4th Circuit gives immigration judges chance to bypass administrative process in challenge to comments policy
Immigration judges challenging a policy limiting their public comments may be able to skip the administrative process if it is no longer working, a federal appeals court said Tuesday. (Image from Shutterstock)
Immigration judges challenging a policy limiting their public comments may be able to skip the administrative process if it is no longer working, a federal appeals court said Tuesday.
The 4th U.S. Circuit Court of Appeals at Richmond, Virginia, said federal courts may have jurisdiction if the law creating administrative review for claims of federal employees “has been so undermined” that it is not functioning as Congress intended.
Law.com and Reuters have coverage, while the Volokh Conspiracy published highlights from the opinion, written by 4th Circuit Judge Nicole Berner, an appointee of former President Joe Biden.
The administrative scheme created by the Civil Service Reform Act requires a “strong and independent” Merit Systems Protection Board and special counsel, the 4th Circuit said. The special counsel investigates allegations of prohibited personnel practices and can ask the MSBP to take corrective action.
But firings by President Donald Trump have left the MSBP without a quorum and the special counsel position vacant.
The circumstances “raise serious questions as to whether the CSRA’s adjudicatory scheme continues to function as intended,” the appeals court said.
The appeals court returned the case to a district court judge 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.”
The voluntary union representing the judges, the National Association of Immigration Judges, is challenging a policy that requires the judges to get permission before publicly speaking about issues relating to immigration.
The case is National Association of Immigration Judges v. Owen.
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