Free-Speech Claims Gutted in Judge’s Discrimination Fight

LOS ANGELES (CN) - The Justice Department did not violate an immigration judge's constitutional rights by recommending she recuse herself from cases involving Iranians after she attended a White House event, a federal judge ruled Thursday.

Sitting Immigration Judge Ashley Tabaddor sued the government in August 2014, claiming that federal officials issued a "blanket recusal" order after she attended a White House roundtable with Iranian-American community leaders in the summer of 2012.

After she requested leave to go to the White House on her own time, Tabaddor says she received an email on July 5, 2012 from Justice Department official Jeffrey Rosenblum recommending that she recuse herself from cases involving Iranians.

Tabaddor says that after she went to the White House, she sent Rosenblum an Aug. 20 email, seeking clarification.

"She specifically asked that Rosenblum identify why her activities in the Iranian-American community would create an appearance of bias or impropriety, including whether it was because she is Iranian American," Tabaddor's civil complaint states.

She claims that Rosenblum responded by escalating his July email "from a recommendation to an order."

At a morning hearing, U.S. District Judge George Wu dismissed Tabaddor's free speech claim under the First Amendment, and another count against the government for enforcing an unconstitutional regulation.

The judge rejected the government's motion to dismiss a claim of employment discrimination based on race or national origin and gave Tabaddor leave to amend a claim of religious discrimination under Title VII of the Civil Rights Act.

Her claim of unlawful retaliation also survived the motion to dismiss.

More than a dozen of Tabaddor's supporters gathered in a hallway outside the courtroom after proceedings.

Though Tabaddor was not present at the hearing, her attorney Ali Mojdehi said he was "pleased and displeased" with the court order.

"One of the reasons I'm disappointed the constitutional claims are not going to be considered is those issues impact all communities and are very, very important," said Mojdehi, an attorney with Santa Monica firm Cooley. "They clearly impact our client but they also have a ripple effect through the system. And our hope was not only to remedy the wrong here, vis-a-vis our client on her constitutional claims, but remedy the flaw that exists in the system."

The government argued that it had only "recommended" that Tabaddor recuse herself and that the constitutional claims are precluded under the Civil Service Reform Act.

"The Supreme Court has held that the remedies established by the CSRA are the exclusive means of redressing employment disputes involving federal employees, even when such disputes are styled as constitutional claims," Justice Department trial attorney Benjamin Berwick wrote in a Jan. 13 brief.

While Judge Wu sided with the government on that issue, he declined to throw out Tabaddor's unlawful discrimination and retaliation claims because it appeared the Justice Department had prevented her from performing her "normal duties."

"I think you must concede that you are treating her differently than other immigration judges," Judge Wu told Berwick during the hearing.

Wu challenged Berwick to cite another instance where a judge had been recused in the same manner.

While Berwick did not cite a similar case, he noted that the Executive Office of Immigration Review only recommended that she should recuse herself from a small portion of cases on her docket.

Wu urged the parties to settle the case and said he would order mediation.

"Now is the time for both sides to get together and put this to bed," Wu said.

Berwick declined to comment after the hearing.

Mojdehi told Courthouse News that the government's case has "no legs" because it failed to make a distinction between a "recommendation and an order."

"The government tried to minimize the adverse effect," Mojdehi said. "Essentially, if we went back 60 years, the government's position was the functional equivalent of saying that you can have two restrooms. And if one restroom is available to certain people, another restroom is available only to other people - there really isn't harm here because the restrooms are available."

He added: "That concept, which is code for separate but equal, was rejected 60 years ago. At the core of what the government is suggesting is to bring back separate but equal. And that cannot happen."

Justice Department representative Nicole Navas declined to comment on the case.

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