US court revives case over Trump immigration judge gag rule, cites hobbled labor board

By Daniel Wiessner

June 3 (Reuters) - A U.S. appeals court on Tuesday revived a challenge by a union representing immigration court judges to a policy issued during President Donald Trump's first term that restricts the judges from speaking publicly about their work.

A unanimous three-judge panel of the Richmond, Virginia-based 4th U.S. Circuit Court of Appeals said the usual administrative channels that the National Association of Immigration Judges would be required to pursue before going to court are not currently available after Trump in January fired two federal labor officials.

The union is challenging a U.S. Department of Justice policy that requires immigration judges, who are employed by the department, to seek permission before speaking publicly about their work. A Virginia federal judge in 2023 said the union's challenge belonged at the Merit Systems Protection Board, which hears federal workers' appeals when they are disciplined.

Trump in January fired Cathy Harris, a Democratic member of the merit board, and Hampton Dellinger, the head of the Office of Special Counsel, which acts like a prosecutor and can bring certain cases to the board on behalf of federal workers.

The three-member board was left without enough members to decide cases after Harris was removed and another Democrat's term expired in February.

The 4th Circuit on Tuesday said the board and the special counsel's office were designed to be free from political influence, and that the removal of Dellinger and Harris had called their ability to operate into question.

"We cannot allow our black robes to insulate us from taking notice of items in the public record, including, relevant here, circumstances that may have undermined the functioning of the [administrative] scheme," wrote Circuit Judge Nicole Berner, an appointee of Democratic President Joe Biden.

The court sent the case back to U.S. District Judge Leonie Brinkema to reconsider whether she has jurisdiction over the union's lawsuit.

The panel included Circuit Judges Toby Heytens, a Biden appointee, and Pamela Harris, who was appointed by President Barack Obama, a Democrat.

The Department of Justice did not immediately respond to a request for comment.

The department employs more than 600 immigration judges, who hear deportation cases and can grant asylum and other relief to migrants. Their decisions can be appealed to a federal board and then to court, but immigration judges have the final say in many cases.

Ramya Krishnan of the Knight First Amendment Institute at Columbia University, who represents the NAIJ, said federal workers should not have to face a cumbersome administrative process to challenge prior restraint on their speech.

“That's especially true now, with the Trump administration's hobbling of the federal agencies responsible for safeguarding the rights of federal employees,” she said.

Dellinger and Harris both filed lawsuits claiming their firings were illegal. Dellinger withdrew his case after a U.S. appeals court in March paused a judge's ruling that had reinstated him.

The U.S. Supreme Court last month stayed lower court rulings that had reinstated Harris to the merit board and another Democrat to the National Labor Relations Board, which hears private-sector labor cases, pending the Trump administration's appeal.

The immigration judges' union in a 2020 lawsuit says the Justice Department policy adopted that year violates judges' free speech rights under the U.S. Constitution.

Tuesday marked the second time the 4th Circuit has revived the case. The court in 2022 reversed Brinkema's ruling that the case belonged at the Federal Labor Relations Authority, which hears disputes between federal agencies and their workers' unions.

That decision came shortly after the Trump administration decertified the immigration judges' union, which the 4th Circuit said precluded the union from taking the case to the FLRA.

Brinkema then ruled in 2023 that instead of turning to that agency, the union was required to wait for a judge to be disciplined for violating the policy to challenge it before the merit board.

The case is National Association of Immigration Judges v. Owen, 4th U.S. Circuit Court of Appeals, No. 23-2235.

For the NAIJ: Ramya Krishnan of the Knight First Amendment Institute at Columbia University

For the Justice Department: Jennifer Utrecht

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