Secretary of Labor obo Robert Baumann v. MOsenecaManufacturer LLC dba American Tripoli

Plain-English summary

An ALJ found that American Tripoli discriminated against miner representative Robert Baumann and ordered $10,552 in backpay plus interest, along with civil penalties. The operator appealed and sought to stay the backpay award after MSHA warned that nonpayment could lead to enforcement action. The Commission majority held that American Tripoli failed all four requirements for extraordinary stay relief: likelihood of success, irreparable harm, lack of harm to Baumann, and public interest. It found that monetary loss was recoverable, continued nonpayment harmed Baumann, and a stay could chill miners' safety participation. The majority also held that the backpay order could be enforced while appellate review was pending. Commissioners Althen and Rajkovich dissented, reasoning that backpay was not due until the order became final.

Decision snapshot

• Cited authority: 30 U.S.C. §§ 814(a), 815(c)(2), and 823(d)(1)
• Outcome: The motion to stay enforcement of the backpay award was denied.
• Key point: A pending appeal does not itself justify delaying backpay, and the operator must substantiate every factor required for a stay.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

1331 PENNSYLVANIA
AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004‑1710

:

SECRETARY OF LABOR, :

MINE SAFETY AND HEALTH
:

ADMINISTRATION (MSHA)
:

O/B/O ROBERT BAUMANN
:

:

v. : Docket
No. CENT 2023-0251-DM

:

MOSENECAMANUFACTURER, LLC
:

D/B/A
AMERICAN TRIPOLI :

BEFORE:
Jordan, Chair; Althen, Rajkovich, Baker,
and Marvit, Commissioners

ORDER

BY:
Jordan, Chair; Baker and Marvit, Commissioners

This
proceeding arises under section 105(c)(2) of the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. § 815(c)(2) (2018) (“Mine Act” or “Act”).[1]
On June 26, 2024, the Commission received from MOSenecaManufacturer, LLC d/b/a
American Tripoli (“American Tripoli”) a motion to stay enforcement of the
Administrative Law Judge’s May 23, 2024 decision awarding backpay after finding
that the operator had discriminated against miner Robert Baumann in violation
of section 105(c) of the Mine Act. For the reasons that follow, we deny the
operator’s motion.

I.

Factual and Procedural Background

At
the beginning of 2023, miner Robert Baumann worked at the MOSenecaMfr LLC mine.
In March 2023, he was elected miner representative. On April 11-12, 2023,
Complainant Baumann walked around with MSHA during an inspection, which yielded
a section 104(b) withdrawal order. On April 17, 2023, American Tripoli
terminated Baumann’s employment. After Baumann’s termination, he was unemployed
for 62 days and collected unemployment benefits. ALJ Dec. at 46, n.34. Baumann
has been employed with Cherokee County Road and Bridge since July 24, 2023. Sec’y
Post Hrg. Br. at 29.

On
April 25, 2023, Complainant Baumann filed a discrimination complaint with the
Mine Safety and Health Administration (“MSHA”) and the Secretary of Labor
brought a discrimination case on Baumann’s behalf alleging discrimination and
interference. A hearing was held by a Commission Administrative Law Judge, and
on May 23, 2024, the Judge issued a decision finding that American Tripoli had
discriminated against Baumann in violation of section 105(c) of the Mine Act. The
Judge ordered that American Tripoli pay a civil penalty in the amount of
$15,000.00 for the discrimination violation and $17,500.00 for the interference
violation. ALJ Dec. at 50. He also awarded backpay and interest to Baumann in
the amount of $10,552 plus interest accrued to the actual date of payment. ALJ
Dec. at 51.

On
June 18, 2024, the Commission ordered sua sponte review on whether the
Judge’s decision is contrary to law regarding the meanings and applications of
the “discrimination” and “interference” provisions in complaints brought
pursuant to section 105(c) of the Mine Act, and whether the provisions are ambiguous
and deserving of deference to the Secretary’s interpretation. Three days later,
American Tripoli filed a petition for discretionary review challenging the
Judge’s findings of discrimination and interference as well as the Judge’s
award of backpay as arbitrary and capricious. On June 26, American Tripoli
filed this motion to stay enforcement of the backpay award after MSHA notified
it that if it did not pay the ordered backpay, it would issue a citation or
order against the operator that could result in closure of the mine.[2]
The Commission granted review of the operator’s petition on June 27.

II.

Disposition

American
Tripoli argues that under section 113(d)(1) of the Mine Act, it is not required
to make payment to Mr. Baumann as ordered by the Judge because the decision is
currently on appeal and has not become a final order of the Commission.[3]
The Secretary responds that an operator must comply with an order issued under
the Mine Act regardless of whether it is final. She asserts that: “The
philosophy of review of . . . the [Mine] Act[] is that operators are to comply
with administrative orders first and litigate their merits later.” Eastern
Assoc. Coal Co., 2 FMSHRC 2467, 2471 n.6 (Sept. 1980) (discussing orders
issued by MSHA). The Secretary notes that section 104(a) empowers her to issue
a citation for non-compliance with an order—not a “final” order only. 30 U.S.C.
814(a).

In Secretary
on behalf of Price and Vacha v. Jim Walter Res., Inc., 9 FMSHRC 1312 (Aug.
1987), the Commission held that a party seeking a stay must make an adequate
showing with respect to the four factors set forth in Virginia Petroleum
Jobbers Association v. Federal Power Commission, 259 F.2d 921, 925 (D.C.
Cir. 1958): (1) a likelihood that the moving party will prevail on the merits
of its appeal; (2) irreparable harm to it if the stay is not granted; (3) no
adverse effect on other interested parties; and (4) a showing that the stay is
in the public interest. See also UMWA on behalf of Franks & Hoy
v. Emerald Coal Res., LP, 35 FMSHRC 2373, 2374 (Aug. 2013).

The
Commission made clear that a stay constitutes “extraordinary relief.” Id.;
see also W.S. Frey Co., 16 FMSHRC 1591 (Aug. 1994). The burden is on the
movant to provide “sufficient substantiation” of the requirements for the stay.
Stillwater Mining Co., 18 FMSHRC 1756, 1757 (Oct. 1996). Where a
probability of success on the merits is established, an inadequate showing with
regard to the other three factors nevertheless still prevents the grant of a
stay pending review. Virginia Petroleum, 259 F.2d at 926; see also
Sec’y of Labor on behalf of Rodriguez v. C.R. Meyer and Sons Co., 35
FMSHRC 811, 812-13 (Apr. 2013).

As
with all Commission cases considering a motion for stay, requests for a stay of
a Judge’s award of monetary damages pending appeal of a section 105(c) merits’
decision are considered on a case-by-case basis and are also analyzed under Virginia
Petroleum. See UMWA on behalf of Franks & Hoy, 35 FMSHRC
at 2374 (denying motion to stay enforcement of Judge’s backpay award pending
appeal on the grounds that the application failed three of the four prongs of Virginia
Petroleum);[4]
Sec’y on Behalf of McGary and Bowersox v. the Marshall County Coal Co.,
38 FMSHRC 220, 222 (Feb. 2016) (granting stay of civil penalty award in
discrimination proceeding where appeal before Commission was pending and the
Secretary did not oppose and would not be prejudiced).

The
legislative history of the Mine Act is clear that the anti-discrimination
provisions of the Act are intended to encourage miners to “be active in matters
of safety and health” and to “play an active part in the enforcement of the
Act” so as to increase the effectiveness of the Act. S. Rep. No. 95-181, at 35
(1977). The remedial goal of section 105(c) is to restore the victim of illegal
discrimination to the situation he would have occupied but for the
discrimination.” Sec’y of Labor and UMWA v. Jim Walter Res., Inc., 18
FMSHRC 552, 561 (Apr. 1996); Sec’y on behalf of Dunmire and Estle v.
Northern Coal Co., 4 FMSHRC 126, 142 (Feb. 1982); Ronald Tolbert v.
Chaney Creek Coal Corp., 12 FMSHRC 615, 618 (Apr. 1990). In determining
backpay, the Commission seeks to make a miner whole and return them to their
status before illegal discrimination occurred.[5]
Sec’y on behalf of Clayton Nantz v. Nally & Hamilton Enterprises, Inc.,
16 FMSHRC 2208, 2218 (Nov. 1994), citing Meek v. Essroc Corp., 15
FMSHRC 606, 617 (April 1993) (internal citations omitted).

A. Virginia
Petroleum Test

We
conclude that American Tripoli has failed to satisfy the four Virginia
Petroleum factors.

1. Likelihood
   that American Tripoli Will Prevail on Appeal

American
Tripoli argues that due to the number of errors committed in the Judge’s
decision and given the recent change in deference, there is a likelihood of
success on the merits. A.T. Reply Br. at 3.

The
number of alleged errors, if any, in the Judge’s decision has yet to be
determined. The operator cannot make a showing that there is a likelihood it
will prevail by simply making a broad allegation that the ALJ made a number of
errors. However, even if errors are found, it is not clear that said errors
would necessarily be fatal to the Judge’s ultimate finding of discrimination or
his award of backpay. Moreover, the operator relies on a vague reference to a recent
“change in deference,” but fails to specifically identify the “change” referred
to and provides no explanation as to how this change will affect the current stay
factors under Virginia Petroleum, particularly in the context of the
Mine Act.[6]
This is insufficient to prove a likelihood of success on appeal. Therefore,
American Tripoli fails to meet this factor.

2. Irreparable
   Harm to American Tripoli if Stay is Denied

American
Tripoli argues that it would suffer irreparable harm because if payment is made
to Mr. Baumann and this Commission reverses the decision, there is no
procedural mechanism for it to recover its money. A.T. Reply Br. at 3.

The
Commission has recognized that “[e]conomic loss does not, in and of itself,
constitute irreparable harm.” Franks & Hoy., 35 FMSHRC at 2374
(citing Wisconsin Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985) (denying
application for stay of enforcement of Judge’s discrimination judgment in part
because it saw no irreparable harm to operator should it prevail); see also
Al Otro Lado v. Wolf, 952 F.3d 999, 1008 (9th Cir. 2020) (“Mere
injuries, however substantial, in terms of money, time and energy necessarily
expended ... are not enough.”) (citing Sampson v. Murray, 415
U.S. 61, 90 (1974)). The Commission has also noted that an operator can seek
reimbursement from a complainant in the event the Commission overturns the Judge’s
finding of discrimination. Franks & Hoy, 35 FMSHRC at 2374; see
also Wisconsin Gas Co. v., 758 F.2d at 674, citing Virginia
Petroleum, 259 F.2d at 925 (“The possibility that adequate compensatory or
other corrective relief will be available at a later date, in the ordinary
course of litigation weighs heavily against a claim of irreparable harm.”); In
re NTE Connecticut, LLC, 26 F.4th 980, 990 (D.C. Cir. 2022) (reasoning that
“in most circumstances financial harms can be remedied through subsequent legal
action.”).

Courts
have further held that “[r]ecoverable monetary loss may constitute irreparable
harm only where the loss threatens the very existence of the movant’s business.”
Wisconsin Gas Co., 758 F.2d at 674, citing Washington
Metropolitan Area Transit Comm’n v. Holiday Tours, Inc., 559 F.2d
841, 843 n.2 (D.C. Cir. 1977); Am. Passage Media Corp. v. Cass Commc’ns, Inc.,
750 F.2d 1470, 1474 (9th Cir. 1985) (“[t]he threat of being driven out of
business is sufficient to establish irreparable harm.”).

Here,
the operator has been ordered to pay Baumann $10,552. However, case law
dictates that economic loss alone is insufficient to establish irreparable
harm. Additionally, American Tripoli has not alleged that paying Baumann the
$10,522 would lead to the extinction of its business. Thus, the operator has
not demonstrated irreparable harm.

3. Adverse
   Effect on Complainant Baumann

American
Tripoli implies that Baumann will suffer no adverse effect from a stay of the
Judge’s decision because interest will accrue on the money award while the
appeal is pending, and the miner will be able to enforce his rights through
MSHA-issued citations if the Judgment is not immediately satisfied once there
is a final order by this Commission. A.T. Reply Br. at 4. It argues, however, that
Baumann’s failure to return the money and the operator’s inability to recover
the money through administrative remedy will adversely affect the operator. It
laments that it would be forced to institute a civil suit against Baumann to
attempt recovery of the money paid to him. A.T. Reply Br. at 3.

The
Secretary responds that American Tripoli has not demonstrated that a stay would
not adversely affect Baumann. She maintains that the miner has already been
adversely affected by the operator’s failure to pay him, and that it is common
sense that for Baumann to continue to go unpaid is to experience an adverse
effect. She asserts that the operator will suffer no lasting adverse effect
without the stay, and American Tripoli can recover the money if it prevails on
appeal. Sec’y Resp. Br. at 6-7.

We
agree with the Secretary. The Commission has observed that “[t]he remedial goal
of section 105(c) is to ‘restore the [victim of illegal discrimination] to the
situation he would have occupied but for the discrimination.’ . . . ‘Unless
compelling reasons point to the contrary, the full measure of relief should be
granted to [an improperly] discharged employee.’” Jim Walter Res., 18
FMSHRC at 561, citing Sec’y ex rel. Bailey v. Arkansas-Carbona Co., 5
FMSHRC 2042, 2049 (Dec. 1983). Here, American Tripoli fails to put forth any
substantive reason why a stay would not adversely affect Baumann at this time or
why Baumann would not need his backpay award right away.

4.
Public Interest

American
Tripoli argues that Baumann’s failure to return the money and the operator’s
inability to recover the money through administrative remedy is also contrary
to the public’s interest. A.T. Reply Br. at 3. The Secretary maintains that there
is a clear public interest in protecting miners’ section 105(c) rights and that
Congress intended miners to play an active part in enforcement and should be
encouraged to participate. She asserts that this policy is expressed, in part,
by the Mine Act’s remedies for discrimination, which include “back pay and
interest.” 30 U.S.C. 815(c)(2). The Secretary argues that deprivation of wages
is sure to deter miners from exercising their rights. Sec’y Resp. Br. at 7-8.

First,
American Tripoli’s assertions regarding its inability to recover the backpay
wages and Baumann’s suspected future failure to return the money is purely
speculative. Second, the operator offers no reason why a stay here would be in
the public’s interest. As stated by the Secretary, Congress intended miners to
“play an active part in the enforcement of the Act,” and recognized that “if
miners are to be encouraged to be active in matters of safety and health, they
must be protected against… discrimination
which they might suffer as a result of
their participation.” S. Rep. No. 95-181, at 35 (1977). Thus, we conclude that staying
enforcement of the Judge’s order would have a chilling effect on other miners
at the operator’s mine who are aware that Baumann lost his job after taking an
active role in safety, contrary to the operator’s instructions. Such an outcome
clearly runs counter to the public’s interest and Congress’ intent. Consequently,
American Tripoli has failed to carry its burden and show that a stay is in the
public’s interest.

Finally,
as to the operator’s argument that the Judge’s decision is not enforceable
because it is not a final order of the Commission under section 113(d)(1) of
the Mine Act, we disagree. Interpreting the Mine Act as to require a final, fully
adjudicated order on the complaint, before a Judge’s order of backpay can be
enforced, would be inconsistent with the expressed intent of Congress. In the
Senate Report that accompanied the Mine Act, Congress recognized that
“complaining miners [ ] may not be in the financial position to suffer even a
short period of unemployment or reduced income pending the resolution of the
discrimination complaint.” Cobra Nat. Res. v. FMSHRC, 742 F.3d 82, 84
(4th Cir. 2014). Complainant Baumann lost 62 days of employment, and a Judge
has ordered that he be made whole. Staying the order would prolong any
financial hardship suffered by the miner.

III.

Conclusion

Upon
consideration of American Tripoli’s motion and the Secretary’s opposition, we
conclude that American Tripoli has not sufficiently substantiated the four
factors required to justify staying the Judge’s decision.

Accordingly,
the operator’s motion for a stay is denied.

/s/ Mary Lu Jordan

Mary Lu Jordan, Chai

/s/ Timothy J. Baker

Timothy J. Baker, Commissioner

/s/ Moshe Z. Marvit

Moshe Z. Marvit, Commissioner

Commissioners
Althen and Rajkovich, dissenting:

We
would find that payment of a backpay award is not due unless and until the
order requiring payment becomes a final order of the Commission. Accordingly,
we dissent.

A
Judge’s decision on the merits of a discrimination complaint is not final upon
issuance. See Sec’y on behalf of Bernardyn v. Reading Anthracite Co., 21
FMSHRC 947, 949 (Sept. 1999). Rather, a Judge’s decision “shall become a final
decision of the Commission 40 days after its issuance unless within such period
the Commission has directed that such decision shall be reviewed by the
Commission.” 30 U.S.C. §823(d)(1). Here, the Judge’s decision has been appealed
and is currently before the Commission on review. Based on the text of the Mine
Act, the Judge’s order has not become final, and the Commission has yet to
issue a decision. The question of whether American Tripoli engaged in
discrimination—and whether the complainant is therefore entitled to a backpay
award— is not yet resolved.1

As
the Secretary notes, the Commission has held that temporary reinstatement
payments may be enforced even when an order is on appeal.2 See
Sec’y ex rel. Saldivar v. Grimes Rock, Inc., 44 FMSHRC 725 (Aug. 2022). However,
we have also clearly established that backpay and temporary reinstatement are
separate mechanisms with different underlying principles. North Fork Coal
Corp., 33 FMSHRC 589, 592-93 (Mar. 2011). The purpose of temporary
reinstatement is to allow a miner to earn a living while the discrimination
complaint is pending, while backpay is designed to make the miner whole after
it has been established that discrimination occurred. Id. Temporary
reinstatement sustains a miner until there is a final order, at which
point any appropriate backpay comes into play. See 30 U.S.C. § 815(c)(2)
(providing for miners to be temporarily reinstated “pending final order on the
complaint”).

As a
practical matter, this distinction means that any concerns regarding a miner’s
financial status while a merits complaint is pending should be addressed
through temporary reinstatement, rather than by requiring pre-payment of a
final award to which the complainant may not ultimately be entitled. Additionally,
interest would accrue on the backpay award during the pendency of the appeal,
so complainants who succeed on appeal are ultimately compensated for the
“delay” in awaiting a final order. See 30 U.S.C. § 815(c)(2).

Essentially,
the question before us is whether American Tripoli is required to pay the
ordered backpay award prior to the Commission’s resolution of the merits case
on appeal. The majority concludes that payment cannot be delayed, because
American Tripoli has failed to substantiate the four factors required to
justify staying the Judge’s decision. We dissent, not because we would find the
four factors substantiated, but because the order requiring payment is not yet
final.

/s/ William I. Althen

William I. Althen, Commissioner

/s/ Marco M. Rajkovich, Jr.

Marco M. Rajkovich, Jr., Commissioner

Distribution
List:

Russell
Tidaback

Jordon
Tidaback

American
Tripoli

222
Oneida Street

Seneca,
MO 64865

[email protected]

[email protected]

Robert
Baumann

[email protected]

Laura
O’Reilly, Esq.

U.S.
Department of Labor

2300
Main Street, Suite 10100

Kansas
City, MO 64108

[email protected]

Elaine
M. Smith, Esq.

Quinlan
B. Moll, Esq.

U.S.
Department of Labor

2300
Main St., Suite 10100

Kansas
City, MO 64108

[email protected]

[email protected]

Susannah M. Maltz, Esq.

U.S.
Department of Labor

Office
of the Solicitor

U.S.
Department of Labor

Mine
Safety and Health Division

201
12th Street South, Suite 401

Arlington,
VA 22202-5452

[email protected]

Marcus
D. Reed, Esq.

Office
of the Solicitor

U.S.
Department of Labor

Mine
Safety and Health Division

201
12th Street South, Suite 401

Arlington,
VA 22202-5452

[email protected]

Emily
Toler Scott, Esq.

Counsel
for Appellate Litigation

Office
of the Solicitor

U.S.
Department of Labor

Mine
Safety and Health Division

201
12th Street South, Suite 401

Arlington,
VA 22202-5452

[email protected]

April
Nelson, Esq.

Associate
Solicitor

Office
of the Solicitor

U.S.
Department of Labor

Mine
Safety and Health Division

201
12th Street South, Suite 401

Arlington,
VA 22202-5452

[email protected]

Melanie
Garris

U.S.
Department of Labor

Office
of Civil Penalty Compliance

Mine
Safety and Health Review Commission

201
12th Street South, Suite 401

Arlington,
VA 222-2-5452

[email protected]

Administrative
Law Judge William B. Moran

Federal
Mine Safety and Health Review Commission

Office of the Chief Administrative Law Judge

1331
Pennsylvania Avenue, NW, Suite 520N

Washington,
DC 20004-1710

[email protected]

Chief
Administrative Law Judge Glynn F. Voisin

Federal
Mine Safety & Health Review Commission

Office
of the Chief Administrative Law Judge

1331
Pennsylvania Avenue, NW, Suite 520N

Washington,
DC 20004-1710

[email protected]

[1] 30 U.S.C. § 815(c)(2) provides in pertinent part:

Any
miner . . . who believes that he has been discharged, interfered with, or
otherwise discriminated against by any person in violation of this subsection
may, within 60 days after such violation occurs, file a complaint with the
Secretary alleging such discrimination. Upon receipt of such complaint, the
Secretary shall forward a copy of the complaint to the respondent and shall
cause such investigation to be made as he deems appropriate. Such investigation
shall commence within 15 days of the Secretary’s receipt of the complaint, and
if the Secretary finds that such complaint was not frivolously brought, the
Commission, on an expedited basis upon application of the Secretary, shall
order the immediate reinstatement of the miner pending final order on the
complaint.

[2] American Tripoli seeks a stay of enforcement of the
backpay only because the Secretary is not seeking immediate enforcement of the
civil penalty. A.T. Mot. at 2; Sec’y Resp. at 2, n.2.

[3]
Section 113(d)(1) of the Mine Act states that:
“The decision of the administrative law judge of the Commission shall become
the final decision of the Commission 40 days after its issuance unless within
such period the Commission has directed that such decision shall be reviewed by
the Commission in accordance with paragraph (2).” 30 U.S.C. §823(d)(1).

[4]
In UMWA on behalf of Franks & Hoy,
the Commission denied the operator’s motion for stay, noting that immediate
payment of backpay to compensate for two miners’ respective seven-day
suspensions would “minimi[ze] the harm to miners from actions which may have
been discriminatory.” 23 FMSHRC at 2374-75. Accordingly, our dissenting
colleagues’ suggestion that the Commission only applies the Virginia
Petroleum Jobbers factors to analyze motions to stay when an Order of
Temporary Reinstatement is at issue is erroneous.

[5] Baumann obtained alternative employment relatively
soon after his discharge and the Secretary did not seek the remedy of temporary
reinstatement pursuant to section 105(c)(2). Had the Secretary sought an order
of temporary reinstatement for the miner’s non-frivolous filing of a
discrimination complaint, the Mine Act would have required Baumann to be
immediately reinstated to his former position at American Tripoli.

[6] We believe the operator is referring to the Supreme
Court’s recent decision in Loper Bright Enterprises v. Secretary of
Commerce, et al., 144 S.Ct. 2244, (June 28, 2024). This decision overturned
the 40-years old Chevron doctrine, which has instructed courts to defer
to a federal agency’s reasonable interpretation of ambiguous statutory language
where that agency is tasked with implementation or enforcement of said law, and
which has also allowed courts to look to the legislative history of an
ambiguous law. See Chevron, U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984).

1 Notably, the Secretary has agreed to delay payment of the civil
penalties that the Judge assessed concurrently with the backpay award. The
pending nature of the case is one reasonable explanation for the Secretary’s
decision not to pursue immediate payment of the ordered civil penalties.

2 The Secretary also cites Eastern Assoc. Coal Co. for the
general proposition that operators must “comply with administrative orders
first and litigate their merits later.” 2 FMSHRC 2467, 2471 n.6 (Sept. 1980). In
that case, an operator challenged the validity of a section 103(f) withdrawal
order after complying with the order, and a mootness argument was raised and
rejected. A brief footnote finding that an operator’s compliance with an order
issued by MSHA did not deprive the Commission of jurisdiction is of limited
precedential weight when determining if an operator must comply with a Judge’s
non-final backpay award.

More
narrowly, the majority notes that the Commission has denied a motion to stay
enforcement of a backpay award in a previous case. UMWA on behalf of Franks
& Hoy, 35 FMSHRC 2373 (Aug. 2013). We note that the stay was initially
granted on a temporary basis. Regardless, we maintain that the stay issue in
that case was wrongly decided.