Supreme Court Chief Justice John G. Roberts Jr. has put a hold on a lower court ruling that had suggested judges could step in to hear cases where the normal machinery of the executive branch wasn’t working.
The chief justice ordered the 4th U.S. Circuit Court of Appeals to temporarily withhold its ruling that sought to give anti-Trump opponents a new avenue to challenge presidential personnel moves.
He issued his brief order just hours after it was requested Friday by Solicitor General D. John Sauer, who had called the 4th Circuit’s ruling an invitation to legal mischief.
At issue is a Justice Department gag rule requiring immigration judges to get approval from the administration before speaking publicly about immigration policy. Immigration judges are employees of the Executive Branch, not part of the independent judiciary created by Article III of the Constitution.
The National Association of Immigration Judges sued to stop the policy but lost in district court, where the judge said it was a personnel grievance that first must go to the Merit Systems Protection Board. That’s an independent agency tribunal set up to hear federal personnel matters.
But the 4th Circuit, in a 3-0 ruling, said the MSPB doesn’t appear to be working properly, and so in those cases, litigants can go straight to the regular courts.
Mr. Sauer told the justices that the decision creates a new loophole in the law, violating the Civil Service Reform Act, which channels personnel disputes into the MSPB.
If it’s allowed to stand, he said, plaintiffs will rush to file cases in the 4th Circuit’s area of jurisdiction, unsetting the way challenges are supposed to be fought out.
“This court should stay the mandate with a view to summarily reversing the decision,” Mr. Sauer said in a brief filed Friday.
Hours later, Chief Justice Roberts delivered.
He gave the immigration judges until Wednesday to reply.
Mr. Sauer had said the case was operating under a tight deadline. The 4th Circuit’s mandate was due to go out Wednesday, which would have sent the case back to the district court to examine whether the MSPB is properly functioning.
Judge Nicole Berner, writing the opinion for the appeals court, acknowledged they were raising something that hadn’t been part of the case before, but said it was justified in this case.
“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 CSRA’s adjudicatory scheme,” she wrote. “We therefore remand to the district court to assess the functionality of the CSRA’s adjudicatory scheme.”
Mr. Sauer said that went beyond the appeals court’s powers.
“If qualms about an agency’s ‘independence’ … permit ignoring Congress’s decision to channel claims to that agency, it could be open season on agency-review processes in the 4th Circuit,” Mr. Sauer wrote.
The 4th Circuit has emerged as a competitor for the most liberal federal appeals court in the country, which is a startling turnaround from the start of this century, when it vied for the most conservative.
Mr. Sauer pointed out that the Supreme Court just last month slapped down the 4th Circuit in another case involving court jurisdiction.
In that decision, the 4th Circuit had raised on its own a habeas challenge that hadn’t been raised in the district court. The Supreme Court said that violated the legal precept that judges rule on the issues the parties present in court.
Mr. Sauer said the 4th Circuit “outdid itself” in the immigration judges’ ruling by reviving and adopting an argument the immigration judges actually waived in the lower court.
The solicitor general said the case is particularly tricky because the 4th Circuit sent the matter back to the lower court for another review under the new guidance on the functionality of the MSPB. If the lower court finds again for the government, that would leave the administration no avenue to appeal the circuit court’s “manifestly erroneous” broader decision on courts’ ability to intervene in areas where Congress told it to butt out.
Mr. Sauer said he’ll file a full appeal of the 4th Circuit decision by February, but said the justices need to act now to avoid being “overtaken by events.”
