SpaceX’s constitutional challenge to the NLRB will proceed in the Central District of California after the Fifth Circuit narrowly declined on Wednesday to rehear a dispute over the case’s transfer en banc. SpaceX had asked the court to reconsider its petition for mandamus to keep the suit in Texas. In Wednesday’s order, eight Fifth Circuit judges voted to reconsider the petition, and eight voted against, falling just short of the majority needed for rehearing.

Six of the judges who supported rehearing penned a fiery dissent, arguing that the Southern District of Texas applied the wrong standard for venue in its decision to transfer the case. The dissenters stress that plaintiffs in “litigation against federal agencies” must have freedom to select any appropriate venue, because the federal government has “limitless litigating resources” which place it at an advantage. The Fifth Circuit is currently under scrutiny for its attempts to prevent transfers and keep challenges to federal agencies within its jurisdiction.

The dissenters also accuse the NLRB’s attorneys of “[engaging] in shabby tactics to accomplish their own forum shopping result,” conduct they describe as “abhorrent.” These accusations arise from the aftermath of the Southern District of Texas’ initial transfer order. While a Fifth Circuit panel placed a stay upon this transfer in order to entertain SpaceX’s mandamus petition, the exact timing of several procedural details made it unclear whether the court had jurisdiction to do so, or whether the case’s transfer to California was already complete before the stay was ordered, thus stripping the Fifth Circuit of jurisdiction. Counsel for the NLRB argued to the Central District of California that it could retain the case, despite the Fifth Circuit panel’s wishes.

While this series of events outraged the rehearing dissenters, the original Fifth Circuit panel concluded on Wednesday that the NLRB’s attorneys “were not intending to violate the law.” In a per curiam order, the panel described the attorneys as having made “some errors,” ordering them to “remember to respect court rulings even as they challenge them.” One panel member found this chiding unwarranted, however, arguing that the NLRB’s attorneys engaged in “nothing more than zealous advocacy.” Focus will now shift to the merits of SpaceX’s case, which could be a bellwether for future challenges to the NLRB.