A&J Auto Sales v . USA CV-98-294-SD 06/24/98 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

A & J Auto Sales, Inc.

v. Civil No. 97-294-SD

United States of America

O R D E R

The United States has petitioned the court for a limited

hearing of the above-captioned case. According to the

petitioner, the court's "[o]rder revealed an unanticipated

interrelationship between certain issues." Motion for Limited

Rehearing at 1 . Upon inspection, however, the court finds that

the government's request is nothing more than an attempt to

reargue an issue that has already been decided; i.e., the proper

definition of the term willful in section 362(h) of the

Bankruptcy Code. See

(h).

The question is one of statutory interpretation, over which

courts have disagreed. The United States' argument is based on

the court's finding that while section 362(h) mandates awarding

damages to individuals injured by a willful violation of the

automatic stay, the bankruptcy court's civil contempt power under

section 105 allows the court discretion to sanction other stay

violations. According to the government, this holding "suggests a powerful policy reason to modify the Court's ruling regarding

willfulness." Motion for Limited Rehearing at 3 . The court,

however, finds that this new argument is one the government

merely chose not to make in the original appeal. At that time,

the United States argued that the bankruptcy court's contempt

power does not allow it to sanction violations of the stay. All

of the government's other arguments were raised in the original

appeal, and have been duly considered by the court. A petition

for rehearing is not intended to allow the petitioner to reargue

its case. See Anderson v . Knox,

(9th Cir.

1962). Furthermore, although the United States decries the

court's finding as likely to lead to the issuance of

"impermissible advisory opinions," the modification the

government seeks would have no effect on the rights and

liabilities of the parties to this case.

Conclusion

For the abovementioned reasons, the United States' Motion

for Limited Rehearing is denied.

SO ORDERED.

Shane Devine, Senior Judge United States District Court June 2 4 , 1998 cc: Diane M . Puckhaber, Esq. Beth A . Westerman, Esq. Karen A . Smith, Esq. Paul M . Gagnon, Esq. George Vannah, Clerk, US Bankr. Ct. 2