Special Counsel’s office cites whistleblower protections in immigration judge gag order

The Office of the Special Counsel issued a reminder to federal agencies Wednesday that employees are statutorily protected by anti-gag order provisions allowing for whistleblower disclosures, which supersede any policy or nondisclosure agreement. 

Among some 25 corrective actions issued this year by the OSC was to amend a perceived gag order by the Justice Department’s Executive Office for Immigration Review to two immigration judges over its policy on speaking engagements.

Last month, the EOIR told its employees that they could not speak publicly without prior agency approval following the decertification of a union representing immigration judges within the office. 

Sheila McNulty, the chief immigration judge at EOIR, emailed the leadership of the National Association of Immigration Judges to inform them that rights negotiated under a previous collective bargaining agreement were no longer valid following the November 2020 decision by the Federal Labor Relations Authority to decertify NAIJ’s union status.

The decision, reaffirmed by the FLRA in 2022, meant that immigration judges within the EOIR are deemed management officials and not eligible for collective bargaining. 

“The agency understands this is a point of contention for you, but any bargaining agreement related to that point that may have existed previously is not valid at present,” McNulty said. “Please consider this email formal notice that you are subject to the same policies as every EOIR employee.”

The email effectively established a gag order preventing immigration judges from speaking to the media without agency approval. 

But the OSC noted in a statement Wednesday that EOIR’s policy did not include anti-gag order language required by provisions of the Whistleblower Protection Act. Under the law, agencies may not impose nondisclosure agreements or policies without informing employees that their whistleblower rights supersede those policies. 

As a result, the OSC said EOIR agreed to revise its policy “last week” and send an email clarifying that “the policy does not restrict employees’ rights to make protected disclosures or engage in protected activity,” as well as have OSC conduct training.

“Federal employees have constitutional and statutory rights to make protected whistleblower disclosures,” said Special Counsel Hampton Dellinger, in a statement.  “OSC will continue to aggressively enforce the prohibition against nondisclosure agreements and communications that discourage employees from blowing the whistle.”

NAIJ officials said last month they are hopeful the group can regain its union certification once the Senate confirms the full slate of Biden’s FLRA nominees.