Nat'l Ass'n of Immigration Judges v. McHenry

• Decision Date: 06 August 2020
• Docket Number: Case No. 1:20-cv-000731
• Citation: 477 F.Supp.3d 466
• Parties: NATIONAL ASSOCIATION OF IMMIGRATION JUDGES, Plaintiff, v. James R. MCHENRY III, Director of the Executive Office for Immigration Review, Defendant.
• Court: U.S. District Court — Eastern District of Virginia

477 F.Supp.3d 466

NATIONAL ASSOCIATION OF IMMIGRATION JUDGES, Plaintiff,

v.James R. MCHENRY III, Director of the Executive Office for Immigration Review, Defendant.

Case No. 1:20-cv-000731

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

Signed August 6, 2020

Victor Michael Glasberg, Victor M. Glasberg & Associates, Alexandria, VA, for Plaintiff.

Catherine M. Yang, US Attorney's Office, Alexandria, VA, for Defendant.

ORDER

Liam O'Grady, United States District Judge

Before the Court is Plaintiff NAIJ's motion for a preliminary injunction. Dkt. 9. The motion was fully briefed, and the Court held a telephonic hearing on Friday, July 31.

I. Background

The National Association of Immigration Judges ("NAIJ"), a labor organization, is the exclusive collective bargaining representative for non-managerial immigration judges ("IJs"). IJs are employed by the Executive Office for Immigration Review ("EOIR"), an agency within the Department of Justice. James R. McHenry III, Director of EOIR, exercises authority over the agency's policies.

IJs and other EOIR employees are subject to federal ethics and workplace laws and policies. One such policy is the 2011 Ethics Guide (the "Guide"), which was jointly issued by EOIR and NAIJ. The Guide remains in effect today. It requires IJs to seek prior supervisory and ethics approval for written work and speeches but does not identify a review process. And, although the Guide itself distinguishes between personal capacity speech and official capacity speech, the supervisory approval requirement does not contain that distinction.

Before 2017, IJ speech requests were approved or denied by the requesting IJ's "ACIJ," or supervising Assistant Chief Immigration Judge. If the ACIJ granted the speech request, it was forwarded to the EOIR Ethics Office which offered ethics guidance.

Under this scheme, EOIR recognized speech known to the agency and IJs as "PTD" speech. PTD speech occurred in an IJ's "personal capacity with use of title and disclaimer." IJs were authorized to speak and appear in their personal capacities while using their official titles, so long as they provided a disclaimer stating the appearance and speech was occurring in a personal capacity and not as an EOIR employee.

On September 1, 2017, EOIR issued a memorandum entitled "Speaking Engagement Policy for EOIR Employees." Dkt. 2. The 2017 memorandum outlined a formal review and approval process for IJ speaking engagement requests. It purported only to apply to requests to speak at an event. This memorandum altered the approval process by tasking ACIJs, IJ supervisors, with determining whether the speech requests they received pertained to speech in a personal or official capacity. After a supervisor approved a request, official capacity speech requests are reviewed by EOIR's Speaking Engagement Team ("SET").¹ The 2017 memorandum did not identify criteria used for determining whether requests would be approved or denied, but it eliminated PTD speech.

In 2018, NAIJ initiated collective bargaining with EOIR regarding the 2017 memorandum. Later that year, the parties executed a Memorandum of Understanding ("MOU") in 2018, which settled their labor dispute. The MOU sets aspirational timeliness guidelines for speech requests and requires EOIR to provide reasons when denying requests. It also required EOIR to provide a list of factors considered in assessing requests, and to provide a summary of requests received by SET every six months.

Then, on January 17, 2020, EOIR issued a memorandum entitled "Submission and Processing of Requests for Speaking Engagements" in conjunction with the launch of an automated request review process. The 2020 memorandum purports to be a reissuance of the 2017 memorandum which does not substantively alter the 2017 memorandum or MOU, but merely clarifies points that have caused confusion.

The 2020 memorandum provided that speaking engagements were not limited to IJ speaking events, but instead also included written material intended for publication. It also noted that, in addition to ACIJ and SET review, speech requests were subject to review by the EOIR Ethics Program, for guidance, and a request approved by SET was still subject to final approval by the supervising ACIJ a second time. Finally, the 2020 memorandum explained that the determination of whether an engagement involved personal capacity or official capacity speech depended upon the nature of the engagement, not any label, and provided examples. It provides, in relevant part, that

An employee who has been invited to participate in a speaking engagement related to immigration law or policy issues, the employee's official EOIR duties or position, or any agency programs and policies, or who has been invited because of the employee's official duties or position, has been invited in an official capacity ....

NAIJ sued Director McHenry in his official capacity over EOIR's speech request policies. The Complaint asserts federal question jurisdiction and claims four constitutional causes of action. NAIJ alleges that EOIR's policies, as they are set out separately in memoranda issued in 2020 and 2017, violate the First and Fifth Amendments to the Constitution because they are prior restraints on speech not tailored to any legitimate government interest, and because they are unconstitutionally vague. NAIJ argues, in essence, that IJ personal capacity speech on matters of public importance is effectively prohibited by the policies.

While the text of the 2020 memorandum purports to reissue the 2017 memorandum with clarifications, NAIJ originally understood the 2020 policy to be separate and distinct from the 2017 policy, as amended by the MOU, and therefore challenged them both. EOIR contends that there is a single policy at issue, which is comprised of the 2017 memorandum, the MOU, and the 2020 memorandum.

II. Legal Standard

Federal Rule of Civil Procedure 65 authorizes courts to issue preliminary injunctions and temporary restraining orders. A preliminary injunction is an extraordinary remedy. Winter v. Nat. Resources Def. Council, Inc. , 555 U.S. 7, 22, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). A party seeking a preliminary injunction must demonstrate: (1) that it is likely to succeed on the merits of its claim; (2) that it is likely to suffer irreparable harm absent a preliminary injunction; (3) that the balance of equities tips in its favor; and (4) that the injunction is in the public interest. Accident, Injury & Rehab., PC v. Azar , 943 F.3d 195, 201 (4th Cir. 2019) (citing See League of Women Voters of North Carolina v. North Carolina , 769 F.3d 224, 236 (4th Cir. 2014) ). "[C]ourts considering whether to impose preliminary injunctions must separately consider each Winter factor." Pashby v. Delia , 709 F.3d 307, 321 (4th Cir. 2013). But Winter clearly established that each of the four factors must be satisfied to obtain preliminary injunctive relief. Henderson for Nat'l Labor Relations Bd. v. Bluefield Hosp. Co., LLC , 902 F.3d 432, 439 (4th Cir. 2018) (citing Winter , 555 U.S. at 20, 129 S.Ct. 365 ). Courts have therefore found it is "unnecessary to address all four factors when one or more [has] not been satisfied." Id. Particular attention is given to a movant's likelihood of success on the merits. See Dewhurst v. Cent. Aluminum Co. , 649 F.3d 287, 290 (4th Cir. 2011).

III. Analysis

1. Likelihood of Success on the Merits

"Because a preliminary injunction affords temporary relief before trial of the type that can be granted permanently after trial , it is an ‘extraordinary remedy’ and may be granted only ‘upon a clear showing that the plaintiff is entitled to such relief.’ " Accident, Injury & Rehab., PC , 943 F.3d at 201 (quoting Winter , 555 U.S. at 22, 129 S.Ct. 365 ) (emphases in original). Here, NAIJ cannot show it is entitled to the relief which it seeks because Congress has precluded district court jurisdiction over claims such as these. Due to lack of jurisdiction, NAIJ is unlikely to succeed on the merits of its claims.

Federal district courts generally have "original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. But Congress may "impliedly preclude jurisdiction by creating a statutory scheme of administrative adjudication and delayed judicial review in a particular court." Bennett v. SEC , 844 F.3d 174, 178 (4th Cir. 2016). Whether a statutory scheme impliedly precludes jurisdiction requires application of a two-step analysis developed in a trio of Supreme Court decisions: Thunder Basin Coal Co. v. Reich , 510 U.S. 200, 114 S.Ct. 771, 127 L.Ed.2d 29 (1994) ; Free Enterprise Fund v. Pub. Accounting Oversight Bd. , 561 U.S. 477, 130 S.Ct. 3138, 177 L.Ed.2d 706 (2010), and Elgin v. Dept. of Treasury , 567 U.S. 1, 132 S.Ct. 2126, 183 L.Ed.2d 1 (2012). The Fourth Circuit has explained:

First, we ask whether Congress's intent to preclude district-court jurisdiction is fairly discernible in the statutory scheme. This involves examining the statute's text, structure, and purpose. Second, we ask whether plaintiffs' claims are of the type Congress intended to be reviewed within this statutory structure. At this second stage, we consider three factors. We focus on (1) whether the statutory scheme forecloses all meaningful judicial review. We also consider (2) the extent to which the plaintiff's claims are wholly collateral to the statute's review provisions, and (3) whether agency expertise could be brought to bear on the ... questions presented.

Bennett , 844 F.3d at 181 (internal quotation marks, citations, and alteration omitted).

A) Congress Intended the FSL-MRS to Preclude District Court Jurisdiction

At the first step of the two-step framework established by Thunder Basin , courts must determine whether Congress has manifested a fairly discernible intent to preclude jurisdiction in a given statutory scheme. Thunder Basin , 510 U.S. at 207, 114 S.Ct. 771 ; accor...