The opinion
BUTZNER, Circuit Judge,
dissenting:
The difficulty with requiring Johanna Maurice, Business Editor of the Charleston Daily Mail, to exhaust her administrative remedies is the lack of any effective administrative remedy that can address the objections that she has raised to the subpoena. Title 29 U.S.C. § 161 (1) authorizes the Board, upon petition, to revoke a subpoena “if in its opinion the evidence whose production is required does not relate to any matter under investigation, or any matter in question in such proceedings, or if in its opinion such subpoena does not describe with sufficient particularity the evidence whose production is required.” These limited statutory inquiries of the administrative process do not provide Maurice an opportunity to question the subpoena on the grounds that it violates the Attorney General’s guidelines for the issuance of a subpoena to a newspaper reporter which are set forth in 28 C.F.R. § 50.10 (1981) and the first amendment.
The Board’s regulation, 29 C.F.R. § 102 .-31(b) (1981), implementing its power to revoke subpoenas, is not broader than the grant of that power in § 161(1). The regulation must be read in the context of the statute, and it cannot be enlarged to confer jurisdiction on the Board to decide whether it is subject to the Attorney General’s guidelines and whether it can adjudicate constitutional questions.
I agree with the district court’s conclusion that the Board’s administrative remedy is “neither available nor adequate.” Under these circumstances, exhaustion would be futile, and it is not required. NLRB v. Marine Workers, 391 U.S. 418 , 426 n.8, 88 S.Ct. 1717 , 1723 n.8, 20 L.Ed.2d 706 (1968); Marsh v. County School Board, 305 F.2d 94, 98 (4th Cir. 1962). I would affirm the dis *184 trict court’s ruling that Maurice was not required to exhaust the Board’s administrative remedies for reasons fully set forth in its opinion, Maurice v. NLRB, 108 L.R.R.M. (BNA) 2883 (1981).
Also for reasons explained in the district court’s opinion, I believe the Board was obliged to comply with the policy and procedures set forth by the Attorney General in 28 C.F.R. § 50.10 (1981). The district court’s finding that the Board gave no consideration to the Attorney General’s policy, see 108 L.R.R.M. at 2885, is amply supported by the record. Consequently, I would affirm the judgment of the district court without further considering the constitutional issues on which the district court also based its opinion.