The National Labor Relations Board is defending its lawyers' actions after a federal appeals court suggested they had urged a California federal judge to "ignore" its order to have SpaceX's lawsuit challenging the labor board's structure transferred back to the Texas court it was filed in.
The NLRB on Wednesday told the New Orleans-based 5th U.S. Circuit Court of Appeals that it disagreed with its conclusion that it retained jurisdiction over the case once it was sent to Los Angeles and that "zealous advocacy" required the agency to encourage a judge there to decline to send it back.
"Thus, the NLRB urged that court, not to ignore this Court’s order, but to acknowledge it and respectfully decline transfer," the NLRB said in a brief.
The agency's explanation followed a Monday order from a three-judge 5th Circuit panel demanding answers from two NLRB attorneys about calls agency attorneys made to the California court and "incorrect" representations the agency made to the appeals court about the status of the transfer.
The 5th Circuit panel stayed the transfer order on Feb. 19 to allow SpaceX to pursue an appeal. It later rejected the rocket company's bid to keep the case in Texas, and the company is now seeking to have the full court hear the case.
In Monday's unsigned order, the panel -- U.S. Circuit Judges Jennifer Walker Elrod, Catharina Haynes and Dana Douglas -- questioned why in the days after Feb. 19 the NLRB had gone on to urge a California judge to "ignore this court’s stay order and this court’s determination that it still had jurisdiction."
The NLRB in Wednesday's filing said its lawyers "had no intent to mislead the Court or interfere with its processes," but that they respectfully disagreed with the 5th Circuit's conclusion that it had jurisdiction at that point.
The agency argued that the best available information supported the NLRB's understanding that the transfer occurred essentially instantaneously after Olvera's Feb. 15 order and that the California judge had a separate duty to assess jurisdiction.
"Only one court may have jurisdiction at a time," the NLRB said.
SpaceX did not respond to a request for comment.
In its underlying lawsuit, SpaceX claims that the NLRB's in-house enforcement proceedings violate its constitutional right to a jury trial, and that limits on the removal of the agency's board members and administrative judges also violate the U.S. Constitution.
Amazon.com, Starbucks and Trader Joe's have made similar claims in cases pending before the labor board.
SpaceX filed the lawsuit in January in Brownsville, Texas one day after the NLRB general counsel issued a complaint alleging that the company had unlawfully fired eight employees for circulating a letter criticizing founder and CEO Elon Musk.
Federal courts in Texas have become a favored destination for legal challenges to government regulations and enforcement powers, with its high concentration of conservative judges and the fact that they are within the 5th Circuit, which is considered by many to be the most conservative U.S. appeals court.
An NLRB administrative judge held an initial hearing in the case last month but did not hear opening statements or testimony. The judge said she planned to hold further hearings beginning in May.
In re: Space Exploration Technologies, 5th U.S. Circuit Court of Appeals, No. 24-40103.
For SpaceX: Harry Johnson, Michael Kenneally, Catherine Eschbach and Amanda Salz of Morgan Lewis & Bockius
For the NLRB: David Boehm
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