New York State Attorney General Eric Schneiderman New York State Attorney General Eric Schneiderman. Photo credit: Rick Kopstein


U.S. District Judge Nicholas Garaufis ordered briefs Tuesday to address the district court’s jurisdiction over a pair of conjoined suits challenging the Trump administration’s plans to end of the Deferred Action for Childhood Arrivals program.

Garaufis’ order came shortly after the U.S. Court of Appeals for the Second Circuit in In re Duke, No. 17-3345, extended a stay on a writ of mandamus petition filed by the government. The appellant-defendants argued that the district court orders refusing to stay discovery and requiring the filing of a privilege log over potential documents in the case “were immediate and irreparable,” requiring a stay ahead of the writ filing.

The district court does not have authority to review a “discretionary policy determination” made by the acting secretary of the Department of Homeland Security Elaine Duke. That ability is barred under the Administrative Procedure Act and the Immigration and Nationality Act, which the government contends gives it the power to implement—or rescind—DACA.

“The district court has veered sharply from this well-marked path,” the government argued in its petition.

What Garaufis and Magistrate Judge James Orenstein are asking for in New York v. Trump, No. 17-cv-05228, and Vidal v. Baran, No. 16-cv-04756, is “extraordinarily burdensome and intrusive discovery as plaintiffs hunt for subjective motivations behind the challenged administrative action,” the defendants stated.

Ahead of any other action, the district court needed to address the “threshold legal issue[]” of its jurisdiction, the government urged. The district court’s current approach “would threaten the separation of powers and make standard a manner of litigation that is both unduly intrusive and practically impossible for the government.”

“Only if the court were somehow to conclude that those threshold bars are inapplicable could the court properly even undertake to consider whether the Acting Secretary’s decision was arbitrary and capricious, including with respect to the administrative record submitted to support that decision,” defendants argued.

The panel of Circuit Judges Dennis Jacobs, Robert Sack, and Barrington Parker ordered Tuesday that the district court consider and decide “expeditiously” this issue of “jurisdiction and justiciability.”

In his order immediately after, Garaufis directed defendants to file a supplemental brief “explaining why the court lacks jurisdiction” by Friday at noon. Plaintiffs are to file opposition briefs no later than Nov. 1 at noon.

“We look forward to addressing the merits of our claim in federal court, as we continue to pursue our case to protect DACA grantees and NY’s best interests,” Amy Spitalnick, a spokeswoman for New York Attorney General Eric Schneiderman, said in a statement.

A Justice Department representative was not immediately available for comment.