GQnited States Court of Appeals fo r th er Fitth Circuit United States Cour of Appeals FILED April 17, 2024 No, 24-40103 Lyle W. Cayce Clerk IN RE SPACE EXPLORATION TECHNOLOGIES, CORPORATION, Petitioner. Petition for a Writ of Mandamus to the United States District Court for the Southern District of Texas USDC No. 1:24-CV-1 ON PETITION FOR REHEARING EN BANC PUBLISHED ORDER Before ELROD, HAYNES, and DOUGLAS, Circuit Judges. PER CURIAM: Treating the petition for rehearing en banc as a motion for reconsideration (STH Cir. R. 35 I.0.P.), the motion for reconsideration is DENIED. The petition for rehearing en banc is DENIED because, at the request of one of its members, the court was polled, and a majority did not vote in favor of rehearing (FED. R. App. P. 35 and 5TH Cir. R. 35). In the en banc poll, eight judges voted in favor of rehearing (Chief Judge Richman and Judges Jones, Smith, Elrod, Willett, Duncan, Engelhardt, and Oldham), and eight judges voted against rehearing (Judges Stewart, Southwick, Haynes, Graves, Higginson, Wilson, Douglas, and Ramirez). * Judge James C. Ho did not participate in the consideration of the rehearing en banc. Case: 24-40103 Document: 111-1 Page:2 Date Filed: 04/17/2024 No, 24-40103 By EpITH HOLLAN JONES, SMITH, ELROD, DUNCAN, ENGELHARDT, and OLDHAM, dissenting from denial of rehearing en banc: It is hard to improve on Judge Elrod’s dissent from the single-line panel order transferring this case to the Central District of California. For all the reasons stated therein, mandamus ought to have been granted by the panel. Therefore, I attach her opinion and add a few points. I. 28 U.S.C. §1391(b)(2) authorizes a plaintiff to sue in any federal judicial district where a “substantial part of the events or omissions giving rise to the claim occurred.” Jd. In identical language, 28 U.S.C. § 1391(e)(1)(B) authorizes a plaintiff to sue an agency of the federal government in any federal judicial district where “a substantial part of the events or omissions giving rise to the claim occurred.” This language is identical for at least two reasons. First, it provides plaintiffs with a broad range of venue choices in federal court.’ Second, it places suits against the federal government, a defendant with limitless litigating resources, on a par with those against private defendants. Unfortunately, the district court’s transfer order, based on the theory that venue in the Southern District of Texas was improper,’ contravenes both rationales. First, it erroneously denied SpaceX as plaintiff its choice of forum to litigate about alleged unfair labor practices that, if sanctioned, will govern its relations with hundreds of Texas and thousands of nationwide employees. Second, it misapplied the term “substantial part,” crafting a ’ As Judge Elrod’s dissent explains, Congress amended Section 1391 in 1990 to substitute this broader language for the former limitation of venue to where “the cause of action arose.” Jn re Space Expl. Techs., Corp., 96 F.4th 733 (5th Cir. 2024) (Elrod, J., dissenting). 2 28 U.S.C. § 1406(a). Case: 24-40103 Document: 111-1 Page:3 Date Filed: 04/17/2024 No, 24-40103 comparative test that no federal court would use were this a case against private defendants. A simple hypothetical suffices. If a California airline passenger claimed injury from a plane crash over Nevada and sued five defendants (the airline, the plane manufacturer, two component manufacturers, and a maintenance facility) in another venue distinguishable from all others solely because one of the defendants manufactured rivets in that venue, would any court find that allegedly defective rivets could not be “a substantial part” of the claim? That is the problem with this case that justified the “extraordinary” writ of mandamus to overturn the district court’s erroneous transfer decision. The decision’s comparative approach to “substantiality” either grossly privileges federal defendants over civil defendants or, equally troubling, p