Immigration judges seek Fourth Circuit's OK to sue over free speech

(CN) — Federal immigration judges argued on appeal Wednesday they had a right to sue the government over a policy that prohibits them from providing their personal opinions on immigration issues.

A panel for the Fourth Circuit is tasked with determining whether the court system or a merit board should handle the judges’ constitutional challenges to the policy.

The National Association of Immigration Judges argues the 2021 policy infringes on the free speech rights of its members, who are attorneys appointed by the U.S. Attorney General to preside over deportation cases.

Issued by the U.S. Department of Justice’s Executive Office for Immigration Review, the policy requires judges to seek approval before speaking in an official capacity on immigration issues and they are prohibited from sharing their private views, according to the judges’ brief.

The process for seeking approval is also slow, the judges argue, causing them to miss opportunities to publish articles and teach courses related to immigration.

“At a time of spirited public debate over the nation’s immigration policies, the policy imposes a gag order on public servants in a unique position to educate the public about the immigration system and the effect of recent changes to immigration law and policy,” they wrote.

U.S. District Judge Leonie Brinkema, a Bill Clinton appointee, dismissed the judges’ claims in September 2023 in the Eastern District of Virginia. Brinkema wrote in an opinion that the U.S. Merit Systems Protection Board had the authority to resolve the complaints, since the judges are federal employees challenging working conditions.

The Fourth Circuit accepted the judges’ appeal in November 2023.

Ramya Krishnan, an attorney for the Knight First Amendment Institute at Columbia University, represented the judges at Wednesday’s hearing.

She argued the lower court’s decision meant the judges must “mire themselves” in an administrative process that may never permit them to bring claims in federal court.

Under the Civil Service Reform Act, only employees who challenge “covered employment actions,” such as job discrimination or anti-union activities, can file a lawsuit after an administrative decision. Despite raising a significant constitutional question, the judge’s claims do not qualify for judicial review, Krishnan said.

Employees who face “major adverse actions,” such as suspension or termination, can also seek judicial review after an administrative decision — but then an immigration judge would need to intentionally violate the policy and risk punishment to seek redress through the courts, the attorney said.

Krishnan said the judges’ lawsuit should proceed in federal court because it was a pre-enforcement challenge to a policy that infringes on the judges’ free speech rights.

U.S. Circuit Judge Toby Heytens, a Joe Biden appointee, 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.

Heytens said he interpreted Elgin to mean that there was no constitutional or pre-enforcement exception under the Civil Service Reform Act.

“When I put those two things together, it seems kind of bad, because a lot of your arguments sound like either First Amendment exceptionalism or pre-enforcement exceptionalism,” Heytens said.

Krishnan said the difference was that the judges were not challenging an adverse employment action, but also the judges faced a “here-and-now injury” that required immediate remedy. Specifically, the policy created a “chilling effect” that forces the judges to self-censor themselves for fear of repercussions.

U.S. Circuit Judge Pamela Harris, Barack Obama appointee, mulled whether a pre-enforcement challenge was permitted because it was impossible to remedy chilled speech after the fact.

“If you had a case with a broad speech restriction — no federal employee may ever criticize the president in public. And it will simply not be subject to judicial review?” Harris asked. “That strikes me as kind of a nonstarter.”

Jennifer Utrecht, an appellate attorney for the U.S. Department of Justice’s Civil Division, said she understood the special concerns that arise from policies that limit speech, but it would be difficult to carve out an exception for opinions that did not touch on other ethics policies, such as financial disclosures.

“These sorts of concerns echo throughout government policies,” Utrecht said. “Congress intended for these sorts of concerns to be raised either in post-enforcement proceedings or through the special counsel process.”

U.S. Circuit Judge Nicole Berner, a Joe Biden appointee, rounded out the panel.

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