U.S. Court of Appeals for the Second Circuit.

Should the U.S. Court of Appeals for the Second Circuit hold off on a mandamus petition by the government until the U.S. Supreme Court decides on a similar suit coming out of California over the Trump administration's wind down of the Deferred Action for Childhood Arrivals?

That question loomed behind the granular-level debate Thursday over a mandamus petition before the panel of Circuit Judges Barrington Parker, Gerard Lynch and Christopher Droney in In Re: Elaine Duke, 17-3345. The judges—most notably the probing Lynch—grilled the government over its underlying arguments as to why U.S. District Judge Nicholas Garaufis of the Eastern District of New York had so gone beyond his prerogative as to require mandamus.

Deputy Assistant U.S. Attorney General Hashim Mooppan reiterated the government's points before the panel, that the district court erred by moving forward with the administrative record document production and discovery sought by plaintiffs. The core of the argument under the Administrative Procedure Act, which the government contends blocks review of its deliberative process.

The documents sought by plaintiffs “simply aren't part of the administrative record,” Mooppan told the panel Thursday.

The panel, led largely by Lynch, sought to open up the government's position, even as many of the initial questions sought clarity on the government's underlying arguments, rather than specifically targeting the explicit error that required the appellate court to intercede.

Mooppan defended the government's position to dismantle the DACA program was made, in substantive part, over legal concerns—specifically, that it was all but certain to be struck down by federal courts anyway, so keeping it made little sense.

Lynch and the other judges pressed Mooppan on how a court was to determine if that legal calculation had been done arbitrarily and capriciously if it was unable to review the information that went into the decision. What if the government officials were “cherry-picking” information that supported a predetermined outcome, rather than based on a full reading of all the information before it?

Mooppan reiterated that the fact that the decision was a deliberative one, and not subject to review by the courts, meant that it was insignificant as to what pieces of information were being reviewed.

Lynch went on to question Mooppan as to why the government had brought the mandamus writ so quickly, before exhausting its options, such as protective orders, at the district level, since things were clearly at such an early stage.

Plaintiffs, too, were quizzed by the judges, who wondered why the DACA decision was any different than other “prosecutorial discretion” issues facing the DOJ on a regular basis. Lynch used the example of federal prosecutors previously declining to go after marijuana cases in states that had legalized the drug, before reversing course under the current administration.

Joshua Rosenthal, an attorney with the National Immigration Law Center, represented the private Batalla Vidal plaintiffs. He said the distinction was, in part, because the decision to end DACA didn't amount to discretion, as much as a hard end to a government policy.

The plaintiffs also saw the question of just how the Second Circuit should operate given the Ninth Circuit writ before the Supreme Court rise prominently. Currently, document production and discovery is stayed in the district and appellate courts in California, pending a decision by the Supreme Court on a mandamus petition before it in that case. The Ninth Circuit earlier this month denied a mandamus petition in that parallel DACA case by the government, that would have allowed that case to go forward.

Judge Christopher Droney expressed questions about the “flexibility” the Second Circuit had, given the questions still outstanding on the California actions.

All parties agreed that while similar, the two cases had significant and discernible differences. For example, plaintiffs in the California suit had included documents from the White House in their production request, which wasn't the case in the New York suit. Additionally, the district court in New York had already done more to limit the number of layers of bureaucracy that would potentially be exposed to having to produce documents.

New York Deputy Solicitor General Anisha Dasgupta represented the state plaintiffs before the panel. While she agreed the Supreme Court's decision had the potential to impact the New York case, she argued that the current case was so early in its deliberations that the appellate court could not step in to stop the production of documents and discovery—actions that the court had every right to proceed with.

“This is not about deliberative material,” Dasgupta said, arguing that the appellate court should allow the process in the lower court to go forward.

U.S. Court of Appeals for the Second Circuit.

Should the U.S. Court of Appeals for the Second Circuit hold off on a mandamus petition by the government until the U.S. Supreme Court decides on a similar suit coming out of California over the Trump administration's wind down of the Deferred Action for Childhood Arrivals?

That question loomed behind the granular-level debate Thursday over a mandamus petition before the panel of Circuit Judges Barrington Parker, Gerard Lynch and Christopher Droney in In Re: Elaine Duke, 17-3345. The judges—most notably the probing Lynch—grilled the government over its underlying arguments as to why U.S. District Judge Nicholas Garaufis of the Eastern District of New York had so gone beyond his prerogative as to require mandamus.

Deputy Assistant U.S. Attorney General Hashim Mooppan reiterated the government's points before the panel, that the district court erred by moving forward with the administrative record document production and discovery sought by plaintiffs. The core of the argument under the Administrative Procedure Act, which the government contends blocks review of its deliberative process.

The documents sought by plaintiffs “simply aren't part of the administrative record,” Mooppan told the panel Thursday.

The panel, led largely by Lynch, sought to open up the government's position, even as many of the initial questions sought clarity on the government's underlying arguments, rather than specifically targeting the explicit error that required the appellate court to intercede.

Mooppan defended the government's position to dismantle the DACA program was made, in substantive part, over legal concerns—specifically, that it was all but certain to be struck down by federal courts anyway, so keeping it made little sense.

Lynch and the other judges pressed Mooppan on how a court was to determine if that legal calculation had been done arbitrarily and capriciously if it was unable to review the information that went into the decision. What if the government officials were “cherry-picking” information that supported a predetermined outcome, rather than based on a full reading of all the information before it?

Mooppan reiterated that the fact that the decision was a deliberative one, and not subject to review by the courts, meant that it was insignificant as to what pieces of information were being reviewed.

Lynch went on to question Mooppan as to why the government had brought the mandamus writ so quickly, before exhausting its options, such as protective orders, at the district level, since things were clearly at such an early stage.

Plaintiffs, too, were quizzed by the judges, who wondered why the DACA decision was any different than other “prosecutorial discretion” issues facing the DOJ on a regular basis. Lynch used the example of federal prosecutors previously declining to go after marijuana cases in states that had legalized the drug, before reversing course under the current administration.

Joshua Rosenthal, an attorney with the National Immigration Law Center, represented the private Batalla Vidal plaintiffs. He said the distinction was, in part, because the decision to end DACA didn't amount to discretion, as much as a hard end to a government policy.

The plaintiffs also saw the question of just how the Second Circuit should operate given the Ninth Circuit writ before the Supreme Court rise prominently. Currently, document production and discovery is stayed in the district and appellate courts in California, pending a decision by the Supreme Court on a mandamus petition before it in that case. The Ninth Circuit earlier this month denied a mandamus petition in that parallel DACA case by the government, that would have allowed that case to go forward.

Judge Christopher Droney expressed questions about the “flexibility” the Second Circuit had, given the questions still outstanding on the California actions.

All parties agreed that while similar, the two cases had significant and discernible differences. For example, plaintiffs in the California suit had included documents from the White House in their production request, which wasn't the case in the New York suit. Additionally, the district court in New York had already done more to limit the number of layers of bureaucracy that would potentially be exposed to having to produce documents.

New York Deputy Solicitor General Anisha Dasgupta represented the state plaintiffs before the panel. While she agreed the Supreme Court's decision had the potential to impact the New York case, she argued that the current case was so early in its deliberations that the appellate court could not step in to stop the production of documents and discovery—actions that the court had every right to proceed with.

“This is not about deliberative material,” Dasgupta said, arguing that the appellate court should allow the process in the lower court to go forward.