The Trump administration has approached the Supreme Court to resolve a contentious dispute concerning policies for immigration judges. This request marks its 32nd instance of seeking emergency relief since late January. In a comprehensive 26-page document, U.S. Solicitor General D. John Sauer requested the justices to vacate a federal appeals court decision. This decision had remanded a case regarding the regulations governing speaking engagements by immigration judges back to a federal trial court for additional fact-finding. Sauer argues that federal law explicitly requires judges to challenge such policies through an administrative process, thereby precluding the trial court from entertaining the claim.
The matter originated when the National Association of Immigration Judges (NAIJ) filed a lawsuit in an Alexandria, Virginia federal court, contesting the policy that mandates immigration judges to obtain approval before delivering any “official” speeches, like those at immigration conferences or pro bono training. The Association contends that the policy infringes on the First Amendment by preventing judges from expressing personal views on immigration law or policy issues and about their employing agency.
U.S. District Judge Leonie Brinkema initially dismissed the case, referencing the Civil Service Reform Act (CSRA). This federal statute, crafted post-Watergate, establishes a framework for reviewing federal employees’ claims related to prohibited conduct, including discrimination or retaliation. Brinkema noted that Congress aimed to exclude claims like the NAIJ’s from district-court jurisdiction when it enacted the CSRA. However, the U.S. Court of Appeals for the 4th Circuit later remanded the case for further examination, noting potential functional inadequacies in the CSRA adjudicatory channels, particularly due to the absence of a quorum at the Merit Systems Protection Board (MSPB) affecting its ability to process reviews.
The full 4th Circuit declined the government’s petition for a rehearing. In response, Solicitor General Sauer pressed the Supreme Court for summary reversal of the 4th Circuit’s decision, reasoning it directly conflicts with established Court precedents. Sauer emphasized that the appellate court erred by remanding the case based on arguments not advanced by the NAIJ. He further argued that Supreme Court precedents had already ascertained that the CSRA routes federal-employment disputes to the MSPB, and it is not within the purview of “unelected judges” to reinterpret congressional statutes based on recent political developments.
Sauer cautioned that the 4th Circuit’s decision has induced “destabilizing uncertainty” beyond federal personnel actions, potentially affecting other administrative-review systems like those of the Federal Trade Commission. He indicated his intent to submit a petition for review of the lower court’s ruling in due course, simultaneously requesting the justices implement an administrative stay on the 4th Circuit’s decision, pending a substantive review before it becomes effective on December 10.