A coalition of states, led by New York, challenging the Trump administration's reversal on the Obama-era Deferred Action for Childhood Arrivals has asked the U.S. Court of Appeals for the Second Circuit to refuse a pending Department of Justice mandamus petition.

The brief, filed Tuesday, came after U.S. District Judge Nicholas Garaufis for the Eastern District of New York denied nearly all of the Trump administration's request to dismiss the underlying case made by the state plaintiffs, as well as individual plaintiffs impacted by the DACA decision.

President Donald Trump announced the “wind-down” of the DACA program in early September. Shortly thereafter, plaintiffs filed suit in Manhattan federal court challenging the decision on Administrative Procedure Act, Regulatory Flexibility Act, due process, and equitable estoppel grounds.

Garaufis was ordered by the appellate court to determine whether the court had “jurisdiction and justiciability” in the case, after issuing an emergency stay on discovery and record request proceedings pending the appellate court's ruling on the mandamus petition filed by the Justice Department.

Attorneys for the federal government argued the court did not have the ability to review what amounted to an agency policy decision, and asked the district court to dismiss the plaintiffs' case for failure to state a claim.

On Nov. 9, Garaufis by and large denied the Justice Department's request, stating that the issues the government claimed were nonjusticiable under the APA and the RFA were, in fact, justiciable.

“The process by which an agency makes a rule may be reviewed for compliance with applicable procedural requirements regardless of whether the substance of the rule is itself reviewable,” Garaufis found.

Likewise, claims that the Immigration and Naturalization Act barred the courts from reviewing immigration issues on largely public safety and international policy grounds also fell flat.

“Defendants' stated rationale for rescinding the DACA program, however, turns wholly on questions of U.S. constitutional and administrative law, not sensitive law-enforcement, intelligence, or foreign-policy issues,” Garaufis stated.

While Garaufis dismissed a number of the plaintiffs' claims largely on due process grounds, the district court's order was held up as more than enough reason to deny the mandamus petition at the appellate level.

“The district court's resolution of the threshold dispute about its power to hear the case provides petitioners with all the relief they requested in their mandamus petition, and the petition must therefore be dismissed as moot,” the state respondents wrote in a brief in opposition to the mandamus petition, signed by New York Solicitor General Barbara Underwood.

The respondents asked the panel of Circuit Judges Dennis Jacobs, Robert Sack and Barrington Parker not to “construe” the Trump administration's Oct. 23 mandamus petition as a review on the district court's refusal to dismiss, as it would be “at odds with the plain terms of the petition as well as inconsistent with the settled principle that a mandamus petition may not be used to circumvent … procedures for obtaining interlocutory review.”

Alternatively, the states argued, the district court's ruling did not reach the high bar needed for an appellate court to grant mandamus relief. Courts, including the Second Circuit, have routinely ordered agencies to complete administrative record orders, the scope of which the plaintiffs note had already been limited twice by the district court. Privilege logs are a regular part of the competition of the administrative record, according to the respondents.

Additionally, the states argued that jurisdictional arguments against the district court reviewing agency decisions, which, they said, Garaufis rightly retained the ability to do, also failed to reach the threshold of mandamus relief.

“The termination was a dramatic and abrupt change in national policy that affected the substantive rights of hundreds of thousands of DACA grantees,” they stated in their brief. “And as this Court and other circuits have repeatedly recognized, the APA permits review of challenges to enforcement (or nonenforcement) policies.”

New York is joined in the suit by a number of other states, including Massachusetts, Washington, Illinois, Pennsylvania, Virginia and Colorado, as well as the District of Columbia.

A spokesman for the Department of Justice did not respond to a request for comment on the states' brief.

The appellate suit is In Re: Elaine Duke, 17-3345.