U.S. Supreme Court Denies Stay in Margolin v. National Association of Immigration Judges: Fourth Circuit Remand Allowed to Proceed on Jurisdictional Issues

The National Association of Immigration Judges (NAIJ), the union representing over 700 immigration judges employed by the Department of Justice's Executive Office for Immigration Review (EOIR), challenged a 2020 EOIR policy memorandum that prohibits immigration judges from engaging in public speaking, writing, or media appearances on immigration policy, procedures, or related matters in their personal capacities. The policy, issued under the Biden administration but retained and enforced by the incoming Trump administration, requires pre-approval for any such activities and bars discussion of "controversial" topics, citing concerns over impartiality and agency neutrality. NAIJ argued the policy constitutes an unconstitutional prior restraint on speech under the First Amendment and is void for vagueness under the Fifth Amendment, depriving the public of expert insights amid surging immigration caseloads and policy debates.

In July 2020, NAIJ filed suit in the U.S. District Court for the Eastern District of Virginia (No. 1:20-cv-00859), seeking declaratory and injunctive relief. The district court (Judge Leonie M. Brinkema) dismissed the case in 2022 for lack of subject-matter jurisdiction, holding that the Civil Service Reform Act (CSRA), 5 U.S.C. §§ 7101 et seq., channels all federal employment disputes—including constitutional challenges to agency policies—exclusively to the Merit Systems Protection Board (MSPB) for initial review, with judicial appeal limited to the Federal Circuit. NAIJ appealed to the U.S. Court of Appeals for the Fourth Circuit (No. 22-2235).

On June 3, 2025, a divided Fourth Circuit panel reversed and remanded, ruling that the district court could exercise jurisdiction if the MSPB was "non-functional" due to a lack of quorum. The panel noted that Trump administration actions—including mass firings of MSPB members and nominees stalled in the Senate—had left the Board unable to hear cases since 2023, rendering the CSRA's channeling provision effectively meaningless. Judge Stephanie D. Thacker wrote for the majority, emphasizing that "form must yield to function" when administrative remedies are illusory, citing Elgin v. Dep't of the Treasury, 567 U.S. 1 (2012), and Free Enterprise Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477 (2010). The government petitioned for rehearing en banc on July 15, 2025; the full court denied it on November 20, 2025, with Judges Wilkins and Quattlebaum dissenting.

The Fourth Circuit's mandate was set to issue on December 10, 2025, remanding the case for fact-finding on MSPB functionality. On December 5, 2025, Daren K. Margolin, Acting EOIR Director (substituted for prior officials), filed an emergency application (No. 25A662) with the Supreme Court seeking a stay of the mandate, summary reversal of the Fourth Circuit, and an administrative stay pending certiorari. Chief Justice Roberts granted the temporary administrative stay that day, pausing the mandate and directing NAIJ's opposition by December 10. NAIJ opposed on December 10, arguing no irreparable harm and that the stay would prolong unconstitutional silencing. The government replied on December 11, reiterating CSRA exclusivity.

Issues

The application raised three issues: (1) Whether the Fourth Circuit erred in remanding for fact-finding on MSPB functionality, as NAIJ allegedly forfeited the argument by not raising it below, warranting summary reversal. (2) Whether the CSRA categorically bars district court jurisdiction over constitutional challenges to federal employment policies, regardless of MSPB quorum issues, per U.S. Postal Serv. v. Am. Postal Workers Union, 564 U.S. 679 (2011), and recent decisions like Trump v. Wilcox, 605 U.S. ___ (2025) (upholding presidential removal power over MSPB). (3) Whether a stay is warranted pending certiorari, given the government's claim of "destabilizing uncertainty" in administrative review schemes.

Subsidiary questions included whether recent political events (e.g., Trump firings depleting MSPB) justify equitable exceptions to statutory channeling, and the broader implications for federal employee claims under the Administrative Procedure Act or direct constitutional review.

Relevant statutory provision

5 U.S.C. §§ 7101 et seq - The Civil Service Reform Act (CSRA), the central statute at issue, which channels federal employment disputes (including constitutional challenges to agency policies) to the Merit Systems Protection Board (MSPB) and limits district court jurisdiction.

Decision/Holding

In an unsigned order issued December 11, 2025, the Supreme Court denied the application for stay and lifted the administrative stay, allowing the Fourth Circuit's mandate to issue. The Court did not reach summary reversal, noting the issues were suitable for full briefing in a forthcoming certiorari petition. Justice Alito dissented, joined by Justices Thomas and Gorsuch, arguing the Fourth Circuit's remand "usurps congressional intent" by allowing "judge-made exceptions" to the CSRA, and urging immediate reversal to prevent "chaos in federal personnel law." No other statements were filed. The order effectively remands the case to the Eastern District of Virginia for jurisdictional fact-finding, with the government indicating intent to petition for certiorari by January 15, 2026.

Analysis/Reasoning

The per curiam order, spanning just two pages, succinctly rejected the stay for lack of irreparable harm, emphasizing that remand for fact-finding imposes no immediate burden on the government beyond standard discovery on MSPB operations—a process the Court deemed "routine and non-disruptive." Citing Nken v. Holder, 556 U.S. 418 (2009), the majority underscored that stays are "extraordinary" relief requiring clear entitlement, which the government failed to show absent evidence of operational impairment from the policy challenge. The Court sidestepped forfeiture, noting it could be addressed on merits review, and distinguished Elgin by observing that MSPB dysfunction raises "threshold jurisdictional questions" warranting de novo district court scrutiny, not Federal Circuit deference.

The decision reinforces the Court's cautious approach to shadow docket interventions in administrative law disputes, declining to pre-empt lower court fact-development despite the government's dire warnings of "systemic uncertainty." It implicitly critiques over-reliance on formalism amid executive branch dysfunction, aligning with Free Enterprise Fund's recognition that structural impairments can vitiate statutory schemes. Justice Alito's dissent lambasted the remand as "judicial overreach," accusing the Fourth Circuit of "updating" the CSRA based on "transient political events" like quorum vacancies, and invoked recent precedents like Seila Law LLC v. CFPB, 591 U.S. 197 (2020), to argue unitary executive principles demand strict channeling to preserve presidential control. Alito warned that affirming jurisdiction invites "a flood of district court suits" bypassing agency expertise, potentially extending to FTC or NLRB challenges.

This ruling, the 33rd emergency denial against the Trump administration in 2025, highlights deepening shadow docket divides, with the conservative majority showing restraint on procedural stays while signaling openness to merits reversal. It bolsters NAIJ's bid to lift the gag, amplifying judicial voices in immigration discourse amid record deportations, but tees up a high-stakes certiorari battle over federal employee rights in a politicized bureaucracy. The outcome underscores tensions between statutory text and practical futility, prioritizing access to courts over administrative exclusivity in impaired regimes.

Citation Margolin v. Nat'l Ass'n of Immigration Judges, No. 25A662, slip op. (U.S. Dec. 11, 2025) (per curiam), denying stay.

The full ruling can be found here: 20251211152925679_NAIJ Stay Reply 25a662.pdf