Maurice v. National Labor Relations Board

691 F.2d 180

• Court: Court of Appeals for the Fourth Circuit
• Decided: July 19, 1982
• Docket: No. 81-1615
• Status: Published

Opinions

WIDENER, Circuit Judge:

On August 12, 1980, Johanna Maurice, business editor of the Charleston Daily Mail, published an article on the closing of a Valley Camp Coal Company mine in West Virginia. Miss Maurice interviewed the president of the company, Donald Howe, quoting his statements on the reasons for closing the mine in an article she wrote for her newspaper.

The National Labor Relations Board (NLRB) began an investigation of the mine closing in October 1980. The NLRB issued a subpoena requiring Miss Maurice to testify at a hearing before an administrative law judge in June 1981. Counsel for the NLRB subpoenaed Miss Maurice as a witness to impeach the credibility of Howe with respect to information contained in the news article as to why the mine was closed.

Before the date of the hearing at which Miss Maurice was to testify, she obtained a temporary restraining order from the district court preventing the NLRB from enforcing the subpoena. The district court entered a preliminary injunction to the same effect on July 13, 1981 after a hearing. The court based the injunction in part on the NLRB’s failure to weigh the first amendment interests of Miss Maurice against its need for her testimony. The Board appeals from the grant of the temporary injunction.

Under 29 C.F.R. § 102.31(b), a person who is subpoenaed by the Board to appear at a hearing may, within five days of its service, petition the Board, or the administrative law judge conducting a hearing, to revoke the subpoena. The Board or the administrative law judge determines whether the subpoena should be revoked because the evidence it seeks is not related to an investigation of the Board, it lacks particularity, or it is invalid for “any other reason sufficient in law.” If an administrative law judge denies the petition to revoke, the decision may be appealed to the Board under 29 C.F.R. § 102.26. Miss Maurice failed to invoke the procedure provided by the NLRB regulations to challenge a subpoena, but instead sought relief immediately in the district court.

The district court erred in granting the temporary injunction. Under a long-established legal principle, a party must exhaust administrative remedies before seeking judicial relief. Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, esp. pp. 50-51, 58 S.Ct. 459, 463-64, 82 L.Ed. 638 (1938). Appellee has not shown that she would be irreparably injured by the requirement to exhaust available administrative remedies before seeking judicial relief. She can make any defense to the subpoena in the provided for administrative proceeding that she could make in the district court. The NLRB cannot even enforce its subpoena without recourse to court. Myers, p. 49, 58 S.Ct. p. 462-63. Because we find that appellee did not exhaust her administrative remedies, we express no opinion on the other matters mentioned in the briefs.

The injunctive order appealed from is vacated and the case is reversed with instructions to dismiss the case. Myers, p. 53, 58 S.Ct. p. 465.

VACATED AND REMANDED WITH INSTRUCTIONS.