue the STAA Action because he has not filed a proof of claim merits consideration. As HireRight points out, paragraph 85 of the Confirmation Order reflects the discharge provided to a reorganizing debtor under section 1141(d) of the Bankruptcy Code. Section 1141(d) of the Bankruptcy Code provides that the confirmation of a plan "discharges the debtor from any debt that arose before the date of such confirmation" whether or not a proof of claim based on that debt is filed, and regardless of whether the holder of such claim has accepted the plan.43 Further, section 524(a)(2) of the Bankruptcy Code provides that a discharge "operates as an injunction against the commencement or continuation of an action ... to collect, recover or offset any such debt as a personal liability of the debtor ...."44 Mr. Barr did not file a proof of claim by the Bar Date. As such, he is not entitled to share in distributions from the estate.45 There is no reason to liquidate any monetary damages against HireRight or for HireRight to defend litigation which results in a monetary judgment. To the extent that Mr. Barr is seeking to recover on a claim, there is simply nothing left for the ALJ to decide in the STAA litigation.46

The question, therefore, is whether Mr. Barr is asserting a claim in the STAA Litigation. The term "claim" is defined in the Bankruptcy Code as:

If the relief Mr. Barr seeks in the STAA Action can be reduced to a "right to payment" he has claims which have been discharged in this bankruptcy case; if not, the relief Mr. Barr seeks is not necessary because the discharge does not prevent continuation of the STAA Action. In performing this analysis, the court looks at each cause of action separately.48

Because the amended complaint in the STAA Action is more directed to actions taken by CTL, at argument I asked both Mr. Barr and HireRight what relief was being sought by way of the amended complaint. Their answers were less than enlightening. But, it appears that the relief includes back pay, reinstatement, the cessation of distribution of a DAC Report containing false information, referral to the Department of Justice and an investigation.49 These types of remedies are available under the STAA. Appropriate remedies include reinstatement of employment, back pay, compensatory damages, punitive damages up to $250,000 and expungement of the driver's employment and DAC Reports.50

Back pay, compensatory damages and punitive damages are clearly "claims" under the Bankruptcy Code as these are monetary damages that may be awarded under the STAA. Mr. Barr's request for reinstatement of employment cannot be directed at HireRight because it is undisputed that Mr. Barr was never employed by HireRight. Further, while the Third Circuit has recognized that the preferred remedy for wrongful discharge is reinstatement, it has also recognized that a monetary award is a viable alternative when reinstatement is impracticable.51 Accordingly, in this matter, any request for reinstatement of employment is a "claim" under the Bankruptcy Code.52

Research has not revealed any reported case law determining whether relief aimed at correcting or expunging a false DAC Report is a "claim" for purposes of the Bankruptcy Code. So, I must determine whether a monetary award is a viable alternative for this type of relief.53 In this analysis, I may reject the argument that a monetary award will suffice because Mr. Barr has also sought monetary damages.54

At argument, Mr. Barr stated that the DAC Report kept and/or generated by HireRight contains false information that has prevented him from obtaining employment as a truck driver for the last three years. This type of harm, if true, does not lend itself solely to monetary damages; moreover, it is a continuous harm.55

Two recent cases from the Administrative Review Board reflect that remedies for violation of the STAA include both monetary and non-monetary relief. For example, in Matter of Grant E. Timmons, Mr. Timmons, a truck driver, filed a complaint with OSHA alleging his employer blacklisted him in violation of the STAA. After finding that Mr. Timmons engaged in protected activity and was blacklisted, the ALJ awarded Mr. Timmons $17,000 in compensatory damages and ordered that his employer purge Mr. Timmon's employment file and ensure the file reflected a satisfactory work and safety record.56 Similarly, in Matter of Albert Brian Canter, Mr. Canter's employer was found to be in violation of the STAA's whistleblowing protections by placing certain notations on Mr. Canter's DAC report. Among other relief, the ALJ awarded Mr. Canter back pay, interest, attorney's fees and costs, and abatement of the violation, which included deleting the improper notations from Mr. Canter's DAC Report.57 In both cases, the Administrative Review Board affirmed the ALJ's order of damages and remedies.

Monetary damages are not a viable alternative for correction or expungement of a DAC Report, rather, as reflected in the above cases, correction of a DAC Report is a necessary complement to any monetary award. Accordingly, I conclude that the ability to obtain a correction of his DAC Report — if, indeed, Mr. Barr's assertions are correct — is not a "claim" that was discharged in the HireRight bankruptcy case.58

Finally, Mr. Barr asserts that on two previous occasions in 2015 he attempted to file a motion for relief from the stay with the Clerk of the Court, but his filings were refused.59 He contends that: (i) the Clerk improperly refused to docket two previous motions for relief from stay when he did not tender a fee with the filing; (ii) the United States Trustee and/or HireRight were somehow responsible for the fact that his previous attempts to have his motions filed and/or heard were unsuccessful; and (iii) because his previous motions were not heard within thirty days, the automatic stay has already terminated as to any litigation he wants to pursue.

First, per the Bankruptcy Court Miscellaneous Fee Schedule, a fee of $176 is required to file a motion for relief from stay.60 Mr. Barr appears to have challenged the Clerk's ability to collect the fee (at least, in 2016) and, in any event, he did not tender the fee to the Clerk in 2015 or in 2016 nor did he file a motion to proceed in forma pauperis until August 18, 2016.61

Second, while it appears that the Office of the United States Trustee (the "UST") may have been served with previous motions,62 it was not the UST's responsibility to take any action with respect to Mr. Barr's motions. Mr. Barr cites to Federal Rule of Bankruptcy Procedure 5005(c) for the proposition that the UST should have transmitted his previous motions to the Clerk of the Court for filing, but this in an inaccurate interpretation of the rule. Rule 5005(c) states that the UST shall transmit to the Clerk of the Court "any paper intended to be filed with the clerk but erroneously delivered to the [UST]." Mr. Barr did not erroneously deliver any previous motions to the UST, rather, he claims to have delivered the motions directly to the Clerk of the Court to be filed and served them upon the UST. In these circumstances, it was not incumbent on the UST to take any action with respect to his motions.

Third, Local Rule 4001-1(b) requires the moving party, not the UST or the Debtors, to schedule a motion for relief from stay by either placing the motion on a regularly scheduled omnibus date or by obtaining a special setting from chambers.63 If the moving party does not obtain a date on his motion within the thirty-day period, he consents to the stay remaining in place until the motion is heard.64

As applied here, assuming without deciding, that the Clerk's office should have accepted for docketing Mr. Barr's previous motions absent the payment of the mandated fee or a motion to proceed in forma pauperis,65 the question is the appropriate remedy. In McDowell v. Delaware State Police, the Third Circuit addressed the clerk's failure to docket a motion intended to act as a complaint in the context of a 1983 action against the state police.66 The movant waited over fourteen months to respond to the clerk's letter informing him that he needed to submit a filing fee or a request to proceed in forma pauperis. The Third Circuit held that once the in forma pauperis motion was granted, the motion was constructively filed as of the date that the clerk received the motion for purposes of the statute of limitations. In so finding, the court considered that there was no evidence of bad faith, movant offered a plausible excuse for the delay — he was imprisoned and only learned of his rights after study — and there was no prejudice to the defendants.67

In Breckin v. MBNA America, the District of Delaware distinguished McDowell finding its holding regarding constructive filing to be dicta and limited to its factual scenario.68 Under the facts before it, the Breckin court refused to permit constructive filing of a complaint for age discrimination when the plaintiff paid the filing fee 109 days after the court denied his in forma pauperis request and 279 days after his right to sue letter was issued. In its analysis, the court considered policy considerations in the ADA context not present in McDowell.69

This matter is closer to Breckin than to McDowell. Mr. Barr claims to have attempted to file the Barr Motion, or some version of it, on two occasions in 2015. Notwithstanding the Clerk's refusal to docket the motion, he waited over a year to follow up on the filing, apparently prompted by the ALJ's Order to Show Cause. In the meantime, HireRight confirmed a plan and received its discharge. Mr. Barr seeks to have the court recognize his prior attempts to file a motion for relief from stay or to have the Barr Motion deemed constructively filed in 2015 so that he can argue that the automatic stay was terminated in 2015 by operation of law and he can proceed with the STAA Action. But, even assuming that the discharge injunction did not trump any previous termination of the automatic stay, permitting the Barr Motion to relate back under these circumstances would not be in keeping with McDowell. In McDowell and Breckin, the court examined the concept of constructive filing in the context of a possible forfeiture of a cause of action due to an expired statute of limitations and came to different conclusions based on the facts of their respective cases. Here, if I permitted constructive filing to 2015 and credited Mr. Barr's argued concomitant termination of the automatic stay, it is HireRight and creditors of HireRight's estate that would forfeit rights.70

Further, even if the Court were to recognize that the Barr Motion was filed in 2015, it was not scheduled for a hearing. Accordingly, the thirty-day period, to the extent it applies to this type of motion for relief from stay,71 did not begin to run and the automatic stay did not terminate as a result of inaction on any motion that should have been accepted by the Clerk in 2015.72

Conclusion

Having considered all of Mr. Barr's arguments, and having addressed those I believe have some merit, I am denying the Barr Motion. All of the relief he seeks in the non-bankruptcy for a has been discharged by virtue of the Confirmation Order and section 1141 of the Bankruptcy Code, other than the ability to obtain a correction of his DAC Report, which is not a "claim" as that term is used in section 101(5). An order will follow.