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June 2, 1981

NATIONAL LABOR RELATIONS BOARD, Peter w. Hirsch and William Lubbers, General Counsel, Defendants

The opinion of the court was delivered by: TROUTMAN

THE COURT: Let the record show that the plaintiff has again presented its position in support of its motion for reconsideration. This has been done in this emergency hearing in the absence of defense counsel, and we have, as we have advised plaintiff's counsel, reached a ruling in the case which, after telephone conversation with defense counsel, indicates no need for their appearance either today, if that were possible, and it is not, or on a later date.

 Although the Court, within the confines of its schedule could indeed hear the matter further next week, there seems to be no need to further postpone it. Rather it appears to the Court that the plaintiffs are indeed entitled to an early decision by this Court so that the plaintiff may exercise its remedies either before the NLRB or before the Circuit Court of Appeals or both. Accordingly, we shall, as we did on Saturday, dispose of the motion for reconsideration by way of this bench opinion, and we shall at this time rule directly and specifically on the question of jurisdiction.

 As to jurisdiction, the Court on Saturday assumed jurisdiction and then did dispose of the case on the basis of other questions involved. Today, we shall reach the issue of jurisdiction as well as other matters.

  Now, as we previously noted in our bench opinion on Saturday, the action of the NLRB cannot be challenged in an independent suit in federal district court unless the Board violated a clear statutory mandate. Leedom v. Kyne, 358 U.S. 184, 79 S. Ct. 180, 3 L. Ed. 2d 210 (1958), or the plaintiff asserts the deprivation of a constitutional right which is not obviously frivolous. Fay v. Douds, 172 F.2d 720 (2d Cir. 1949).

 To invoke the jurisdiction of this Court, plaintiff must, therefore, show that the Board "clearly breached the bounds of its proper authority as a matter of law." Machinery, Scrap Iron, etc. Employees Local 714 v. Madden, 343 F.2d 497 (7th Cir. 1965), cert. denied, 382 U.S. 822, 86 S. Ct. 53, 15 L. Ed. 2d 69 (1966), or plaintiff must show that the Board patently disregarded the bounds of its statutory jurisdiction. Grutka v. Barbour, 549 F.2d 5 (7th Cir.), cert. denied, 431 U.S. 908, 97 S. Ct. 1706, 52 L. Ed. 2d 394 (1977).

 In the case at bar, the plaintiff originally alleged that, without the requested relief, it would be prevented from receiving a full and fair administrative hearing and would suffer substantial economic harm. Plaintiff contended that the prosecution of this case, in light of the alleged admission that some of the charges lacked merit, violated the National Labor Relations Act, 29 U.S.C., 151 et seq., as well as 29 C.F.R., 101.8. Plaintiff also complained that defendants' refusal to permit NLRB employees to testify and/or produce documents essential to plaintiff's defense at the administrative hearing constituted a violation of rights secured by the Due Process Clause of the Fifth Amendment.

 Today, after one day of hearing before the Administrative Law Judge, which hearing is presently on-going plaintiff further argues that the Administrative Law Judge has ruled that he lacks power to overrule general counsel of the NLRB, and he, therefore, revoked the subpoenas in question, that he refused to consider or even read the plaintiff's motion for a pretrial ruling concerning the supposedly meritless charges to which Hoeber, H-o-e-b-e-r, adverted, and that plaintiff cannot sue the NLRB for abuse of process because of the Federal Tort Claims Act, and hence, they suffer irreparable harm.

 These additional contentions do not, in our judgment, warrant an exercise of jurisdiction permitted by the narrow exception created by Leedom v. Kyne.

 Alternatively, under the Fay doctrine, plaintiff could establish jurisdiction by alleging the deprivation of a constitutional right which is not obviously frivolous. However, the Fay doctrine never gained wide or strong support among the circuit courts. See, for example, Grutka v. Barbour, supra, Amalgamated Meat Cutters v. Allen, 423 F.2d 267 (8th Cir. 1970); Greensboro Hosiery Mills, Inc. v. Johnston, 377 F.2d 28 (4th Cir. 1967); Boire v. Miami Herald Publishing Co., 343 F.2d 17 (5th Cir.); cert. denied, 382 U.S. 824, 86 S. Ct. 56, 15 L. Ed. 2d 70 (1965). In fact, even the Second Circuit Court of Appeals, which originally promulgated the Fay doctrine has now questioned its vitality. See Utica Mutual Insurance Co. v. Vincent, 375 F.2d 129 (2nd Cir.); cert. denied, 389 U.S. 839, 88 S. Ct. 63, 19 L. Ed. 2d 102 (1967).

 In the Third Circuit, the Court of Appeals does not appear to have ever adopted this rule, particularly where, as here, the employer, the party seeking to invoke the court's jurisdiction, can bring to the attention of the appellate court all the alleged procedural irregularities of which it complains. See NLRB v. Interstate Dress Carriers, Inc., 610 F.2d 99 (3rd Cir. 1979).

 In light of these considerations and legal principles, exercise of jurisdiction by this Court under these circumstances would be inappropriate. Moreover, even if we had assumed jurisdiction previously, that is, in connection with Friday and Saturday's proceedings, plaintiff has not demonstrated any intervening events justifying or warranting reconsideration of the order denying the requested relief.

 As we explained in our bench opinion on Saturday, neither the economic harm which plaintiff fears nor the substantial and unrecoupable costs expended will support the issuance of an injunction. Here we call attention to the case of Borden, Inc. v. Federal Trade Commission, 495 F.2d 785 (7th Cir. 1974), where at page 789 the court, in discussing this issue, used the following very strong language: "Finally, the district court properly recognized that Borden's claim of irreparable injury based upon the cost and inconvenience of defending itself in administrative proceedings is not alone sufficient to justify judicial intervention in the administrative process."

 Citing Myers v. Bethlehem Corporation, 303 U.S. 41, 58 S. Ct. 459, 82 L. Ed. 638, and Renegotiation Board v. Bannercraft Clothing Co., 415 U.S. 1, 94 S. Ct. 1028, 39 L. Ed. 2d 123, both of which were cited in our bench opinion on Saturday. The Court further expressly reaffirms the rule of Myers stating that and we quote "Mere litigation expense, even substantial and unrecoupable costs, does not constitute irreparable injury." Furthermore, the internal appellate procedures within the Board framework and the ...

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