National Association of Immigration Judges, affiliated with the International… v. David L. Neal

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-1868
NATIONAL ASSOCIATION OF IMMIGRATION JUDGES, affiliated with the
International Federation of Professional and Technical Engineers,
Plaintiff - Appellant,
v.
DAVID L. NEAL, in his official capacity as Director of the Executive Office for
Immigration Review,
Defendant - Appellee.
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NATIONAL TREASURY EMPLOYEES UNION; LABOR LAW SCHOLARS
AND EXPERTS,
Amici Supporting Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. Liam O’Grady, Senior District Judge. (1:20-cv-00731-LO-JFA)
Argued: January 25, 2022 Decided: April 4, 2022
Before WILKINSON, NIEMEYER, and HEYTENS, Circuit Judges.
Affirmed and remanded with instructions by unpublished per curiam opinion.
ARGUED: Ramya Krishnan, KNIGHT FIRST AMENDMENT INSTITUTE AT
COLUMBIA UNIVERSITY, New York, New York, for Appellant. Jennifer L. Utrecht,

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UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON
BRIEF: Stephanie Krent, Alyssa Morones, Alex Abdo, Xiangnong Wang, KNIGHT
FIRST AMENDMENT INSTITUTE AT COLUMBIA UNIVERSITY, New York, New
York; Victor M. Glasberg, VICTOR M. GLASBERG & ASSOCIATES, Alexandria,
Virginia, for Appellant. Brian M. Boynton, Acting Assistant Attorney General, Jeffrey
Bossert Clark, Acting Assistant Attorney General, Michael S. Raab, Civil Division,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; G. Zachary
Terwilliger, United States Attorney, Jessica D. Aber, United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. Gregory
O’Duden, General Counsel, Larry J. Adkins, Deputy General Counsel, Julie M. Wilson,
Deputy General Counsel, Paras N. Shah, Assistant Counsel, Allison C. Giles, Assistant
Counsel, NATIONAL TREASURY EMPLOYEES UNION, Washington, D.C., for
Amicus National Treasury Employees Union. Danielle Leonard, ALTSHULER BERZON
LLP, San Francisco, California, for Amici Labor Law Scholars and Experts.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
This case involves a dispute between the National Association of Immigration
Judges, a union organized under the Federal Service Labor-Management Relations Statute,
5 U.S.C. § 7101 et seq., as the exclusive bargaining agent of some 470 non-supervisory
immigration judges (the “Union”), and the Executive Office for Immigration Review
(“EOIR”), a component of the Department of Justice that employs the immigration judges,
over the EOIR’s policies regulating speaking engagements by the immigration judges.
The Union commenced this action against the EOIR, challenging the enforcement
of the EOIR’s January 2020 version of its speaking engagements policy, as well as its
September 2017 version to the extent that it remained operative. The Union had requested
bargaining with respect to the September 2017 version, and as a result of that bargaining,
the Union and the EOIR entered into a memorandum of understanding in May 2018. In its
complaint, the Union sought declaratory and injunctive relief, including a preliminary
injunction enjoining the EOIR from enforcing the policies.
By order dated August 6, 2020, the district court denied the Union’s motion for a
preliminary injunction, ruling that “Congress has precluded district court jurisdiction over
claims such as these.” It explained that in enacting the Federal Service Labor-Management
Relations Statute, Congress authorized federal employees to join labor organizations and
to engage in collective bargaining. It also noted that the Statute provides an exclusive
administrative dispute-resolution mechanism for resolving labor disputes before the
Federal Labor Relations Authority (“FLRA”), which can then be followed by judicial
review, and it concluded that “the [U]nion’s claims are of the type which Congress intended

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to fall within the statutory scheme,” citing Thunder Basin Coal Co. v. Reich, 510 U.S. 200,
212 (1994). The court observed that the Union “could initiate collective bargaining
regarding the policy just as it did in 2018.”
Parallel to this action, the EOIR filed a petition with the FLRA on August 13, 2019,
requesting that the FLRA clarify the bargaining unit represented by the Union to exclude
all immigration judges on the grounds that they are management officials and therefore not
appropriate members of a bargaining unit under 5 U.S.C. § 7112(b)(1). The FLRA
Regional Director dismissed the petition, but the FLRA granted the EOIR’s application for
review and ruled that immigration judges were indeed management officials and therefore
not entitled to engage in collective bargaining under the Statute. It directed the FLRA
Regional Director “to exclude [immigration judges] from the bargaining unit.”
71 F.L.R.A. 1046, 1049 (Nov. 2, 2020). The Union filed a motion for reconsideration, and
in its order denying the motion, the FLRA again reiterated that immigration judges were
management officials who therefore must be excluded from the bargaining unit.
72 F.L.R.A. 622 (Jan. 21, 2022). In its order, the FLRA also chastised the Regional
Director’s “astonishing intransigence” for not complying for more than a year with its
“unequivocal[]” 2020 order to exclude immigration judges from the bargaining unit. Id. at
627. It indicated that the Regional Director’s failure to obey its directive “calls into
question the continued appropriateness of the [FLRA’s] delegation of the responsibility to
determine unit appropriateness in cases like this one.” Id. at 627–28; see 5 U.S.C.
§ 7105(e)(1) (authorizing the FLRA to delegate authority to the regional directors); id.
§ 7105(f) (authorizing the FLRA to review decisions made by such delegation).

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Now, more than two months after the FLRA denied the Union’s motion for
reconsideration, it appears that the Regional Director still has not complied with the
FLRA’s order. Therefore, at least in a very formal sense, the Union still represents the
non-supervisory immigration judges. Until the Regional Director complies with the
FLRA’s order or the FLRA itself decertifies the Union, we conclude that the Union must
proceed through the administrative process provided by the Federal Service Labor-
Management Relations Statute. Accordingly, we affirm the district court’s August 6, 2020
order and remand with instructions to dismiss this action without prejudice.
IT IS SO ORDERED.

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