Petition for Writ of Certiorari — National Association of Immigration Judges, Petitioner v. Daren K. Margolin, Director of the Executive Office for Immigration Review

Supreme Court briefFeb 18, 2026

Ask Donna

What actually matters in this document.

Text

No. _____

IN THE

Supreme Court of the United States

NATIONAL ASSOCIATION OF

IMMIGRATION JUDGES,

Cross-Petitioner,

DAREN K. MARGOLIN, IN HIS OFFICIAL CAPACITY

AS DIRECTOR OF THE EXECUTIVE OFFICE FOR

IMMIGRATION REVIEW,

Cross-Respondent.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Fourth Circuit

CROSS-PETITION FOR A WRIT OF

CERTIORARI

Victor M. Glasberg

Victor M. Glasberg &

Associates

121 S. Columbus Street

Alexandria, VA 22314

Phone: (703) 684-1100

Fax: (703) 684-1104

vmg@robinhoodesq.com

Ramya Krishnan

Counsel of Record

Alex Abdo

Xiangnong Wang

Jameel Jaffer

Knight First Amendment Institute

at Columbia University

475 Riverside Drive, Suite 302

New York, NY 10115

(646) 745-8500

ramya.krishnan@knightcolumbia.org

QUESTION PRESENTED

One year after this Court’s decision in Thunder

Basin Coal Co. v. Reich, 510 U.S. 200 (1994), the

Court exercised jurisdiction over a pre-enforcement

challenge to a broad prior restraint on the speech of

federal employees filed originally in district court.

United States v. Nat’l Treasury Emps. Union, 513

U.S. 454 (1995). Cross-Petitioner here, the National

Association of Immigration Judges (“NAIJ”),

brought a similar pre-enforcement challenge to an

across-the-board policy restricting the speech of the

nation’s immigration judges. The court of appeals

concluded, however, that under step two of the test

articulated in Thunder Basin, this kind of challenge

can be raised only through the administrative

scheme provided by the Civil Service Reform Act

(“CSRA”), Pub. L. No. 95-454, 92 Stat. 1111, even

though that scheme does not guarantee any—let

alone meaningful—judicial review of NAIJ’s “hereand-now” injuries. Axon Enter., Inc. v. FTC, 598 U.S.

175, 191 (2023).

The question presented is whether the CSRA

impliedly strips federal district courts of jurisdiction

over a pre-enforcement challenge to a broad prior

restraint on the speech of federal employees, even

where:

(a) the challenge could not be raised at all under

the CSRA’s review scheme;

(b) the CSRA’s review scheme would not

guarantee judicial review of the challenge in any

event, because the availability of judicial review

would turn entirely on agency officials’ unfettered

and unreviewable discretion; and

remedy the “here-and-now” injuries caused by the

prior restraint.

PARTIES TO THE PROCEEDING

Cross-Petitioner in this Court (Plaintiff–

Appellant below) is NAIJ. Cross-Respondent in this

Court (Defendant–Appellee below) is Daren K.

Margolin, in his official capacity as Director of the

Executive Office for Immigration Review (“EOIR”).

RULE 29.6 DISCLOSURE STATEMENT

NAIJ has no parent corporation and no publicly

held company owns 10 percent or more of its stock.

RELATED PROCEEDINGS

United States District Court (E.D. Va.):

National Association of Immigration Judges v.

Neal, No. 20-cv-731 (Sept. 21, 2023)

United States Court of Appeals (4th Cir.):

National Association of Immigration Judges v.

Owen, No. 23-2235 (June 3, 2025)

Supreme Court of the United States:

Margolin v. National Association of Immigration

Judges, No. 25A662 (Dec. 19, 2025)

Margolin v. National Association of Immigration

Judges, No. 25-767 (Dec. 31, 2025)

iii

TABLE OF CONTENTS

QUESTION PRESENTED ........................................ i

PARTIES TO THE PROCEEDING ....................... iii

RULE 29.6 DISCLOSURE STATEMENT ............. iii

RELATED PROCEEDINGS ................................... iii

APPENDIX TABLE OF CONTENTS ..................... vi

TABLE OF CITED AUTHORITIES ...................... vii

OPINIONS BELOW.................................................. 1

JURISDICTION ........................................................ 1

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ............................ 1

INTRODUCTION ..................................................... 1

STATEMENT OF THE CASE .................................. 5

Legal Background ..................................... 5

II.

Factual and Procedural

Background ............................................... 9

REASONS TO GRANT THE CROSSPETITION .................................................... 17

The Fourth Circuit’s decision at

step two of Thunder Basin creates

a circuit split. .......................................... 17

II.

The Fourth Circuit’s opinion

conflicts with this Court’s decisions

in Axon and Free Enterprise Fund. ........ 22

III.

The Fourth Circuit erred at step

two of Thunder Basin in concluding

that NAIJ’s First Amendment

prior-restraint claims must be

raised through the CSRA. ...................... 26

IV.

The question presented is

exceptionally important, and this

case is an excellent vehicle to

resolve it. ................................................. 34

CONCLUSION ........................................................ 37

APPENDIX TABLE OF CONTENTS

U.S. Const. amend. I ............................................... 1a

5 U.S.C. § 1201 ........................................................ 2a

5 U.S.C. § 1202 ........................................................ 3a

5 U.S.C. § 1204 ........................................................ 4a

5 U.S.C. § 1211 ...................................................... 12a

5 U.S.C. § 1214 ...................................................... 13a

5 U.S.C. § 2301 ...................................................... 26a

5 U.S.C. § 2302 ...................................................... 29a

5 U.S.C. § 7501 ...................................................... 45a

5 U.S.C. § 7502 ...................................................... 46a

5 U.S.C. § 7503 ...................................................... 47a

5 U.S.C. § 7504 ...................................................... 48a

5 U.S.C. § 7512 ...................................................... 49a

5 U.S.C. § 7513 ...................................................... 50a

5 U.S.C. § 7703 ...................................................... 52a

28 U.S.C. § 1331 .................................................... 56a

TABLE OF CITED AUTHORITIES

Cases

Biden v. Feds for Med. Freedom, 144

S. Ct. 480 (2023) ............................................ 7, 20

Brown Shoe Co. v. United States, 370

U.S. 294 (1962)................................................... 21

City of Lakewood v. Plain Dealer

Publ’g Co., 486 U.S. 750 (1988) ............. 16, 35, 36

Elgin v. Dep’t of Treasury, 567 U.S. 1

(2012) ...................................... 2, 20, 21, 26, 27, 32

Elrod v. Burns, 427 U.S. 347 (1976) ...................... 24

Feds for Med. Freedom v.

Biden, 63 F.4th 366 (5th

Cir. 2023)................ 7, 8, 20, 21, 27, 28, 29, 32, 33

Firenze v. NLRB, No. 12-CV-10880,

2013 WL 639151 (D. Mass. Jan. 10,

2013) ................................................................... 19

Free Enter. Fund v. Pub. Co. Acct.

Oversight Bd., 561 U.S. 477 (2010) ..... 3, 5, 25, 35

Freedman v. Maryland, 380 U.S. 51

(1965) .................................................................. 36

Hardy v. Hamburg, 69 F. Supp. 3d. 1

(D.D.C. 2014)...................................................... 19

vii

Kloeckner v. Solis, 568 U.S. 41 (2012)................ 7, 28

Krafsur v. Davenport, 736 F.3d 1032

(6th Cir. 2013) ...................................................... 8

Lindahl v. OPM, 470 U.S. 768 (1985) ...................... 7

Mims v. Arrow Fin. Serv., LLC, 565

U.S. 368 (2012)..................................................... 5

NAIJ v. McHenry, 477 F. Supp. 3d 466

(E.D. Va. 2020) ................................................... 12

NAIJ v. Neal, No. 20-1868, 2022 WL

2045339 (4th Cir. June 7, 2022)........................ 12

NAIJ v. Neal, No. 20-1868, 2022 WL

997223 (4th Cir. Apr. 4, 2022) .......................... 12

Neb. Press Ass’n v. Stuart, 427 U.S.

539 (1976) ..................................................... 23, 29

Pinar v. Dole, 747 F.2d 899 (4th Cir.

1984) ................................................................... 28

Rosencrans v. United States, 165 U.S.

257 (1897) ............................................................. 5

Tabaddor v. Holder, 156 F. Supp. 3d

1076 (C.D. Cal. 2015)......................................... 20

Turner v. U.S. Agency for Glob. Media,

502 F. Supp. 3d 333 (D.D.C. 2020) ................... 19

viii

Weaver v. U.S. Info. Agency, 87 F.3d

1429 (D.C. Cir. 1996) ......................... 3, 17, 18, 28

Wolfe v. Barnhart, 446 F.3d 1096

(10th Cir. 2006) .................................................. 19

Statutes

28 U.S.C. § 1331 ........................................................ 5

5 U.S.C. § 1214 .......................................... 7, 8, 25, 29

5 U.S.C. § 2301 .......................................................... 7

5 U.S.C. § 2302 .............................................. 7, 27, 28

5 U.S.C. § 7501 .......................................................... 8

5 U.S.C. § 7502 .......................................................... 8

5 U.S.C. § 7503 .......................................................... 8

5 U.S.C. § 7504 .......................................................... 8

5 U.S.C. § 7512 .......................................................... 8

5 U.S.C. § 7513 ...................................................... 8, 9

5 U.S.C. § 7703 .......................................................... 9

Civil Service Reform Act of 1978, Pub.

L. No. 95-454, 92 Stat. 1112 (1978) .................... 6

Other Authorities

2024 Off. of Special Couns. Ann. Rep.,

https://perma.cc/99XK-D5ZA ........................ 8, 29

CROSS-PETITION FOR CERTIORARI

OPINIONS BELOW

The opinion of the court of appeals is reported at

139 F.4th 293 and reproduced in the appendix to the

government’s petition for a writ of certiorari at App.

1a–32a. The decision of the district court is reported

at 693 F. Supp. 3d 549 and is reproduced at App.

72a–124a.

JURISDICTION

The court of appeals entered judgment on June

3, 2025. It denied the government’s petition for

rehearing on November 20, 2025. App. 33a. The

government’s petition for a writ of certiorari was

docketed on December 31, 2025. This Court has

jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The relevant constitutional and statutory

provisions are included at Cross-Petition Appendix

(“Cross-Pet. App.”) 1a–56a.

INTRODUCTION

This case presents a circuit split on a recurring

issue of exceptional importance: whether federal

employees may file pre-enforcement challenges to

prior restraints on their speech directly in district

court, or whether, instead, they must proceed

through an administrative scheme that does not

guarantee any—let alone meaningful—judicial

review of their constitutional claims.

The policy that gave rise to this suit categorically

prohibits immigration judges from speaking publicly

in their personal capacities about immigration law

or policy or the agency that employs them. It is a

quintessential prior restraint—the kind of speech

restriction whose very existence this Court has

recognized intimidates parties into silence and cries

out for immediate judicial relief. Yet the Fourth

Circuit concluded, under step two of Thunder Basin,

that NAIJ’s challenge to the policy can be presented

only through the CSRA’s administrative review

scheme.

The Fourth Circuit recognized that proceeding

under the CSRA would not guarantee NAIJ judicial

review of its constitutional claims, but it believed

that its conclusion was compelled by this Court’s

decision in Elgin v. Department of Treasury, 567

U.S. 1 (2012). In reality, the court of appeals’

decision dramatically extends Elgin’s reach. In

Elgin, the Court held that federal employees who

challenge their termination—an employment action

for which the CSRA indisputably guarantees judicial

review—cannot evade the scheme by arguing that a

federal statute is unconstitutional. But Elgin did not

address pre-enforcement claims like NAIJ’s that do

not challenge a CSRA-covered action; nor did the

case involve “here-and-now” constitutional injuries

for which the statute provided no guarantee of

judicial review. Axon, 598 U.S. at 191.

The Fourth Circuit’s decision creates a clean split

with the D.C. Circuit, and it also breaks with a long

line of cases, including from this Court, exercising

jurisdiction over simple pre-enforcement challenges

to prior restraints on federal-employee speech. In

Weaver v. U.S. Information Agency, the D.C. Circuit

expressly rejected the argument that the CSRA

strips jurisdiction over “a simple pre-enforcement

attack on a regulation restricting employee speech.”

87 F.3d 1429, 1435 (D.C. Cir. 1996). The court relied

in part on this Court’s decision in NTEU, issued just

one year after Thunder Basin, in which the Court

exercised jurisdiction over a similar prior-restraint

challenge without once mentioning the possibility of

CSRA preclusion. Instead, the Court resolved the

plaintiffs’ claims on the merits, holding that a ban

on the acceptance of honoraria by federal employees

was an unconstitutional prior restraint. In case after

case since, lower courts have treated it as settled law

that federal employees may challenge policies

imposing prior restraints on their speech in district

court, so long as they are not, in reality, targeting a

covered sanction for non-compliance.

It is bad enough that the Fourth Circuit’s

decision implies that one of this Court’s seminal

public-employee speech cases was wrongly decided.

But the decision also directly conflicts with

controlling precedent from the Court. In Free

Enterprise Fund v. Public Company Accounting

Oversight Board, 561 U.S. 477 (2010), the Court held

that a plaintiff should not have to raise their claims

administratively when there is no guarantee of

judicial review at the end of the road, and in Axon

the Court held that even a guarantee of judicial

review at some point is not enough where a plaintiff

suffers from “here-and-now” injuries that could not

be redressed by that review. NAIJ’s challenge brings

together both of these problems, but when presented

with claims raising paradigmatic “here-and-now”

injuries and a scheme that does not guarantee even

eventual judicial review of those claims, the Fourth

Circuit blinked, reading Free Enterprise Fund and

Axon overly narrowly to accommodate its

misinterpretation of Elgin.

Review of the Fourth Circuit’s decision is

warranted now because it threatens to create a First

Amendment black hole. Under the court’s ruling,

administrations of both political parties could enact

sweeping prior restraints on the speech of federal

employees without any guarantee of judicial review.

And the implications extend beyond free speech,

because the same rule articulated by the court would

reach challenges to policies concerning religion as

well, including policies that deny employees

religious accommodations or restrict their private

observances of religious practice. This Court charted

a different path in NTEU, and in the decades since,

lower courts have correctly followed its lead. The

Court’s intervention is urgently needed to ensure a

uniform approach to this important question of

federal law and to protect the First Amendment

rights of federal employees.1

For reasons NAIJ will further explain in its brief in

opposition to the government’s certiorari petition, the Court

should deny the government’s petition (which concerns the

Fourth Circuit’s decision at step one of Thunder Basin) and

grant NAIJ’s cross-petition (which concerns the Fourth

STATEMENT OF THE CASE

Legal Background

1. Congress has expressly provided that federal

district courts have jurisdiction over “all civil actions

arising under the Constitution, laws, or treaties of

the United States.” 28 U.S.C. § 1331. While

Congress may of course limit jurisdiction it has

expressly granted, the default rule is that when a

statute expressly grants jurisdiction, “that express

legislation must control, in the absence of

subsequent legislation equally express.” Rosencrans

v. United States, 165 U.S. 257, 262 (1897). Moreover,

this Court has recognized that jurisdiction conferred

by § 1331 in particular “should hold firm against

‘mere implication flowing from subsequent

legislation.’” See Mims v. Arrow Fin. Serv., LLC, 565

U.S. 368, 383 (2012) (quoting Colorado River Water

Conservation Dist. v. United States, 424 U.S. 800,

808–09 (1976)).

Notwithstanding these principles, this Court has

sometimes inferred congressional intent to silently

take away jurisdiction that § 1331 expressly confers.

In particular, “when Congress has create[d]

procedures ‘designed to permit agency expertise to

be brought to bear on particular problems,’” Free

Enter. Fund, 561 U.S. at 489, the Court has assessed

whether the creation of these procedures evinces an

intent to strip district-court jurisdiction over covered

Circuit’s decision at step two). But if the Court grants the

former, it is especially important that it grant the latter. See

Part IV.

claims. In doing so, it has asked whether the

“statutory scheme displays a ‘fairly discernible’

intent to limit jurisdiction, and [if so, whether] the

claims at issue ‘are of the type Congress intended to

be reviewed within th[e] statutory structure.’” Id.

(quoting Thunder Basin, 510 U.S. at 207).

Three considerations guide that inquiry: namely,

“could precluding district court jurisdiction ‘foreclose

all meaningful judicial review’ of the claim”; “is the

claim ‘wholly collateral to [the] statute’s review

provisions’”; and “is the claim ‘outside the agency’s

expertise.’” Axon, 598 U.S. at 186 (quoting Thunder

Basin, 510 U.S. at 212–13). The first factor

“recognizes that Congress rarely allows claims about

agency action to escape effective judicial review.” Id.;

see also Thunder Basin, 510 U.S. at 215–16 n.20

(recognizing the “serious constitutional question”

that would arise if an agency statute were construed

to preclude meaningful judicial review of a

constitutional claim (citation omitted)). The second

and third “reflect in related ways the point of special

review provisions—to give the agency a heightened

role in the matters it customarily handles, and can

apply distinctive knowledge to.” Axon, 598 U.S. at

186.

2. The CSRA was enacted to “provide the people

of the United States with a competent, honest, and

productive Federal work force reflective of the

Nation’s diversity, and to improve the quality of

public service.” Pub. L. No. 95-454 § 3(1), 92 Stat.

1112 (1978). To achieve that goal, the Act

“comprehensively overhauled the civil service

system” by creating a “new framework for

evaluating adverse personnel actions against

[federal employees],” Lindahl v. OPM, 470 U.S. 768,

773–74 (1985). That framework provides “graduated

procedural protections depending on an action’s

severity.” Kloeckner v. Solis, 568 U.S. 41, 44 (2012).

Two parts of the CSRA’s graduated framework

are relevant to this case.

First, Chapter 23 of the CSRA governs review of

“prohibited personnel practice[s],” which are “the

least severe employment actions the Government

can take.” Feds for Med. Freedom v. Biden, 63 F.4th

366, 370–71 (5th Cir. 2023) (citing 5 U.S.C.

§ 2302(b)), cert. granted, judgment vacated, 144 S.

Ct. 480 (2023). Prohibited personnel practices are an

enumerated set of acts that federal employers may

not take against covered employees, including any

“personnel action” in violation of the “merit system

principles.” 5 U.S.C. § 2302(b). One such principle is

that employees should be treated “with proper

regard for their . . . constitutional rights.” Id.

§ 2301(b)(2). A “personnel action,” in turn, is defined

as one of twelve employment actions—such as an

“appointment,” “promotion,” “disciplinary or

corrective action,” or “other significant change in . . .

working conditions”—taken “with respect to an

employee.” Id. § 2302(a)(2)(A).

Because prohibited personnel practices are

relatively minor, employees who suffer them are not

entitled to judicial review. Under Chapter 23, an

employee who suffers a prohibited personnel

practice must first file a complaint with the Office of

Special Counsel (“OSC”). 5 U.S.C. § 1214(a)(1)(A). If

the Special Counsel concludes that “there are

reasonable grounds to believe that a prohibited

personnel practice has occurred,” id., he must report

that conclusion to the employing agency, id.

§ 1214(b)(2)(B).

after

some

unspecified

“reasonable period of time” the agency does not take

corrective action, the Special Counsel “may petition

the [MSPB].” Id. § 1214(b)(2)(C) (emphasis added).

If the Special Counsel does so, final orders of the

MSPB are reviewable before the Federal Circuit. Id.

§ 1214(c). But if the Special Counsel concludes that

the complaint lacks merit, or if he exercises his

discretion to decline to petition the MSPB for any

reason, the employee cannot seek judicial review

and is simply “out of luck.” Krafsur v. Davenport, 736

F.3d 1032, 1034 (6th Cir. 2013).

During the five fiscal years running from 2020 to

2024, the Special Counsel did not petition the MSPB

for corrective action even once. 2024 Off. of Special

Couns. Ann. Rep. 16, https://perma.cc/99XK-D5ZA.

Second, Chapter 75 provides for the review of

“adverse actions,” which are “the most-severe

employment actions.” Feds for Med. Freedom, 63

F.4th at 371 (citing 5 U.S.C. §§ 7502, 7512(1)–(5)).

These include removals, suspensions, reductions in

grade or pay, and certain furloughs. 5 U.S.C.

§§ 7501–7504, 7512(1)–(5). An employee who is

suspended for less than fourteen days is entitled to

notice, the opportunity to respond, representation by

an attorney, and a written decision. Id. § 7503(b)(1)–

(4). An employee who suffers any other Chapter 75

action receives these same protections, id. § 7513(b),

and may also appeal directly to the MSPB, id.

§ 7513(d). Employees may seek judicial review of

final orders of the MSPB before the Federal Circuit.

Id. § 7703(b)(1)(A).

II.

Factual and Procedural Background

1. NAIJ is a non-partisan, non-profit voluntary

association of immigration judges formed to promote

the independence, dignity, professionalism, and

efficiency of the U.S. immigration courts. App. 3a.

From 1979 to 2022, NAIJ was the certified

bargaining representative for all non-supervisory

judges. C.A. App. 16–17.2 NAIJ was formally

decertified on April 15, 2022, but it remains a

voluntary association of immigration judges and

continues to have hundreds of dues-paying

members. Id.

Immigration judges are employees of EOIR, an

agency within the Department of Justice. App. 3a.

In addition to their official responsibilities, many

immigration judges are also active members of their

civic communities who wish to speak to the public in

their roles as private citizens.

Prior to 2017, immigration judges regularly

spoke at local and national conferences, guest

lectured at universities and law schools, and

participated in immigration law trainings—all in

their personal capacities, and all without interfering

2 All citations to “App.” refer to Petitioner’s appendix filed

in this Court with its Petition for a Writ of Certiorari. All

citations to “C.A. App.” refer to the joint appendix the parties

filed in the Fourth Circuit.

with the work of EOIR. C.A. App. 19. While approval

was required for these activities, immigration judges

routinely received that approval so long as they

included a disclaimer stating that the views they

presented were their own and not those of EOIR. Id.

Beginning in 2017, however, EOIR issued a

series of policies sharply limiting the circumstances

in which judges could permissibly engage in private

speech. The currently operative policy (“Policy”)

categorically prohibits immigration judges from

speaking about immigration or EOIR in their

personal capacities. Id. at 56–62. It does so by

deeming “official capacity” all speech concerning

“agency policies, programs, or a subject matter that

directly relates to [immigration judges’] official

duties.” Id. at 57. Attachment A to the Policy

confirms that EOIR considers the general topic of

immigration to be “a subject matter that directly

relates” to an immigration judge’s duties. Id. at 62

(listing examples of “personal capacity” speech that

explicitly exclude speech about immigration,

including: “moot court judge – not immigration

related”; “commencement speaker when topic is

unrelated to immigration or official duties”; and

“speaking at community, religious, youth, or small

social groups . . . and meetings, not directly related

to immigration law or advocacy”).

The Policy has had the unsurprising effect of

silencing judges on topics that are of substantial

public interest. Many of NAIJ’s members wish to

contribute to public and scholarly discourse

concerning developments in immigration policy, but

the Policy prevents them from doing so. For

example, the Policy prevents them from presenting

at law schools and conferences, and from writing for

legal journals and other publications, about issues

ranging from court procedure to their own personal

experiences as judges. Id. at 28–29, 35–36. The

result is to deny the public access to important

insights from those with direct knowledge of how the

immigration system operates. See, e.g., id. at 34–36.

Some judges have tried to continue to speak

publicly by seeking approval to do so in an official

capacity, id. at 29–33, but doing so requires them to

act as spokespeople for the agency. See id. at 57

(explaining that employees who speak in an “official

capacity” do so “on behalf of the agency”). And as a

mouthpiece for the agency, judges must share only

the agency’s official positions—they may not share

their personal views. See, e.g., id. at 29–33.3

2. NAIJ filed this lawsuit and a motion for a

preliminary injunction in 2020, arguing that earlier

iterations of the Policy violated the First and Fifth

Amendments. See App. 84a. The district court

denied NAIJ’s motion, holding that the Federal

Service Labor-Management Relations Statute

impliedly divested it of jurisdiction over NAIJ’s

claims because NAIJ was, at that time, a certified

bargaining representative that could raise

3 The government’s petition mischaracterizes the Policy as

imposing only a requirement of preapproval, see Pet. 8, but the

government conflates preapproval for official capacity speech

with the ability of immigration judges to speak in their

personal capacities. It is the latter that the Policy eliminates

with respect to speech concerning immigration or EOIR itself.

bargaining disputes through the statutory scheme.

NAIJ v. McHenry, 477 F. Supp. 3d 466, 471–72 (E.D.

Va. 2020). The Fourth Circuit initially affirmed, see

NAIJ v. Neal, No. 20-1868, 2022 WL 997223, at *2

(4th Cir. Apr. 4, 2022), but then vacated its ruling

after NAIJ was formally decertified, see NAIJ v.

Neal, No. 20-1868, 2022 WL 2045339, at *1 (4th Cir.

June 7, 2022).

Following its decertification, NAIJ filed the

operative complaint (the second amended

complaint), which the government moved to dismiss

shortly thereafter. App. 72a–73a, 86a. In September

2023, the district court dismissed NAIJ’s claims,

concluding that the CSRA impliedly divested it of

jurisdiction to hear NAIJ’s challenge. Id. at 124a.

NAIJ timely appealed. C.A. App. 111–112.

On June 3, 2025, the Fourth Circuit vacated the

district court’s ruling and remanded for further

factfinding. App. 1a, 31a–32a. Its analysis followed

the two-step framework established by this Court in

Thunder Basin for evaluating whether Congress

impliedly divested district courts of jurisdiction to

hear a plaintiff’s claims by enacting an alternative

scheme for review. That framework asks, first,

whether Congress’s intent to preclude district-court

jurisdiction is “fairly discernible in the statutory

scheme,” 510 U.S. at 207; and, second, whether the

claims at issue “are of the type Congress intended to

be reviewed within [the scheme],” id. at 212.

The Fourth Circuit began by acknowledging that,

until recently, its analysis of the first step would

have been “simple,” based on this Court’s decisions

in Fausto and Elgin, which “recognized that the

CSRA, when functioning as Congress intended, was

designed to strip district courts of jurisdiction.” App.

13a–14a. But the court of appeals ultimately

concluded that factual developments post-dating

oral argument had called into question “the

functionality and independence of the MSPB and

Special Counsel,” id. at 19a–20a, which were critical

features of the statutory review scheme Congress

had designed, id. at 16a. In particular, the court of

appeals observed that the President had fired the

Special Counsel and the MSPB chair without cause;

that the MSPB was deprived of a quorum as a result;

and that, in response to lawsuits challenging these

terminations, the government had argued that the

CSRA’s protections against at-will removal violate

the separation of powers. Id. at 15a, 19a–20a. The

court therefore remanded to the district court with

instructions “to conduct a factual inquiry [into]

whether the CSRA continues to provide a functional

adjudicatory scheme.” Id. at 19a–20a.4

The court then proceeded to the second step of

the Thunder Basin framework and considered

whether NAIJ’s claims “are of the type Congress

intended to be reviewed” through the CSRA. Id. at

20a (citation omitted). The court began by

addressing whether the CSRA applied to NAIJ’s

claims. It concluded that Chapter 75 of the Act did

4 In the district court, NAIJ has taken the position that the

fact-finding ordered by the Fourth Circuit may be

accomplished without discovery, through a joint stipulation of

facts “along with declarations setting forth any additional facts

either party considers to be relevant.” Dist. Ct. Dkt. 104.

not apply to those claims because “no adverse action

ha[d] been taken or proposed against [NAIJ’s

members],” App. 21a; NAIJ’s members had “neither

violated nor intend to violate [the Policy],” id. at 22a;

and “[g]overnment employees are not required to

‘bet the farm by taking violative action’ in order to

bring a constitutional challenge to an agency policy,”

id. (quoting Free Enter. Fund, 561 U.S. at 490). The

court concluded, however, that NAIJ’s members

could challenge the Policy under Chapter 23 of the

CSRA. The court reasoned that Chapter 23 prohibits

federal employers from taking a “personnel action”

in violation of the merit system principles, and that

the Policy “fit[] that definition” because it could

“constitute a significant change in working

conditions that NAIJ alleges was adopted without

‘proper regard for [its members’] constitutional

rights.” Id. at 23a (quoting 5 U.S.C. § 2301(b)(2)).

Having determined that Chapter 23 provides a

“potential avenue” to challenge the Policy, id. at 22a,

the Fourth Circuit next considered the Thunder

Basin factors. With respect to the first factor, the

court concluded that Chapter 23 provided

“meaningful judicial review” of NAIJ’s claims

because NAIJ’s members could file a complaint with

the OSC, which in turn could petition the MSPB for

corrective action. Id. at 29a. The court acknowledged

“that the Special Counsel is afforded leeway

regarding which claims to bring to the MSPB,” and

that it could exercise that “leeway” to “prevent a

claim [like NAIJ’s] from ever reaching the MSPB.”

Id. at 26a–27a. But it read this Court’s decision in

Elgin as requiring NAIJ’s members to bring their

claims to the OSC anyway. Id. The court also

rejected NAIJ’s argument that its claims presented

the kind of “here-and-now injury” that this Court

permitted to proceed directly to district court in

Axon. Id. at 27a–28a. The court stated without

extended analysis that the rule announced in Axon

applies only to a “narrow class of structural

constitutional claims,” and does not extend to the

First Amendment harms caused by a broad prior

restraint on speech. Id. at 28a–29a.

Based largely on its determination that NAIJ’s

challenge could be raised through Chapter 23, the

Fourth Circuit also reasoned that NAIJ’s claims are

not “wholly collateral” to the CSRA’s review scheme,

id. at 29a–30a, and that the OSC and the MSPB

possess “expertise that may help resolve the

claim[s],” id. at 30a–31a. It therefore concluded that,

“if the first step of the Thunder Basin test is met,

then Congress would have intended to strip district

court jurisdiction over NAIJ’s Chapter 23 claims.”

Id. at 31a.

3. The government petitioned the Fourth Circuit

for rehearing, which the court of appeals denied by

a 9–6 vote on November 20, 2025. Id. at 33a–34a.

Judge Thacker, joined by Judge King, concurred in

the denial of rehearing and expressed her “complete

agreement with the panel opinion.” Id. at 42a. She

also emphasized the importance of providing NAIJ

with an “opportunity for meaningful review of its

claim that the constitutional rights of its members

are being violated.” Id. at 44a. And she underscored

the default rule that “[c]laims for violation of rights

arising under the United States Constitution are

typically brought in federal court,” id. (citing 28

U.S.C. § 1331), unless “Congress makes clear its

intent to strip such jurisdiction from the federal

courts through legislation,” id. (citing Webster v.

Doe, 486 U.S. 592, 603 (1988)). Judge Quattlebaum,

joined by Judges Agee, Richardson, and Rushing,

dissented from the denial of rehearing. In discussing

the Thunder Basin framework, the dissent noted

that “[a]s a matter of first principles, . . .

[e]xamining a statute’s text seems like a better way

to determine whether Congress has precluded

federal courts from hearing certain claims than

using

judge-made

multi-factor

tests,”

but

acknowledged it was bound by this Court’s

precedent. Id. at 59a n.3.

Following the denial of rehearing, the

government asked the Fourth Circuit to stay the

issuance of its mandate until the deadline for filing

a petition for a writ of certiorari in this Court. The

Fourth Circuit denied that request. 12/19/2025

Order. On December 5, 2025, the government filed

an application to stay the Fourth Circuit’s mandate

with this Court. Appl. to Stay Mandate. On

December 19, 2025, the Court denied the

government’s

application

without

prejudice,

concluding that it had not established irreparable

harm. Id.

On December 23, 2025, the government filed a

certiorari petition, arguing that the Fourth Circuit’s

conclusion at step one of Thunder Basin disregarded

this Court’s precedent. See Pet. On January 22,

2026, the district court ordered that no hearing in

the case would be scheduled until the Supreme

Court addresses the government’s petition. Dist. Ct.

Dkt. 105. This cross-petition follows.

REASONS TO GRANT THE CROSSPETITION

The Fourth Circuit’s decision at step two

of Thunder Basin creates a circuit split.

The Fourth Circuit’s decision at step two of the

Thunder Basin test creates a clean split with the

D.C. Circuit.

In Weaver, the D.C. Circuit expressly rejected the

argument that the CSRA impliedly stripped districtcourt jurisdiction over a prior-restraint challenge

virtually identical to NAIJ’s. Weaver was a Voice of

America employee who challenged a regulation

requiring agency employees to submit for

prepublication review all speaking, writing, and

teaching material on matters of “official concern.” 87

F.3d at 1431–32. After being admonished for

violating this requirement, she filed an amended

complaint challenging that sanction in addition to

the policy. Id. at 1432. The court dismissed Weaver’s

challenge to the admonishment, reasoning that it

was remediable under the CSRA as a “prohibited

personnel practice.” Id. at 1432–33. But the court

treated her challenge to the policy differently,

holding that the district court had jurisdiction over

“a simple pre-enforcement attack on a regulation

restricting employee speech.” Id. at 1434. In the

court’s view, that challenge “st[ood] independently”

of any covered sanction for non-compliance, and so it

could be filed directly in district court. Id.

In reaching this conclusion, the D.C. Circuit

relied on this Court’s decision in NTEU, issued just

one year after Thunder Basin. Weaver, 87 F.3d at

1434. There, the Court exercised jurisdiction over a

pre-enforcement challenge to a broad prior restraint

on the speech of federal employees without even

mentioning the possibility of CSRA preclusion.

Instead, the Court resolved the employees’ claims on

the merits, holding that a ban on honoraria for

unofficial speaking and writing engagements was an

unconstitutional prior restraint. NTEU, 513 U.S. at

457. And in doing so, it established the doctrinal

framework for assessing the constitutionality of

broad ex ante restrictions on the speech of federal

employees.

The D.C. Circuit also relied on an earlier en banc

decision that the court rendered in the immediate

aftermath of NTEU. Weaver, 87 F.3d at 1434 (citing

Sanjour v. Env’t Prot. Agency, 56 F.3d 85 (D.C. Cir.

1995)). In Sanjour, the en banc D.C. Circuit

exercised jurisdiction over a prior-restraint

challenge to regulations that prohibited EPA

employees from receiving reimbursement from

private sources to travel for unofficial speaking

engagements that concerned the subject matter of

the employees’ work. The court invalidated the

regulations without the government ever raising the

possibility of CSRA preclusion.

The rule in the D.C. Circuit is thus clear: federal

employees may proceed directly to district court to

file pre-enforcement challenges to prior restraints on

their speech. District courts in the D.C. Circuit

continue to apply that rule. See, e.g., Turner v. U.S.

Agency for Glob. Media, 502 F. Supp. 3d 333, 369

(D.D.C. 2020) (relying on Weaver in exercising

jurisdiction over a First Amendment challenge to

employee policies and procedures because the

challenge was “distinct from and antecedent to [any]

covered personnel action”); cf. Hardy v. Hamburg, 69

F. Supp. 3d. 1, 18 (D.D.C. 2014) (applying Weaver

but declining to exercise jurisdiction because

plaintiffs’ challenge was not a pre-enforcement one).

In the years since NTEU and Weaver, other

courts have also exercised jurisdiction over preenforcement challenges to prior restraints on the

speech of federal employees. Indeed, until the

Fourth Circuit’s decision, that line of lower-court

decisions was unbroken. For example, in Wolfe v.

Barnhart, 446 F.3d 1096 (10th Cir. 2006), the Tenth

Circuit exercised jurisdiction to hear an

administrative law judge’s challenge to a regulation

restricting his speech. Again, the government did

not argue that the CSRA stripped jurisdiction, and

the court did not raise any such concern on its own.

Multiple district courts have followed suit. See,

e.g., Turner, 502 F. Supp. 3d at 369; Firenze v.

NLRB, No. 12-CV-10880, 2013 WL 639151, at *8 (D.

Mass. Jan. 10, 2013) (exercising jurisdiction over a

First Amendment challenge to an employee speech

rule because “the promulgation . . . of such a rule”

was not a covered “personnel action” and “there

[was] no allegation that [such an action] ha[d] taken

place vis-à-vis the First Amendment claim”); cf.

Tabaddor v. Holder, 156 F. Supp. 3d 1076, 1083

(C.D. Cal. 2015) (declining to exercise jurisdiction

over constitutional claims that were “based entirely

on actions taken with respect to [the plaintiff

employee], not on some guidance or other expression

the

challenged

recusal-regulation

interpretation”).

Albeit in a different context, a commanding

majority of the en banc Fifth Circuit recently relied

on logic similar to that in Weaver in holding that

employees could bring a pre-enforcement challenge

to the federal COVID-19 vaccine mandate directly in

district court, “because the vaccine mandate itself

[wa]s not itself a [covered] personnel action—even if

a future employer at some future time might take

some future action to impose some future personnel

action on a future plaintiff who might violate the

mandate in the future.” Feds for Med. Freedom, 63

F.4th at 383. Although the Fifth Circuit’s judgment

was ultimately vacated as moot by this Court when

the government rescinded the vaccine mandate, see

Biden v. Feds for Med. Freedom, 144 S. Ct. 480

(2023), the decision remains persuasive.

In the proceedings below, the government argued

that Weaver has been superseded by Elgin. Def. C.A.

Br. at 34. But Weaver is entirely consistent with

Elgin, which is why district courts in the D.C.

Circuit have continued to apply it. Elgin held only

that the CSRA withdraws jurisdiction when a

plaintiff challenges a “covered employment action.”

Elgin, 567 U.S. at 14. The plaintiffs in Elgin did

challenge a covered action—namely, their

terminations—but they did so through the “vehicle”

of a facial challenge to the constitutionality of a

federal statute. Id. at 12. The question was whether

that pleading decision altered the preclusion

analysis, and the Court said “no.” Here, by contrast,

NAIJ’s members have not violated the policy they

challenge, and so they have incurred no sanction for

non-compliance that they could challenge through

the CSRA. App. 22a. As the Fifth Circuit recently

recognized, “Elgin did not ‘break new ground’

regarding implicit preclusion.” Feds for Med.

Freedom, 63 F.4th at 379 (quoting Cochran v. SEC,

20 F.4th 194 (5th Cir. 2021)). In fact, it did not

“address pre-enforcement challenges at all.” Id.

The Fourth Circuit’s decision at step two of

Thunder Basin directly conflicts with Weaver. But

despite that conflict, the Fourth Circuit did not

address Weaver, or grapple with the fact that its

conclusion at step two of Thunder Basin would

suggest that NTEU—one of this Court’s seminal

public-employee

speech

cases—was

wrongly

decided. See Brown Shoe Co. v. United States, 370

U.S. 294, 307 (1962) (“While we are not bound by

previous exercises of jurisdiction in cases in which

our power to act was not questioned but was passed

sub silentio, neither should we disregard the

implications of an exercise of judicial authority

assumed to be proper for over 40 years.”).

The circuit split created by the Fourth Circuit

warrants this Court’s intervention now. A

substantial percentage of the nation’s federal

employees live in the D.C. and Fourth Circuits, and

yet they are now subject to two radically different

regimes for challenging unconstitutional prior

restraints on their speech. Those in the D.C. Circuit

may proceed directly to district court. Those in the

Fourth Circuit, however, must attempt to navigate

an administrative process that does not guarantee

judicial review, see Part III, and that can add

months or years of pointless delay while the

irreversible harms to their First Amendment rights

mount.

II.

The Fourth Circuit’s opinion conflicts

with this Court’s decisions in Axon and

Free Enterprise Fund.

The Fourth Circuit’s decision at step two of

Thunder Basin cannot be reconciled with this

Court’s decisions in Axon and Free Enterprise Fund.

1. In Axon, this Court held that plaintiffs need

not proceed through an administrative scheme of

review when they are suffering a “here-and-now”

injury that cannot be redressed through after-thefact appellate review provided by that scheme. The

Fourth Circuit’s decision conflicts with that holding

because it requires NAIJ to raise its First

Amendment claims administratively even though

the policy NAIJ challenges plainly inflicts “hereand-now” injuries, and even though proceeding

through the CSRA would involve significant delay

(at best) and thus cause additional First

Amendment harms not remediable by any after-thefact judicial review.

The question in Axon was whether the plaintiffs

could bring district-court challenges to the

constitutionality of administrative enforcement

proceedings that had been initiated against them.

598 U.S. at 180. Those administrative proceedings

were illegitimate, the plaintiffs claimed, because the

administrative law judges presiding over their cases

had been appointed in violation of the separation of

powers. Id. at 180–83. Invoking Thunder Basin, the

government argued that the district courts lacked

jurisdiction over the plaintiffs’ challenges, because

the plaintiffs could raise their constitutional claims

in administrative proceedings and obtain judicial

review at the end of those proceedings. Id.

In its decision, this Court rejected the

government’s bid for channeling, because the harm

the plaintiffs complained of—being subjected to “an

illegitimate proceeding, led by an illegitimate

decisionmaker”—was “impossible to remedy once

the proceeding [wa]s over, which is when appellate

review kicks in.” Id. at 191. The Court described this

harm as a “here-and-now” injury and held that the

plaintiffs

need

not

raise

their

claims

administratively because judicial review through

the relevant schemes would “come too late to be

meaningful.” Id.

The same is true here. NAIJ challenges a prior

restraint on speech—“the most serious and the least

tolerable infringement on First Amendment rights.”

Neb. Press Ass’n v. Stuart, 427 U.S. 539, 559 (1976).

“[U]nlike an adverse action taken in response to

actual speech,” a prior restraint “chills potential

speech before it happens.” NTEU, 513 U.S. at 468.

The imposition of such a restraint, even for a short

period of time, causes irremediable harms, and those

harms plainly cannot be “undone” by the reversal of

an agency order—or by any other post-proceeding

relief a court of appeals could provide. Axon, 598

U.S. at 191.

As this Court has emphasized, “[t]he timeliness

of political speech is particularly important.” Elrod

v. Burns, 427 U.S. 347, 374 n.29 (1976). The ability

of federal employees to contribute to currently

unfolding debates cannot be regained once lost.

Insights that might be highly valuable to public

discussion today become stale with the passage of

time. Thus, even assuming that NAIJ could one day

access judicial review through the CSRA, but see

infra Part III, its members could not obtain effective

relief from the “here-and-now” injuries to their right

to speak, or to the public’s right to hear from them.

The Fourth Circuit attempted to distinguish

Axon by interpreting the case to apply only to

“‘structural constitutional’ challenge[s].” See App.

27a–28a. But as explained below, see infra Part III,

the Fourth Circuit disregarded the legal principle

that the Court established in Axon—namely, that

district-court jurisdiction lies when the rights at

issue would be “‘effectively lost’ if review is

deferred.” Axon, 598 U.S. at 192. Because that is

true when a federal employee files a preenforcement challenge to a policy imposing a prior

restraint on their speech, the Fourth Circuit’s

decision conflicts with this Court’s decision in Axon.

2. The Fourth Circuit’s decision at step two also

conflicts with Free Enterprise Fund, because the

decision requires NAIJ to raise its constitutional

claims through a statutory scheme that provides no

guarantee of judicial review.

In Free Enterprise Fund, an accounting firm

brought an Article II challenge to the structure of

the Public Company Accounting Oversight Board, a

regulatory body that operated under the SEC’s

oversight. The government argued that the

Securities Exchange Act’s review scheme impliedly

stripped district-court jurisdiction over the firm’s

constitutional claims, but the Court disagreed,

because the scheme did not provide a guarantee of

judicial review. Free Enter. Fund, 561 U.S. at 489–

90. As the Court later observed in Axon, although

the firm was the subject of a Board investigation, not

every Board action “culminates in a Commission

action—which alone the statute makes reviewable

in a court of appeals.” Axon, 598 U.S. at 188

(discussing Free Enter. Fund, 561 U.S. at 490). That

meant that, “absent district court jurisdiction, [the

firm] might never have had judicial recourse.” Id. at

190.

This case is on all fours. The Fourth Circuit

concluded that NAIJ could challenge the Policy

under Chapter 23 of the CSRA, App. 29a, but even if

this were the case—and it is not, see infra Part III—

NAIJ still would not have a guaranteed pathway to

judicial review. That is because the CSRA provides

for judicial review only of final orders of the MSPB,

but under Chapter 23, complaints filed with the OSC

reach the MSPB only if the Special Counsel

determines, in his sole and unreviewable discretion,

to petition the Board for corrective action. See infra

Part III; 5 U.S.C. § 1214(b)(2)(C). The Special

Counsel may therefore block judicial review of

NAIJ’s claims simply by declining to bring those

claims to the Board. And NAIJ would have no

recourse if he did so.

III.

The Fourth Circuit erred at step two of

Thunder Basin in concluding that NAIJ’s

First Amendment prior-restraint claims

must be raised through the CSRA.

The Fourth Circuit erred in concluding that

Congress intended to withdraw district-court

jurisdiction over a simple pre-enforcement challenge

to a prior restraint on the speech of federal

employees. The “text, structure, and purpose” of the

CSRA, Elgin, 567 U.S. at 10, do not support that

conclusion, because the prior restraint NAIJ

challenges is not a CSRA-covered employment

action. And each of the considerations that this

Court uses to assess congressional intent in this

context points decisively in the other direction:

stripping district-court jurisdiction over NAIJ’s

claims “could foreclose all meaningful judicial

review”; NAIJ’s claims are “wholly collateral” to the

CSRA’s scheme; and the claims are “outside the

agency’s expertise.” Thunder Basin, 510 U.S. at

212–13.

1. Inferring Congress’s intent to strip districtcourt jurisdiction “could foreclose all meaningful

judicial review” of NAIJ’s First Amendment

challenge to a broad prior restraint on the speech of

the nation’s immigration judges. This is so for three

independent reasons.

First, NAIJ cannot obtain any judicial review

through the CSRA’s scheme because the prior

restraint it challenges is not a CSRA-covered action.

As this Court recognized in Elgin, the CSRA

provides judicial review of an employee’s claim only

if the employee is challenging a “covered

employment action.” 567 U.S. at 14. But here, NAIJ

is not challenging a covered action. As a result,

neither the MSPB nor the Federal Circuit would

have jurisdiction over NAIJ’s claims, and so NAIJ

could not obtain any—let alone meaningful—

judicial review through the statutory scheme. See id.

at 18–19.

The Fourth Circuit disagreed, concluding that

NAIJ could challenge EOIR’s policy as a “significant

change in . . . working conditions,” one of the twelve

“personnel actions” challengeable under Chapter 23

of the statute as a “prohibited personnel practice.”

App. 23a. But this reading of the statute is at odds

with the CSRA’s text, structure, and purpose.

The text of Chapter 23 authorizes challenges to

individual personnel decisions, not to blanket

policies like the one NAIJ challenges. Feds for Med.

Freedom, 63 F.4th at 375. This is clear from the

statute’s definition of “personnel actions,” which

ends with a proviso limiting its reach to actions

taken “with respect to an employee.” 5 U.S.C.

§ 2302(a)(2)(A) (emphasis added). That limiting

clause would be meaningless if Chapter 23

authorized employees to challenge any policy on the

books, even if it had never been applied to them.

As exhaustively explained by the Fifth Circuit in

its en banc decision in Feds for Medical Freedom, the

canon

ejusdem

generis

supports

this

interpretation. 63 F.4th at 375–76. The phrase “any

other significant change in . . . working conditions”

appears in a residual clause following a list of eleven

“typical, everyday” individual employment actions—

actions like the decision to “promote or reassign a

single employee.” Id. The only reference in the list to

anything broader than an individual employment

decision is the use of the term “policy” in romanette

(xi), which refers to the “implementation or

enforcement of any nondisclosure policy, form, or

agreement.” 5 U.S.C. § 2302(a)(2)(A)(xi). The Fourth

Circuit cited this as evidence that Congress intended

Chapter 23 to cover challenges to employee-speech

policies, App. 24a, but it confirms the opposite. Like

the other enumerated actions, the “implementation

or enforcement” of a nondisclosure agreement “with

respect to an employee” is plainly an individual

personnel decision. Id. § 2302(a)(2)(A).

This reading is also consistent with the CSRA’s

structure, which “provides graduated procedural

protections depending on an [employment] action’s

severity.” Kloeckner v. Solis, 568 U.S. at 44. Because

prohibited personnel practices under Chapter 23 are

relatively “minor” as compared with adverse actions

under Chapter 75, they do not entitle affected

employees to judicial review. Pinar v. Dole, 747 F.2d

899, 911–12 (4th Cir. 1984); see also, e.g., Weaver, 87

F.3d at 1434; Feds for Med. Freedom, 63 F.4th at

370. A policy that suppresses the speech of hundreds

or potentially thousands of federal employees on

matters of public interest can hardly be described as

“minor.” See Neb. Press, 427 U.S. at 559.

Second, even if the policy were actionable under

Chapter 23, the statute would not guarantee judicial

review, because the availability of such review

would turn on the unfettered discretion of agency

officials.

Judicial review under the CSRA is available only

for final orders of the MSPB, 5 U.S.C. § 1214(c), but

a Chapter 23 complaint can reach the MSPB only if

the Special Counsel decides—in his sole and

unreviewable discretion—to petition the MSPB for

corrective action, id. § 1214(b)(2)(C). Accordingly,

NAIJ and its members could not obtain judicial

review of any Chapter 23 complaint unless the

Special Counsel decided to allow that review.

This is at best an uncertain path, and at worst an

illusory one. During the five fiscal years running

from 2020 to 2024, the Special Counsel did not file

any petitions for corrective action with the MSPB.

2024 Off. of Special Couns. Ann. Rep. 16,

https://perma.cc/99XK-D5ZA. And if the President

can fire the Special Counsel at will, as he claims the

authority to do, he can ensure that the holder of that

office always buries even meritorious constitutional

claims. The “narrowness” of this pathway to

review—“and the fact any review at all turns on the

unreviewable discretion of Government officials”—

makes clear that the CSRA fails to afford NAIJ an

avenue of review that is “meaningful.” Feds for Med.

Freedom, 63 F.4th at 380.

The Fourth Circuit acknowledged this problem,

see App. 26a–27a, but suggested that NAIJ could

refile its case in district court if it failed to obtain

judicial review through the Special Counsel. Id. at

27a–28a. Accepting this sleight of hand, however,

would rewrite Thunder Basin. That case establishes

a jurisdictional bar, not a requirement of

administrative exhaustion. That is why the question

under Thunder Basin is whether “Congress’s

creation of a ‘comprehensive review process’ . . .

oust[s] district courts of jurisdiction.” Axon, 598 U.S.

at 186 (quoting Thunder Basin, 510 U.S. at 208).

That is why the most important consideration in

that inquiry is whether “a finding of preclusion could

foreclose all meaningful judicial review.” Thunder

Basin, 510 U.S. at 212–13. And that is why this

Court has permitted plaintiffs to seek immediate

judicial review when an administrative scheme fails

to guarantee eventual review in a court of appeals.

See Axon, 598 U.S. at 190 (explaining that the

problem in Free Enterprise Fund was that “absent

district court jurisdiction, [Petitioner] might never

have had judicial recourse”).5

If the Fourth Circuit were correct, instead, that

any difficulty in obtaining judicial review through

an administrative scheme could be remedied by

returning to district court, then the first factor of the

Thunder Basin inquiry would be a dead letter. And

federal employees would be required to run the

gauntlet of the CSRA’s administrative hurdles, even

where there is no reason to believe doing so would

5 Notably, the Fourth Circuit offered no guarantee that a

district court would have jurisdiction to hear NAIJ’s claims

once it had run the CSRA’s gauntlet. See App. 26a–27a.

(stating simply that “[t]hat is not . . . the posture of the case”).

Nor did it identify when precisely NAIJ would be deemed to

have sufficiently exhausted its remedies.

yield Federal Circuit review. That is simply not the

law.

Third and finally, even if NAIJ could raise its

claims under Chapter 23, and even if the Special

Counsel permitted judicial review of those claims,

that review would come too late to remedy the “hereand-now” injuries to the First Amendment rights of

NAIJ’s members and of the listening public. Axon,

598 U.S. at 191. As explained above, NAIJ’s

members suffer from “here-and-now” injuries like

the plaintiffs in Axon, id., because they challenge a

prior restraint that chills their speech and deprives

the public of their insights on issues of substantial

public concern, see supra Part II.

The Fourth Circuit distinguished the facts of

Axon but failed to grapple with its logic. App. 27a–

28a. In Axon, the Court made clear that the

plaintiffs were suffering a “here-and-now” injury

because the injury they faced—“subjection to an

illegitimate proceeding, led by an illegitimate

decisionmaker”—could not be remedied after the

fact, “when appellate review kick[ed] in.” 598 U.S. at

191. As the Court explained, “[a] proceeding that has

already happened cannot be undone.” Id.

The injuries inflicted by EOIR’s policy similarly

cannot be undone. Whatever relief a court of appeals

could afford NAIJ, it could not give its members the

ability to go back in time and contribute to timesensitive debates that have now subsided. The

opportunity to inform those debates, once lost,

cannot be regained.

The first Thunder Basin consideration—whether

inferring congressional intent to strip district-court

jurisdiction could foreclose meaningful judicial

review—thus weighs strongly in favor of finding

jurisdiction.

2. The remaining Thunder Basin considerations

also weigh strongly in favor of finding jurisdiction.

NAIJ’s claims are wholly collateral to the CSRA

because they are not a “vehicle” by which federal

employees are seeking “to reverse” a CSRA-covered

personnel action. Elgin, 567 U.S. at 22. The Fourth

Circuit analogized this case to Elgin, but unlike the

terminations the plaintiffs sought to reverse there,

the Policy is not “the type of personnel action

regularly adjudicated by the MSPB and the Federal

Circuit within the CSRA scheme.” Id. In fact, it is

not a covered personnel action at all, for the reasons

already explained.

Unsurprisingly, then, the CSRA does not afford

the type of relief sought by NAIJ. Cf. Elgin, 567 U.S.

at 22. The relief the CSRA typically affords includes

“reinstatement, backpay, and attorney’s fees,” id.—

that is, remedies tailored to “individual grievances

regarding individual personnel actions,” Feds for

Med. Freedom, 63 F.4th at 381—not declaratory or

injunctive relief against agency-wide policies that

affect hundreds or thousands of employees, id.

Counsel is not aware of any case, nor has the

government pointed to one in this litigation, “where

[the Special Counsel] agreed in [his] unreviewable

discretion to petition the MSPB for relief that

remotely resembles what [NAIJ] request[s] here.”

Id.

NAIJ’s claims are also outside the Special

Counsel’s and MSPB’s expertise because they are

purely constitutional claims involving the right of

federal employees to speak in their personal

capacities and the right of the public to hear what

they have to say. Cf. Axon, 598 U.S. at 194 (holding

that the plaintiffs’ claims were outside the FTC’s

expertise because they “raise[d] ‘standard questions

of administrative’ and constitutional law” (quoting

Free Enter. Fund, 561 U.S. at 491)). To counsel’s

knowledge, neither the Special Counsel nor Board

has ever had occasion to address the

constitutionality of a far-reaching prior restraint.

Nor are they equipped to assess the impact of the

Policy on the interests of “both potential audiences

and a vast group of present and future employees in

a broad range of present and future expression,”

NTEU, 513 U.S. at 468, as courts are required to do

in applying the NTEU framework for assessing the

constitutionality of prior restraints on public

employees.

The remaining two factors thus also point in the

direction of finding jurisdiction, but even if they did

not, the first consideration would be dispositive,

because, as this Court has repeatedly recognized, a

“serious constitutional question” would arise if an

agency statute were construed to preclude

meaningful judicial review of a constitutional claim.

Thunder Basin, 510 U.S. at 215 n.20.

IV.

The question presented is exceptionally

important, and this case is an excellent

vehicle to resolve it.

1. The question of whether federal employees

may go to district court to file pre-enforcement

challenges to prior restraints on their speech has

far-reaching implications for public discourse

important to our democracy. The Fourth Circuit

proposed that federal employees could lodge these

challenges under the CSRA through a Chapter 23

complaint, but even if one assumes that a complaint

about a broad prior restraint can be made under that

chapter, following that path would give agency

officials the unfettered discretion to deny judicial

review altogether. If left in place, the Fourth

Circuit’s conclusion would create a First

Amendment black hole—allowing each new

administration to impose prior restraints on the

speech of federal employees without any guarantee

of judicial review of those restraints.

Under the Fourth Circuit’s ruling, the federal

government could categorically forbid federal

employees from engaging in even private speech

about gun rights, health care, vaccines, university

admissions, or the war in Gaza—and judicial review

of these brazenly unconstitutional policies would

come only with the blessing of an agency official, and

only after protracted and futile administrative

proceedings.

The government could similarly suppress the

free exercise of religion by federal employees.

Agencies could promulgate policies denying

religious accommodations or restricting private

observances of religious practice. And again, judicial

review would be contingent on the Special Counsel,

who could choose—in his unfettered discretion—to

deny review or to delay it indefinitely.

Without the assurance of judicial review, federal

employees would be left with a Hobson’s choice—

suppress their own speech and religious exercise to

avoid the penalty of non-compliance, or violate the

policy and incur the kind of serious sanction that

would give rise to a guarantee of judicial review.

This is no real choice at all, which is why this Court

has made clear that “requir[ing] plaintiffs to ‘bet the

farm . . . by taking the violative action’ before

‘testing the validity of the law’” is not “a ‘meaningful’

avenue of relief.” Free Enter. Fund, 561 U.S. at 490–

91 (citation omitted).

Even if eventual judicial review of prior

restraints were guaranteed, however, the Fourth

Circuit’s ruling would still impose intolerable costs

on First Amendment freedoms. Prior restraints like

the policy NAIJ challenges here cause “here-andnow” injuries that cannot be undone by any afterthe-fact judicial review afforded by the CSRA’s

scheme. See supra Part II. In its prior-restraint

cases, this Court has repeatedly affirmed the rule

that, when a statute imposes a licensing scheme on

speech, “courts must entertain an immediate facial

attack on the law,” City of Lakewood v. Plain Dealer

Publ’g Co., 486 U.S. 750, 759 (1988), and that they

must do so “whether or not [the challenger has]

applied for a license” under the scheme, Freedman

v. Maryland, 380 U.S. 51, 56 (1965). The logic of

these cases is that immediate review is necessary

because the “mere existence” of a prior restraint

“intimidates parties into censoring their own

speech.” City of Lakewood, 486 U.S. at 757.

The same is true of prior restraints on federalemployee speech. Requiring federal employees to

submit to a scheme of prior restraint in order to

challenge it creates the risk that “judicial review

may be too little and too late.” Freedman, 380 U.S.

at 57.

As explained above, this Court itself charted a

different path in the immediate aftermath of

Thunder Basin when it exercised jurisdiction over a

pre-enforcement challenge to a prior restraint on the

speech of federal employees. NTEU, 513 U.S. at 457.

Other courts including the D.C. Circuit have

followed this Court’s lead. See supra Part I. Review

of the question presented by the cross-petition is of

critical importance to bringing the Fourth Circuit

back into line and to ensuring the enforceability of

the First Amendment rights of federal employees.

2. This case also provides an excellent vehicle to

resolve the question presented by the cross-petition.

It cleanly presents the question of whether a simple

pre-enforcement challenge to a prior restraint on the

speech of federal employees may proceed in district

court. The question does not turn on any disputed

facts. The Fourth Circuit resolved the question

unambiguously and categorically against NAIJ,

observing that, “if the first step of the Thunder

Basin test is met, then Congress would have

intended to strip district court jurisdiction over

NAIJ’s Chapter 23 claims.” App. 31a. And resolving

the question in NAIJ’s favor would fully resolve the

legal dispute on appeal and render moot the

government’s petition.

Moreover, the cross-petition offers a much

narrower ground for decision than the government’s

petition. The government’s petition raises

consequential questions about the implications for

administrative channeling of the loss of OSC and

MSPB independence. No court has yet ruled on that

issue, and it would be exceedingly unusual for this

Court to be the first. The cross-petition, in contrast,

would require this Court only to make explicit what

was implicit in its ruling in NTEU—that preenforcement challenges to prior restraints on

federal-employee speech may proceed directly in

district court. If the Court does so, then it may

vacate the Fourth Circuit’s decision and remand for

further proceedings without the need for any court

in this case to express an opinion on the question of

whether the CSRA continues to satisfy step one of

the Thunder Basin framework.

CONCLUSION

The Court should grant this cross-petition.

Respectfully submitted,

Ramya Krishnan

Counsel of Record

Alex Abdo

Xiangnong Wang

Jameel Jaffer

Knight First Amendment

Institute at Columbia

University

475 Riverside Drive

Suite 302

New York, NY 10115

(646) 745-8500

ramya.krishnan@knightcolumbia.org

Victor M. Glasberg

Victor M. Glasberg & Associates

121 S. Columbus Street

Alexandria, VA 22314

Phone: (703) 684-1100

Fax: (703) 684-1104

vmg@robinhoodesq.com

Counsel for National Association

of Immigration Judges

February 18, 2026

APPENDIX