SCOTUS Smacks Obama/Biden Appointees With A Newspaper Across The Nose For Wrongfully Acting Like A "Roving Commission Looking For Wrongs To Right."

A very pointed Per Curiam Opinion issued this morning identifies the Fourth Circuit as a repeat offender in deciding cases on issues never raised by the parties -- THAT is judicial activism.

The Opinion comes in Margolin v. Nat. Assoc. of Immigration Judges (NAIJ), The facts of this case are quite simple and straightforward, and the legal issue is relatively benign.

But the very short — only 5 pages — decision lays down a couple of principles with broader application while delivering a stern rebuke to the Fourth Circuit by pointing out that it’s a repeat violator of the “Party Presentment” principle — deciding cases on issues not raised by the parties, i.e., engaging in judicial activism.

Basic facts — immigration judges are officers of the Department of Justice, not the Judicial Branch. The DOJ’s Executive Office of Immigration Review (EOIR) sets policies that govern the immigration courts. In 2021, the Biden DOJ’s EOIR issued a new policy restricting the ability of immigration judges to give “Official Speeches” that addressed agency policies, programs, or subjects that directly related to their official duties. Any speech or publication falling within these parameters was to be submitted for review and approval prior to the event or publication.

The Association representing the immigration judges filed suit to block implementation of the policy on First and Fifth Amendment grounds. The Biden DOJ moved to dismiss the complaint on the basis that when it created the Merit Services Protection Board (MSPB) Congress directed that all work-place grievances of federal employees were to be channeled to that agency and not to federal district courts.

The District Court agreed with the government, and dismissed the complaint on the basis that it lacked jurisdiction because claims such as the ones raised by the NAIJ belong before the MSPB.

In the appeal to the Fourth Circuit, both sides agreed that work-place grievances are supposed to be channeled to the MSPB for review, and not to district courts. But the NAIJ argued that while most claims belong before the MSPB, the specific claims raised by the NAIJ should be an exception to the channeling effect intended by Congress. In other words, Congress did not intend the types of the claims raised by the NAIJ — raising constitutional rights — should be part of that channeling.

The three-judge panel — Judges Harris (Obama), Heytens (Biden), and Berner (Biden) — agreed with the government and the District Court, but nevertheless vacated the district court’s order dismissing the complaint and remanded the case for further proceedings.

The panel’s decision recognized not only the channeling of grievance claims to the MSPB, but also acknowledged Supreme Court precedent Congress divested Article III courts of jurisdiction over such claims in the statute creating the MSPB.

The date of that decision is important — June 3, 2025 — after the inauguration and start of the Trump Administration 2.0.

In an astonishing example of judicial activism, the Panel decided further inquiry by the district court — lacking jurisdiction — was necessary to address an issue not raised by either party to the case. Here is how the Supreme Court described it:

That Opinion was written in the middle of the highly contentious litigation at the outset of the Trump Administration over whether President Trump had the authority to remove without cause Executive Branch officials such as the members of the MSPB. In fact, by the time this Opinion was issued, President Trump had already fired two members of the MSPB.

In addition, on May 22, 2025, two weeks before the Fourth Circuit’s decision, the Supreme Court had issued a stay of a lower court order in Wilcox v. Trump blocking Pres. Trump via injunction from removing members of the MSPB. On April 7, that injunction was upheld by the D.C Circuit in a 7-4 decision by the Court sitting en banc.

In a short statement issued by Supreme Court explaining its Stay of the D.C. Cir. ruling — with the three liberal Justices dissenting — the Court wrote:

In the face of that, the three Judge Panel in the Fourth Circuit decided that what Congress had created with the channeling effect of the MSPB legislation seemed to be no longer “functioning as Congress had intended.” The only way to read that was the assertion of Executive authority over the members of the MSPB altered the function of the MSPB contrary to the intent of Congress so the lower court should examine further whether the statute divesting that court of jurisdiction should continue to be interpreted in that manner.

[L]egal challenges to the tenure protection afforded MSPB members and the Special Counsel, and the MSPB’s lack of a quorum, may require a “new examination of Congressional intent”….

And it did so in direct violation of the principle of “Party Presentment” which means cases are to be decided on arguments raised by the parties to the case and not on grounds that neither side presented and were not briefed or argued.

Ouch — that is exactly what the Fourth Circuit Panel told the district court to do.

The Panel’s opinion was, in unmistakeable form, a direction that the district should disregard Supreme Court precedent holding that it lacked jurisdiction, and examine the allegations of the complaint through the prism of the possibility that a potential lack of “tenure protection” for members of the MSPB could lead to a different outcome on the NAIJ complaint, and the answer might be found by re-examining congressional intent.

This district court was to do this in the face of the very real possibility that it would be the Supreme Court itself sustaining the Executive’s power under Article II to eliminate “tenure protection.”

In other words, if the Supreme Court sustained the elimination of “tenure protection” for MSPB members, then lower courts should look again at the “congressional intent” behind stripping those courts of jurisdiction to consider work-place grievances — which is also an issue resolved by binding Supreme Court precedent.

The Trump Administration — responsible for the case after January 2025 — sought en banc review in the Fourth Circuit. That review was denied.

There are 15 full-time active judges on the Fourth Circuit — nine appointed by Democrat Presidents, and six appointed by GOP Presidents. Granting en banc review requires 8 votes.

The Judges voted 9-6 to deny rehearing en banc. Of the six judges who voted to rehear the case, five were appointed by GOP Presidents. The sixth was the Chief Judge, appointed by Pres. Obama.

Of the nine Judges voting against rehearing en banc — including all three judges on the Panel — only one was appointed by a GOP President. The one was J. Harvie Wilkinson, a long-time favorite of conservatives, first appointed by Pres. Reagan in 1984 — now serving his 42nd year on the Court.

But Judge Wilkinson wrote a statement explaining his vote — he has a general objection to the en banc procedures, and has found through the years that they rarely produce results better than the Panel decision they replace. Generally, he finds the entire process an exercise that leads to bad outcomes while at the same time delaying review by the Supreme Court, and consuming a massive amount of the Court’s resources in having all 15 judges participate.

He states categorically that he disagrees with the Panel’s outcome, and he believes lower courts have no business in deciding whether a particular statutory scheme is continuing to function in the manner intended by Congress. But, in his view, disagreement with a Panel decision is not sufficient grounds for granting en banc review. Doing so, in fact, only leads to more votes on petitions for en banc review — the opposite of what he considers sound appellate court practices.

One last point to make regarding the Supreme Court’s decision. As I noted above, the Court called out the Fourth Circuit for being a repeat offender in violating the principle of “Party Presentment.” The Court cited a decision only 7 months ago where it reversed the Fourth Circuit for the same reason in Clark v. Sweeney.

The Fourth Circuit panel decision was 2-1 in that case. The nature of the violation of the “Party Presentment” principle in Clark is entirely different than it was in Margolin case decided today. The problem in Clark involved the appellate panel going far deeper into the record of a criminal trial that was called for by the single issue presented by the defendant in his petition for habeas corpus. In doing so the Panel found all kinds of erroneous decisions involving the the decision-making of the Maryland state court trial judge and defense counsel going far beyond the single claim of ineffective assistance of counsel raised by the defendant.

But, the Supreme Court calling attention to the earlier case is a proverbial “shot across the bow” of all the Judges on the Fourth Circuit to limit their decisions to the issues presented by the parties and not turn themselves — or the district courts below them — into “roving commissions … sally[ing] forth each day to looking for wrongs to right.”

This is an important marker for all the lower courts as they entertain increasingly tenuous and strained legal/factual challenges to the policies of the Trump Administration — i.e., the temptation experienced by liberal/progressive district court judges to “sally forth … looking for rights to wrong.”

One final note — about Judge Berner, the author of the Fourth Circuit Panel Opinion that was rebuked this morning:

• Confirmed March 2024.

• Law Clerk to extraordinarily liberal 9th Circuit Judge Betty Fletcher and extraordinarily liberal District Judge Thelton Henderson in the ND Calif.

• General Counsel for seven years for SEIU — largest public sector union in the country (not including teachers). Part of Legal Counsel’s Office since 2006.

• Staff Attorney for Planned Parenthood from 2004-2006.

• Law firm Associate 2000-2004.

She couldn’t recognize “Party Presentment” problem in her Opinion, and decided a lower court lacking jurisdiction should nevertheless engage in fact-finding as to whether Congressional intent was still being faithfully carried out AFTER the Supreme Court said it would address the question.

Keep that in mind as the Democrats attack the qualification of Trump nominees to various Appeals Courts.