Case 1:24-cv-00001 Document 54 Filed on 01/19/24 in TXSD Page 1 of 6
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`UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF TEXAS
`BROWNSVILLE DIVISION
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`Case No. 24-cv-0001
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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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`DEFENDANTS’ REPLY TO PLAINTIFF’S OPPOSITION TO MOTION TO
`EXPEDITE BRIEFING ON DEFENDANTS’ MOTION TO TRANSFER VENUE
`PURSUANT TO 28 U.S.C § 1406(a) AND § 1404(a)
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`1.
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`As briefed fully in Defendants’ Motion to Transfer, venue is improper in this district.
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`(ECF No. 29 at 5-7.) The clear majority rule finds it to be reversible error where a court
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`addresses injunctive relief prior to a claim of improper venue. See Maybelline Co. v. Noxell
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`Corp., 813 F.2d 901, 902-03, 907 (8th Cir. 1987); Noxell Corp. v. Firehouse No. 1 Bar-B-Que
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`Rest., 760 F.2d 312, 317 (D.C. Cir. 1985); accord Hendricks v. Bank of Am., N.A., 408 F.3d 1127,
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`1135 (9th Cir. 2005) (addressing, but rejecting, threshold argument that venue was improper
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`prior to reaching merits of preliminary injunction); cf. Dollar Sav. Bank v. First Sec. Bank of
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`Utah, N.A., 746 F.2d 208, 215 (3d Cir. 1984) (district court “should not have proceeded to the
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`merits” of preliminary injunction where plaintiff had not established personal jurisdiction over
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`defendant.). This should end the parties’ order-of-operations dispute.
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`Plaintiff’s only contrary authority, the unpublished decision in Polymer80, Inc. v.
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`Garland, No. 4:23-CV-00029-O, 2023 WL 3605430, at *1, *5 (N.D. Tex. Mar. 19, 2023), appeal
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`docketed, No. 23-10527 (5th Cir. May 22, 2023), is not controlling and, at most, stands for the
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`1
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`proposition that district courts possess the bare authority to resolve a preliminary injunction
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`motion ahead of a motion to transfer for improper venue.1 It does not say that a district court
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`ought to do so, let alone must do so. Assuming that a court has discretion to choose the order in
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`which it will address such motions, the question then becomes what is the more appropriate
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`exercise of that discretion. And, as other courts have persuasively explained, the better course is
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`to decide venue objections before reaching the merits of a request for preliminary relief. True
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`enough, venue objections are not jurisdictional, otherwise they could not be waived. But like
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`jurisdictional defenses, they do “attack[] the district court's authority to grant relief.” Hendricks,
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`408 F.3d at 1135. For that reason, the Ninth Circuit has determined that a district court in a
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`situation this Court now faces “ha[s] to consider [venue and like] defenses as ‘a logical predicate
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`to’ its preliminary injunction order.” Id. (quoting Wong v. United States, 373 F.3d 952, 961 (9th
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`Cir. 2004)).
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`The bottom line here is that, at minimum, courts possess discretion to decide venue as a
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`threshold issue. Sinochem Int’l Co. v. Malay. Int’l Shipping Corp., 549 U.S. 422, 425 (2007);
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`Sangha v. Navig8 ShipManagement Priv. Ltd., 882 F.3d 96, 100 (5th Cir. 2018) (cleaned up).
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`1 The remaining cases cited by Plaintiff are plainly distinguishable and, in any event, also not
`controlling. None granted preliminary injunctive relief in circumstances where the court was an
`improper venue for the relevant claims. The court in Southern Visions, LLP v. Red Diamond,
`Inc., No. 1:18-CV-04566-ELR, 2018 WL 8221528, at *5-8 (N.D. Ga. Dec. 10, 2018), denied the
`fully briefed preliminary-injunction motion in addition to finding venue improper and
`transferring the case. C & A Plus, Inc. v. Pride Solutions, LLC, No. CIV. A3-02-118, 2003 WL
`25278133, at *9 (D.N.D. Feb. 7, 2003) (granting discretionary transfer in patent case despite
`venue being proper in original district, but granting motion for preliminary injunction), and Get
`In Shape Franchise, Inc. v. TFL Fishers, LLC, 167 F. Supp. 3d 173, 207 (D. Mass. 2016) (finding
`several claims could not properly be venued in Massachusetts, granting preliminary injunction
`only as to subset of claims properly venued in Massachusetts, and then transferring entire case to
`Indiana, the proper forum for the remaining claims), are equally inapposite. If anything, the
`holding in Get In Shape accords with the NLRB’s position here. And because none of these cases
`offer any rationale for why they opted to decide injunctive-relief issues prior to transfer, they are
`unpersuasive. See Sloas v. CSX Transp., Inc., 616 F.3d 380, 389 n.7 (4th Cir. 2010).
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`2
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`And while Plaintiff argues that courts are not required to decide issues related to venue before
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`ruling on motions for preliminary injunction (Opp. at 4), no authority mandates the opposite—
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`that is, that a court must decide whether to grant a preliminary injunction before reaching a
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`motion to transfer. Accordingly, it is appropriate to expedite briefing on the NLRB’s transfer
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`motion so that the Court may expeditiously address the venue question, which is a “logical
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`predicate” to the injunctive relief Plaintiff seeks. Hendricks, 408 F.3d at 1135.
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`2.
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`Even focusing just on the NLRB’s request for discretionary transfer under 28 U.S.C.
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`§ 1404(a), administrative efficiency points in favor of this Court resolving the Motion to Transfer
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`first. If briefing on the Motion to Transfer and Motion for Preliminary Injunction proceed on
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`parallel timelines, there exists a serious risk that the two distinct matters will become entangled
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`in a jurisdictional Gordian Knot requiring substantial judicial and party resources to unwind, as
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`explored further in Defendants’ Motion to Transfer. (ECF No. 29 at 8-10.) Preventing this
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`potential chaos serves as further reason to decide the venue question before reaching the other
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`issues presented in this case.2
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`Plaintiff twice claims (Opp. at 3, 8) that briefing on the merits of the preliminary
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`injunction will somehow show that venue in this District is proper. But this peculiar argument
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`does not establish that the transfer motion and the preliminary-injunction motion are somehow
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`intertwined (Opp. at 8).3 Determining whether this case has a substantial connection to the
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`2 The labyrinthine procedural history of Polymer80—which was subject to an interlocutory
`appeal, a motion to stay the district court injunction pending appeal, a motion for an indicative
`ruling by the district court, and a granted stay pending certiorari in yet another case, and which
`has since undergone full circuit-court briefing on the issue of venue prior to any decision by the
`district court on that issue—demonstrates that the failure to resolve venue first may indeed cause
`the unnecessary expenditure of judicial resources.
`3 Plaintiff has already filed its motion, and its preliminary-injunction reply will necessarily be
`limited to responding to arguments raised in Defendants’ forthcoming opposition. There’s no
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`3
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`Southern District of Texas under 28 U.S.C. § 1391(e), and whether transfer is in the interest of
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`justice under 28 U.S.C. § 1404(a) or 1406(a), has nothing to do with whether the constitutional
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`claims raised in Plaintiff’s Complaint have merit.4
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`3.
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`Plaintiff repeatedly (Opp. at 1, 6, 7) suggests that Defendants could avoid the necessity
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`for expedited handling of its Motion to Transfer by postponing the administrative hearing
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`scheduled for March 5, thereby affording the Court more time to examine the parties’ arguments
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`on both transfer and the merits of the preliminary injunction. In effect, Plaintiff asks Defendants
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`to voluntarily enjoin themselves while this case proceeds. But at this time, the Regional Director
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`for NLRB Region 31 is the official with the authority to reschedule the administrative hearing,
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`and she has determined that SpaceX’s filing of this lawsuit does not constitute “proper cause”
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`warranting a postponement. (ECF No. 49-2 (citing 29 C.F.R. § 102.16.))
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`The Regional Director’s refusal to agree to enjoin the hearing voluntarily was well within
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`her discretion. Several of the claims Plaintiff has raised in its Complaint (in particular, the
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`allegations that NLRB Members and the Board’s administrative law judges are improperly
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`shielded from removal) are available to nearly every respondent to an NLRB unfair-labor-
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`practice proceeding. Delaying the unfair-labor-practice hearing at SpaceX’s behest would send
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`an unmistakable message to current and future respondents that filing copycat lawsuits might
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`lead to the same result, and that such delay can be achieved without any court examination of
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`either the merits of such claims or even whether the court has any authority to hear them in the
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`reason to believe that any additional evidence Plaintiff may submit in connection with its
`preliminary-injunction reply (Opp. at 2) will make any difference to the legal determination that
`this Court must make regarding venue.
`4 To the extent Plaintiff claims that Defendants’ proposed expedited briefing schedule is too
`hurried, Defendants note that Plaintiff has been on notice of Defendants’ intention to challenge
`venue since January 5. (ECF 49-1 ¶ 2).
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`4
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`first place. The knock-on effects of a decision to grant SpaceX’s request for the NLRB to enjoin
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`itself cannot be casually brushed aside.
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`In any event, this suit has no business in this particular Court, and SpaceX’s demand that
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`the NLRB postpone its hearing is best understood as a desire to reap the benefits of delay from
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`its own forum-shopping. Whether or not this Court has the power to grant that demand, it
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`certainly should not exercise it.5
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`4.
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`Based on the foregoing, Defendants additionally oppose Plaintiff’s request (in substance,
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`if not in form, a cross-motion) to expedite briefing on the Motion for Preliminary Injunction
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`should this Court grant Defendants’ request for expedited Motion to Transfer briefing. Due to the
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`complex constitutional issues at stake, Plaintiff initially recognized that briefing on the Motion
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`for Preliminary Injunction should proceed in the normal course, and did not request for that
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`motion to be expedited. On this Court’s default schedule, such briefing would be completed by
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`February 22, 2024 – twelve days before the administrative hearing scheduled for March 5.6
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`Plaintiff should have maintained its original position, not reneged on it. Nothing about
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`the Motion to Transfer alters the necessary timeline for this Court to render a decision on the
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`Motion for Preliminary Injunction, and Plaintiff’s bare assertions that imaginary future evidence
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`might somehow connect the two unrelated issues provide no basis for this Court to treat the two
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`filings as interrelated. Defendants’ de facto cross-motion should be denied.
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` Respectfully submitted,
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`5 Plaintiffs’ opposition to transfer is not bolstered by its citation (Opp. at 1, n.3) to Space
`Exploration Technologies Corp. v. Bell, No. 1:23-cv-00137 (S.D. Tex. 2023), as venue has never
`been addressed or decided in that case. The United States may yet seek transfer of the Bell
`complaint. In any event, Bell raises a wholly distinct set of legal and factual issues from the ones
`presented here.
`6 In Bell, this Court decided the motion for preliminary injunction five days after briefing
`concluded.
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`ALAMDAR S. HAMDANI
`United States Attorney 
`Southern District of Texas 
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`By: s/Bejamin S. Lyles
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`BENJAMIN S. LYLES
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`Assistant United States Attorney 
`S.D. Tex. ID No. 3062156 
`State Bar No. 24094808 
`1701 W. Bus. Highway 83, Suite 600 
`McAllen, TX 78501 
`Telephone: (956) 618-8010 
`Facsimile: (956) 618-8016 
`E-mail: Benjamin.Lyles@usdoj.gov  
`Attorney-in-Charge for Defendants 
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`Dated this 19th day of January, 2024. 
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`NATIONAL LABOR RELATIONS BOARD 
`Contempt, Compliance, and 
`  Special Litigation Branch  
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`KEVIN P. FLANAGAN 
`Deputy Assistant General Counsel 
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`DANIEL BRASIL BECKER 
`Trial Attorney 
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`DAVID P. BOEHM
`Trial Attorney 
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`s/ Grace L. Pezzella
`GRACE L. PEZZELLA
`Trial Attorney 
`MA Bar No. 709601 – pro hac vice 
`1015 Half Street, S.E. - 4th Floor 
`Washington, DC 20003 
`Telephone: (202) 273-0247 
`Email: grace.pezzella@nlrb.gov
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`6
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