NLRB Argues ‘Good Faith’ in Calls on SpaceX Case’s Transfer

National Labor Relations Board attorneys defended their actions over a SpaceX lawsuit that had been ordered to be heard in a California federal court, after the US Court of Appeals for the Fifth Circuit suggested the agency made “incorrect” representations about the case’s status.

The NLRB attorneys said in a Wednesday court filing that they were acting “in good faith to confirm and apprise the Court of its honest belief as to case status” and “had no intent to mislead the Court or interfere with its processes.”

The statements came after the Fifth Circuit on Monday ordered a pair of in-house lawyers for the court to answer questions about contacts with the clerk’s office for the Central District of California after the SpaceX lawsuit was ordered transferred there by a trial judge in the Southern District of Texas.

If it was formally docketed with the California court and the newly assigned presiding judge declined to send the case back within the Fifth Circuit’s jurisdiction, the federal appeals court may have been forced to find it couldn’t review a Texas trial court’s decision to transfer the lawsuit.

In Wednesday’s response, the NLRB lawyers said they were simply trying to determine the status of the case after the transfer order—for both their benefit and to update the Fifth Circuit—and to determine which circuit’s case law they could refer to in future filings. They also said that the appeals court’s stay of the transfer order was not an injunction “prohibiting action relating to this case.”

The NLRB also said that it had repeatedly called the clerk’s office after they were initially told that the case had been received and assigned a case number, but found that the case itself wasn’t appearing when they searched for it on the California court’s electronic system.

They said they discovered that number had been assigned to a different case, and that when a board lawyer made an in-person visit to the clerk’s office, “the clerk made a vague statement to counsel for the NLRB to the effect that he had been receiving numerous calls about this case and had been giving everyone the wrong case number; it was unclear who, apart from the NLRB, had been given the wrong case number, or what it meant for a case number to be ‘wrong.’”

The labor board said it “disagrees with the premise” of a question asking why the board encouraged the California court “to ignore” both the circuit’s stay order and a determination that it still had jurisdiction over the case.

The NLRB lawyers said that the “best available information” supported its belief at the time that the circuit’s administrative stay “was inoperative for want of jurisdiction.”

The attorneys also said that it disagreed with the legal conclusions of a Feb. 26 per curiam order from the circuit, which said it still had jurisdiction over the SpaceX case and asked that the Texas trial court request it be transferred back.

“Only one court may have jurisdiction at a time. The transferee court was not obliged to follow the February 26 order, and zealous advocacy required the NLRB to present its legal arguments as to why it should not be followed to the Central District of California,” the lawyers wrote. “Thus, the NLRB urged that court, not to ignore this Court’s order, but to acknowledge it and respectfully decline retransfer.”

The Fifth Circuit had directed the questions to two NLRB lawyers. The response said those lawyers’ actions “were taken at the direction of NLRB legal counsel,” so the response was filed a group of those attorneys.

SpaceX is challenging the constitutionality of the NLRB in the lawsuit, which it filed in Texas in January. The Fifth Circuit is currently weighing whether to rehear en banc a mandamus petition filed by SpaceX, after a federal judge in the Southern District of Texas ordered that the case be transferred to a California court.

A three-judge panel of the Fifth Circuit last month issued a divided ruling against blocking the transfer order, with Judge Jennifer Walker Elrod dissenting.

The case is In re: Space Exploration Technologies, 5th Cir., No. 24-40103, 4/3/24