DC Circ. May Sidestep Clarifying A Judge's Role In DPAs

    View Authors September 2015

    A panel of the District of Columbia Circuit skeptically questioned the government on Friday, Sept. 11, about its challenge to a district court’s statutory and constitutional authority to reject a deferred prosecution agreement (DPA). During the oral argument of U.S. v. Fokker Services BV, Judges Sri Srinivasan, Lawrence Silberman and David Sentelle, pressed the government to delineate the conditions under which a district court would be able to reject a DPA as authorized by the statute.

    Yet even before reaching the substance of the government’s argument, the panel grilled the government on the jurisdiction to hear the case at all. When Justice Department lawyer Aditya Bamzai admitted after repeated questioning that the strongest basis for jurisdiction was a writ of mandamus, Judge Sentelle set the stage for the rest of oral argument by informing him: “You have a very steep hill to climb.” Indeed, questions concerning the three onerous requirements for obtaining a writ of mandamus dominated the hour-long oral argument, with the government bearing the brunt of many pointed questions from Judge Sentelle and Judge Silberman. While the three judges seemed to agree that district courts do have a role in approving DPAs, it remains uncertain how they view the discretion district courts should exercise in rejecting DPAs.