The SpaceX Falcon 9 rocket with astronauts Doug Hurley and Bob Behnken in the Crew Dragon capsule launches from Kennedy Space Center, Florida on Saturday, May 30, 2020. The SpaceX Demo 2 mission marks the first orbital space flight launch from the United States in nearly a decade.
Joe Burbank | Orlando Sentinel | Getty Images
A federal judge on Monday hinted that SpaceX could have a hard time blocking a subpoena for setting up documents from the U.S. Department of Justice investigating whether Elon Musk’s company illegally discriminates against foreigners in their hiring.
That strong lead came in a ruling from Judge Michael Wilner of the U.S. District Court for the Central District of California, who told SpaceX and DOJ attorneys he would speak to them during a video conference next week. SpaceX blocked the subpoena, according to the DOJ.
Wilner’s order took note of a prior decision he had made on an unrelated case and asked the parties to consider it. In this case, he flatly denied a company’s arguments against complying with a subpoena to discontinue information issued by the US Equal Employment Opportunity Commission.
Wilner’s order also suggests that both sides may be able to settle the dispute “shortly before full litigation”.
The DOJ asked Wilner last week to contract SpaceX to comply with a subpoena asking the space exploration company to provide information and documents related to its recruitment procedures and employability reviews.
The subpoena would require the submission of confidential personnel files of more than 3,500 employees, SpaceX said.
The DOJ’s Immigration and Labor Law Department opened this investigation after a man named Fabian Hutter complained that SpaceX discriminated against him when he was asked about his citizenship status during an interview for a technical strategy position last March.
Hutter is not a US citizen, but according to a document submitted by SpaceX in response to the DOJ subpoena, he is a “lawful permanence” [U.S.] Residents with dual citizenship from Austria and Canada. “
Hutter told CNBC in an interview Monday that he believes SpaceX decided not to hire him after answering a question about his citizenship status and that a recruiter’s subsequent interview was shallow.
“Within five seconds, I knew this wasn’t a real interview,” Hutter said, noting that SpaceX had never looked at an example of coding work to submit or asked him technical questions.
According to court records, this DOJ unit is now not only investigating Hutter’s complaint, but “may also investigate whether.” [SpaceX] engages in a pattern or practice of discrimination that is excluded by federal law.
Wilner noted in his appointment on Monday that “one issue that is likely to come up before this district court is how SpaceX is seeking to show that compliance with the subpoena would be unduly burdensome for the company.”
“I would like to discuss this (and probably others) with the parties before the formal briefing begins,” Wilner wrote in the order in which the conference call was scheduled.
Wilner also pointed to a decision from 2018 that he had made “in an analogous” summons execution measure.
In this case, Wilner ruled in favor of the EEOC summons against a janitorial company accused of discriminating against three workers.
Wilner ruled that the EEOC subpoena was relevant because its evidence “suggests a broader pattern of corporate malpractice … that could warrant a broader investigation”.
A Falcon 9 rocket will be launched in Hawthorne, California on January 28, 2021 in front of the Space Exploration Technologies Corp. headquarters. (SpaceX) issued.
Patrick T. Fallon | AFP | Getty Images
In the SpaceX case, DOJ attorney Lisa Sandoval wrote in court documents last Thursday that SpaceX refused to comply with a subpoena issued in October requesting information about companies’ hiring. SpaceX provided the DOJ with a Table I-9 of employee information, but did not provide any additional supporting documentation.
Sandoval wrote that SpaceX acknowledged the subpoena order in December but told the DOJ “that it” won’t provide any additional information in response, “according to a court case.
SpaceX may hire non-US citizens who have a green card under the US International Traffic in Arms Regulations. These rules, known as ITAR, state that only Americans or foreigners with a US green card can have physical or digital access to items on the US ammunition list, which include defense-related equipment, software, and other materials.
The position that Hutter applied for specifically required a hiring to meet ITAR.
The DOJ refused to comment on the probe.
SpaceX did not immediately respond to a request for comment.
Last year, SpaceX said in a document that Hutter was among hundreds of applicants for the job he was looking for last year, and one of only a handful of applicants granted a “Technical Phone Screen.”
“Hutter gave a nondescript screening interview, and SpaceX turned his application down at that point. In fact, by July 1, 2020, SpaceX had turned down any candidate who had been given a technical screening interview and had not hired anyone for the position,” said the company said in that document.
The company also said that during its first screening in March 2020, “a SpaceX recruiter asked Hutter to confirm his citizenship and immigrant status and reiterated what the job ad said, namely that federal regulations prohibit the employment of non-U.S. Restrict people through SpaceX. “
“Hutter responded by stating again that he was eligible to work in the United States. There was no further discussion of his citizenship or immigration status,” SpaceX said in its filing.
In the subsequent technical screen from Hutter, he was not asked for his national original, his citizenship or his immigration status, according to SpaceX.
The company also said, “Apparently, Hutter couldn’t imagine being turned down on legitimate grounds, and attributed SpaceX’s decision to a discriminatory animus based on his citizenship, even though SpaceX had selected him for an interview from hundreds of applicants he was not a US citizen . “
SpaceX went on to say that the DOJ’s Immigration and Labor Rights Department “used Hutter’s narrow (and visually illogical) complaint as the basis for launching an extremely broad and unsupported fishing expedition into SpaceX’s corporate employment practices.”
Subscribe to CNBC PRO for exclusive insights and analysis as well as live business day programs from around the world.