John Fry is a student at Harvard Law School.
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.
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November 1
Dockworkers strike to protest arms shipments; Weil closes its doors.
October 30
Sectoral bargaining could blunt A.I. job loss; Gen-Z job searchers stare into the void.
October 29
Dolores Huerta, labor leader, feminist, and civil rights icon, dies at 96.
October 28
The Writers Guild of America East provides writers with access to software that protects their work from AI scraping, and city workers in Oregon reach a tentative agreement after a six-day strike.
October 27
Some California union locals defy their statewide leadership to back the state’s billionaire tax proposal; a Brown University technology center releases a map of the hidden global workforce behind AI; the National Women's Soccer League and its players union settle six grievances.
October 26
Harvard dining workers authorize strike; New York City bans horse carriages; Brooklyn nurses rally in support of colleague.