At
the
tech
policy
podcast Moderated
Content,
Stanford
Professors
Evelyn
Douek
and
Alex
Stamos
frequently
joke
that
Elon
Musk
is
his
own
law
school
curriculum.
And
it’s
true!
From
contracts,
to
torts,
to
the
First
Amendment,
to
SLAPP
suits,
the
man
is
a
one-man,
1L
textbook
on
wheels.
Today’s
Elon
Lesson
comes
to
us
in
CivPro,
and
is
entitled
“Why
Do
My
PACER
Alerts
—
Okay,
Fine,
Court
Listener
—
Look
Like
That?”
As
usual,
this
hot,
hot
mess
arises
from
the
Boy
Genius’s
thin,
thin
skin.
To
wit,
five
SpaceX
employees
circulated
an
open
letter
in
June
of
2022
via
SpaceX’s
internal
Microsoft
Teams
channel.
In
the
letter,
which
was
later
published
by
The
Verge,
the
employees
called
out
the
company
for
failing
to
support
diversity
and
inclusion,
as
well
as
excoriating
Musk
for
his
constant
loutish
behavior.
(Spoiler
Alert:
It
got
a
lot
worse.)
Space
X
immediately
fired
the
employees,
who
responded
by
filing
a
complaint
with
the
National
Labor
Relations
Board
(NLRB)
alleging
that
the
company
had
interfered
with
their
right
to
organize.
The
NLRB
investigated,
sustained
the
complaint,
and
set
a
March
5
hearing
before
an
administrative
law
judge
in
California,
where
the
employees
work
and
Space
X
is
headquartered.
Naturally
the
company
turned
around
and
sued
the
NLRB
claiming
that
ALJs
are
illegal.
And
they
did
it in
Texas.
In
one
sense,
suing
in
Texas
was
entirely
logical.
In
2022,
the
Fifth
Circuit
held
in
Jarkesy
v.
SEC that
ALJs
are unconstitutional.
The
case
was
argued
at
SCOTUS
in
November,
but
for
the
time
being,
there’s
a
credible
claim
that
ALJs
are
illegal
in
the
Fifth
Circuit.
But
in
another,
more
accurate
sense,
there’s
no
earthly
reason
that
a
California
company
should
be
able
to
forum
shop
its
way
into
Texas
in
a
dispute
over
a
ruling
by
ALJs
in
California
pertaining
to
employees
who
are
also
residents
of
California.
This
was
more
or
less
the
conclusion
of
Judge
Rolando
Olvera,
in
the
Southern
District
of
Texas,
who
transferred
the
case
to
the
Central
District
of
California
on
February
15.
But
before
Judge
Consuelo
Marshall
could
docket
it
in
Los
Angeles,
Space
X
petitioned
the
Fifth
Circuit
on
February
16
for
a
writ
of
mandamus
directing
Judge
Olveras
to
request
that
the
case
be
returned.
Without
opining
on
the
merits
of
Space
X’s
claim
that
it
would
be
grievously
injured
if
forced
to
go
through
with
the
March
5
NLRB
hearing,
the
Fifth
Circuit
administratively
stayed
the
transfer
on
February
19.
But
since
the
transfer
was
already
in
process,
Judge
Marshall
docketed
the
case
in
California
on
February
23.
On
the
26th,
the
Fifth
Circuit
put
out
a
testy
order
claiming
that
it
still
retained
jurisdiction
over
the
case, thank
you
very
much.
Our
court
has
not
been
stripped
of
its
jurisdiction
until
transfer
has
been
completed.
Transfer
is
not
complete
the
moment
a
case
is
electronically
sent
to
an
out-of-circuit
court.
Rather,
the
case
must
be
both
sent
and
docketed
for
a
transfer
to
be
complete.
The
appellate
panel
instructed
Judge
Olvera
to
request
that
Judge
Marshall
transfer
the
case
back,
and
both
District
judges
complied
forthwith.
This
explains
the
state
of
my
PACER
alerts,
if
not
what
the
hell
this
case
is
still
doing
in
Texas.
As
the
NLRB’s
lawyers
put
it
in
the
agency’s
response
to
the
petition
for
mandamus:
The
California
office
of
a
California
company
fires
eight
employees,
almost
all
of
them
based
in
California.
The
California
regional
office
of
the
National
Labor
Relations
Board
(“NLRB”)
engages
in
a
year-long
investigation,
finds
merit
to
charges
alleging
that
the
firings
were
unlawful,
and
issues
an
administrative
complaint
setting
the
case
for
a
California
hearing.
According
to
Petitioner
Space
Exploration
Technologies
Corp.
(“SpaceX”),
not
only
may
a
challenge
to
the
NLRB’s
proceeding
be
heard
in
Texas,
but
it
is
“clear
and
indisputable”
that
transferring
such
a
challenge
from
Texas
to
California
is
impermissible.
This
not
only
sounds
wrong,
it
is
wrong.
SpaceX’s
venue
arguments
are
meritless.
And
that
is
exactly
what
the
district
court
concluded
before
properly
transferring
the
case
to
the
Central
District
of
California.
Which
sounds
pretty
convincing.
But
this
is
the
Fifth
Circuit
so,
YMMV.
In
re:
Space
Exploration
Technologies
[Fifth
Circuit
Mandamus
Docket,
via
Court
Listener]
Space
X
v.
NLRB
[Central
Dist.
CA
Docket,
via
Court
Listener]
Space
X
v.
NLRB
[Southern
Dist.
TX
Docket,
via
Court
Listener]
Liz
Dye lives
in
Baltimore
where
she
produces
the
Law
and
Chaos substack and podcast.