NLRB Lawyers Must Tell Fifth Circuit About SpaceX Case Calls

The US Court of Appeals for the Fifth Circuit has ordered two National Labor Relations Board attorneys to explain why they were in contact with a California federal court clerk’s office, after the circuit stayed the transfer of a lawsuit to that district.

David P. Boehm and Lynn Ta, in-house lawyers for the agency, were instructed to answer by Wednesday afternoon a series of questions from a three-judge panel about their contacts with the Central District of California.

The questions include why the NLRB twice called the clerk’s office for the district in the days after the circuit issued the stay order, what information the agency learned from those calls and whether it verified it, and why a NLRB lawyer also went in-person to the clerk’s office.

The order also asks when the NLRB learned that it made “incorrect representations” about the case, including that the Central District of California had docketed the case, that the case had been numbered, and was assigned a judge.

The final question asked: “Why did NLRB encourage the Central District of California to ignore this court’s stay order and this court’s determination that it still had jurisdiction and that the case be returned in its filings before that court on February 26 (immediately after this court’s order directing that the Southern District of Texas request retransfer)?”

A spokesperson for the NLRB didn’t immediately respond to a request for comment.

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.

If the case was fully transferred to the California federal court, then the Fifth Circuit would have lost jurisdiction over the lawsuit. In that scenario, the circuit could ask the California district court to return the case back to Texas federal court so the appeals court could keep weighing the issue of where the matter should be heard, but that decision would be made at the discretion of the newly assigned judge.

The case is In re: Space Exploration Technologies, 5th Cir., No. 24-40103, 4/1/24