DC Cir., en banc, rejects Mike Flynn's petition for mandamus, which would have required Judge Sullivan to dismiss the case.
Also rejects Flynn's request for reassignment to a different judge. drive.google.com/file/d/1wbNhRw…
Also rejects Flynn's request for reassignment to a different judge. drive.google.com/file/d/1wbNhRw…
As I previously wrote, there was non way the en banc court could let Judge Rao's panel majority decision stand because it would allow parties to seek mandamus any time they thought a judge wasn't going to rule the way they want on a motion—even though appeal is an option. 
When ordinary appellate review is available, the writ of mandamus is not.
This is foundational stuff.
This is foundational stuff.
The en banc court also has "no trouble" with Judge Sullivan's decision to appoint amicus to argue in opposition to the government's motion to dismiss.
"precedent and experience have recognized the authority of courts to appoint amicus to assist their decision-making"
"precedent and experience have recognized the authority of courts to appoint amicus to assist their decision-making"
"Try as they might, neither Petitioner, nor the Government, nor the dissent has identified a single instance where any court of appeals has granted the writ to decide a trial court motion without first giving the district court an opportunity to make a decision."
Concurring Judge Griffith—a GOP-appointed judge who, btw, already announced his plan to retire this year—is like "yeah, it's always been this way."
Dissenting Judge Henderson, joined by Judge Rao, says that the case should be reassigned because Judge Sullivan has now become a party and therefore cannot be impartial.
Dissenting Judge Henderson clearly not happy with the majority's determination that Judge Sullivan's motion for rehearing did not make him a party because it invited his participation.
Suggests they would not be so calm if she petitioned for certiorari of this decision!
Suggests they would not be so calm if she petitioned for certiorari of this decision!
Judge Rao in dissent leans on Flynn's *alleged* false statements, something he pleaded guilty to twice.
Noteworthy that the en banc majority barely mentions the underlying issue of what Rule 48(a) requires.
It's decision rests on the standards to apply in granting writs of mandamus, not whether Judge Sullivan will later have to grant the motion to dismiss under Rule 48(a).
It's decision rests on the standards to apply in granting writs of mandamus, not whether Judge Sullivan will later have to grant the motion to dismiss under Rule 48(a).
By contrast, Judge Rao in dissent spends most of her time suggesting that Rule 48(a) will compel Judge Sullivan to dismiss (notwithstanding the rule's "leave of court" language).
This is almost an inevitability defense for Judge Rao's prior panel decision.
This is almost an inevitability defense for Judge Rao's prior panel decision.
If you're wondering what happens next, the case goes back to Judge Sullivan, who is free to restart the briefing process on the motion to dismiss.
In the meantime, Flynn can, if he chooses, seek further review of this decision at SCOTUS.
In the meantime, Flynn can, if he chooses, seek further review of this decision at SCOTUS.
Anyway, this is the right decision by the en banc court, for the reason I suggested back when this first ended up at the DC Cir.:
Oh, I suppose one other option that bears mentioning is that the president could stop this at any time if he pardons Flynn. I doubt that's a remedy Flynn wants at this stage though.
I see tweets suggesting that the en banc majority is sending a coded message to Judge Sullivan.
But the direction to" proceed with appropriate dispatch" means no more than it says. Sullivan had already scheduled a hearing which Flynn's petition interrupted.
But the direction to" proceed with appropriate dispatch" means no more than it says. Sullivan had already scheduled a hearing which Flynn's petition interrupted.
