Nat'l Association of Immigration Judges v. Neal

693 F.Supp.3d 549

NATIONAL ASSOCIATION OF IMMIGRATION JUDGES, affiliated with the International Federation of Professional and Technical Engineers, Plaintiff, v. David L. NEAL, in his official capacity as Director of the Executive Office for Immigration Review, Defendant.

1:20-cv-731 (LMB/JFA)

United States District Court, E.D. Virginia, Alexandria Division

Signed September 21, 2023

Alexander Abraham Abdo, Pro Hac Vice, Alexia Rae Ramirez, Pro Hac Vice, Ramya Krishnan, Pro Hac Vice, Knight First Amendment Institute Columbia University, New York, NY, Nickera Simone Rodriguez, Victor Michael Glasberg, Victor M. Glasberg & Associates, Alexandria, VA, for Plaintiff.

Catherine M. Yang, Matthew J. Mezger, United States Attorney's Office, Alexandria, VA, for Defendant.

MEMORANDUM OPINION

Leonie M. Brinkema, United States District Judge.

Plaintiff, the National Association of Immigration Judges ("plaintiff" or "NAIJ"), at voluntary association of immigration judges, [Dkt. No. 65] at ¶ 7,¹ challenges the 2021 "Speaking Engagements" policy ("2021 policy") of the Executive Office for Immigration Review ("EOIR") on the grounds that it constitutes a prior restraint on the speech of immigration judges in violation of the First Amendment and that it is void for vagueness under the First and Fifth Amendments because it effectively prohibits immigration judges from speaking in their personal capacities about immigration law or policy and EOIR. [Dkt. No. 65] at ¶¶ 1, 63-64; [Dkt. No. 65-3]. Defendant, David L. Neal ("defendant" or "EOIR") has filed a Motion to Dismiss plaintiff's Second Amended Complaint for Declaratory and Injunctive Relief ("SAC"), arguing that plaintiff lacks Article III standing, that its claims are jurisdictionally barred by the Civil Service Reform Act of 1978 ("CSRA"),² and that it has failed to state a claim upon which relief can be granted. For the reasons that follow, the Court finds that, although plaintiff has sufficiently alleged Article III standing, the CSRA strips the Court of jurisdiction over plaintiff's claims. As such, the Court will not reach the merits of the parties' other arguments, and will grant defendant's Motion to Dismiss.

I. BACKGROUND

A. Factual Background

1. History of EOIR's Speaking Engagement Policies

Before 2017, immigration judges' speaking engagements and publications were subject to supervisory approval, but approval was "routinely" granted, and judges were frequently able to speak in their personal capacities about immigration and EOIR at conferences, schools, and in law review articles. [Dkt. No. 65] at ¶ 17-18. Judges were permitted to use their official titles to identify themselves to their audience, as long as they also included a disclaimer that the views represented were their own. Id. at ¶ 18. To receive approval to speak or write publicly, a judge would submit a request to a supervising Assistant Chief Immigration Judge ("supervisor"). If a request were approved by the supervisor, it would be forwarded to a department official to provide ethical guidance. Id. The Ethics and Professionalism Guide for Immigration Judges ("Ethics Guide"), enacted in 2011 and signed by both the EOIR and NAIJ, when it served as a union for immigration judges, approved this process and memorialized the Ethics Guide. [Dkt. No. 65] at ¶ 18; Ethics Guide, 8-9, 17.³

Beginning in 2017, EOIR's approach to how immigration judges could speak about immigration or EOIR in their private capacities began to change. On September 1, 2017, EOIR promulgated a memorandum titled "Speaking Engagement Policy for EOIR Employees" ("2017 policy"), which required judges who were invited to speak at an event⁴ "about immigration-related topics" to receive not only supervisory approval for the engagement, but also to seek review of the request by the Office of General Counsel ("OGC") and the Office of Communications and Legislative Affairs ("OCLA") through the "headquarters speaking engagement team." ("SET"). [Dkt. No. 65-1] at 3, 6. The 2017 policy did not outline criteria for approval of these speaking engagement requests and lacked a timeline for decisions, although it encouraged requests to be submitted to the SET within seven days of the event at which the judge wanted to speak. Id. at 3. The 2017 policy stated that the goal of the SET review was to "allow[] OCLA to ensure that EOIR's messaging is consistent across official engagements." Id. In 2018, NAIJ engaged in collective bargaining over the 2017 policy, resulting in the 2018 Memorandum of Understanding between EOIR and the NAIJ. [Dkt. No. 65] at ¶ 24. This Memorandum imposed deadlines on the approval process that supervisors and the SET aimed to meet, and committed EOIR to providing NAIJ with a list of factors that EOIR would consider when approving speaking engagement requests. [Dkt. No. 3].

In January 2020, EOIR issued a new memorandum titled "Submission and Processing of Requests for Speaking Engagements" ("2020 policy"). [Dkt. No. 65] at ¶ 25; [Dkt. No. 65-2]. Although the 2020 policy only purported to reissue the 2017 policy and "clarify some points that have occasionally caused confusion," [Dkt. No. 65-2] at 2, plaintiff alleges that the 2020 policy was "significantly more restrictive than its predecessor," [Dkt. No. 65] at ¶ 25. The 2020 policy prohibited immigration judges from speaking or writing⁵ about immigration or EOIR in their personal capacities by labeling any speech or writing about "immigration law or policy issues, the employee's official EOIR duties or position, or any agency programs and policies" as "official" speech. [Dkt. No. 65-2] at 3; [Dkt. No. 65] at ¶ 29. The 2020 policy also required SET review of requests to speak in a personal capacity about any topic so that EOIR could "determine whether [the requests] involve genuinely personal capacity events, whether there are any ethics concerns with the engagement, and whether the engagement will disrupt EOIR operations by requiring the employees to miss work." [Dkt. No. 65-2] at 3.

The 2020 policy specifically outlined the multiple layers of review for all requests by immigration judges and other EOIR employees to participate in a speaking engagement or to publish a piece of writing.⁶ Id. It required judges to submit a request including any "presentation slides and hand out materials if applicable and complete talking points at a minimum" through EOIR's portal. Id. at 3. In the first step, the judge's supervisor would determine if the request should move forward in the approval process. Id. at 4. If the supervisor did not reject the request, the SET would review the request and make a recommendation to the supervisor. Id. The Office of General Counsel's Ethics Program ("Ethics Program") would also review the request for any ethical concerns, but would not make a recommendation as to whether the supervisor should approve or deny the request. Id. Finally, the supervisor would consider the recommendation provided by the SET and the guidance provided by Ethics, and make a final determination. Id. Plaintiff alleges that, if the engagement involved prepared materials, the supervisor could condition approval on the judge making changes. [Dkt. No. 65] at ¶ 26.

Like the 2017 policy, the 2020 policy did not contain specific criteria for supervisors or the SET to consider when reviewing and approving or denying requests, other than indicating that "[a]ll requests, regardless of capacity, must comply with applicable law and agency policies," and that "all employees, especially all non-supervisory adjudicators," such as plaintiff's members, "seeking approval of a speaking engagement request in either capacity are reminded of the importance of maintaining impartiality and avoiding the appearance of impropriety, favoritism, or preferential treatment." Id. at 3-4; [Dkt. No. 65] at 27. The 2020 policy also did not include a timeline by which the approval process would be completed, other than specifying that requests should be submitted no later than two weeks before an engagement. [Dkt. No. 65-2] at 3.

2. 2021 Speaking Engagement Policy

The EOIR policy at issue in this litigation became operational in October 2021 ("2021 policy"). [Dkt. No. 65-3] at 2. It effectively continues to prohibit immigration judges from speaking or writing in their personal capacities about immigration or EOIR, although it does not do so as explicitly as the 2020 policy. Under the 2021 policy, EOIR employees speak in their official capacity "[w]hen an employee is invited to participate in an event because of their official position, is expected to discuss agency policies, programs, or a subject matter that directly relates to their official duties, or otherwise appear on behalf of the agency."⁷Id. at 3. "Attachment A" to the 2021 policy gives examples of official capacity engagements, including "[i]mmigration conferences or similar events where the subject is immigration (including litigation)," "[m]eetings with [s]takeholders," "[p]ro bono training related to immigration," and the "EOIR Model Hearing Program." Id. at 8. Attachment A's examples of personal capacity engagements confirm that the 2021 policy continues the 2020 policy's prohibition on personal capacity speech about immigration, as it explicitly excludes speaking about immigration from many of the following examples of personal capacity speech: "[m]oot court judge — not immigration related," "[c]ommencement speaker when topic is unrelated to immigration or official duties," "[c]areer day/[a]lumni career panel — to discuss full career path and experience," "[i]nterview based on book written in appropriate personal capacity," "[s]peaking at community, religious, youth, or small social groups (e.g., book club) and meetings, not directly related to immigration law or advocacy." Id. at 8.

Under the 2021 policy, requests to speak or write in an official capacity, which includes any speech about immigration or EOIR, must undergo a multi-step review process,...