expands the court's power to award expenses. "The new language stresses the need for some prefiling inquiry into both the facts and the law to satisfy the affirmative duty imposed by the rule. The standard is one of reasonableness under the circumstances . . . . The standard is more stringent than the original good-faith formula and thus it is expected that a greater range of circumstances will trigger its violation."
Applying this standard to petitioners' conduct, it is clear that Rule 11 has been violated. Petitioners' counsel in this case must have realized that this court lacked jurisdiction of their complaint. Jurisdiction under the Mandamus Act, 28 U.S.C. § 1361, is very narrow in scope. An action in mandamus lies only where the defendant owes a clear, ministerial and non-discretionary duty. "An act is ministerial only when its performance is positively commanded and so plainly prescribed as to be free from doubt." Richardson v. United States, 465 F.2d 844, 849 (3d Cir. 1972) (en banc), rev'd. on other grounds, 418 U.S. 166, 41 L. Ed. 2d 678, 94 S. Ct. 2940 (1974). The act of setting a hearing date is in its very nature discretionary. The court has previously stated, "a court may exercise its power to issue a mandamus only when official conduct has gone far beyond any reasonable exercise of discretion . . . . In this instance, the NLRB's action cannot be characterized as arbitrary or capricious; it can only be characterized as reasonable." ( Memorandum and Order of April 11, 1985, 606 F. Supp. at 534). If counsel had reasonably considered cases arising under the Mandamus Act, it would have been realized that the court's jurisdiction thereunder is narrowly prescribed and for the court to grant the mandamus relief requested would have been clearly inappropriate.
In their memorandum in opposition to the renewed motion of respondent for attorneys' fees, petitioners attempt to reargue the merits of the complaint in mandamus. In so doing, the express findings of this court are ignored and the law is misconstrued. Petitioners argue that where a party to an administrative process alleges that the administrative agency has violated the party's procedural due process rights, the party may seek relief in mandamus despite the existence of adequate administrative remedies. In the cases cited by petitioners, the courts have held that mandamus jurisdiction will lie prior to exhaustion of administrative remedies only where exhausting such remedies would be futile, for example, where the very administrative procedure under attack is the one which the agency says must be exhausted. See, e.g., Mathews v. Eldridge, 424 U.S. 319, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976); Ellis v. Blum, 643 F.2d 68 (2d Cir. 1981).
Here, exhaustion of administrative remedies could not be characterized as futile. The alleged inadequate opportunity to present a full record could have been addressed at the hearing and a further continuance granted by the hearing officer or Board if it agreed. The Board might have found no unfair labor practice on the record then developed. The NLRB had the opportunity to redress the constitutional deprivation alleged; this was clearly a case "where pursuit of administrative remedies might ultimately render judicial disposition of such issues unnecessary." Chicago Automobile Trade Assoc. v. Madden, 328 F.2d 766, 769 (7th Cir.), cert. denied, 377 U.S. 979, 12 L. Ed. 2d 747, 84 S. Ct. 1885 (1964). In the circumstances, exhaustion of remedies could not have reasonably been viewed as futile.
Petitioner argues that setting a hearing is not a discretionary act that precludes mandamus relief. In support, White v. Mathews, 559 F.2d 852, 856 (2d Cir. 1977), cert. denied, 435 U.S. 908, 98 S. Ct. 1458, 55 L. Ed. 2d 500 (1978), is cited. The Court of Appeals there held that relief was available under the Mandamus Act to compel the Secretary of Health, Education and Welfare to lessen the time between a request for a hearing in a Social Security Disability case and the final decision. However, the court there found that the Secretary had violated a statutory mandate requiring that hearings proceed with reasonable speed, id.; the due process violation had already occurred because of the long delay in obtaining a hearing and final decision. Here, the NLRB has express statutory discretion to set hearings and its refusal to grant a three-month continuance was not unreasonable in the circumstances. The NLRB at or after the hearing might have permitted additional time to complete the record if later convinced that more time was really necessary. There would have been no deprivation of constitutional right if the ultimate NLRB decision favored petitioners even on a limited record. This court was unable to mandate conduct of the NLRB in anticipation of due process violations that had not and might not occur.
Petitioner cites some cases holding that the failure to grant a motion for continuance to obtain testimony of a critical witness deprives movant of its right to defend. See, e.g., Ungar v. Sarafite, 376 U.S. 575, 84 S. Ct. 841, 11 L. Ed. 2d 921, reh'g denied, 377 U.S. 925, 84 S. Ct. 1218, 12 L. Ed. 2d 217 (1965); DiLuigi v. Kafkalas, 437 F. Supp. 863 (M.D.Pa. 1977), vacated, 584 F.2d 22 (3d Cir. 1978), cert. denied, 440 U.S. 959, 99 S. Ct. 1500, 59 L. Ed. 2d 772 (1979). In these cases, whether a due process violation had occurred was determined after the hearing had been held; no court decided whether a hearing would be fair before the hearing. Petitioners knew or should have learned through reasonable inquiry that their constitutional claim was not ripe for court action.
Finally, petitioners attempt to reargue their claim that respondents sought relief under Section 10(j) of the Labor Management Relations Act in retaliation for petitioners' assertion of due process rights. But petitioners continue to make this argument in the wrong forum. The District Court of New Jersey, where the proceeding was pending, was fully competent to consider such a defense. Petitioners should have been aware that it would be improper for this court to intervene in a case pending in another jurisdiction.
None of the arguments presented to this court by petitioners in their forty-five page brief have altered this court's earlier conclusion concerning petitioners' conduct. The court remains of the view expressed earlier:
The flimsiness of the reasons offered by counsel for their inability to prepare for the hearing scheduled by the NLRB coupled with the obvious lack of merit in the claim for mandamus and injunctive relief convinces the court that this action has been filed to harass the NLRB and achieve delay not otherwise obtainable rather than to assert a constitutional claim in good faith. . . .
The court's view that Centra has attempted to harass the NLRB by this motion is confirmed by the nature of the subpoenas duces tecum served upon the Board's Director for Region Four, Peter Hirsch and upon the Custodian of Records. The subpoena addressed to Director Hirsch requires him to testify on behalf of Centra at a hearing on this mandamus action and to bring with him, inter alia, the following documents: 1) each and every unfair labor practice complaint issued by Region Four of the NLRB during the twelve-month period preceding February 20, 1985 and any and all extensions or postponements of the hearing date set forth in each and every such unfair labor practice; 2) each and every memorandum, note page, handwritten note, telephone slip and other document which relates to Centra's request for a postponement of the hearing date or to the request by the Board for authorization to seek relief under Section 10(j) of the NLRA. This demand for documents is extremely broad and burdensome . . . .