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`No. 24-40315
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`UNITED STATES COURT OF APPEALS
`FOR THE FIFTH CIRCUIT
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`Plaintiffs - Appellants
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`SPACE EXPLORATION
`TECHNOLOGIES CORP.,
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`v.
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`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.
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`Defendants - Appellants
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`MOTION TO DISMISS APPEAL FOR LACK OF JURISIDICTION
`AND FOR EXPEDITED DISPOSITION PRIOR TO CONSIDERATION OF
`MOTION FOR INJUNCTION PENDING APPEAL
`__________________________
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`1
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`Case: 24-40315 Document: 14 Page: 2 Date Filed: 05/01/2024
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`Appellees National Labor Relations Board et al. (“NLRB”), pursuant to Rule
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`27 of the Federal Rules of Appellate Procedure and the Fifth Circuit Rules, hereby
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`move to dismiss this appeal.
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`1. The case below seeks to enjoin a pending administrative unfair-labor-
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`practice proceeding (“ULP Proceeding”) now before an administrative law judge
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`(“ALJ”), in which the principal (though not sole) issue regards the firing of eight
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`employees of Appellant Space Exploration Technologies Corp. (“SpaceX”).
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`2. The hearing in the ULP Proceeding opened via Zoom videoconference on
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`March 5, 2024, but has been adjourned indefinitely since then due to document-
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`production disputes. [Administrative Law Judges Order (“Order Postponing
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`Hearing Dates”), Apr. 16, 2024, https://www.nlrb.gov/case/31-CA-307446.] Any
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`further in-person hearing dates in the ULP Proceeding would occur in Los
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`Angeles, as it relates to events occurring overwhelmingly in that area.
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`3. On February 15, 2024 (all dates are in 2024), the district court below ordered
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`this case transferred to the Central District of California under 28 U.S.C. § 1406(a)
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`because no substantial part of the events giving rise to the action occurred in the
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`Southern District of Texas. [Case No. 24-cv-0001 (S.D. Tex.), Dkt. 82.]
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`4. SpaceX sought to have a panel of this Court, and then the en banc Court,
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`reverse that transfer decision via an extraordinary writ of mandamus. The panel
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`denied SpaceX’s petition for writ of mandamus on March 5, and this Court
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`2
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`Case: 24-40315 Document: 14 Page: 3 Date Filed: 05/01/2024
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`declined to rehear the case en banc on April 17. [Case No. 24-40103 (5th Cir.),
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`Dkt. 111-1.] In the course of that proceeding, however, the case was retransferred
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`to the Southern District of Texas at this Court’s request. [See Case No. 24-40103
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`(5th Cir.), Dkt. 46-1.]. SpaceX now seeks another bite of the appellate apple.
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`5. After this Court denied rehearing on SpaceX’s mandamus petition, instead
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`of accepting this Court’s decision and promptly litigating the merits of its case
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`before the proper court, SpaceX moved for reconsideration of the district court’s
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`transfer decision, or alternatively, a ruling on its pending motion for preliminary
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`injunction prior to transfer. SpaceX did not request expedited briefing of its
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`requests. [Case No. 24-cv-0001 (S.D. Tex.), Dkt. 112.] Compare In re Fort Worth
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`Chamber of Com., 98 F.4th 265, 271 (5th Cir. 2024) (party arguing effective denial
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`of preliminary injunction requested expedited briefing). And it is unclear from
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`SpaceX’s filings whether it contacted the district court’s case manager, as is
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`required for “matters requiring immediate attention.” [See Judge Rolando Olvera’s
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`Civil Procedures/Local Rules ¶ 2(b), https://www.txs.uscourts.gov/sites/txs/files/
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`Judge%20Olvera%20Local%20Rules%20%28Civil%29%203-8-23.pdf].
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`6. In a reply in support of its motion for reconsideration to the district court,
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`SpaceX added a new demand, asking the district court to rule on its request for
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`preliminary relief “no later than May 2, 2024” (emphasis in original), pointing to
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`a teleconference before a different ALJ—sitting as a special master—to discuss the
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`3
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`Case: 24-40315 Document: 14 Page: 4 Date Filed: 05/01/2024
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`status of document production disputes set for that day. SpaceX presented no
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`evidence it would be required to produce evidence or undertake any action beyond
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`participating via counsel by telephone, nor did it present evidence that such
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`participation would be impossible, impracticable, or ruinous for the company. It
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`simply asserted, ipse dixit, that any administrative action of any kind whatsoever
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`would inherently impose “irreparable constitutional injuries.” [Case No. 24-cv-
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`0001 (S.D. Tex.), Dkt. 117.]
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`7. Notably, SpaceX has previously participated in two such teleconferences
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`with the ALJ acting as a special master, and it points to no injury, much less an
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`irreparable one, arising from them. “Appeal cannot be achieved simply by
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`asserting that the trial court has failed to act as promptly as wished by a party
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`seeking an injunction. There must be a legitimate basis for the urgency.” Fort
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`Worth Chamber, 98 F.4th at 272 (citations and internal quotation marks omitted).
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`8. No legitimate basis for SpaceX’s request exists here. To have the “practical
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`effect” of denying an injunction, SpaceX must show that the district court’s
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`decision to consider this matter in due course had a “direct impact on the merits of
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`the controversy.” Shanks v. City of Dallas, 752 F.2d 1092, 1095 (5th Cir. 1985);
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`see June Med. Servs., LLC v. Phillips, No. 22-30425, 2022 WL 4360593, at *1-2
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`(5th Cir. Sept. 28, 2022) (no appellate jurisdiction to review denial of expedited
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`consideration of motion to dissolve injunction). But here, the district court can
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`4
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`Case: 24-40315 Document: 14 Page: 5 Date Filed: 05/01/2024
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`grant the relief SpaceX seeks in its lawsuit—including preliminarily enjoining the
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`ULP Proceeding before it resumes in earnest for the presentation of evidence and
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`witness testimony—so there can be no argument that the district court has
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`somehow caused a “direct impact on the merits of the controversy.” Shanks, 752
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`F.2d at 1095.
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`9. And here, participation in a teleconference as part of an administrative
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`proceeding, as a matter of law and fact, is not irreparable harm. See Renegotiation
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`Bd. v. Bannercraft Clothing Co., 415 U.S. 1, 24 (1974) (“Mere litigation expense,
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`even substantial and unrecoupable cost, does not constitute irreparable injury.”);
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`accord FTC v. Standard Oil Co. of Cal., 449 U.S. 232, 244 (1980); see also Meta
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`Platforms, Inc. v. FTC, No. 1:23-cv-03562-RDM, 2024 WL 1121424, at *9
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`(D.D.C. Mar. 15, 2024) (rejecting similar challenge to ongoing agency proceeding
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`and explaining that “not every such ‘here-and-now injury’ rises to the level of
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`gravity required to satisfy the irreparable injury prong of the preliminary injunction
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`standard”). This is a long-recognized principle. Bradley Lumber Co. of Ark. v.
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`NLRB, 84 F.2d 97, 100 (5th Cir. 1936) (participation in allegedly unconstitutional
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`NLRB proceeding was “not irreparable damage which equity will interfere to
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`prevent”).
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`10. Irreparable harm is a sine qua non of a preliminary injunction. See White v.
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`Carlucci, 862 F.2d 1209, 1211 (5th Cir. 1989) (“Without question, the irreparable
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`5
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`Case: 24-40315 Document: 14 Page: 6 Date Filed: 05/01/2024
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`harm element must be satisfied by independent proof, or no injunction may
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`issue.”). There was therefore no legitimate basis for SpaceX to impose a May 2
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`deadline on the district court.
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`11. Furthermore, the lack of irreparable harm arising from the May 2
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`teleconference fatally undermines SpaceX’s argument that the district court
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`effectively denied its preliminary injunction motion. As this Court noted in Fort
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`Worth Chamber, “plaintiffs cannot simply say they need an expedited ruling and
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`then appeal by claiming effective denial when they don’t get it on their preferred
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`timeline. . . . There must be a legitimate basis for the urgency.” 98 F.4th at 272. In
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`Fort Worth Chamber, the asserted harm consisted of “compliance costs, which the
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`Chamber says are substantial,” id., including costs associated with printing and
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`distributing disclosure materials to customers by a date certain, id. at 271. Here, by
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`contrast, the harm SpaceX cited to the district court was a commonplace
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`teleconference at which an ALJ and a court reporter will be present.
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`12. In any event, even on Appellant’s own terms, its notice of appeal is unripe
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`because it was filed two days before the deadline Appellant created. [Case No. 24-
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`cv-0001 (S.D. Tex.), Dkt. 119.] But SpaceX did not seek further expedition or a
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`temporary restraining order from the district court based on concerns its arbitrary
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`May 2 deadline was not soon enough. It should not be permitted to obtain relief
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`from this Court it could have sought, but failed to seek, below. Parties must “press
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`6
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`Case: 24-40315 Document: 14 Page: 7 Date Filed: 05/01/2024
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`and not merely intimate the argument during the proceedings before the district
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`court[.]” FDIC v. Mijalis, 15 F.3d 1314, 1327 (5th Cir. 1994); cf. Fed. R. App. P.
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`8(a)(2).
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`13. Because the district court may well decide the question in SpaceX’s favor
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`before SpaceX suffers irreparable harm (indeed, SpaceX has presented no
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`cognizable evidence of any irreparable harm whatsoever), this Court lacks
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`appellate jurisdiction over the matters appealed. In re Fort Worth Chamber of
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`Com., 98 F.4th at 272; see also Morgan v. Quarterman, 324 F. App’x 432 (5th Cir.
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`2009) (dismissing unripe appeal for lack of jurisdiction).
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`14. Significantly, the delays SpaceX cites in relation to consideration of its
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`preliminary injunction motion [Case No. 24-cv-0001 (S.D. Tex.), Dkt. 119, pp. 2-
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`4] are also largely of its own making. This matter was properly ordered transferred
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`over two months ago. Rather than accepting that decision, SpaceX chose to engage
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`in multiple justice-delaying procedural maneuvers.
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`15. SpaceX thus asks for this Court to stand in the shoes of the district court and
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`devote its limited resources to decide matters that would have been ruled upon but
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`for its gambits.
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`16. Worse still, because a notice of appeal generally divests the district court of
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`jurisdiction to decide the matters before it, e.g., Griggs v. Provident Consumer
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`Discount Co., 459 U.S. 56 (1982), this appeal will inject significant additional
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`7
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`Case: 24-40315 Document: 14 Page: 8 Date Filed: 05/01/2024
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`delays, contrary to SpaceX’s theory of appellate jurisdiction and its stated reasons
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`for seeking appellate relief.
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`17. SpaceX has sought emergency relief from this Court. [Dkt. 10-1.] Because
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`this Court must first satisfy itself of its own jurisdiction prior to adjudicating
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`matters before it, see, e.g., Arunachalam v. Uber Techs., Inc., No. 19-40601, 2019
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`WL 8301808, at *1 (5th Cir. Dec. 18, 2019) (dismissing appeal for want of
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`jurisdiction), Appellees request that this Court dispose of this motion, on an
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`expedited briefing schedule if necessary, prior to entertaining SpaceX’s
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`premature request for extraordinary injunctive relief pending appeal.
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`18. Because there is no jurisdiction, this appeal should be dismissed before
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`entertaining SpaceX’s request for extraordinary injunctive relief pending appeal.
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`Respectfully submitted,
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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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`PAUL A. THOMAS
`Supervisory Attorney
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`MATHEUS TEIXEIRA
`Trial Attorney
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`GRACE L. PEZZELLA
`Trial Attorney
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`Case: 24-40315 Document: 14 Page: 9 Date Filed: 05/01/2024
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`s/ David P. Boehm
`DAVID P. BOEHM
`Trial Attorney
`David.Boehm@NLRB.gov
`T: (202) 273-4202
`F: (202) 273-4244
`National Labor Relations Board
`Contempt, Compliance, and
`Special Litigation Branch
`1015 Half Street, S.E., Fourth Floor
`Washington, D.C. 20003
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`Dated at Washington, DC.
`this 1st day of May, 2024
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`Case: 24-40315 Document: 14 Page: 10 Date Filed: 05/01/2024
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`CERTIFICATE OF SERVICE
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`I hereby certify that on this 1st day of May, 2024, I electronically filed the
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`foregoing Motion to Dismiss Appeal for Lack of Jurisdiction and for Expedited
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`Disposition Prior to Consideration of Motion for Injunction Pending Appeal with
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`the Clerk of the Court for the United States Court of Appeals for the Fifth Circuit
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`by using the CM/ECF system. Participants in this case who are registered CM/ECF
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`users will be served by the CM/ECF system.
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`Respectfully submitted,
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`s/ David P. Boehm
`David P. Boehm
` Attorney
` (202) 273-4202
` David.Boehm@nlrb.gov
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`Dated at Washington, DC.
`this 1st day of May, 2024
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`Case: 24-40315 Document: 14 Page: 11 Date Filed: 05/01/2024
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`CERTIFICATE OF COMPLIANCE
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`This motion complies with the type-volume limitation of Fed. R. App. P.
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`27(d)(2)(A) because this motion contains 1,542 words. This motion complies with
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`the typeface requirements of Fed. R. App. P. 27(d)(1)(E) and 32(a)(5) and the type
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`style requirements of Fed. R. App. P. 32(a)(6) because this motion has been
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`prepared in a proportionally spaced typeface using Microsoft Word in size 14
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`Times New Roman.
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`s/ David P. Boehm
`David P. Boehm
` Attorney
` (202) 273-4202
` David.Boehm@nlrb.gov
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`Dated at Washington, DC.
`this 1st day of May, 2024
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`11
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