An excerpt from today's long Fourth Circuit decision in Nat'l Ass'n of Immig. Judges v. Owen (Judge Nicole Berner, joined by Judges Pamela Harris and Toby Heytens):
The National Association of Immigration Judges brought this [First Amendment] challenge to an employee policy that requires immigration judges to obtain permission before speaking publicly on issues relating to immigration…. The district court dismissed the case …, concluding that the policy could only be challenged through the administrative procedures established by the Civil Service Reform Act…. When a federal employee seeks relief from an action covered by the Civil Service Reform Act, she is required to comply with the prescribed scheme of administrative and judicial review and may not generally bring an initial claim in federal court. Constitutional challenges and pre-enforcement challenges are no exception.
When the Civil Service Reform Act functions as designed, we agree with the district court that the National Association of Immigration Judges would be required to bring its case through its administrative scheme.
It is not clear, however, that the Civil Service Reform Act is currently so functioning. The Civil Service Reform Act requires a strong and independent Merit Systems Protections Board and Special Counsel. That foundational principle, that functioning and independent bodies would receive, review, and decide in the first instance challenges to adverse personnel actions affecting covered federal employees, has recently been called into question. Because Congress intended for the Civil Service Reform Act to strip district courts of jurisdiction only if federal employees were otherwise able to receive adequate and independent review of their claims, we vacate and remand to the district court to consider whether the text, structure, and purpose of the Civil Service Reform Act has been so undermined that the jurisdiction stripping scheme no longer controls….
