National Association of Immigration Judges v. Daren K. Margolin, Director of the Executive Office for Immigration Review

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