Federal employees hoping to challenge adverse personnel actions might not find recourse through the usual channels, but a recent First Amendment case may be opening a new path for them — one that bypasses established agencies and leads straight to federal district courts.
The U.S. Court of Appeals for the Fourth Circuit issued an opinion on June 3, 2025, questioning whether the systems currently in place to protect federal employees are too politically hamstrung to serve their purposes.
Typically, federal employees who feel their civil service rights have been violated must file a complaint with the Office of Special Counsel (OSC) and/or appeal to the Merit Systems Protection Board (MSPB).1 Congress established both agencies through the Civil Service Reform Act (CSRA), intending to create a system that protects federal employees from political influence and unfair treatment while ensuring employment decisions are based on merit and qualifications.
The OSC investigates whether prohibited personnel practices — such as nepotism or whistleblower retaliation — have occurred. The MSPB hears appeals from federal employees, allowing them to challenge employment decisions that may violate merit system principles.
Federal employees are usually required to exhaust these administrative remedies before seeking relief in federal court — even if a claim involves a constitutional right like free speech under the First Amendment.2
Is the CSRA Framework Still Intact?
On July 1, 2020, the National Association of Immigration Judges sued the Executive Office for Immigration Review (EOIR), challenging a policy that required judges to obtain pre-approval before making public comments related to immigration issues or agency operations.3 The judges claimed this policy violated their rights under the First and Fifth Amendments.4
The U.S. District Court for the Eastern District of Virginia dismissed the case, holding that the CSRA's administrative scheme deprived it of jurisdiction.5 However, on appeal, the U.S. Court of Appeals for the Fourth Circuit vacated that decision and sent it back to the lower court with one very important question: Is the CSRA currently functioning as Congress intended?
The Fourth Circuit emphasized in its June 2025 opinion that the CSRA is only meaningful if the OSC and MSPB are able to perform their statutory duties, which include adequately and efficiently processing claims from federal employees.6 If those bodies fail to operate effectively — for example, due to leadership vacancies or systemic dysfunction — the administrative scheme no longer serves its intended purpose.7
The Court underscored that Congress deliberately structured the MSPB as an independent body, free from political pressure and from "any control or direction by the President."9 Yet, key developments, like the removal of MSPB members during the Trump administration and ongoing challenges to the constitutionality of removal protections, have raised serious concerns about the Board's independence and capacity.10
As a result, the Fourth Circuit concluded that the district court must assess whether the CSRA system is currently operating as Congress envisioned.11 If it's not, requiring employees to exhaust administrative remedies before going to court may be futile. However, since there was no formal proposed or issued adverse action toward the judges, the appeals court did not opine whether traditional MSPB administrative processes for adverse actions are ripe for bypass at this time.12
Why This Matters
This ruling could have significant implications for federal employees, especially those raising constitutional claims like First Amendment violations.
Under the First Amendment, an employee's speech is generally protected if: (1) it involves a matter of public concern and (2) the employee's interest in speaking outweighs the government's interest in maintaining workplace efficiency and discipline.13
Protections are, however, limited if the speech causes disruptions in the workplace or impacts morale.14 Nor is there any First Amendment protection if an employee's statements are made pursuant to their official duties, even if those statements are about matters of public concern.15
A federal employee who fears discipline should they speak out about political or social matters may be able to argue that the action violates the First Amendment. They may also be able to bring their claim directly to federal court without exhausting the CSRA process first if the courts find that the OSC and MSPB are not functioning properly.
Final Takeaway
The Fourth Circuit's decision signals a potential shift in how courts approach CSRA exhaustion requirements, especially when constitutional rights are at stake and the administrative processes appear compromised or ineffective.
If you're a federal employee who has experienced retaliation for speaking out or you believe your constitutional rights have been violated by your agency, it may be time to reevaluate whether the traditional CSRA process is your only option.
The Employment Law Group is monitoring these developments. If you're considering legal action, contact us to explore whether your case could proceed directly in federal court.
Footnotes
1 5 U.S.C. §§ 1204(a)(1), 1221, 2302(b)(1), (8)-(9), 3330a(d), 7512.
2 Steadman v. Governor, U.S. Soldiers' and Airmen's Home, 918 F.2d 963, 967 (D.C.Cir.1990).
3 Nat'l Ass'n of Immigr. Judges v. Owen, 139 F.4th 293, 299 (4th Cir. 2025).
4 Id.
5 Id.
6 Id. at 305; see also Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994
7 Owen, 139 F.4th at 305.
8 Id. at 306 (quoting S. Rep. 95-969, at 7).
9 Owen, 139 F.4th at 306 (quoting S. Rep. 95-969, at 24).
10 Owen, 139 F.4th at 307.
11 Id.
12 Id. at 309.
13 Smith v. Department of Transp., 106 M.S.P.R. 59, 79 (2007) (citing Ledeaux v. Veterans Admin., 29 M.S.P.R. 440, 445 (1985)).
14 Connick v. Myers, 461 U.S. 138, 151 (1983) (citing Arnett v. Kennedy, 416 U.S. 134, 168 (1974)).
15 Garcetti v. Ceballos, 547 U.S. 410, 425-26 (2006).
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