When Statutory Review Schemes “Malfunction”: The Fourth Circuit’s New Functionality Overlay on Thunder Basin and CSRA Preclusion in Nat’l Ass’n of Immigration Judges v. Owen

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I. Introduction

This order in National Association of Immigration Judges v. Sirce Owen comes to the public as a procedural ruling—denial of rehearing en banc by the Fourth Circuit. But the competing separate opinions reveal that something far more significant lies beneath: a major innovation in how courts assess when a federal statutory scheme implicitly strips district courts of jurisdiction over constitutional challenges.

The underlying dispute concerns whether the Civil Service Reform Act of 1978 (CSRA) bars immigration judges from bringing a First Amendment challenge in district court against the Executive Office for Immigration Review’s (EOIR) 2021 speech policy. That policy requires prior approval before immigration judges speak in an “official” capacity on matters closely tied to their work. The National Association of Immigration Judges (NAIJ) claims this is an unconstitutional prior restraint and is void for vagueness.

The district court held that the CSRA’s elaborate review system—centered on the Office of Special Counsel (OSC) and the Merit Systems Protection Board (MSPB)—implicitly precludes district-court jurisdiction under the Supreme Court’s Thunder Basin framework. A unanimous Fourth Circuit panel disagreed in part. It concluded that recent executive actions and Supreme Court stay orders potentially undermining the independence and operation of the MSPB and OSC create a serious question: is the CSRA’s remedial scheme still “functioning as Congress intended”? On that premise the panel remanded for fact-finding on the “functionality” of the CSRA scheme, rather than accepting preclusion as settled.

The en banc court has now declined to revisit that panel decision, leaving it as binding law in the Fourth Circuit. The denial itself is accompanied by:

• A concurrence from Judge Wilkinson, criticizing the panel’s new “functionality” test but opposing rehearing on institutional grounds.
• A concurrence from Judge Thacker (joined by Judge King), defending both the panel’s approach and a robust view of en banc review.
• A short concurrence from Judge King endorsing Judge Thacker’s view of Rule 40 and en banc practice.
• A dissent from Judge Quattlebaum (joined by Judges Agee, Richardson, and Rushing), arguing that the panel’s approach defies Supreme Court precedent, usurps Congress’s role, and violates party-presentation norms.

The core new principle: in the Fourth Circuit, when deciding whether the CSRA impliedly strips district courts of jurisdiction under Thunder Basin, courts must now consider whether the CSRA adjudicatory scheme (principally the MSPB and OSC) is still “functioning as Congress intended.” If the statutory scheme has been so undermined that it no longer provides meaningful review as envisioned by Congress, implied preclusion may fail and district courts may retain jurisdiction over constitutional claims.

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II. Summary of the Order and Opinions

A. The Order

The Fourth Circuit, sitting en banc, denied the petition for rehearing en banc. A poll of all active, non-disqualified judges failed to produce the required majority in favor of rehearing.

Votes:

• To deny rehearing en banc: Judges Wilkinson, King, Gregory, Wynn, Thacker, Harris, Heytens, Benjamin, and Berner.
• To grant rehearing en banc: Chief Judge Diaz and Judges Niemeyer, Agee, Richardson, Quattlebaum, and Rushing.

The order notes that:

• Judge Wilkinson wrote a concurrence in the denial.
• Judge King wrote a separate concurrence and also joined Judge Thacker’s concurrence.
• Judge Thacker (joined by Judge King) wrote a concurrence in the denial.
• Judge Quattlebaum (joined by Judges Agee, Richardson, and Rushing) dissented from the denial.

B. Judge Wilkinson’s Concurrence

Judge Wilkinson votes to deny rehearing, not because he agrees with the panel’s merits analysis—he expressly does not—but because he believes en banc rehearing should be rare. He characterizes en banc proceedings as an “extraordinary” and disfavored departure from the norm, cites the heavy resource costs and the tendency to produce fractured opinions, and argues that “mere disagreement” with a panel is insufficient to justify en banc intervention.

On the merits, Wilkinson criticizes the panel’s “functionality” test, rejecting the notion that courts can decide whether a statutory program is “functioning as Congress intended” and alter the jurisdictional consequences accordingly. In his view:

• If a statutory scheme is malfunctioning, the remedy lies with Congress (legislation) or the Executive (better enforcement), not the judiciary.
• “Functionality” is a vague, politically infused standard that risks giving courts supervisory authority over Congress and the Executive.
• Only the Supreme Court can, and should, rein in this approach.

C. Judge King’s Concurrence

Judge King joins Judge Thacker’s opinion fully and writes briefly to underscore that Federal Rule of Appellate Procedure 40—not any individual judge’s preferences—governs when en banc rehearing is appropriate. When Rule 40’s criteria are met, the court must be prepared to take “hard cases.” He agrees that en banc review is unwarranted in this particular appeal but endorses Thacker’s broader defense of en banc practice.

D. Judge Thacker’s Concurrence (joined by Judge King)

Judge Thacker agrees that rehearing en banc should be denied but emphatically because she agrees with the panel opinion on the merits, not because she wishes to avoid en banc review. She addresses two main themes:

1. Defense of the panel’s approach:
   • Thunder Basin requires courts to examine the statute’s language, structure, purpose, legislative history, and whether claims can receive meaningful review.
   • The panel faithfully applies that framework by asking whether the CSRA’s adjudicatory scheme (MSPB and OSC) is “functioning as Congress intended.”
   • Given allegations that the independence and capacity of MSPB and OSC have been undermined, the court cannot simply assume meaningful review exists; it must be tested on remand.
   • Federal courts have a duty to hear constitutional challenges unless Congress clearly strips that jurisdiction; they cannot “abdicate” in the hope that Congress fixes systemic dysfunction.
2. Defense of en banc review:
   • En banc proceedings are expressly authorized by statute and Rule 40; they are not “rogue acts.”
   • The Supreme Court is not the gatekeeper of what constitutes a “question of exceptional importance” for purposes of en banc review; that judgment is assigned to the courts of appeals themselves.
   • Practical reality: the Fourth Circuit alone disposes of roughly 3,500 cases per year; the Supreme Court hears only a tiny fraction. If the appellate court refrains from en banc correction in important cases, erroneous panel decisions may stand indefinitely.
   • Empirically, there is no trend of overusing en banc review; recent years show only about 3–4 en banc proceedings per year, far fewer than the mid-1990s, when the court held as many as 13 in a single year.

Thacker warns against allowing Wilkinson’s criticism of en banc practice to have a “chilling effect” on invoking that tool where Rule 40’s criteria are satisfied.

E. Judge Quattlebaum’s Dissent (joined by Judges Agee, Richardson, and Rushing)

Judge Quattlebaum would have granted rehearing en banc. He sees the panel opinion as deeply problematic on three independent grounds:

1. Conflict with Supreme Court precedent:
   • United States v. Fausto and Elgin v. Department of Treasury already hold that it is “fairly discernible” Congress intended the CSRA to be the exclusive avenue for judicial review of the types of federal-employment claims at issue, including constitutional claims.
   • Both parties conceded this point under Thunder Basin step one; only step two was contested.
   • By reopening step one and creating a new “functioning as intended” inquiry, the panel effectively sidesteps binding Supreme Court precedent.
2. Usurpation of Congress’s role:
   • Congress enacted the CSRA and expressed its intent through the statute’s text and structure.
   • If the statute is not functioning well today, Congress—perhaps prompted by Supreme Court decisions on removal—can amend it. Judges should not “update” congressional intent for unchanged statutes based on current political events.
   • Allowing courts to revise implied-preclusion conclusions every time a new administration changes course would inject instability and politicization into jurisdictional doctrine.
3. Violation of the party-presentation principle:
   • NAIJ expressly conceded that, under Elgin, congressional intent to preclude district court jurisdiction is clear; the government agreed.
   • The panel nonetheless sua sponte invented the “functionality” issue, and grounded it on events that post-dated oral argument—presidential removals of MSPB and OSC officials and Supreme Court stay orders (e.g., Trump v. Wilcox).
   • The court did this without requesting supplemental briefing or argument, in tension with the Supreme Court’s admonition in United States v. Sineneng-Smith that courts are neutral arbiters of issues the parties present.

Quattlebaum concludes that the panel “trods upon the black robes” of the Supreme Court (by disregarding its CSRA precedents), invades the legislative role (by reimagining congressional intent), and abandons neutrality (by recasting the issues on its own initiative). For these reasons, he views en banc intervention as both necessary and warranted.

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III. Key Precedents and How They Shape the Court’s Reasoning

A. En Banc Practice and Institutional Role

• Federal Rule of Appellate Procedure 40 (2024 amendments):
  • Provides that rehearing en banc is “not favored.”
  • Authorizes en banc rehearing when necessary to maintain intra-circuit uniformity or when a proceeding involves a question of “exceptional importance.”
  • Judge Wilkinson leans heavily on the “not favored” language to argue for en banc minimalism.
  • Judge Thacker and Judge King emphasize that when Rule 40’s substantive criteria are met, the court should not shrink from its responsibility to rehear—even “hard” cases.
• W. Pac. R. Corp. v. W. Pac. R. Co., 345 U.S. 247 (1953) (Frankfurter, J., concurring):
  • Describes rehearings as “not a healthy step in the judicial process” and not a “normal procedure.”
  • Wilkinson cites this to underscore his skepticism toward frequent rehearing, including en banc.
• Bartlett ex rel. Neuman v. Bowen, 824 F.2d 1240 (D.C. Cir. 1987) (Edwards, J., concurring in denial of rehearing en banc):
  • Warns that en banc proceedings can be an “enormous distraction” from a court’s regular workload and may have marginal “educative effect” if they produce fragmented opinions.
  • Wilkinson invokes Bartlett to argue that overuse of en banc review wastes scarce judicial resources.
• Eisen v. Carlisle & Jacquelin, 479 F.2d 1005 (2d Cir. 1973) (Kaufman, J., concurring in denial of rehearing en banc):
  • Suggests certain cases are “too important to en banc”—better expedited to the Supreme Court.
  • Wilkinson uses this to argue that important questions should often be left to Supreme Court certiorari rather than resolved en banc.
• Air Line Pilots Ass’n Int’l v. Eastern Air Lines, Inc., 863 F.2d 891 (D.C. Cir. 1988) (R.B. Ginsburg, J., concurring in denial of rehearing en banc):
  • Cautions that frequent en banc conflicts may erode a court’s “sound, collegial attitude.”
  • Again used by Wilkinson to highlight institutional costs of broader en banc practice.
• Fourth Circuit historical statistics:
  • Thacker cites official statistics showing approximately 3.4 en banc proceedings per year over the last five years, contrasted with an average of 11 per year from 1995–1999.
  • She lists several 1995 en banc cases (many authored or joined by Judge Wilkinson) to show that past practice involved far more frequent en banc sittings, often on relatively routine issues.
  • Her message: there is no current “trend” toward en banc overuse that justifies a presumption against using this tool; if anything, the modern era is comparatively restrained.

B. CSRA Preclusion and the Thunder Basin Framework

• Civil Service Reform Act of 1978 (CSRA):
  • Overhauled the civil service system and created a “comprehensive” framework for review of federal personnel actions.
  • Key institutions:
    • Office of Personnel Management (OPM): designs and implements civil service rules.
    • Merit Systems Protection Board (MSPB): quasi-judicial body adjudicating adverse actions and “prohibited personnel practices.”
    • Office of Special Counsel (OSC): investigates and prosecutes alleged prohibited personnel practices.
  • Chapters 23 and 75 of Title 5 govern “prohibited personnel practices” and adverse actions “for such cause as will promote the efficiency of the service.”
  • Review path: employee → OSC/MSPB → Federal Circuit (with a limited statutory carve-out to federal district courts for mixed discrimination cases under § 7703(b)(2)).
• United States v. Fausto, 484 U.S. 439 (1988):
  • Held that the CSRA’s “comprehensive system” precludes judicial review in other forums (there, the Claims Court) for certain categories of federal employees not granted statutory review rights.
  • Interpreted the absence of judicial-review provisions for specific employee classes as a “considered congressional judgment” to deny such review.
  • Crucially, the Court grounded its analysis in the CSRA’s text, structure, and purpose, emphasizing Congress’s desire to replace “haphazard arrangements” with a uniform system.
• Elgin v. Department of Treasury, 567 U.S. 1 (2012):
  • Addressed whether federal employees could bypass the CSRA and bring constitutional challenges directly in district court.
  • Held that the CSRA’s exclusive review scheme covers constitutional claims as well; employees must route such claims through MSPB and then the Federal Circuit.
  • Key holdings:
    • The CSRA’s text does not suggest that its scheme is “inapplicable” simply because an employee raises a constitutional challenge.
    • Congress created only limited exceptions to CSRA exclusivity (e.g., for discrimination claims after MSPB review), implying no further implied exceptions.
    • The CSRA’s purpose was to replace “outdated patchwork” of district-court review with an integrated administrative and judicial system.
  • Elgin thus answers Thunder Basin step one for the CSRA: Congress’s intent to channel covered claims into the CSRA scheme is “fairly discernible.”
• Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994):
  • Established the now-familiar two-step test for determining whether a statutory scheme impliedly precludes initial district-court jurisdiction:
    1. Is it “fairly discernible” from the statute’s language, structure, purpose, and legislative history that Congress intended to preclude district-court jurisdiction?
    2. If so, are the claims the type Congress intended to be reviewed exclusively within that scheme (considering meaningful judicial review, whether the claims are “wholly collateral” to the scheme, and whether agency expertise is relevant)?
  • Subsequent cases have sometimes treated “meaningful review” as a gatekeeping consideration and the “wholly collateral” and “agency expertise” factors as the core of step two.
  • In CSRA cases, Fausto and Elgin effectively resolve step one in favor of preclusion.
• Block v. Community Nutrition Institute, 467 U.S. 340 (1984):
  • Earlier foundation for Thunder Basin; held that preclusion may be implied from a statute’s structure and purpose even in the absence of explicit jurisdiction-stripping language.
  • Cited in Thunder Basin and in this case to frame the “fairly discernible” inquiry.
• Webster v. Doe, 486 U.S. 592 (1988):
  • Recognized that constitutional claims are presumptively reviewable; stripping judicial review of constitutional challenges requires a “heightened” clarity from Congress.
  • Thacker relies on Webster to argue that, absent clear congressional intent, courts must be cautious before concluding that CSRA ousts district courts from hearing constitutional claims—especially if the administrative scheme is not functioning effectively.
• Axon Enterprise, Inc. v. FTC, 598 U.S. 175 (2023) (Gorsuch, J., concurring):
  • Justice Gorsuch’s concurrence (cited by Quattlebaum) criticizes multi-factor implied-preclusion tests like Thunder Basin as prone to manipulation and argues courts should “begin with the language” and stop where the text is clear.
  • Quattlebaum uses this to underscore his textualist discomfort with judicially crafted overlays such as the panel’s new “functionality” test.

C. Separation of Powers and Removal Protections

• For-cause removal provisions in the CSRA:
  • MSPB members and the Special Counsel are appointed for fixed terms and removable by the President only for “inefficiency, neglect of duty, or malfeasance in office.”
  • These protections are designed to secure independence from political pressure, especially in adjudicating personnel disputes and whistleblower claims.
• Recent Supreme Court stay orders (as described in the opinion):
  • Trump v. Slaughter, Trump v. Boyle, Trump v. Wilcox, Trump v. Cook (2025 stay orders, as summarized by Judge Quattlebaum):
    • Concern presidential removal of members of independent agencies (e.g., FTC, CPSC, NLRB, MSPB, Federal Reserve Board).
    • In Wilcox, the Court granted a stay allowing removal of NLRB and MSPB members based on the proposition that the President “may remove without cause executive officers who exercise that power on his behalf, subject to narrow exceptions.”
    • At the time of the Fourth Circuit’s opinion, the constitutionality of CSRA-style for-cause removal protections remained under active Supreme Court review.
• Why these stay orders matter to the panel:
  • If the President can, in practice, remove MSPB board members and the Special Counsel at will, the CSRA’s structural safeguards for independence may be seriously compromised.
  • The panel viewed these developments as potentially undermining the CSRA’s functioning as Congress envisioned in 1978, thus raising doubts about whether the scheme still provides “meaningful review.”
• Severability and timing concerns:
  • Wilkinson and Quattlebaum stress that no final Supreme Court merits decision has yet invalidated the CSRA’s removal protections; Wilcox and related cases are stay orders, not final merits rulings.
  • They argue it is premature and improper for an inferior court to adjust jurisdictional doctrines based on pending constitutional disputes concerning removal, which—if resolved against for-cause protections—would trigger a severability analysis, not a wholesale reimagining of congressional intent regarding jurisdiction.

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IV. The Court’s Legal Reasoning and the New “Functionality” Principle

A. The Underlying Panel Decision (as Reflected in the Order)

Although the full panel opinion (NAIJ II, 139 F.4th 293 (4th Cir. 2025)) is not reproduced in the order, the separate opinions provide a clear picture:

• The panel recognized that under Elgin, the CSRA’s text, structure, and purpose generally indicate Congress intended to preclude district-court jurisdiction over covered federal employment disputes, including constitutional challenges.
• However, the panel took judicial notice of recent developments concerning the MSPB and OSC:
  • Removal of the Special Counsel and MSPB members by the current administration.
  • Resulting lack of an MSPB quorum.
  • Ongoing litigation in which the Executive Branch argued that CSRA removal protections are unconstitutional, and Supreme Court stay orders (e.g., Wilcox) allowing removals to stand pending review.
• Against this backdrop, the panel framed a new question: is the CSRA’s adjudicatory scheme still “functioning as Congress intended” such that its jurisdiction-stripping implications remain valid?
• The panel remanded to the district court with instructions to conduct fact-finding on:
  • Whether the text, structure, and purpose of the CSRA have been so undermined in practice that its implied jurisdiction-stripping scheme “no longer controls.”
  • In substance, whether the MSPB/OSC system still offers meaningful, independent review for the claims in question.

Thus, the panel did not definitively hold that district courts do have jurisdiction over NAIJ’s claims. Instead, it created a new doctrinal overlay: before applying CSRA preclusion to bar a constitutional claim from district court, a court must ensure that the CSRA remedial structure is actually operative and functionally capable of providing the review Congress contemplated.

B. Wilkinson’s Critique of the Functionality Test

Judge Wilkinson’s concurrence highlights the steep doctrinal price of the panel’s innovation:

• Role of Congress vs. the courts: If Congress’s statutory scheme is malfunctional, it is for Congress to amend or oversee, not for courts to adjust its jurisdictional consequences. Courts “do not enjoy the prerogative to decide whether a particular statutory program is ‘functioning as Congress intended.’”
• Vagueness and subjectivity: “Functionality” is, in his words, “vague and impenetrable.” Determining whether a statute is “functioning” invites judges to import their own policy preferences, rendering jurisdiction contingent on political assessments rather than legal principles.
• Separation of powers risk: A functionality regime could transform courts into general supervisors of both the legislative and executive branches, second-guessing how statutes operate in real time.
• Prematurity: Because the constitutional validity of the CSRA’s removal protections has not yet been finally adjudicated, any functionality analysis premised on their supposed invalidity or erosion is premature.

For Wilkinson, only the Supreme Court can—and should—“bring an effective halt” to this “functionality” test. In the meantime, his vote to deny en banc review rests on institutional prudence rather than agreement with the panel’s reasoning.

C. Thacker’s Defense: Functionality as Proper Application of Thunder Basin

Judge Thacker offers a very different view. She sees the panel’s approach not as judicial overreach but as faithful adherence to the existing Thunder Basin framework and to the judiciary’s duty to preserve meaningful review of constitutional claims.

• Thunder Basin factors: She emphasizes that Thunder Basin directs courts to consider not only statutory text, structure, purpose, and legislative history, but also whether claims can be afforded “meaningful review.” The panel’s focus on whether the CSRA is “functioning as Congress intended” is, in her view, another way of asking: does this scheme still provide meaningful review?
• Webster v. Doe and constitutional claims: Because stripping jurisdiction over constitutional claims requires clear congressional intent, courts must be cautious before holding that claims like NAIJ’s—First Amendment challenges to a speech policy—are entirely confined to a potentially compromised administrative forum.
• Non-abdication: To Thacker, affirming preclusion here in the face of serious questions about the independence and capacity of the MSPB and OSC would amount to an abdication of the judiciary’s responsibility under 28 U.S.C. § 1331 to hear constitutional claims, except where Congress clearly says otherwise.

In short, Thacker treats “functionality” as a required reality check: implied preclusion of district-court jurisdiction cannot stand on abstract statutory design if the machinery that design presupposes has been disabled or co-opted.

D. Quattlebaum’s Doctrinal Objections

Judge Quattlebaum argues that the panel’s functionality overlay cannot be reconciled with controlling Supreme Court doctrine.

1. Supreme Court has already answered step one for CSRA
   • Fausto and Elgin expressly find a “comprehensive” CSRA scheme and conclude Congress intended to channel covered claims into that scheme and away from other courts.
   • Those holdings, he argues, resolve Thunder Basin step one for all CSRA-covered employment disputes, including constitutional challenges.
   • Lower courts cannot selectively re-open step one based on post-enactment factual developments; only the Supreme Court may revisit its own precedents.
2. Congressional intent is expressed in text, not subsequent politics
   • Drawing on cases like Bostock v. Clayton County and Rivers v. Roadway Express, he stresses that courts interpret statutes according to their public meaning when enacted; they do not revise intent in light of later events.
   • If Congress disapproves of how the Executive is administering (or undermining) the CSRA, Congress can amend the statute—just as it did after Brown & Williamson when it expanded FDA authority over tobacco.
   • It is illegitimate, in his view, for courts to speculate that “had Congress known” about future political developments, it would not have wanted its implied-preclusion scheme to operate.
3. Institutional instability and politicization
   • If courts can recalibrate implied-preclusion conclusions whenever they deem a statutory scheme to be “dysfunctional,” jurisdictional rules will fluctuate with political winds.
   • That undermines predictable, neutral administration of jurisdiction and risks enmeshing courts in contemporary political battles over executive control of independent agencies.
4. Party-presentation concerns
   • The parties agreed that step one was controlled by Elgin; the panel revived and recast step one without any invitation from the litigants.
   • By introducing new facts (post-argument events and Supreme Court stays) and a new test without briefing, the panel arguably stepped outside its role as neutral arbiter, contrary to Sineneng-Smith and Greenlaw.

For Quattlebaum, these doctrinal and institutional defects together meet Rule 40’s standard for “exceptional importance,” warranting en banc correction.

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V. Impact and Implications

A. Immediate Legal Consequences in the Fourth Circuit

Because rehearing en banc was denied, the panel decision in NAIJ II remains binding precedent in the Fourth Circuit. That has several concrete consequences:

• Thunder Basin analysis in CSRA cases now includes a “functionality” inquiry. District courts and panels must consider not only the statutory design but also whether the CSRA adjudicatory machinery (MSPB, OSC) is actually operating with the independence and capacity that Congress envisioned.
• Factual development becomes central. Questions about agency composition, quorum, removal practices, and the Executive’s litigation positions regarding removal protections can now be relevant to jurisdiction.
• Potential for broader district-court jurisdiction over constitutional claims. If, on remand, the district court finds that the CSRA scheme does not provide meaningful, independent review for NAIJ’s claims—because, for example, the MSPB is non-functional or captured—then implied preclusion may be deemed inapplicable. That would open the door for federal-employee constitutional challenges to proceed directly in district court within the Fourth Circuit.

B. Broader Administrative and Constitutional Law Effects

• Judicial review as a check on executive undermining of statutory schemes
  • The functionality overlay equips courts to mitigate situations where the Executive undermines statutory remedial structures (e.g., by decapitating or capturing independent adjudicatory bodies) while also invoking those structures to block district-court suits.
  • In that sense, the decision can be seen as strengthening the presumption of meaningful judicial review for constitutional claims: if the “replacement” forum is disabled, access to Article III courts must be preserved.
• Potential ripple effects beyond CSRA
  • While this case is CSRA-specific, the underlying logic could be argued in other regimes with elaborate agency adjudication structures (e.g., SEC, FTC, NLRB), especially where the Executive’s approach to removal or funding may compromise independence.
  • Litigants may cite NAIJ II to argue that implied-preclusion doctrines presuppose functioning, good-faith execution of congressional design; if that design is gutted in practice, preclusion collapses.
• Separation of powers and “unitary executive” litigation
  • By tying jurisdiction to the functional integrity of independent agencies, the Fourth Circuit has implicitly linked two lines of doctrine:
    • Debates over for-cause removal and the extent of presidential control over independent agencies.
    • Debates over when specialized administrative schemes oust generalist courts of jurisdiction.
  • If the Supreme Court ultimately invalidates CSRA-style removal protections for MSPB/OSC, lower courts may face difficult severability and functionality questions about the continued vitality of CSRA preclusion.
• Likely Supreme Court interest
  • The sharp intra-circuit divide, the novelty of the functionality test, and its potential tension with Elgin and Fausto make this a strong candidate for Supreme Court review, either in this case or a future one.
  • Wilkinson’s own opinion, though critical of the panel, expresses a view that only the Supreme Court can decisively cabin the new test.

C. Institutional Practice: En Banc Review in the Fourth Circuit

On the procedural side, the exchange between Wilkinson and Thacker/King is itself an important precedent for internal court culture:

• Two contrasting models of en banc practice:
  • Wilkinson’s model: En banc review is an extreme remedy, rarely justified; important cases are “too important to en banc” and should be allowed to go directly to the Supreme Court; heavy focus on efficiency and collegiality.
  • Thacker/King’s model: En banc review is a normal, if “not favored,” tool expressly provided by Rule 40; when uniformity or questions of exceptional importance are at stake, the court not only may but should use it; efficiency concerns cannot override the obligation to correct what a majority believes to be legal error.
• Empirical grounding of practice: Thacker’s statistical exposition will likely be cited in future debates, as it provides a baseline showing that modern Fourth Circuit en banc activity is comparatively modest.
• Potential impact on future en banc polls: Judges inclined toward broader or narrower en banc practice can now cite these opinions for support, shaping the court’s institutional self-understanding for years to come.

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VI. Complex Concepts Simplified

1. What is the CSRA and Why Does It Matter Here?

The Civil Service Reform Act of 1978 reorganized the federal civil service system. Instead of allowing federal employees to sue agencies directly in district court over personnel disputes, Congress created a specialized pathway:

1. The employee challenges an adverse action (e.g., suspension, removal) or a “prohibited personnel practice” (e.g., retaliation, discrimination) through the Office of Special Counsel and/or the Merit Systems Protection Board.
2. The MSPB issues a decision.
3. The employee can then seek review in a single court: the U.S. Court of Appeals for the Federal Circuit.

This centralized system was meant to promote uniformity and expertise. The downside is that if the CSRA precludes other routes, federal employees cannot go straight to district court—even when they allege constitutional violations—unless Congress specifically carves out an exception (as it did for certain discrimination claims).

2. What is the Thunder Basin Test?

Thunder Basin Coal Co. v. Reich asks two questions when a statute creates a specialized review scheme but does not expressly say “no district court jurisdiction”:

1. Did Congress implicitly intend to preclude district-court jurisdiction?
   • Courts look at the statute’s language, structure, purpose, and legislative history.
   • If that analysis makes Congress’s intent to channel review into the statutory scheme “fairly discernible,” the answer is yes.
2. Are the particular claims at issue the kind Congress intended to be routed through that scheme?
   • Courts ask whether:
     • The claims can receive “meaningful judicial review” within the scheme.
     • The claims are “wholly collateral” to the statutory scheme (more likely to escape preclusion if they are).
     • Agency expertise would be helpful (if yes, that favors preclusion).

In CSRA cases, the Supreme Court has generally answered step one in favor of preclusion; the fight is often at step two. NAIJ II complicates this by reintroducing a factual “functionality” inquiry into step one.

3. What Is “Implied Preclusion” or “Implied Jurisdiction-Stripping”?

Typically, Congress must clearly state when it wants to strip federal courts of jurisdiction. But in administrative law, the Court has recognized that Congress can implicitly limit district-court jurisdiction by creating a detailed review scheme. If it is sufficiently comprehensive and clearly designed to be exclusive, courts infer that Congress meant to channel all disputes through that route.

Implied preclusion is controversial because:

• It is not based on explicit statutory language about jurisdiction.
• It can restrict access to generalist Article III courts, including for constitutional claims.

4. What Are MSPB and OSC?

• Merit Systems Protection Board (MSPB):
  • An independent, quasi-judicial body.
  • Hears appeals of serious adverse employment actions and complaints about prohibited personnel practices.
  • Members have fixed, staggered seven-year terms; only two can be from the same political party; they may be removed only for good cause.
• Office of Special Counsel (OSC):
  • An independent prosecutor-type office within the CSRA scheme.
  • Investigates allegations of prohibited personnel practices and can bring cases before the MSPB.
  • The Special Counsel also serves a fixed term and enjoys for-cause protection from removal.

The panel’s “functionality” test hinges on whether MSPB and OSC still function with the independence and continuity Congress intended.

5. What Is the Party-Presentation Principle?

In the U.S. adversarial system, the parties frame the issues; courts act as neutral arbiters. The Supreme Court in United States v. Sineneng-Smith criticized lower courts that significantly reframe the case on their own initiative, bringing in new issues or theories the parties did not raise.

In NAIJ II, Judge Quattlebaum argues that the panel violated this principle by:

• Revisiting a Thunder Basin step that both sides conceded was controlled by Supreme Court precedent.
• Grounding its analysis on extra-record developments and legal theories not briefed by the parties.

6. What Is En Banc Review?

“En banc” literally means “in bench”—all active judges (or a large subset) of a circuit rehear a case initially decided by a three-judge panel. Under Rule 40:

• En banc rehearings are “not favored.”
• They are typically reserved for:
  • Resolving conflicts within the circuit’s own precedents.
  • Cases presenting questions of “exceptional importance.”

The debate between Judges Wilkinson and Thacker/King is essentially about how sparingly this power should be used.

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VII. Conclusion: Key Takeaways and Broader Significance

The Fourth Circuit’s denial of rehearing en banc in Nat’l Ass’n of Immigration Judges v. Owen leaves standing a panel decision that innovatively, and controversially, modifies how implied jurisdiction-stripping works under the CSRA. The court has effectively added a “functionality” overlay to the Thunder Basin analysis: before concluding that Congress implicitly barred district-court jurisdiction, courts in the Fourth Circuit must confirm that the statutory review scheme is actually operating as Congress designed, with sufficient independence and capacity to provide meaningful review.

This move is applauded by some members of the court as a necessary safeguard for constitutional claims in an era of intense executive-branch challenges to the independence of administrative adjudicators. Others see it as an impermissible departure from Supreme Court precedent, a usurpation of Congress’s role, and a breach of traditional party-presentation constraints.

Beyond the immediate fate of NAIJ’s First Amendment challenge to EOIR’s speech policy, the decision has three durable implications:

1. Substantive administrative law: It may reshape how courts view the relationship between statutory design and real-world institutional functionality, especially where executive actions have destabilized independent bodies like the MSPB and OSC.
2. Separation of powers: It tangles the doctrinal threads of presidential removal power, independence of adjudicatory agencies, and the availability of judicial review—issues likely to attract Supreme Court attention.
3. Appellate procedure and culture: The sharp internal disagreement about en banc practice itself will influence how frequently and for what reasons the Fourth Circuit chooses to rehear cases en banc in the future.

In sum, while technically an order denying rehearing, this decision marks a significant development in federal administrative and constitutional law within the Fourth Circuit. It signals judicial willingness—at least in this circuit—to condition implied preclusion of district-court jurisdiction on the ongoing health and independence of the statutory review structures Congress created nearly half a century ago.