Case 2:24-cv-01352-CBM-AGR Document 62 Filed 01/31/24 Page 1 of 8 Page ID #:527
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`UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF TEXAS
`BROWNSVILLE DIVISION
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`SPACE EXPLORATION TECHNOLOGIES
`CORP.,
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`Plaintiff,
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`v.
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`NATIONAL LABOR RELATIONS BOARD,
`et al.,
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`Defendants.
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`Civil Action No. 1:24-cv-00001
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`MOTION OF PACIFIC LEGAL FOUNDATION TO FILE BRIEF
`AS AMICUS CURIAE IN SUPPORT OF
`SPACE EXPLORATION TECHNOLOGIES CORP.’S
`MOTION FOR A PRELIMINARY INJUNCTION
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`UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF TEXAS
`BROWNSVILLE DIVISION
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`SPACE EXPLORATION TECHNOLOGIES
`CORP.,
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`Plaintiff,
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`v.
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`NATIONAL LABOR RELATIONS BOARD,
`et al.,
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`Defendants.
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`Civil Action No. 1:24-cv-00001
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`MOTION OF PACIFIC LEGAL FOUNDATION TO FILE BRIEF
`AS AMICUS CURIAE IN SUPPORT OF
`SPACE EXPLORATION TECHNOLOGIES CORP.’S
`MOTION FOR A PRELIMINARY INJUNCTION
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`Case 2:24-cv-01352-CBM-AGR Document 62 Filed 01/31/24 Page 2 of 8 Page ID #:528
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`ISSUE IN DISPUTE
`Pacific Legal Foundation (PLF) seeks leave to file the attached brief as amicus
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`curiae in support of Plaintiff Space Exploration Technologies Corp.’s (SpaceX’s)
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`Motion for a Preliminary Injunction (ECF No. 37). There is no Federal Rule of Civil
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`Procedure or local rule that addresses the filing of briefs of amicus curiae here. But
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`district courts have “broad discretion” to grant leave to file such briefs. Cina v. Cemex,
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`Inc., No. 4:23-CV-00117, 2023 WL 5493814, at *1 (S.D. Tex. Aug. 17, 2023). District
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`courts generally permit amicus curiae briefs where the “proffered information is
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`timely and useful or otherwise necessary to the administration of justice.” Id.
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`(quotation marks omitted). PLF’s proposed amicus curiae brief provides an important
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`perspective from an experienced public-interest firm with extensive experience
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`litigating separation of powers and administrative law issues in the constitutional
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`context of agency adjudications. SpaceX consents to this motion; Defendants National
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`Labor Relations Board (“NLRB”), Jennifer Abruzzo, Lauren M. McFerran, Marvin E.
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`Kaplan, Gwynne A. Wilcox, David M. Prouty, and John Doe (collectively, “NLRB
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`Defendants”) take no position on this motion.1
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`ARGUMENT
`Founded in 1973, PLF is a nonprofit, tax-exempt California corporation
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`established for the purpose of litigating matters affecting the public interest. PLF
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`provides a voice in the courts for limited constitutional government, private property
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`rights, and individual freedom. PLF is the most experienced public-interest legal
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`1 Consistent with the local rules for supporting briefs and legal memoranda, PLF has
`limited its attached amicus curiae brief to 20 pages.
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`Case 2:24-cv-01352-CBM-AGR Document 62 Filed 01/31/24 Page 3 of 8 Page ID #:529
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`organization defending the constitutional principle of separation of powers in the
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`arena of administrative law. PLF regularly litigates cases challenging the
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`constitutional structure of executive branch agencies that adjudicate cases in-house.
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`See, e.g., Leachco, Inc. v. CPSC, 6:22-cv-232 (E.D. Okla.) (removal power, Article III,
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`Due Process of Law, Seventh Amendment); McConnell v. USDA, No. 4:23-cv-00024
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`(E.D. Tenn.) (Appointments Clause and Seventh Amendment); Ro Cher Enterprises,
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`Inc. v. EPA, No. 1:23-cv-16056 (N.D. Ill.) (same). PLF also participates as amicus
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`curiae in separation of powers and administrative law cases. See, e.g., Brief of Pacific
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`Legal Foundation as Amicus Curiae Supporting Petitioner, Corner Post, Inc. v. Board
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`of Governors of the Federal Reserve System, No. 22-1008, 2023 WL 8112664 (U.S. Nov.
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`17, 2023); Brief of Pacific Legal Foundation as Amicus Curiae Supporting Petitioners,
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`Loper Bright Enterprises v. Raimondo, No. 22-451, 2023 WL 4657738 (U.S. July 17,
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`2023).
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`This case concerns the adjudication of enforcement actions and legal remedies
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`in an administrative agency contrary to Article III, the Seventh Amendment, and the
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`Due Process of Law Clause of the Fifth Amendment. PLF submits the attached
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`amicus curiae brief because such claims should be litigated in Article III courts. The
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`vesting of the judicial power in Article III courts, the Seventh Amendment right to a
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`civil jury trial, and the Fifth Amendment’s guarantee of due process of law all shape
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`how claims brought by the government against Americans can be litigated. They offer
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`critical structural protections that prevent the executive branch from acting as
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`Case 2:24-cv-01352-CBM-AGR Document 62 Filed 01/31/24 Page 4 of 8 Page ID #:530
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`investigator, prosecutor, judge, jury, and appellate court in cases involving the core
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`private rights of individuals and businesses.
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`PLF’s amicus curiae brief will aid the Court by expanding on the lack of
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`historical and constitutional bases for adjudicating legal claims brought by the
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`government in administrative agencies. The brief provides support for two of
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`SpaceX’s preliminary injunction arguments: (1) the NLRB’s structure violates the
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`separation of powers and due process and (2) the NLRB adjudication denies SpaceX
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`its Seventh Amendment right to a jury trial. ECF No. 37. With respect to separation
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`of powers and due process, the brief explains how the combination of executive,
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`judicial, and legislative functions in the NLRB denies respondents the fundamental
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`liberties protected by the structure of the Constitution. With respect to the Seventh
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`Amendment, the brief highlights how the history of the amendment’s ratification
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`informs a proper understanding of the amendment as a restriction on Congress’s
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`ability to assign claims away from forums with jury trials.
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`PLF is also differently situated from the parties and can provide as amicus
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`curiae arguments addressing the fundamental flaws in existing precedent on agency
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`adjudication. Those precedents have recently been called into doubt. For example,
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`this term the Supreme Court took up the question of the scope of the civil jury trial
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`right in agency adjudications. SEC v. Jarkesy, 143 S. Ct 2688 (2023). During oral
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`argument, several Justices expressed interest in revisiting whether the Seventh
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`Amendment required civil jury trials where Congress assigned a claim to an
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`administrative agency. See, e.g., Transcript of Oral Argument at 26–27, Jarkesy,
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`Case 2:24-cv-01352-CBM-AGR Document 62 Filed 01/31/24 Page 5 of 8 Page ID #:531
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`No. 22-859 (Kavanaugh, J.) (“[I]t does seem odd from a constitutional perspective to
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`say that a private suit triggers the Article III right to a federal court and a jury . . .
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`but a government suit against you for money is somehow exempt from those Article
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`III and Seventh Amendment and due process requirements simply because the
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`government attaches a different label.”); id. at 32 (Barrett, J.) (“So it seems to me, if
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`you have an entitlement to a jury if you’re in a federal court, I don’t understand then
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`how you [do] not have that right, how it can go to an agency.”); id. at 43 (Roberts,
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`C.J.) (“That’s not just one place or another. It seems to me that undermines the whole
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`point of the constitutional protection in the first place.”). Anticipating the potential
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`for a significant change in the understanding of the operation of the Seventh
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`Amendment, PLF’s amicus curiae brief provides a framework for applying the
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`Seventh Amendment to agency adjudications.
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`Additionally, PLF’s amicus curiae brief will be useful given the significant
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`constitutional questions raised in a preliminary posture by SpaceX’s motion. Axon
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`Enter., Inc. v. FTC, 598 U.S. 175, 195–96 (2023), recently recognized the ability of
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`respondents
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`in administrative adjudications
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`to collaterally challenge
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`the
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`constitutionality of the adjudication process in federal court. These collateral
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`challenges almost invariably require preliminary relief because the harm resulting
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`from an unconstitutionally structured adjudication is ongoing; the harm is being
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`subjected to the unlawful adjudication. See id. at 192. This posture places significant
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`structural constitutional questions before the court for decision with limited briefing
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`and time for consideration. PLF’s amicus curiae brief expanding on the
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`Case 2:24-cv-01352-CBM-AGR Document 62 Filed 01/31/24 Page 6 of 8 Page ID #:532
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`constitutionality of the NLRB’s adjudication structure will provide additional
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`resources to the Court to inform its decision on this motion.
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`CONCLUSION
`For the foregoing reasons, this Court should GRANT PLF’s motion for leave to
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`file a brief as amicus curiae in support of SpaceX’s motion for a preliminary
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`injunction.
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`DATED: January 31, 2024.
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`Respectfully submitted,
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`/s/ Josuha M. Robbins
`JOSHUA M. ROBBINS
`PACIFIC LEGAL FOUNDATION
`Attorney-in-Charge
`Virginia Bar #91020
`3100 Clarendon Blvd., Suite 1000
`Arlington, VA 22201
`Telephone: (202) 888-6881
`JRobbins@pacificlegal.org
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`OLIVER J. DUNFORD
`PACIFIC LEGAL FOUNDATION
`Florida Bar #1017791
`4400 PGA Blvd., Suite 307
`Palm Beach Gardens, FL 33410
`Telephone: (561) 691-5000
`ODunford@pacificlegal.org
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`Counsel for Amicus Curiae
`Pacific Legal Foundation
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`Case 2:24-cv-01352-CBM-AGR Document 62 Filed 01/31/24 Page 7 of 8 Page ID #:533
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`CERTIFICATE OF CONFERENCE
`Pursuant to Local Rule 7.1(D), the undersigned hereby declares that he has
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`conferred with counsel for Plaintiff and the NLRB Defendants. Plaintiff consents to
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`this motion. Counsel for the NLRB Defendants take no position on the motion.
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`DATED: January 31, 2024.
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`Respectfully submitted,
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`/s/ Joshua M. Robbins
`JOSHUA M. ROBBINS
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`Case 2:24-cv-01352-CBM-AGR Document 62 Filed 01/31/24 Page 8 of 8 Page ID #:534
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`CERTIFICATE OF SERVICE
`I hereby certify that on January 31, 2024, I submitted the foregoing to the
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`Clerk of the Court via the District Court’s CM/ECF system, which will send notice of
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`this submission to all counsel of record.
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`/ s / Joshua M. Robbins
`JOSHUA M. ROBBINS
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