WASHINGTON—The Knight First Amendment Institute at Columbia University today filed a cross-petition for certiorari with the U.S. Supreme Court, asking it to review a First Amendment challenge to a federal policy that forbids immigration judges from speaking publicly about immigration law and policy and the federal agency that employs them. The cross-petition asks, specifically, that the Court take up the question of whether federal employees challenging prior restraints on their speech must pursue their claims in front of administrative agencies, without any guarantee of eventual judicial review. The cross-petition comes after the government's petition, which was filed late last year and which asks the Court to review a different aspect of the ruling by the court of appeals.
“Federal employees shouldn’t have to go through a cumbersome administrative process to challenge sweeping prior restraints on their speech,” said Ramya Krishnan, senior staff attorney at the Knight First Amendment Institute. “The Supreme Court should make clear that public servants can get immediate relief from gag orders by challenging them directly in court.”
In 2020, the Knight Institute filed the lawsuit on behalf of the National Association of Immigration Judges (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) requires NAIJ to raise its claims administratively before seeking judicial review. In June of last year, 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—may no longer be operating as Congress intended. The government’s petition, filed on December 23, challenges this determination. In the portion of its ruling that NAIJ’s cross-petition challenges, the Fourth Circuit went on to say that, if the CSRA is operating as intended, NAIJ’s members would need to challenge the prior restraint on their speech through the CSRA’s scheme of administrative review.
“The gag order that this administration has imposed on the speech of immigration judges is brazenly unconstitutional,” said Alex Abdo, the litigation director at the Knight First Amendment Institute. “Federal employees have unique insights to offer on the operation of government, and that is particularly so for immigration judges, who have a front row seat to the ongoing upheaval of our immigration system.”
Late last year, the Fourth Circuit denied the government’s petition for rehearing en banc. On December 19, the Supreme Court rejected the government’s request to stay the effect of the appeals court decision pending further proceedings before the Court. On December 23, the Trump administration filed a petition for certiorari, asking the Supreme Court to summarily reverse the Fourth Circuit’s ruling requiring further consideration of whether the CSRA is operating as Congress intended. In addition to the cross-petition filed today, NAIJ will oppose the government’s petition by March 2.
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 today’s cross petition for cert here.
Read more about the lawsuit, Margolin v. National Association of Immigration Judges, here.
Lawyers on the case include, in addition to Krishnan andAbdo, Xiangnong (George) Wang and Jameel Jaffer of the Knight First Amendment Institute, and Victor M. Glasberg of Victor M. Glasberg & Associates.
For more information, contact: Adriana Lamirande, [email protected]