the plaintiff to substantial fines, penalties, fees, costs and expenses.
As the plaintiff logically contends, the situation is not unlike that existing in NLRB vs. Capitol Fish Company, 294 F.2d 868, 48 LRRM, 3067 (Fifth Circuit 1961). Now, in that case, Capitol Fish Company case, the respondent contended that the findings of the examiner were not supported by substantial evidence. That case involved a petition by the National Labor Relations Board for enforcement of its order. There the moving party contended that it had been denied the right to introduce material evidence based upon the contention that the general counsel's refusal to permit the attorney who investigated the case to testify and the trial examiner's quashing of the subpoena issued to the attorney constituted a violation of due process. There, the report shows, that "At the outset of the hearing, the respondent moved that the hearing be postponed "until such time as the General Counsel grants permission for Mr. Miller to testify.' The trial examiner denied the motion on the ground that the general counsel had already denied the request. The investigating attorney was present and represented the general counsel at the hearing. Another Board attorney moved to quash the subpoena on the grounds that "the permission to testify had been denied and the material is irrelevant anyway.' The trial examiner granted the motion and revoked the subpoena."
"The unrebutted testimony of one Robert Poole, who voluntarily left Capitol Fish Company for a better paying job, supported the respondent's contention that the investigating attorney's testimony would have an important bearing on the credibility of all of the witnesses who testified against Capitol Fish."
The court there noted in remanding the record for further proceedings as follows: "The record indicates that the trial examiner did not consider whether the General Counsel was right or wrong in refusing to allow the investigating attorney to testify."
Now, in Capitol Fish, the court was asked to look back and determine whether due process had been afforded the plaintiff. Here we are asked to look forward and assume that due process will be denied.
Notwithstanding grave doubts concerning the continuing vitality of the Fay exception, as reflected in the cases cited above, and notwithstanding some doubts as to plaintiff's characterization of the process due it under the Fifth Amendment, the Court will assume jurisdiction for the purpose of this hearing and, in order to expedite consideration of this matter, will excuse the so-called exhaustion requirement.
To obtain preliminary injunctive relief, the plaintiff must demonstrate, one, that irreparable injury will occur if relief is not granted until a final adjudication on the merits can be made; two, that there is a reasonable probability of success on the merits; three, that the possibility of harm to the non-moving party, as well as to any other interested party, will be minimal; and, four, that harm to the public, when relevant, will not be likely. See Continental Group, Inc. v. Amoco Chemicals Corp., 614 F.2d 351 (Third Circuit 1980). Accord, Kennecott v. Smith Corp., 637 F.2d 181 (Third Circuit 1980), Fitzgerald v. Mountain Laurel Racing Corp., 607 F.2d 589 (Third Circuit 1979).
To prove "irreparable injury" plaintiff must show an "imminent threat" rather than the mere "possibility of remote future injury." Again, see Continental Group, Inc. v. Amoco. And also see generally Perkins v. Wagner, 513 F. Supp. 904 (E.D.Pa.1981); and Kocher Coal Co. v. Marshall, 497 F. Supp. 73 (E.D.Pa.1980).
Thus, as stated, the burden in this proceeding rests upon the plaintiff to show irreparable injury, and this must be in the nature of an imminent threat as opposed to a possibility of remote injury in the future.
We conclude on the basis of the pleadings filed, there having been no testimony produced, that the plaintiff has failed to meet this burden. Plaintiff asserts or finds "irreparable harm" in that it may be prevented from receiving a full and fair administrative hearing, that it may be denied an adequate administrative remedy and suffers "substantial economic harm" by loss of goodwill, may suffer a temporary plant shutdown during the hearing, loss of sales, loss of profit and suffer legal costs and expenses. Plaintiff also fears, and understandably asserts, that defendants' refusal to permit employees to testify and to produce documentary evidence will irreparably harm plaintiff for the reason that plaintiff has no means of obtaining this information.
Clearly, the economic harm which the plaintiff asserts, however substantial, will not support the issuance and the granting of injunctive relief such as is sought in the case. See Oburn v. Shapp, 521 F.2d 142 (Third Circuit 1975); nor will litigation expenses or substantial and unrecoupable costs justify the grant of such extraordinary relief. See Renegotiation Board v. Bannercraft Clothing Co., 415 U.S. 1, 94 S. Ct. 1028, 39 L. Ed. 2d 123 (1974). Likewise, and most importantly, internal appellate procedures within the Board framework, as well as opportunity for review by the Court of Appeals, will provide and should provide the plaintiff with adequate remedies for any deprivation or violations of its right to a full and fair administrative hearing.
Accordingly, we find and conclude that plaintiff has failed to demonstrate irreparable harm. This finding alone suffices to warrant denial of the requested injunctive relief. See Commonwealth of Pennsylvania ex rel. Creamer v. United States Department of Agriculture, 469 F.2d 1387 (Third Circuit 1972).
An appropriate order will therefore be entered denying the injunctive relief. This conclusion renders moot the remainder of plaintiff's claims given an immediate hearing as scheduled, and the complaint will accordingly be dismissed sua sponte. See Bryson v. Brand Insulations, Inc., 621 F.2d 556 (3rd Cir.1980).
In reaching our conclusion, we assume that the plaintiff will pursue its contentions before an impartial Administrative Law Judge with the vigor and the vitality evident in these emergency proceedings before this Court in which event the administrative abuses alleged will surely surface and become the subject of correction and appropriate remedy either by the Administrative Law Judge or the appellate court. Further intrusion by this Court into the administrative and appellate procedures mandated by Congress is not warranted. An appropriate order will therefore be entered.
And finally, I desire to express our appreciation to counsel for their sacrifice in giving us this, the first day of a long holiday weekend, to accommodate the disposition of this emergency hearing. Thank you very much, gentlemen, and unless there is something further, court is adjourned.
(Whereupon, at 10:37 a.m. court was adjourned.)
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