Appeal of MICHAEL S. IOANE and BRICK FUNDING, INC. d/b/a BRICK PROCESSING CENTER and FIRST AMENDMENT PUBLISHERS

In the Matter of the Complaint   )  January 15, 1999           
Against                          )
                                 )
MICHAEL S. IOANE                 )
         and                     )
BRICK FUNDING, INC.              )
        d/b/a                    )
BRICK PROCESSING CENTER          )
42 West Campbell Avenue,         )
Suite 202                        )
Campbell, CA  95008-1111         )
         and                     )
FIRST AMENDMENT PUBLISHERS       )
2059 Camden Avenue, Suite 242    )
San Jose, CA 95124-2024          )  P.S. Docket No. FR 96-203 


APPEARANCES FOR COMPLAINANT:	Thomas V. Sottile, Esq.
				Wendy A. Hocking, Esq.
				Consumer Protection Law
				United States Postal Service
				Washington, DC 20260-1147


APPEARANCE FOR RESPONDENTS:	Michael S. Ioane
				2059 Camden Avenue, Suite 242
				San Jose, CA 95124-2024

POSTAL SERVICE DECISION
ON MOTION FOR RECONSIDERATION

Respondents, Michael S. Ioane and Brick Funding, Inc., doing business as Brick Processing Center and First Amendment Publishers, have filed an "Objection to Alleged/Purported Postal Service Decision."^1/ In their Objection, Respondents contend there is no evidence that (1) the stay in the pending bankruptcy proceeding has been lifted or that the Judicial Officer possesses the authority to lift the stay; (2) Respondents received a hearing and; (3) the Postal Service is an agency of the Federal government.

Respondents have not shown that the Postal Service Decision is erroneous as a matter of fact or law. Although Respondents are correct that the Judicial Officer may not lift the automatic stay provision of the Bankruptcy Code and that there is no evidence the stay has been lifted, the issuance of the Postal Service Decision, a final agency decision, did not violate the automatic stay. As an independent establishment of the Executive Branch of the United States Government,^2/ the Postal Service's exercise of its consumer protection powers^3/ under 39 U.S.C. §3005 is exempt from the operation of the bankruptcy stay under 11 U.S.C. §362(b)(4).^4/ Therefore, there was no requirement that the automatic stay be lifted before the Postal Service Decision could be issued.

Additionally, contrary to their contention, Respondents were granted an administrative hearing, which was held at their request in San Francisco, CA on November 20, 1996.^5/ Respondents' failure to attend the hearing does not support their contention that they were denied a hearing.

Respondents have failed to demonstrate that the issuance of the final decision by the Judicial Officer was erroneous or that any other grounds exist for altering or reversing the Postal Service Decision. Accordingly, Respondents' objections to the Postal Service Decision are denied and the final agency decision is affirmed.

					James A. Cohen
					Judicial Officer

1. The Postal Service Decision was issued on April 29, 1998. Under the Rules of Practice, a party may file a motion for reconsideration of a Postal Service Decision within ten days after receipt of the decision. 39 C.F.R. §952.27. As Respondents' filing was received within the ten day reconsideration period, it is being treated as a motion for reconsideration of the Postal Service Decision.

2. See 39 U.S.C. §201; 39 C.F.R. §1.1.

3. See Ngan Gung Restaurant v. New York, 183 B.R. 689, 691 (Bankr. S.D.N.Y. 1995); Brock v. Arlmont Services, Inc., 67 B.R. 111, 112 (D. Mass. 1986).

4. Section 362(b)(4) provides in part that "[t]he filing of a petition...does not operate as a 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."

5. Although Respondents were duly notified of the time and place of the hearing, they failed to appear and present evidence in support of their position.