The D.C. Circuit Court of Appeals has vacated the prior order of a panel directing Judge Emmet Sullivan to dismiss the case against Michael Flynn. Sullivan requested the full Circuit court consider the case (“en banc”).
Here is the full Court Order.
O R D E RUpon consideration of the petition for rehearing en banc, the responses thereto, and the vote in favor of rehearing en banc by a majority of the judges eligible to participate, it isORDERED that this case be reheard by the court sitting en banc. It isFURTHER ORDERED that the court’s order filed June 24, 2020, be vacated. It isFURTHER ORDERED that oral argument before the en banc court be heard at 9:30 a.m. on Tuesday, August 11, 2020. The parties should be prepared to address whether there are “no other adequate means to attain the relief” desired. Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 380 (2004).A separate order will issue regarding the allocation of oral argument time.
The Court’s focus on “whether there are ‘no other adequate means to attain the relief’ desired” seems to be a clear sign that Sullivan’s argument that the panel order was premature, and that he should have been allowed to rule on the government’s motion to dismiss, is viewed as a problem by many if not most of the appeals court judges.
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For background on the Sullivan-Flynn litigation, see these prior posts:
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