Fourth Circuit orders review of merit board as it revives judges' free speech suit

(CN) — A Fourth Circuit panel ordered a district judge to review whether the Merit Systems Protection Board and Office of Special Counsel are fulfilling their duties in light of President Donald Trump’s fight to oust his critics at the agencies.

U.S. Circuit Judge Nicole Berner, a Joe Biden appointee, writes in a 32-page opinion that the panel has “serious questions” about the ability of the board and special counsel to independently review adverse actions taken against federal employees.

If the quasi-judicial agencies cannot process claims, either for lack of quorum or other reasons, then the purpose of the Civil Service Reform Act has been thwarted, Berner wrote.

The judge specifically pointed to the president’s decision earlier this year to remove Hampton Dellinger as the head of the Office of Special Counsel. Trump has also fought to remove two of the Merit Board’s three members, which failed to meet quorum during Trump’s first term in office.

“We cannot allow our black robes to insulate us from taking notice of items in the public record, including, relevant here, circumstances that may have undermined the functioning of the CSRA’s adjudicatory scheme,” the judge wrote.

The decision came as a result of a suit brought by the National Association of Immigration Judges, which is challenging the constitutionality of a policy that prohibits its members from offering their personal opinions on immigration issues. The judges, who are attorneys appointed by the U.S. attorney general to preside over deportation cases, argue the policy infringes on their free speech rights.

The association sued the Executive Office for Immigration Review in July 2020 in the Eastern District of Virginia. In September 2023, U.S. District Judge Leonie Brinkema, a Bill Clinton appointee, dismissed the suit in 2023, finding that the U.S. Merit Systems Protection Board had sole authority to resolve the complaints since the judges are federal employees challenging working conditions.

On appeal, the association was represented by the Knight First Amendment Institute at Columbia University. The institute’s attorney, Ramya Krishnan, mostly focused her arguments on whether the suit should be treated as a pre-enforcement challenge to an unconstitutional policy rather than an employment action.

U.S. Circuit Judge Toby Heytens, a Joe Biden appointee who served on the panel, expressed skepticism of the argument in light of the Supreme Court’s 2011 decision in Elgin v. Dept. of Treasury . The high court determined in Elgin that federal employees who challenge adverse employment actions must exhaust administrative remedies before seeking judicial review, even when there is a constitutional question.

The Knight First Amendment Institute at Columbia University said in a statement Tuesday that the court’s decision had far-reaching implications for lawsuits challenging the mass firing of federal employees and other actions by the Trump administration that impact federal employment.

“Federal employees shouldn’t have to go through a cumbersome administrative process to challenge a sweeping prior restraint on their political speech,” Krishnan said. “That’s especially true now, with the Trump administration’s hobbling of the federal agencies responsible for safeguarding the rights of federal employees.”

Berner said the two-step test established by the U.S. Supreme Court in Thunder Basin Coal Co. v. Reich , a 1994 decision on the jurisdiction of labor disputes under the Mine Act, made it clear that, under normal circumstances, the immigration judges’ claims should be heard by the merit board.

The Supreme Court has repeatedly found that Congress intended for the Civil Service Reform Act to strip the district courts of jurisdiction in federal employment disputes. Further, the immigration judges are challenging working conditions covered by the 1978 act.

But the board and special counsel only have jurisdiction when they function as Congress intended, which the president’s recent actions have “called into question,” Berner writes. If the agencies fail to function because of a lack of personnel or independence, then the law is futile, the judge writes.

“At the time the district court considered its jurisdiction over this matter, the functionality and independence of the MSPB and special counsel had not been called into question,” Berner writes. “This is no longer necessarily true. The special counsel and several members of the MSPB have been terminated by the president and the government has questioned the constitutionality of the removal protections enshrined in the CSRA. Accordingly, we remand to the district court to conduct a factual inquiry whether the CSRA continues to provide a functional adjudicatory scheme.”

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