*

NLRB disagrees with 5th Circuit's contentions about

transfer

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5th Circuit panel suggested NLRB told California judge to

"ignore" its orders

By Nate Raymond

April 4 (Reuters) - 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.

That transfer was ordered on Feb. 15 by U.S. District Judge

Rolando Olvera, who concluded "the most substantial part of the

events" giving rise to the lawsuit against the rocket and

satellite maker happened in California, not Texas.

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 ( AMZN ), Starbucks ( SBUX ) 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

Read more:

SpaceX faces hearing on engineers fired after criticizing

Elon Musk over sexism

SpaceX loses bid to keep challenge to NLRB structure in

Texas court

Ex-SpaceX workers seek to intervene in company's lawsuit

against NLRB

SpaceX sues US agency that accused it of firing workers

critical of Elon Musk

SpaceX illegally fired workers critical of Elon Musk, US

labor agency says

SpaceX, NLRB duel over proper venue for attack on agency's

structure

Amazon ( AMZN ) joins companies arguing US labor board is

unconstitutional

(Reporting by Nate Raymond in Boston)