The Trump administration on Friday requested the Supreme Court block a review of whether the president has rendered key civil service laws as no longer functional, arguing a lower panel of judges that required the inquiry had overstepped its authority.
The looming review followed a lawsuit from immigration judges within the Justice Department, but the administration’s top lawyer said they must take their case to a separate, executive branch appeals panel rather than federal court. Any steps Trump may have taken to undermine that pathway, he argued, is not material to the case. Chief Justice John Roberts acted quickly on Friday to pause an appeals court ruling that would have required the fact-finding inquiry into the impacts of Trump’s changes to civil service policies.
The appeals’ court ruling, U.S. Solicitor General D. John Sauer said, is “so evidently contrary to this court’s precedents” that it warranted immediate relief.
The case ties back to a policy, most recently updated in 2021, that the Justice Department placed on its immigration judges to require the civil service employees to get a supervisor’s permission when speaking at public events on topics related to their work. The judges argued that the “gag order” was a violation of their First Amendment rights.
In 2023, a judge in the U.S. District Court for Eastern Virginia dismissed the case for lack of jurisdiction, finding that the employee group first must seek redress from the Merit Systems Protection Board before suing in federal court. Such a path was required by the 1978 Civil Service Reform Act, the judge said.
In June, however, a three-judge panel on the Fourth Circuit Court of Appeals sent the case back to the district judge after questioning whether Trump’s firing of leaders at MSPB and the Office of Special Counsel “so undermined” the CSRA that it denied federal workers meaningful review. It asked the judge to review whether civil service laws were still functioning properly after Trump’s actions and whether the landmark Supreme Court decision Thunder Basin—which helps courts decide when parties must exhaust administrative review before going to court—must be updated in light of Trump’s political interference with review bodies like MSPB.
“The structure of the CSRA relies fundamentally . . . on a strong and independent MSPB and special counsel,” the panel said. “We cannot allow our black robes to insulate us from taking notice of items in the public record, including, relevant here, circumstances that may have undermined the functioning of the CSRA’s adjudicatory scheme.”
In November, a full panel of Fourth Circuit judges denied the Trump administration’s efforts to reverse the remand. The court’s order was set to take effect Dec. 10 before the Supreme Court stepped in.
Sauer challenged that the Fourth Circuit acted of its own accord to raise questions surrounding Trump’s dismissals at MPSB and OSC, noting the immigration judges did not themselves raise the issue.
The appeals court, he added, was “manifestly erroneous” in demanding “constant relitigation of the present-day ‘functionality’ of the CSRA.” Other district courts have already seized on the decision to review cases that should have gone to MSPB first, the solicitor general said.
Sauer suggested whether MSPB was functional is irrelevant.
“Nothing in the CSRA’s text or structure supports an evolving exception based on whether the MSPB is operating adequately and efficiently,” he said.
The Trump administration was primarily concerned that absent immediate intervention by the Supreme Court, judges at all levels in future cases would forever be forced to assess whether the CSRA was functioning properly before deciding on a case.
“The panel opinion threatens to wreak havoc in every CSRA case within the Fourth Circuit—a widely available and popular venue for many challenges involving federal personnel—by requiring every district court to engage in putative fact-finding about the CSRA’s ‘functionality’ no matter how self-evident it is from the statutory text that particular challenges fall within the CSRA’s purview,” Sauer said.
In a separate case, an appeals court on Friday ruled that Trump had the authority to fire Cathy Harris from MSPB. At the time of her dismissal earlier this year, the agency’s central board had lost its quorum and its corresponding ability to rule on cases. The Fourth Circuit pointed to that lack of functionality in remanding the case, but Sauer noted the board’s quorum has since been restored after the Senate approved a Trump nominee.
As Sauer noted, the case could have a cascading impact on scores of ongoing legal battles over the Trump administration’s workforce policies and actions, including the firing of probationary workers, reductions in force across government and the purge of appointees at independent agencies.
Roberts stayed the Fourth Circuit’s order pending his further action and requested a response from the plaintiffs by Dec. 10.
