Case: 24-40315 Document: 144-1 Page: 1 Date Filed: 09/23/2024
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`No. 24-40315
`In the
`United States Court of Appeals for the Fifth Circuit
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`
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`
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`
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`SPACE EXPLORATION TECHNOLOGIES, CORPORATION,
`Plaintiff-Appellant,
`
`
`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, in his official capacity as a Board Member of the National Labor
`Relations Board; GWYNNE A.WILCOX, in her official capacity as a Board
`Member of the National Labor Relations Board; DAVID M. PROUTY, in his
`official capacity as a Board Member of the National Labor Relations Board; JOHN
`DOE, in his official capacity as an Administrative Law Judge of the National
`Labor Relations Board,
`Defendants-Appellees.
`
`On Interlocutory Appeal from the
`United States District Court for the Southern District of Texas
`Civil Action No. 24-cv-00001
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`BRIEF OF LAW PROFESSORS ERWIN CHEMERINSKY, BROOKE D.
`COLEMAN, MAGGIE GARDNER, MYRIAM GILLES, J. MARIA
`GLOVER, HELEN HERSHKOFF, RILEY T. KEENAN, DAVID MARCUS,
`DAVID NOLL, LUKE NORRIS, JUDITH RESNIK, ADAM STEINMAN,
`DAVID C. VLADECK, AND STEPHEN I. VLADECK AS AMICI CURIAE
`IN SUPPORT OF DEFENDANTS-APPELLEES
`
`Michael Rubin
`Stacey M. Leyton
`Juhyung Harold Lee
`ALTSHULER BERZON LLP
`177 Post Street, Suite 300
`San Francisco, CA 94108
`Tel: (415) 421-7151
`Attorneys for Amici Curiae
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`Case: 24-40315 Document: 144-1 Page: 2 Date Filed: 09/23/2024
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`SUPPLEMENTAL CERTIFICATE OF INTERESTED PERSONS
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`No. 24-40315, Space Exploration Technologies, Corporation v. National Labor
`Relations Board et al.
`The undersigned counsel for amici curiae certifies that the following listed
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`persons and entities as described in the fourth sentence of Fifth Circuit Rule 28.2.1
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`have an interest in the outcome of this case. These representations are made in
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`order that the Judges of this Court may evaluate possible disqualification or
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`recusal. Amici respectfully submit that their brief will assist the Court because
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`amici have substantial expertise in and have researched, published, and taught
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`courses on the federal courts, civil procedure, and constitutional law—areas that
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`are highly relevant to this case. Amici here include the following professors of
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`federal courts, civil procedure, and constitutional law:
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`Amici Curiae:*
`
`Erwin Chemerinsky, Dean and Jesse H. Choper Distinguished Professor of Law at
`University of California, Berkeley School of Law
`Brooke D. Coleman, Vice Dean for Academic Affairs and Fredric C. Tausend
`Professor of Law at Seattle University School of Law
`Maggie Gardner, Professor of Law at Cornell Law School
`Myriam Gilles, Paul R. Verkuil Chair in Public Law at Cardozo School of Law
`J. Maria Glover, Professor of Law at Georgetown University Law School
`______________________
`* Institutional affiliations listed for identifications purposes only.
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`Case: 24-40315 Document: 144-1 Page: 3 Date Filed: 09/23/2024
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`Helen Hershkoff, Herbert M. and Svetlana Wachtell Professor of Constitutional
`Law and Civil Liberties at New York University School of Law
`Riley T. Keenan, Assistant Professor of Law at the University of Richmond School
`of Law
`David Marcus, Professor of Law at University of California, Los Angeles School
`of Law
`David Noll, Professor of Law at Rutgers Law School
`Luke Norris, Professor of Law at University of Richmond School of Law
`Judith Resnik, Arthur Liman Professor of Law at Yale Law School
`Adam Steinman, Robert W. Hodgkins Endowed Chairholder in Law at University
`of Alabama School of Law
`David C. Vladeck, A.B. Chettle, Jr. Professor of Law at Georgetown Law School
`Stephen I. Vladeck, Charles Alan Wright Chair in Federal Courts at the University
`of Texas School of Law
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`Counsel for Amici:
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`Michael Rubin
`Stacey M. Leyton
`Juhyung Harold Lee
`ALTSHULER BERZON LLP
`
`
`As required by Federal Rule of Appellate Procedure 26.1, Amici Curiae
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`certify that no publicly traded company or corporation—aside from any that may
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`be identified in the Parties’ certificates of interested persons—has an interest in the
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`Case: 24-40315 Document: 144-1 Page: 4 Date Filed: 09/23/2024
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`outcome of this case or appeal. No party’s counsel authored the brief in whole or
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`part or contributed money intended to fund the brief’s preparation.**
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`/s/ Michael Rubin
`Michael Rubin
`Attorney for Amici Curiae
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`_____________________
`** A portion of the money used to fund preparation or submission of the
`brief was contributed by the Service Employees International Union, a not-for-
`profit labor organization exempt from income tax under section 501(c)(5) of the
`Internal Revenue Code. It does not have a parent corporation, and no publicly held
`company has a 10% or greater ownership interest in it.
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`TABLE OF CONTENTS
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`SUPPLEMENTAL CERTIFICATE OF INTERESTED PERSONS .......................i
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`TABLE OF CONTENTS ....................................................................................... iv
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`TABLE OF AUTHORITIES ................................................................................... v
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`INTEREST OF AMICI ............................................................................................ 1
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`ARGUMENT ........................................................................................................... 1
`
`
`Under this Court’s precedents, the district court’s inaction did not
`constitute an effective denial of the underlying injunction motion.......... 3
`
`I.
`
`A. The practical-effect doctrine typically applies to district court
`orders that have the practical effect of granting, modifying, or
`denying an injunction. ......................................................................... 4
`B. In the absence of an order effectively denying an injunction,
`appellate jurisdiction may be appropriate where the district
`court’s inaction constitutes an abuse of discretion. ............................. 6
`C. The district court’s failure to rule on the injunction before the
`date requested by Appellant did not constitute an abuse of
`discretion. ............................................................................................ 9
`D. Appellant’s broad interpretation of the practical-effect doctrine
`is inconsistent with this Court’s practical-effect precedents and
`would otherwise improperly expand the narrow scope of
`§ 1292(a)(1). ...................................................................................... 12
`There is no separate showing of a serious, irreparable consequence
`that can only be prevented by immediate appeal. .................................. 19
`
`II.
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`CONCLUSION ...................................................................................................... 24
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`CERTIFICATE OF COMPLIANCE ..................................................................... 26
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`CERTIFICATE OF SERVICE .............................................................................. 27
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`Case: 24-40315 Document: 144-1 Page: 6 Date Filed: 09/23/2024
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`TABLE OF AUTHORITIES
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` Page(s)
`
`Federal Cases
`Abbott v. Perez,
`585 U.S. 579 (2018) .............................................................................................. 5
`Ass’n of Co-op. Members, Inc. v. Farmland Indus., Inc.,
`684 F.2d 1134 (5th Cir. 1982) ............................................................................ 12
`Axon Enterprise, Inc. v. Federal Trade Commission,
`598 U.S. 175 (2023) ...................................................................................... 22, 23
`Baltimore Contractors, Inc. v. Bodinger,
`348 U.S. 176 (1955) .............................................................................................. 2
`Browning v. Kramer,
`931 F.2d 340 (5th Cir. 1991) .............................................................................. 18
`Carson v. Am. Brands, Inc.,
`450 U.S. 79 (1981) .......................................................................................passim
`Clarke v. Commodity Futures Trading Commission,
`74 F.4th 627 (5th Cir. 2023) ......................................................................... 16, 21
`Cloud v. United States,
`No. 94-11165, 1995 WL 449638 (5th Cir. July 11, 1995) ................................. 20
`Collins v. Yellen,
`594 U.S. 220 (2021) ............................................................................................ 23
`Complaint of Ingram Towing Co.,
`59 F.3d 513 (5th Cir. 1995) .................................................................................. 5
`Cruson v. Jackson Nat’l Life Ins. Co.,
`954 F.3d 240 (5th Cir. 2020) .............................................................................. 18
`In re Deepwater Horizon,
`988 F.3d 192 (5th Cir. 2021) .............................................................................. 18
`
`
`
`v
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`Case: 24-40315 Document: 144-1 Page: 7 Date Filed: 09/23/2024
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`E.E.O.C. v. Kerrville Bus Co.,
`925 F.2d 129 (5th Cir. 1991) .................................................................... 6, 21, 22
`Firestone Tire & Rubber Co. v. Risjord,
`449 U.S. 368 (1981) ............................................................................................ 21
`In re Fort Worth Chamber of Commerce,
`100 F.4th 528 (5th Cir. 2024) ......................................................................passim
`Gardner v. Westinghouse Broad. Co.,
`437 U.S. 478 (1978) .............................................................................................. 3
`Harvey Specialty & Supply, Inc. v. Anson Flowline Equip., Inc.,
`434 F.3d 320 (5th Cir. 2005) .............................................................................. 12
`Jones v. Infocure Corp.,
`310 F.3d 529 (7th Cir. 2002) .............................................................................. 12
`Leachco, Inc. v. Consumer Prod. Safety Comm’n,
`103 F.4th 748 (10th Cir. 2024) ..................................................................... 22, 23
`McCoy v. Louisiana State Board of Education,
`332 F.2d 915 (5th Cir. 1964) .......................................................................passim
`Mass. Ass’n for Retarded Citizens v. King,
`643 F.2d 899 (1st Cir. 1981) ................................................................................. 5
`National Association for the Advancement of Colored People,
`NAACP v. Tindell,
`90 F.4th 419 (5th Cir.), withdrawn and superseded by 95 F.4th 212
`(5th Cir. 2024) ......................................................................................... 16, 17, 21
`National Association for the Advancement of Colored People v.
`Thompson,
`321 F.2d 199 (5th Cir. 1963) ............................................................................ 8, 9
`Overton v. City of Austin,
`748 F.2d 941 (5th Cir. 1984) ........................................................................ 4, 5, 9
`Sampson v. Murray,
`415 U.S. 61 (1974) ................................................................................................ 5
`
`
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`Seila Law LLC v. Consumer Financial Protection Bureau,
`591 U.S. 197 (2020) ............................................................................................ 22
`Sherri A.D. v. Kirby,
`975 F.2d 193 (5th Cir. 1992) .......................................................................passim
`Stringer v. Town of Jonesboro,
`986 F.3d 502 (5th Cir. 2021) .............................................................................. 18
`Switzerland Cheese Ass’n, Inc. v. E. Horne’s Mkt., Inc.,
`385 U.S. 23 (1966) ................................................................................................ 3
`United States v. City of Jackson, Miss.,
`519 F.2d 1147 (5th Cir. 1975) ........................................................................ 9, 19
`United States v. Lynd,
`301 F.2d 818 (5th Cir. 1962) .......................................................................passim
`Federal Statutes
`28 U.S.C. § 1292(a) ..........................................................................................passim
`28 U.S.C.
`§ 1404(a) ....................................................................................................... 14, 15
`§ 1406(a) ....................................................................................................... 15, 24
`Constitutional Provisions
`Fifth Amendment ..................................................................................................... 21
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`INTEREST OF AMICI
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`Amici curiae are law professors in fields including civil procedure, federal
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`courts, and constitutional law. They have ongoing interests in ensuring adherence
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`to statutory and procedural rules for federal appellate courts in their consideration
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`of cases. Amici’s scholarly and teaching experiences will, they hope, provide
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`insights into the law governing SpaceX’s improper assertion of appellate
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`jurisdiction. Counsel for all parties have been notified and have consented to the
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`filing.
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`ARGUMENT
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`The Court should dismiss the instant appeal for lack of subject-matter
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`jurisdiction under 28 U.S.C. § 1292(a)(1), which is the only asserted basis for
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`appellate jurisdiction. In light of “the general congressional policy against
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`piecemeal review,” section 1292(a)(1) “carve[s] out only a limited exception to the
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`final-judgment rule” for “[i]nterlocutory orders of the district courts … granting,
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`continuing, modifying, refusing or dissolving injunctions.” Carson v. Am. Brands,
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`Inc., 450 U.S. 79, 83–84 (1981) (third quotation quoting § 1292(a)(1) (emphasis
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`removed)). An order that does not expressly “refus[e]” an injunction but “ha[s] the
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`practical effect of doing so” may fall within this “narrow[]” exception. Id.
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`However, given the already circumscribed nature of § 1292(a)(1), both the
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`Supreme Court and this Court have cautioned that appellate review of such an
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`order should be made available even more sparingly, and “only in circumstances
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`where an appeal will further the statutory purpose of ‘permit[ting] litigants to
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`effectually challenge interlocutory orders of serious, perhaps irreparable
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`consequence.’” Id. at 84 (quoting Baltimore Contractors, Inc. v. Bodinger, 348
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`U.S. 176, 181 (1955)); accord, e.g., Sherri A.D. v. Kirby, 975 F.2d 193, 203 (5th
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`Cir. 1992).
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`In ordinary practical-effect cases such as Carson, the appeal arises from a
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`district court order that takes some action that has the effect of granting,
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`modifying, or denying an injunction, even though the district court does not
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`characterize its action as such. Here, by contrast, Appellant purports to appeal
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`from the absence of an order on its preliminary injunction motion and asks this
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`Court to decide that motion in the first instance. Although this Court has on a few
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`rare occasions found that district court inaction on an injunction motion may
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`effectively deny that motion for purposes of § 1292(a)(1), it has typically done so
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`only where the movant has established before the district court that it is clearly
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`entitled to injunctive relief, but the district court has abused its discretion by
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`improperly delaying issuance of that relief, and where immediate appeal is
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`necessary to avoid a serious and irreparable injury. See, e.g., United States v.
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`Lynd, 301 F.2d 818, 820–22 (5th Cir. 1962) (finding an effective denial where the
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`district court conducted a merits hearing on the injunction motion, the movant
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`“proved without question” its entitlement to relief, but the district court sought
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`unduly to delay ruling on the motion).
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`The instant case does not present such unusual circumstances. Nor does this
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`case involve the sort of harms that § 1292(a)(1)’s narrow exception to the final
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`judgment rule was intended to address. Rather than expand the scope of that
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`exception, and open the door to more frequent and spurious attempts to bypass the
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`district courts, the Court should dismiss this appeal for lack of subject-matter
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`jurisdiction.
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`I.
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`Under this Court’s precedents, the district court’s inaction did not
`constitute an effective denial of the underlying injunction motion.
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`By allowing for the immediate appeal of “[i]nterlocutory orders … granting,
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`continuing, modifying, refusing or dissolving injunctions,” § 1292(a)(1) provides
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`an exception to “the general principle that only final decisions of the federal
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`district courts would be reviewable on appeal.” § 1292(a)(1); Carson, 450 U.S. at
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`83. “The exception is a narrow one,” which courts are “not authorized to enlarge
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`or extend.” Gardner v. Westinghouse Broad. Co., 437 U.S. 478, 480 (1978); see
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`also, e.g., Switzerland Cheese Ass’n, Inc. v. E. Horne’s Mkt., Inc., 385 U.S. 23, 24
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`(1966) (“[W]e approach [§ 1292(a)(1)] somewhat gingerly lest a floodgate be
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`opened that brings into the exception many pretrial orders.”).
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`Although the Supreme Court and this Court have interpreted § 1292(a)(1) to
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`allow for the immediate appeal of an effective denial of injunctive relief, closer
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`examination of those precedents establishes that the district court in this case did
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`not effectively deny an injunction within the meaning of the statute. Where, as
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`here, there is no court order that has the effect of denying a request for injunctive
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`relief, and the district court did not unduly seek to delay issuance of injunctive
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`relief to which the movant is clearly entitled, this Court has declined to assert
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`jurisdiction under § 1292(a)(1). The Court should similarly decline to do so here.
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`A. The practical-effect doctrine typically applies to district court orders
`that have the practical effect of granting, modifying, or denying an
`injunction.
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`In Carson, the Supreme Court addressed the practical effect of a written and
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`reasoned order denying a motion to enter a proposed consent decree. See 450 U.S.
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`at 81–82. Because the district court rejected the proposed decree on the merits,
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`and “prospective relief was at the very core of the disapproved settlement,” the
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`Court easily concluded that the order refused an injunction within the meaning of
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`§ 1292(a)(1), even though the district court did not describe its order in those
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`terms. Id. at 81, 83–84; see also Overton v. City of Austin, 748 F.2d 941, 950 (5th
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`Cir. 1984) (“[I]n Carson, the district court clearly ruled on the proposed consent
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`decree and entered an order denying the motion to enter it, together with an
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`opinion stating its reasons.”). The Supreme Court has since elaborated that this
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`practical-effect inquiry focuses on the intent of the district court and serves to
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`“prevent[] … manipulation” by courts seeking “to ‘shield [their] orders from
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`appellate review’ by avoiding the label ‘injunction.’” Abbott v. Perez, 585 U.S.
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`579, 595 (2018) (quoting Sampson v. Murray, 415 U.S. 61, 87 (1974)) (discussing
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`Carson).
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`Consistent with this purpose as well as with the text of § 1292(a)(1), this
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`Court has typically applied the practical-effect doctrine to actual orders of the
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`district courts. As this Court has observed, “[w]hile section 1292(a)(1)
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`appealability requires that there be a ‘granting, continuing, modifying, refusing or
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`dissolving … or refusing to dissolve or modify’ an injunction, it also requires that
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`this be done by order.” Overton, 748 F.2d at 951 (emphasis added) (quoting Mass.
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`Ass’n for Retarded Citizens v. King, 643 F.2d 899, 904 (1st Cir. 1981)); see also id.
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`at 950–51 (declining to find jurisdiction in part because “the district court has not
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`denied or refused the motion to enter the consent decrees, and has made no order,
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`written or oral, in that regard”). This Court has similarly recognized that
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`“[i]nterlocutory appeals are not favored and the statutes allowing them must be
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`strictly construed.” Complaint of Ingram Towing Co., 59 F.3d 513, 515 (5th Cir.
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`1995).
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`Limiting appeals to cases with a written order also helps ensure the narrow
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`scope of § 1292(a)(1) is not unduly broadened. This Court looks to the written
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`order for some “substantial indication—whether from the language of the order, or
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`the grounds on which it rests, or the circumstances in which it was entered—that
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`the district court was acting specifically to deny injunctive relief.” E.E.O.C. v.
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`Kerrville Bus Co., 925 F.2d 129, 132 (5th Cir. 1991); see also id. at 132 n.4
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`(“[O]ur cases have been careful to discern whether the order at issue particularly
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`referred to, or was directed at, the injunctive relief sought.”). Without such an
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`indication, the Court risks unduly expanding the narrow scope of § 1292(a)(1), and
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`contravening “the important policy of avoiding piecemeal appeals” that
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`§ 1292(a)(1) serves. Id. at 132.
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`B. In the absence of an order effectively denying an injunction,
`appellate jurisdiction may be appropriate where the district court’s
`inaction constitutes an abuse of discretion.
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`On certain rare occasions, this Court has applied the practical-effect doctrine
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`to the absence of an order on an injunction motion. In doing so, the Court has
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`looked to other actions taken by the district court to discern the district court’s
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`intent, and whether the district court’s inaction may be fairly interpreted as a
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`deliberate effort to deny an injunction within the meaning of § 1292(a)(1).
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`Most notably, in Lynd, a pre-Carson case, the Court considered whether it
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`had jurisdiction to issue an injunction pending appeal where, “eight months after
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`the suit for injunction was filed,” the district court conducted an evidentiary
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`hearing at which the movant presented evidence in support of its preliminary
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`injunction motion, but the court “declin[ed] either to grant or refuse” the motion at
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`the hearing’s close, and instead “granted a recess of thirty days to permit the
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`defendants to file their answer and to prepare for proving their defens[e] case.”
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`301 F.2d at 820–21. In asserting jurisdiction to consider the motion for injunction
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`pending appeal—but “not … the appeal from the refusal of the trial court to grant
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`the temporary injunction on the merits”—the Court determined that the movant
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`was “clearly entitled to have a ruling from the trial judge” “at the end of its
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`presentation of evidence.” Id. at 822. The Court therefore concluded that the
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`district court’s deliberate and unjustified withholding of such ruling was “in all
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`respects a ‘refusal,’ so as to satisfy … Section 1292.” Id.
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`The Court took a similar approach in McCoy v. Louisiana State Board of
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`Education, 332 F.2d 915 (5th Cir. 1964). There, the movant sought an injunction
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`prohibiting state officials from denying her admission to a state college on the
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`basis of her race. See id. at 916. The district court conducted a hearing on the
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`injunction motion, at which the movant clearly established her entitlement to the
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`requested relief. See id. (“School officials testified that there was no reason for
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`appellant’s rejection other than the belief that state law prohibits the college from
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`accepting a Negro.”).
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`Nevertheless, the district court declined to rule on the fully argued motion
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`for more than three months, and then only did so after the movant sought a writ of
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`mandamus in this Court. See id. Even then, however, rather than rule on the
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`merits of the motion, the district court “dismissed the suit as to the Louisiana State
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`Board of Education and ruled that the individual members of the Board are
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`necessary and indispensable parties, giving appellant sixty days in which to join
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`them.” Id. at 916–17. Because the movant had clearly established her right to
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`attend the college, but the procedural delay ordered by the district court ensured
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`that no ruling on the injunction motion would issue until after the relevant school
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`term had already started, “it [was] clear that the practical [and intended] effect of
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`the district court’s [procedural] order was to deny the preliminary injunction.” Id.
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`at 917.
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`By contrast, in National Association for the Advancement of Colored People
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`v. Thompson, 321 F.2d 199 (5th Cir. 1963), the Court declined to assert jurisdiction
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`where the underlying injunction motion required “resolution of a fact issue
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`between conflicting evidence” and involved a “difficult and delicate field of
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`constitutional law.” Id. at 202. In such circumstances, the Court was “unable to
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`say that for the trial court to require time for a study of the record and the
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`applicable law … before either granting or denying the relief … was an abuse of its
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`discretion,” and therefore, the Court could not discern whether the district court’s
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`delay was intended to deny the injunction. Id.
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`Accordingly, “it does not follow that every failure of a trial court to grant a
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`temporary injunction is tantamount to a ‘refusal’ of such injunctive relief.” Id.
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`The Court exercised § 1292(a)(1) jurisdiction in Lynd and McCoy because in those
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`cases, “the plaintiff’s rights” to an injunction were “so clearly established”
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`following evidentiary hearings that the “failure of the trial court to grant the
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`injunctive relief would be set aside by an appellate court as an abuse of discretion.”
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`Id. Lynd and its progeny thus stand for the more limited principle that only “when
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`the plaintiff is ‘clearly entitled to have a ruling from the trial judge’” on the
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`injunction motion may the failure to issue such a ruling “constitute an ‘order
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`refusing’ injunctive relief.” Id. (emphasis added).
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`C. The district court’s failure to rule on the injunction before the date
`requested by Appellant did not constitute an abuse of discretion.
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`This case is a “far cry” from Lynd or McCoy. Overton, 748 F.2d at 951.
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`Unlike in those cases, the district court has not held a hearing on the underlying
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`injunction motion, and Appellant has not otherwise established that it is clearly
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`entitled to have that motion granted. See, e.g., United States v. City of Jackson,
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`Miss., 519 F.2d 1147, 1153 (5th Cir. 1975) (emphasis added) (“[I]n Lynd there was
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`a convincing showing, by evidence at a hearing on the merits, of the movant’s right
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`to relief.”). Nor are there any “indications of partiality on the part of the trial court
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`[or] a paucity of plausible excuses for the delay” in ruling on the motion, such that
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`the appeals court can infer that the district court is unduly refraining from deciding
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`the motion in a deliberate attempt to prevent interlocutory review. Id.; see also,
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`e.g., Overton, 748 F.2d at 951 (noting that the procedural history of Lynd “is
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`replete with examples of the district court’s having placed extreme if not wholly
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`Case: 24-40315 Document: 144-1 Page: 18 Date Filed: 09/23/2024
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`unreasonable requirements upon the government respecting particularized proofs
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`of the underlying complaint, and of having granted questionable dilatory pleas and
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`motions by defendants”).
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`Rather, the reason why Appellant has not yet obtained a ruling on its motion
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`is because it has repeatedly sought to challenge the district court’s ruling that
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`venue was improper—first, by filing a mandamus petition in this Court on
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`February 16, 2024; then by seeking en banc review of the motions panel’s denial of
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`that petition on March 7, 2024; and then by filing a motion for reconsideration in
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`the district court on April 17, 2024, after the en banc petition was also denied.
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`Irrespective of whether Appellant was wise to prioritize challenging the transfer
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`order over receiving a prompt decision on its injunction motion, it cannot be said
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`that the district court acted unreasonably in waiting for the resolution of
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`Appellant’s various procedural challenges to the transfer of venue. See, e.g.,
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`Plaintiff SpaceX’s Motion for Reconsideration or, in the Alternative, a Ruling on
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`its Preliminary Injunction Motion, Space Expl. Techs. Corp. v. Nat’l Lab. Rels.
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`Bd., No. 1:24-cv-00001 (S.D. Tex. Apr. 17, 2024), ECF No. 112, at 1 (“This Court
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`gave timely consideration to complex issues in a fast-moving case.”); see also, e.g.,
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`id. at 2–3 (requesting that the district court decide the preliminary injunction
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`motion only in the alternative “if the Court is not inclined to reconsider its decision
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`to transfer the case”).
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`Case: 24-40315 Document: 144-1 Page: 19 Date Filed: 09/23/2024
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`Nor does the district court’s transfer order itself supply the necessary
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`jurisdictional foothold under Lynd. Again, this Court has already had two
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`opportunities to review that order. According to Appellant, the only way for it to
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`seek interlocutory review of that decision was by writ of mandate. See, e.g., Reply
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`in Support of Emergency Petition for Writ of Mandate, In re: Space Expl. Techs.,
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`Corp., No. 24-40103 (5th Cir. Feb. 23, 2024), ECF No. 38-1, at 3 (“[M]andamus is
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`SpaceX’s only adequate means of relief.”).1 And as reflected by this Court’s initial
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`denial of Appellant’s mandamus petition and subsequent denial of en banc review,
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`it cannot be said that the order constituted an abuse of discretion. Nevertheless,
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`Appellant proceeded to file a motion for reconsideration of that order, in which it
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`requested only as alternative relief the preliminary injunction that now provides
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`the asserted basis for this appeal. Insofar as Appellant seeks to use § 1292(a)(1) to
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`bring the district court’s venue decision before this Court for a third time on
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`interlocutory review, the Court should reject that attempt and dismiss the appeal.
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`See, e.g., Carson, 450 U.S. at 84 (emphasizing that § 1292(a)(1) must be
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`1 Several amici previously argued that Appellant could have sought
`certification of the venue issue for interlocutory review under § 1292(b). See Brief
`of Law Professors as Amici Curiae in Support of Respondents’ Opposition to
`Petition for Expedited Rehearing En Banc, In re: Space Expl. Techs., No. 24-
`40103 (Mar. 18, 2024), ECF No. 80-2. Having failed to do so, Appellant cannot
`make an end-run around that provision through the narrow exception set forth in
`§ 1292(a)(1).
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`Case: 24-40315 Document: 144-1 Page: 20 Date Filed: 09/23/2024
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`“construed … narrowly”).2
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`D. Appellant’s broad interpretation of the practical-effect doctrine is
`inconsistent with this Court’s practical-effect precedents and would
`otherwise improperly expand the narrow scope of § 1292(a)(1).
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`According to Appellant, the practical-effect doctrine provides for appellate
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`jurisdiction where (1) a movant identifies a “requested ruling date,” (2) “the district
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`court ha[s] time to act” by that date, but (3) the court fails to do so. Appellant’s
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`Opening Br., ECF No. 88, at 84. Not only is such an expansive interpretation of
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`§ 1292(a)(1) contrary to Lynd, but it is also at odds with Appellant’s cited cases,
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`the narrow and strictly construed nature of § 1292(a)(1), and other longstanding
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`principles governing this Court’s operation. Given the regularity with which
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`litigants request injunctive relief by a specified date, holding the practical-effect
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`doctrine applicable to this case would undoubtedly lead to more frequent
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`invocations of that exception, and invite mischief by litigants seeking to skip the
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`2 While this am