WASHINGTON—The U.S. Supreme Court today rejected the government’s request to stay a challenge to a federal policy that categorically prohibits immigration judges from speaking or writing publicly in their personal capacities about immigration or the agency that employs them. The Knight First Amendment Institute at Columbia University brought the lawsuit on behalf of the National Association of Immigration Judges (NAIJ), arguing that the policy violates the judges’ First Amendment right to speak on matters of public concern and the public’s First Amendment right to hear from them. In today’s order, the Court denied the government’s request to stay proceedings because the government failed to establish that it would suffer irreparable harm without a stay, but it indicated that the government could reapply for a stay if the district court allowed discovery before the Court’s resolution of the government’s forthcoming cert petition.
“The Supreme Court was right to reject the government’s request for a stay of proceedings,” said Ramya Krishnan, senior staff attorney at the Knight First Amendment Institute, who argued the case on behalf of NAIJ in the Fourth Circuit last December. “It should also quickly reject the government’s soon-to-be filed cert petition. The restrictions on immigration judges’ free speech rights are unconstitutional and it’s intolerable that this prior restraint is still in place.”
In 2020, the Knight Institute filed the lawsuit on behalf of NAIJ challenging an Executive Office for Immigration Review policy that imposes an unconstitutional prior restraint on the speech of immigration judges. The district court dismissed the case in 2023, holding that the Civil Service Reform Act of 1978 (CSRA) required NAIJ to raise its claims administratively before seeking judicial review. In June of this year, however, the Fourth Circuit revived the legal challenge, expressing concern that the agencies charged with hearing federal employment claims—the Office of Special Counsel and Merit Systems Protection Board (MSPB)—may no longer be operating as Congress intended. The court sent the case back to the district court to consider whether recent factual developments—including the president’s termination of the former special counsel and MSPB chair without cause—had so significantly undermined the functionality and independence of the agencies that the CSRA no longer bars federal employees from suing over adverse employment decisions directly in federal court. In November, the Fourth Circuit denied the government’s petition for rehearing en banc, and on December 5, the government asked the Supreme Court to issue a stay of the appeals court decision while it prepares a petition asking the Supreme Court to overturn the Fourth Circuit’s decision.
The NAIJs opposition brief filed on December 10 argued that the government has not demonstrated that any harms it might incur outweigh those facing immigration judges who continue to be silenced on matters of public urgency. It also explained that a Supreme Court review of the lawsuit would be premature, noting that a lower court has not yet resolved the question of whether the relevant agencies charged with reviewing employment disputes are functioning free from political interference.
The NAIJ is a nonpartisan, nonprofit voluntary association of federal immigration judges. For years, members of NAIJ regularly spoke at conferences, guest lectured at universities and law schools, participated in immigration-law trainings, and spoke to local community groups, all in their personal capacities.
Read the Supreme Court’s order here.
Read the NAIJ’s opposition brief here.
Read more about the lawsuit, Margolin v. National Association of Immigration Judges, here.
Lawyers on the case include, in addition to Krishnan, Xiangnong (George) Wang, Noah Kim, Alex Abdo, and Jameel Jaffer of the Knight First Amendment Institute.
For more information, contact: Lorraine Kenny, [email protected].