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Case 1:24-cv-00001 Document 17 Filed on 01/08/24 in TXSD Page 1 of 22
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF TEXAS
`BROWNSVILLE DIVISION
`
`Case No. 1:24-cv-00001
`
`
`
`
`
`SPACE EXPLORATION
`TECHNOLOGIES CORP.,
`
`
`Plaintiff,
`
`v.
`
`NATIONAL LABOR RELATIONS
`BOARD, a federal administrative agency,
`JENNIFER ABRUZZO, in her official
`capacity as the General Counsel of the
`National Labor Relations Board, LAUREN
`M. McFERRAN, in her official capacity as
`the Chairman of the National Labor
`Relations Board, MARVIN E. KAPLAN,
`GWYNNE A. WILCOX, and DAVID M.
`PROUTY, in their official capacities as
`Board Members of the National Labor
`Relations Board, and JOHN DOE in his
`official capacity as an Administrative Law
`Judge of the National Labor Relations
`Board,
`
`Defendants.
`
`
`
`PROPOSED INTERVENORS’ MOTION TO INTERVENE AND INCORPORATED
`MEMORANDUM OF LAW
`
`
`
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`Case 1:24-cv-00001 Document 17 Filed on 01/08/24 in TXSD Page 2 of 22
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`TABLE OF CONTENTS
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`
`Page
`
`
`MOTION TO INTERVENE .......................................................................................................... 1 
`I. 
`INTRODUCTION ............................................................................................................. 1 
`II. 
`ISSUES IN DISPUTE........................................................................................................ 3 
`III. 
`BACKGROUND ............................................................................................................... 4 
`IV. 
`ARGUMENT ..................................................................................................................... 7 
`A. 
`Proposed Intervenors are Entitled to Intervene as of Right. .................................. 8 
`1. 
`The Motion is Timely. ............................................................................... 8 
`2. 
`Proposed Intervenors Have a Legally Protected Interest in the
`Subject of this Case. ................................................................................... 9 
`Disposition of this action may impair Proposed Intervenors’ ability
`to vindicate their rights. ........................................................................... 10 
`Proposed Intervenors Have Interests that May Not Be Otherwise
`Adequately Represented. ......................................................................... 10 
`Permissive Intervention is Separately Appropriate. ............................................. 15 
`B. 
`CONCLUSION ................................................................................................................ 16 
`
`3. 
`
`4. 
`
`V. 
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`Case 1:24-cv-00001 Document 17 Filed on 01/08/24 in TXSD Page 3 of 22
`
`TABLE OF AUTHORITIES
`
`
`Page
`
`
`Cases
`
`Brumfield v. Dodd,
`749 F.3d 339 (5th Cir. 2014) .............................................................................................10, 14
`
`Clark v. Putnam Cty.,
`168 F.3d 458 (11th Cir. 1999) .................................................................................................12
`
`Edwards v. City of Houston,
`78 F.3d 983 (5th Cir. 1996) .................................................................................................8, 15
`
`Fund for Animals, Inc. v. Norton,
`322 F.3d 728 (D.C. Cir. 2003) ...........................................................................................13, 14
`
`In re Lease Oil Antitrust Litig.,
`570 F.3d 244 (5th Cir. 2009) .....................................................................................................7
`
`League of United Latin Am. Citizens, Council No. 4434 v. Clements,
`884 F.2d 185 (5th Cir. 1989) ...............................................................................................4, 15
`
`McDonalds USA, LLC & Fast Food Workers Committee and Service Employees
`Int’l Union,
`368 NLRB No. 134 (Dec. 12 2019) .........................................................................................11
`
`Planned Parenthood of Wis., Inc. v. Kaul,
`942 F.3d 793 (7th Cir. 2019) ...................................................................................................15
`
`Ross v. Marshall,
`426 F.3d 745 (5th Cir. 2005) .....................................................................................................8
`
`SEC v. U.S. Realty & Imp. Co.,
`310 U.S. 434 (1940) .................................................................................................................15
`
`Sierra Club v. Espy,
`18 F.3d 1202 (5th Cir. 1994) ...................................................................................7, 11, 12, 13
`
`Stallworth v. Monsanto Co.,
`558 F.2d 257 (5th Cir. 1977) .....................................................................................................8
`
`Students for Fair Admissions, Inc. v. Univ. of Tex. at Austin,
`338 F.R.D. 364 (W.D. Tex. 2021) ...........................................................................................15
`
`
`
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`Case 1:24-cv-00001 Document 17 Filed on 01/08/24 in TXSD Page 4 of 22
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`TABLE OF AUTHORITIES
`(continued)
`
`
`Texas v. U.S.,
`805 F.3d 653 (5th Cir. 2015) .........................................................................................9, 11, 13
`
`Page
`
`Texas v. U.S.C.I.S.,
`No. 6:23-cv-00007, 2023 WL 3025080 (S.D. Tex. Apr. 19, 2023) .........................................15
`
`Trbovich v. United Mine Workers of Am.,
`404 U.S. 528 (1972) ...........................................................................................................11, 12
`
`U.S. v. Allegheny-Ludlum Indus., Inc.,
`517 F.2d 826 (5th Cir. 1975), cert. denied, 425 U.S. 944 (1976) ..............................................8
`
`U.S. v. Texas E. Transmission Corp.,
`923 F.2d 410 (5th Cir. 1991) .....................................................................................................8
`
`UAW v. Scofield,
`382 U.S. 205 (1965) .............................................................................................................2, 11
`
`Utah Ass’n of Ctys. v. Clinton,
`255 F.3d 1246 (10th Cir. 2001) ...............................................................................................12
`
`Wal-Mart Stores, Inc. v. Tex. Alcoholic Beverage Comm’n,
`834 F.3d 562 (5th Cir. 2016) .........................................................................................4, 7, 8, 9
`
`Court Rules
`
`Fed. R. Civ. P. 24(a)(2) ................................................................................................................8, 9
`
`L.R. 7.1(D) .......................................................................................................................................3
`
`Treatises
`
`6 Matthew Bender, Moore’s Federal Practice, § 24.03 (3d ed. 2023) ..........................................11
`
`Other Authorities
`
`https://www.businessinsider.com/twitter-trust-safety-yoel-roth-fled-home-elon-
`musk-report-2022-12 .................................................................................................................1
`
`
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`MOTION TO INTERVENE
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`Pursuant to Federal Rule of Civil Procedure 24, Scott Beck, Paige Holland-Thielen,
`
`Deborah Lawrence, and Tom Moline (“Proposed Intervenors”) bring this motion to intervene in
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`the above-captioned matter, alleging as follows:
`
`I.
`
`INTRODUCTION
`
`Proposed Intervenors are four of the eight former employees of Plaintiff Space
`
`Exploration Technologies Corp. (“SpaceX”) whose charges of unfair labor practices against
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`SpaceX are the subject of the Defendant National Labor Relations Board’s (“NLRB”)
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`consolidated complaint against SpaceX.1 They seek intervention as defendants under Federal
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`Rule of Civil Procedure 24 as of right or, alternatively, permissively.
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`Proposed Intervenors, along with four of their colleagues, were fired by SpaceX for
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`writing an open letter to SpaceX executives protesting the company’s handling of sexual
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`harassment in the workplace (hereinafter, “Open Letter”). Proposed Intervenors and their
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`colleagues filed charges of unfair labor practices with the NLRB’s Region 31 in Los Angeles
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`because virtually all of the relevant conduct—the place of employment, the drafting of the Open
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`Letter, and the subsequent terminations—took place at SpaceX’s headquarters in Hawthorne,
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`California (15 miles from downtown Los Angeles). Region 31 issued a consolidated complaint
`
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`1 Counsel for Proposed Intervenors represent all eight former employees. The Proposed
`Intervenors have courageously agreed to publicly file declarations with their names, while the
`other former employees have opted to remain anonymous (and filed under pseudonyms with the
`NLRB) due to fear of online “doxing”—the mass publication of private, identifying information
`with the intent to intimidate—by followers of CEO Elon Musk. Burgess Decl., ¶ 7. This fear is
`well founded. See, e.g., https://www.businessinsider.com/twitter-trust-safety-yoel-roth-fled-
`home-elon-musk-report-2022-12 (former Twitter employee forced to move from home after
`threats of violence following his criticism of Musk) (last visited Jan. 8, 2024). To avoid
`burdening this Court with redundant declarations from all eight former employees that would
`require redaction and adjudication of a motion to seal, Proposed Intervenors and counsel instead
`personally attest to the relevant facts in their declarations.
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`with 37 allegations against SpaceX asserting that SpaceX’s treatment of Proposed Intervenors
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`violated the National Labor Relations Act (“NRLA”). A hearing before an administrative law
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`judge on the allegations in the complaint is scheduled to occur in Los Angeles, beginning March
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`5, 2024.
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`SpaceX’s complaint for declaratory and injunctive relief in this Court directly and
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`materially affects the Proposed Intervenors’ legal rights—indeed, it threatens to wholly eliminate
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`and/or substantially alter and delay their ability to vindicate the rights guaranteed them under the
`
`NLRA.
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`If SpaceX had advanced all the arguments in its Complaint in the proceeding pending
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`before the NLRB administrative law judge, the Proposed Intervenors would have had a right to
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`participate in the trial, any appeal to the NLRB, and any further proceeding in a court of appeals.
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`Indeed, the Supreme Court has held that individuals in the precise posture of the Proposed
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`Intervenors have a right to intervene in a challenge to an NLRB order brought in a court of
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`appeals. UAW v. Scofield, 382 U.S. 205, 208 (1965) (“charging party . . . [has] a right to
`
`intervene”).
`
`Proposed Intervenors’ interests are not adequately represented by the existing parties to
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`this suit. As to SpaceX – it barely mentions the existence, let alone rights of, the Proposed
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`Intervenors who brought the underlying charges forward, who provided significant time
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`developing the underlying case, who stand ready to proceed to trial, and whose ability to obtain
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`recourse for SpaceX’s wrongful termination of their employment hangs in the balance. Clearly,
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`SpaceX has no intention of acknowledging any rights whatsoever of Proposed Intervenors; it
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`failed to give then any notice whatsoever, formal or informal, that it filed its Complaint.
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`Declaration of Laurie Burgess In Support of Motion To Intervene (“Burgess Decl.”), ¶ 14. The
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`Defendant NLRB, by contrast, has found merit to and is prepared to prosecute Proposed
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`Intervenors’ claims. However, the government agency’s interests are statutorily prescribed to
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`focus upon the broad public interest and to privilege that interest above that of individual
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`charging parties when those interests diverge. In other words, no party in the litigation represents
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`the Proposed Intervenors’ unique interests—the “real parties in interest” in the underlying
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`matter. SpaceX can hardly disagree, as it successfully advanced this same argument last year in
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`seeking to intervene as of right as a co-defendant in an action brought against the government.2
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`Critically, Proposed Intervenors affirmatively bring information to the table that would
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`aid the Court’s adjudication of the preliminary matter of venue. Along with this Motion to
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`Intervene, Proposed Intervenors respectfully submit a Motion to Transfer Venue to the Central
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`District of California.3 Proposed Intervenor’s Motion to Transfer is based upon facts relevant to
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`venue uniquely in their possession and is based upon their compelling interest in having this
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`matter heard in their home state, California.
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`Proposed Intervenors conferred with the parties in this case. L.R. 7.1(D).4 Plaintiff
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`SpaceX opposes intervention, and Defendants take no position.
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`II.
`
`ISSUES IN DISPUTE
`
`Whether the Court should grant intervention as of right under Federal Rule of Civil
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`Procedure 24(a). In making this determination, the Court considers whether (1) the application is
`
`
`2 Center for Biological Diversity v. FAA, 23-cv-01204-CJN (D.C. May 19, 2023), Memorandum
`In Support of Space Exploration Technologies Corp.’s Motion to Intervene at 9-10 (arguing that
`that “even if” the government takes a legal position resonant with SpaceX, its “arguments will
`not necessary represent SpaceX’s interests as a regulated party or its specific business interests”),
`(attached as Exhibit B to the Burgess Declaration).
`3 The proposed Motion to Transfer Venue is attached to the Burgess Declaration as Exhibit A.
`4 Within this brief, unless otherwise indicated, all citations and internal quotation marks within
`quotations are omitted and any emphasis has been added.
`
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`timely; (2) the proposed intervenors “have an interest relating to the property or transaction
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`which is the subject of the action”; (3) they are “so situated that the disposition of the action
`
`may, as a practical matter, impair or impede [their] ability to protect that interest”; and (4) their
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`interests are “inadequately represented by the existing parties to the suit.” Wal-Mart Stores, Inc.
`
`v. Tex. Alcoholic Beverage Comm’n, 834 F.3d 562, 565 (5th Cir. 2016).
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`Alternatively, whether the Court should grant permissive intervention under Federal Rule
`
`of Civil Procedure 24(b). The Court considers whether the “(1) timely application is made by the
`
`intervenor, (2) the intervenor’s claim or defense and the main action have a question of law or
`
`fact in common, and (3) intervention will not unduly delay or prejudice the adjudication of the
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`rights of the original parties.” League of United Latin Am. Citizens, Council No. 4434 v.
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`Clements, 884 F.2d 185, 189 n.2 (5th Cir. 1989).
`
`III. BACKGROUND
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`Proposed Intervenors, along with four of their colleagues (collectively, “Terminated
`
`Employees”), were unlawfully fired by SpaceX in retaliation for engaging in concerted protected
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`activity under Section 7 of the NLRA.
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`Terminated Employees were software and hardware engineers at SpaceX. Declaration of
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`Scott Beck In Support of Motion to Intervene (“Beck Decl.”), ¶¶ 2-3; Declaration of Paige
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`Holland-Thielen In Support of Motion to Intervene (“Holland-Thielen Decl.”), ¶ 2; Declaration
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`of Deborah Lawrence In Support of Motion to Intervene (“Lawrence Decl.”), ¶ 2; Declaration of
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`Tom Moline In Support of Motion to Intervene (“Moline Decl.”), ¶¶ 3-4; Declaration of Laurie
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`Burgess in Support of Motion to Intervene (“Burgess Decl.”), ¶¶ 8-11. Seven of the eight
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`Terminated Employees resided in California during the time of all relevant actions that triggered
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`the underlying consolidated Complaint and worked at SpaceX’s headquarters in Hawthorne,
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`California. Beck Decl., ¶ 4; Holland-Thielen Decl., ¶ 3; Moline Decl., ¶ 5; Burgess Decl., ¶ 4.
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`The eighth employee worked at a SpaceX office in Redmond, Washington. Lawrence Decl., ¶ 3.
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`As is demonstrated below, each of the eight Terminated Employees participated in protected
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`concerted activity that took place in California and that indisputably led to Plaintiff’s termination
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`of their employment. Compl., ¶¶ 43-46.
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`During their otherwise highly productive careers at SpaceX the Terminated Employees
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`became concerned about a series of disturbing incidents related to SpaceX’s handling of sexual
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`harassment in the workplace that interfered with their ability to function at work. For instance,
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`Terminated Employees were disconcerted to learn from published accounts by several former
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`SpaceX employees of having been sexually harassed at SpaceX, and then having been retaliated
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`against by HR for reporting it. Beck Decl., ¶ 5; Holland-Thielen Decl., ¶ 4; Lawrence Decl., ¶ 4;
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`Moline Decl., ¶ 6. Terminated Employees’ concerns over SpaceX’s failure to properly address
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`allegations of harassment was heightened when CEO Elon Musk was accused of sexually
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`harassing a SpaceX flight attendant and publicly ridiculed the alleged victim. Beck Decl., ¶ 6;
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`Holland-Thielen Decl., ¶ 5; Lawrence Decl., ¶ 5; Moline Decl., ¶ 7. To the Employees’ dismay,
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`instead of affirming the right to speak up about harassment without fear of retaliation, the
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`company’s President, Gwynne Shotwell actively and vociferously supported Musk. Id. All of
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`this took place against a background of a continual stream of public posts on social media by
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`CEO Elon Musk degrading women and the LGBTQ community and featuring inappropriate
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`sexual comments and jokes. Beck Decl., ¶ 7; Holland-Thielen Decl., ¶ 6; Lawrence Decl., ¶ 6;
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`Moline Decl., ¶ 8. These posts were actively circulated in the workplace, with many actually
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`posted on internal SpaceX platforms. Id. It was impossible for employees to avoid Musk’s
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`degrading and demeaning comments and management, ever fearful of the mercurial, quixotic and
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`vengeful Musk, failed to take any action to remediate the hostile work environment or to request
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`Musk to at least comport his behavior within the confines of legal mandates. Beck Decl., ¶ 8;
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`Holland-Thielen Decl., ¶ 7; Lawrence Decl., ¶ 7; Moline Decl., ¶ 9.
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`Desperate to effect change in the workplace and bring the company into compliance with
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`the law, in late May 2022 the Terminated Employees decided to work together to take action to
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`protest the company’s handling of sexual harassment. Beck Decl., ¶ 9; Holland-Thielen Decl., ¶
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`8; Lawrence Decl., ¶ 8; Moline Decl., ¶ 10. After a series of meetings at SpaceX headquarters in
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`Hawthorne and at nearby off-campus locations, they ultimately wrote an Open Letter to
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`SpaceX’s executive team asking that the company distance itself from Musk’s social media
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`comments—that is, make clear that those comments were not SpaceX’s own position—and that
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`it clarify and enforce an anti-harassment policy in the workplace. Id. They shared this letter
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`internally within SpaceX channels on June 15, 2022. Beck Decl., ¶ 10; Holland-Thielen Decl., ¶
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`9; Lawrence Decl., ¶ 9; Moline Decl., ¶ 11.
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`The next day, June 16, 2022, SpaceX fired Mr. Beck, Ms. Holland-Thielen, Mr. Moline,
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`and one other Terminated Employee in meetings in Hawthorne, California. Beck Decl., ¶¶ 3, 11-
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`12; Holland-Thielen Decl., ¶¶ 2, 10-11; Moline Decl., ¶¶ 4, 12-13; Burgess Decl., ¶ 10. The June
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`16 meetings were each attended by HR Vice President, Brian Bjelde, HR Manager Rebecca
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`Balayan, and President Gwynne Shotwell, all of whom were based in Hawthorne. Id. These
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`SpaceX officials told the Terminated Employees that they were being fired for conceiving of,
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`drafting, and distributing the Open Letter. Id. Later that day, President Shotwell sent an email to
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`the entire company confirming that it had performed an investigation into the Open Letter and
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`terminated those involved. Lawrence Decl., ¶ 10.
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`But the retaliation did not stop there. Over the next several weeks, SpaceX’s HR
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`department proceeded to interrogate employees that it suspected of involvement in the Open
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`Letter, and fired the remaining four Terminated Employees for their participation. Lawrence
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`Decl., ¶¶ 10-11; Burgess Decl., ¶¶ 8-9, 11. This intimidation campaign was headed by HR
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`Director Lindsay Chapman, based in Hawthorne, and the interrogations and firings took place in
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`Hawthorne, with the exception of one Terminated Employee who was located in Redmond,
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`Washington—she was interrogated by Ms. Chapman in Redmond, and later fired by Ms.
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`Chapman via email. Lawrence Decl., ¶ 11; Burgess Decl., ¶¶ 8-9, 11.
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`Terminated Employees retained counsel and filed charges of unfair labor practices with
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`the NLRB Region 31 in Los Angeles on November 16, 2022. Beck Decl., ¶¶ 13-14; Holland-
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`Thielen Decl., ¶¶ 12-13; Lawrence Decl., ¶¶ 12-13; Moline Decl., ¶¶ 14-15 & Ex. A. Amended
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`charges were filed to conform to the evidence elucidated during the investigation and on January
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`3, 2024, after over a year investigating the charges, the NLRB issued a consolidated
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`administrative complaint on behalf of all eight Terminated Employees alleging 37 separate
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`violations of the NLRA. Moline Decl. ¶16 & Ex. B; Burgess Decl., ¶ 13. A hearing before an
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`NLRB administrative law judge is scheduled to commence on March 5, 2024 in Los Angeles.
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`IV. ARGUMENT
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`The Court should allow intervention. Notably, “[a]lthough the movant bears the burden
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`of establishing its right to intervene, Rule 24 is to be liberally construed” to allow intervention.
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`Wal-Mart Stores, 834 F.3d at 565. Thus intervention should be permitted “where no one would
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`be hurt and greater justice could be attained.” Sierra Club v. Espy, 18 F.3d 1202, 1205 (5th Cir.
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`1994). Any doubts over the propriety of intervention should be “resolved in favor of the
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`proposed intervenor.” In re Lease Oil Antitrust Litig., 570 F.3d 244, 248 (5th Cir. 2009). As set
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`forth below, Proposed Intervenors satisfy Rule 24’s requirements to intervene both as of right
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`and permissively.
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`A.
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`Proposed Intervenors are Entitled to Intervene as of Right.
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`A nonparty may intervene as of right where (1) the application is timely; (2) the proposed
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`intervenors “have an interest relating to the property or transaction which is the subject of the
`
`action”; (3) they are “so situated that the disposition of the action may, as a practical matter,
`
`impair or impede [their] ability to protect that interest”; and (4) their interests are “inadequately
`
`represented by the existing parties to the suit.” Wal-Mart Stores, 834 F.3d at 565 (citations
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`omitted); Fed. R. Civ. P. 24(a)(2). In rendering this assessment “the inquiry under subsection
`
`(a)(2) is a flexible one, which focuses on the particular facts and circumstances surrounding each
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`application. . . . intervention of right must be measured by a practical rather than technical
`
`yardstick.” U.S. v. Texas E. Transmission Corp., 923 F.2d 410, 413 (5th Cir. 1991) (quoting U.S.
`
`v. Allegheny-Ludlum Indus., Inc., 517 F.2d 826, 841 (5th Cir. 1975), cert. denied, 425 U.S. 944
`
`(1976)); Edwards v. City of Houston, 78 F.3d 983, 999 (5th Cir. 1996).
`
`As explained below, Proposed Intervenors satisfy each of these criteria and thus have a
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`right to intervene in this action.
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`1.
`
`The Motion is Timely.
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`This first requirement is easily satisfied. There is no set deadline to file a motion to
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`intervene. Instead, courts consider a number of factors—for example, any prejudice to the
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`existing parties on account of a delay. See Stallworth v. Monsanto Co., 558 F.2d 257, 264-66
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`(5th Cir. 1977). Here, the underlying action was filed just last week—in fact, only two business
`
`days ago. There is simply no question that this intervention motion is timely. Cf. Ross v.
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`Marshall, 426 F.3d 745, 754-55 (5th Cir. 2005) (intervention motion filed six months after
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`learning of interest was not tardy).
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`2.
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`Proposed Intervenors Have a Legally Protected Interest in the Subject
`of this Case.
`
`Proposed Intervenors have an “interest relating to the property or transaction that is the
`
`subject of the action.” Fed. R. Civ. P. 24(a)(2). The Fifth Circuit has interpreted the interest
`
`needed for intervention as of right as a “direct, substantial, legally protectable interest in the
`
`proceedings.” Texas v. U.S., 805 F.3d 653, 657 (5th Cir. 2015). This “inquiry turns on whether
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`the intervenor has a stake in the matter that goes beyond a generalized preference that the case
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`come out a certain way.” Id. And this interest need not give rise to standing: “[A]n interest is
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`sufficient if it is of the type that the law deems worthy of protection.” Wal-MartStores,, 834 F.3d
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`at 566.
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`The “property or transaction” here is right of the right of the Proposed Intervenors to
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`have their claims of unlawful surveillance, coercive interrogation, and termination legally
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`prosecuted through the usual NLRB adjudicative process. The hearing on the underlying
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`Consolidated Complaint set to commence on March 5th in Los Angeles provides the only
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`mechanism available to the Terminated Employees for putting Musk, Shotwell, Bjelde, Balayan,
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`and Chapman on the witness stand and challenging SpaceX’s unlawful termination of their
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`employment in retaliation for collectively speaking up to rectify serious workplace concerns.
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`And of course the trial outcome has a very real and critical “property” interest for the Terminate
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`Employees, namely, the right to backpay and reinstatement. Plaintiff’s Complaint seeks to pull
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`the rug out from underneath that process—potentially eviscerating the Terminated Employees’
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`right to a trial before the NLRB or dramatically delaying the process. Each passing day that the
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`trial is thwarted the Terminated Employees are not made whole and suffer economic losses.
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`Their “property” rights could not be more real and significant.
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`Case 1:24-cv-00001 Document 17 Filed on 01/08/24 in TXSD Page 14 of 22
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`3.
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`Disposition of this action may impair Proposed Intervenors’ ability to
`vindicate their rights.
`
`Proposed Intervenors must also “demonstrate that disposition of that action may, as a
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`practical matter, impair or impede [their] ability to protect [their] interest.” Brumfield v. Dodd,
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`749 F.3d 339, 344 (5th Cir. 2014). The impairment must be “practical,” not merely “theoretical.”
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`Id. Nothing about the effect of this case is theoretical. Simply put, by challenging the
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`constitutionality of the NRLB’s structure, SpaceX threatens to eliminate Proposed Intervenors’
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`right to obtain relief before the NLRB in pending litigation against SpaceX. Plaintiff seeks to
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`enjoin the NLRB from vindicating Proposed Intervenors’ rights and, because there is no private
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`right of action under the NLRA, such relief would effectively bar Proposed Intrervenor’s from
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`obtaining any remedy for the violation of their rights. Indeed, the outcome of the pending
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`Complaint potentially impacts all workers subject to the NLRA’s protections. But while all
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`private sector workers have a general interest that would warrant amicus participation in this
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`matter, the Proposed Intervenors have a heightened and unique interest in this matter because it
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`is their right to have the unlawful termination of their employment that has triggered SpaceX’s
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`action here. For Proposed Intervenors, adjudication of the instant Complaint has a very real and
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`immediate impact on their rights and welfare yet Proposed Intervenors did not even learn about
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`SpaceX’s Complaint until contacted by a media outlet for comment,5 demonstrating that
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`intervention is the best way for them to stay apprised of and contribute to this action that
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`critically affects their rights.
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`4.
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`Proposed Intervenors Have Interests that May Not Be Otherwise
`Adequately Represented.
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`Finally, the Proposed Intervenors have met the low burden of demonstrating that as
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`5 Burgess Decl., ¶ 14.
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`Case 1:24-cv-00001 Document 17 Filed on 01/08/24 in TXSD Page 15 of 22
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`currently captioned, there is inadequate representation of their interests in the pending matter.
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`The burden of demonstrating this element is “minimal.” Sierra Club, 18 F.3d at 1207. “The
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`movant need not show that the representation by existing parties will be, for certain,
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`inadequate.... [T]he applicant's burden on this matter should be viewed as ‘minimal.’” 6 Matthew
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`Bender, Moore’s Federal Practice, § 24.03 (3d ed. 2023) (quoting Trbovich v. United Mine
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`Workers of Am., 404 U.S. 528, 538 n. 10 (1972)). Indeed, “the Rule is satisfied if the applicant
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`shows that the representation of [their] interest may be inadequate.” Texas, 805 F.3d at 661.
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`That burden is met here. Notwithstanding the fact that the NLRB has issued a complaint
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`alleging that SpaceX violated the Proposed Intervenors’ rights, ultimately the NLRB’s
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`commitment is to the mandates of the statute; the undersigned counsel’s ethical obligations, by
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`contrast are to protect the rights of the employees themselves, including their individual
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`pecuniary interests. The NLRB’s General Counsel does not represent the Proposed Intervenors
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`and is not bound to follow their directions.6 There is no guarantee that an NLRB administrative
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`law judge will find in favor of Proposed Intervenors, or that the Board itself would do so. Simply
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`put, the NLRB’s goal is to follow its adjudicative process, whereas Proposed Intervenors’ goal is
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`to win on their claims. This adversity in goals between the NLRB and the Proposed Intervenors
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`here tips the balance in favor of permitting intervention. Because of these differing interests,
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`Courts have long recognized the right of workers in wrongful termination cases under the NLRA
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`and other labor matters to intervene in court litigation to support the NLRB’s position. See, e.g.,
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`UAW, 382 U.S. at 208 (“We hold that both the successful charged party (in Scofield) and the
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`successful charging party (in Fafnir) have a right to intervene in the Court of Appeals proceeding
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`6 See, e.g., See McDonalds USA, LLC & Fast Food Workers Committee and Service Employees
`Int’l Union, 368 NLRB No. 134 at 5 (Dec. 12 2019) (holding that the NLRB’s General Counsel
`can settle a case over the objection of the charging parties).
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`Case 1:24-cv-00001 Document 17 Filed on 01/08/24 in TXSD Page 16 of 22
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`which reviews or enforces Labor Board orders. We think that Congress intended to confer
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`intervention rights upon the successful party to the Labor Board proceedings in the court in
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`which the unsuccessful party challenges the Board's decision.”); Trbovich, 404 U.S. at 528
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`(reversing lower court and Court of Appeals’ failure to permit union members the right to
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`intervene in enforcement proceedings brought by the United States Department of Labor in
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`enforcement proceedings under the Act).
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`Indeed, SpaceX itself successfully advanced this very argument in a motion to intervene
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`as a defendant in an action brought against the Federal Aviation Administration. Center for
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`Biological Diversity v. FAA, 23-cv-1204-CJN (May 19, 2023).7 As SpaceX argued there, “a
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`government agency charged with considering broader public interests cannot adequately
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`represent SpaceX’s private interests.” Id. at 1; see also id. at 9 (citing cases for the proposition
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`that intervention is “especially” warranted when the existing party is the government).
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`Fifth Circuit case law supports intervention where, as here, the government is charged
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`with pursuing interests that do not equally p

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