The Curious Case of Goodling and the Immigration Judges

Marty Lederman

[UPDATED below with a bit of law and today's developments.]

Without any provocation, nor any prior public discussion about the matter, Monica Goodling in her prepared statement acknowledged that she "took political considerations into account in making recommendations for positions as Immigration Judges and members of the Board of Immigration Appeals." See discussion here. She testified that she thought such political criteria could be used because Kyle Sampson had told her that OLC "had provided guidance some years earlier indicating that Immigration Judge appointments were not subject to the civil service rules applicable to other career positions." Goodling further testified, however, that in late 2006 the Civil Division "expressed concerns that the civil service rules might apply" to such immigration judges. In her oral testimony, Goodling specified that "concerns were raised about political criteria for such employment decisions as a result of some litigation, after which "the Civil Division came to a different conclusion" from that allegedly reached by OLC.

There is no published OLC opinion on this question. And according to an article by Rick Schmitt of the L.A. Times, a DOJ spokesperson on Thursday said that no such OLC opinion exists, and further denied outright Goodling's testimony that the hiring of immigration judges was frozen after Civil Division concerns: "'There is no disagreement within the department, including between the Civil Division and the Office of Legal Counsel, about whether the civil-service laws apply to the appointment of immigration judges,' said Dean Boyd, a Justice Department spokesman. 'They do apply.'"

Something is happening here, but we don't don't what it is. Goodling obviously knew that her conduct in this regard was dubious, and testified about it even though no one had raised any question about it previously, so as to ensure that her immunity would extend to this episode, as well. (She was very well-advised by John Dowd.)

Although DOJ now asserts unequivocally that the civil service laws apply to the appointment of IJs (which would presumably mean they cannot be hired with an eye to partisan considerations such as party affiliation, voting and political contribution history), it's not immediately apparent where in federal law that is specified. (I'd be very grateful for any information on the legal question.) And what about the appellate judges -- the members of the BIA that Goodling spoke about? Why did she think there was an OLC opinion? A civil case raising the question? A dispute between OLC and Civil?

We haven't heard the last of this new wrinkle.

[UPDATE on the law and dueling public statements between DOJ and Goodling:

Thanks much to those who have written by e-mail and in the comments with information on the law. I don't have time for research to confirm all this just now, but this appears to be basic outline: 5 U.S.C. 2302(b)(1)(E) prohibits all personnel actions -- including appointments -- with respect to "covered positions," on the basis of political affiliation. "Covered positions," in turn, include "any position in the competitive service, a career appointee position in the Senior Executive Service, or a position in the excepted service." Section 2302(a)(2)(B).

Members of the BIA and IJ judges are part of the "excepted service," and therefore political affiliation cannot be a basis for any personnel actions regarding them, unless those positions are subject to the exception described in subsection 2302(a)(2)(B), i.e., "any position which is, prior to the personnel action--

(i) excepted from the competitive service because of its confidential, policy-determining, policy-making, or policy-advocating character; or
(ii) excluded from the coverage of this section by the President based on a determination by the President that it is necessary and warranted by conditions of good administration."

Until this Administration, BIA members and IJs were not thought to be included within the exception. But there is some reason to think that the Bush Justice Department determined that, because the Attorney General has the authority to appoint members of the BIA and IJs, those positions must therefore be of a "policy-determining [or] policy-making character," and thus exempted from civil service protections. In his recent article in the Cornell Law Review, Deportation and the War on Independence, 91 Cornell L. Rev. 369 (2006), Steve Legomsky points to a 2002 final regulation, 67 Fed. Reg. 54,878, 54,893 (Aug. 26, 2002), as suggesting that, in the view of AG Ashcroft, the AG has virtually unbounded discretion to remove all attorneys in DOJ, including in particular BIA members and IJs. (The commentary to the reg does not quite say that in so many words -- but there's a strong insinuation.) And one year later, Ashcroft in fact removed many BIA members, virtually all of them viewed as liberal or more sympathetic to aliens' claims. Similarly, as Jason McClure reported last June, since 2004, appointments to be IJs have been largely reserved for persons whose principal qualification appears to be that they have been loyal Republicans.

Thus, there is some circumstantial evidence, at least, supporting Goodling's testimony that DOJ had determined that the civil service laws do not protect IJs and members of the BIA.

DOJ now denies any such thing -- it claims that the immigration judges are not excepted and thus are protected by the civil service laws. However, Goodling has obviously hit a nerve. John Dowd, Goodling's lawyer, issued this reply to DOJ today (thanks to TPM):

Today, Department of Justice spokesman Dean Boyd stated that the Department had "located no record of an Office of Legal Counsel opinion advising that Immigration Judges may be appointed on the basis of political considerations or that civil service laws do not apply to such appointments."

Ms. Goodling is aware of the fact that the Office of Legal Counsel never issued a formal opinion on the matter, and she did not suggest otherwise in her testimony before the House Judiciary Committee. Around the time Ms. Goodling became White House liaison in April 2005, Mr. Kyle Sampson told her that Acting Assistant Attorney General [for OLC] Daniel Levin had advised that Immigration Judgeships were not subject to the civil service rules applicable to other career positions. Ms. Goodling testified consistently with these facts before the House Judiciary Committee.

In her written remarks, Ms. Goodling testified:

Around the time I became White House Liaison in April 2005, Mr. Sampson told me that the Office of Legal Counsel (OLC) had provided guidance some years earlier indicating that Immigration Judge appointments were not subject to the civil service rules applicable to other career positions.

This testimony is truthful and accurate.

In response to questions from Representative Nadler, Ms. Goodling stated:

I was informed that the Office of Legal Counsel had said that because those were positions under a direct appointment authority of the Attorney General, that we could consider other factors in those cases. Later, concerns were raised as a result of some litigation and the Civil Division came to a different conclusion. As a result of that, we actually froze hiring late in December of last year.

This testimony is truthful and accurate.

In response to questions from Representative Goodlatte, Ms. Goodling stated:

In other cases like immigration judges and Board of Immigration appeals, I thought that we could consider other factors because I had been told that, in relation to immigration judges -- and I think my assumption was that that applied to the BIA as well.

This testimony is truthful and accurate.

Finally, in response to questions from Representative Sherman, Ms. Goodling stated:

If you're asking about other categories like immigration judges or BIA members, originally, I was told that we could, particularly in relation to the immigration judges. And I assumed it applied to BIA positions as well. I was told that those factors could be considered.

This testimony is truthful and accurate.

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Posted 12:50 AM by Marty Lederman [link]