Judge Emmet Sullivan wants full D.C. Circuit to overule Order requiring him to dismiss Michael Flynn case
Sullivan says appeals panel decision was premature: “The panel’s decision threatens to turn ordinary judicial process upside down. It is the district court’s job to consider and rule on pending motions, even ones that seem straightforward. This Court, if called upon, reviews those decisions—it does not preempt them.”
A panel of the D.C. Circuit Court of Appeals gave the judicial equivalent of a slap in the face to District Court Judge Emmet Sullivan when it ordered Sullivan to grant the government’s motion to dismiss the criminal case against Michael Flynn.
See these prior posts for background:
- Michael Flynn Asks Appeals Court to Order District Court to Grant DOJ Motion to Dismiss
- Judge considering holding Michael Flynn in criminal contempt for perjury in connection with guilty plea
- Judge in Michael Flynn case may allow ‘amicus’ briefs on whether to drop case – is there reason for freak out?
- DOJ Drops Case Against Michael Flynn After Considering ‘Newly Discovered and Undisclosed Information’
- Judge Emmet Sullivan to Appeals Ct in Flynn Case: It’s Premature To Order Me To Dismiss The Case
- Appeals Court Orders Judge Emmet Sullivan to Dismiss Michael Flynn Criminal Prosecution
If you thought Sullivan was just going to go along, you would be mistaken. Sullivan just filed a Petition for Rehearing En Banc (pdf.) seeking review by the full Circuit.
From the Introduction to the Petition:
The panel majority granted the extraordinary writ of mandamus to prevent the district court from receiving adversarial briefing and argument on a pending motion. The opinion is couched as a fact-bound ruling based on “the record before the district court.” Op. 7. It in fact marks a dramatic break from precedent that threatens the orderly administration of justice.
First, the majority undermined this Court’s consistent interpretation of the mandamus standard by forcing the district court to grant a motion it had not yet resolved, based on alleged harms to a party that did not seek mandamus, and in reliance on arguments never presented to the district court. Any one of these rulings would constitute an unwarranted dilution of the requirement that a petitioner lack adequate alternative remedies. Taken together, they threaten to turn mandamus into an ordinary litigation tool.
Second, the panel undercut Supreme Court and Circuit precedent in holding that the separation of powers precluded the district court from inquiring into the government’s Rule 48 motion. The Supreme Court’s decision in Rinaldi v. United States, 434 U.S. 22 (1977) (per curiam), recognized a district court’s ability to hear an unopposed Rule 48 motion. Moreover, no Circuit precedent establishes the type of clear and indisputable right necessary to authorize the panel’s resolution of that constitutional question. That is especially so given the Supreme Court’s recent admonition that separation-of-powers questions are fact- and context-specific. See Seila Law LLC v. CFPB, ___ S. Ct. __, slip op. 2, 16–18 (June 29, 2020). Mandamus is not the place to make new law.
Third, the panel contravened Supreme Court and Circuit precedent in precluding the district court from appointing an amicus and scheduling a hearing. The Supreme Court and this Court have employed those practices to resolve cases where the parties agreed and the ultimate outcome was predictable. The panel cited no law precluding district courts from similarly considering both sides of an issue before deciding it.
The panel’s decision threatens to turn ordinary judicial process upside down. It is the district court’s job to consider and rule on pending motions, even ones that seem straightforward. This Court, if called upon, reviews those decisions—it does not preempt them. This case satisfies the requirements of Rule 35, and en banc review should be granted.
As before, Sullivan’s argument boiled down to the assertion that appeals court intervention was premature:
Judicial decisions are supposed to be based on the record before the court, not speculation about what the future may hold. All the district court has done is ensure adversarial briefing and an opportunity to ask questions about a pending motion. Outside the panel opinion, those actions have not been considered inappropriate—much less an extreme separation-of-powers violation justifying mandamus.
Considering both sides of an issue before ruling is not ultra vires—it is sound judicial practice.
What happens next is the full court of active judges needs to vote on whether to accept the case for en banc hearing. If so, then the court would consider the merits of the Petition.
What’s the result going to be? I don’t mean to be overly cynical, but the panel decision split along party lines:
The decision came from a conservative-leaning panel on a court that overall leans to the left. It was written by Judge Neomi Rao, a Trump appointee, and joined by Judge Karen Henderson, who was appointed by President George H.W. Bush. Judge Robert Wilkins, an Obama appointee, dissented.
I know, I know, Chief Justice Roberts told us “We do not have Obama judges or Trump judges, Bush judges or Clinton judges….”
Umm, okay, sure. Seven of the D.C. Circuit active judges were appointed by Democrats, four by Republicans.
If the full Court takes the case for rehearing, cynical me says Flynn will lose. But the full Court may refuse to take the case.
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to the full extent allowed by law.
I thought it was over, but Judge Sullivan just can’t leave it be.
It appears he isn’t accustomed to not getting his way.
I predict this will lead to further embarrasment for him.
Given the incredible amount of corruption that is being exposed in this matter, Sullivan could be accused of obstructing justice by a special prosecutor by failing to observe a court orderd, don’t you think?
Crooked Traitor Emmett…..
“embarrassment” – not at all –
Sullivan is auditioning for an appointment to the court of Appeals in a Biden administration
Auditioning for a seat on the court of appeals?
lol,, Dude is 74 years old.
didnt think I needed the sarc tag
How big must an error be before it is made right?
The answer, my friend, is blowin’ in the wind …
FRAP 35(b) says “[a] party” may petition for rehearing en blanc. The 1996 Advisory Committee not to FRAP 21 says that the trial judge – “is not treated as a respondent.”
Technically – the Judge has no legal standing to petition.
correction: Advisory Committee NOTE to FRAP 21
This is what I don’t get? What standing does a Judge have to appeal a decision made against him???
Yes, exactly! If anyone can show me a case in which a judge that has been overturned has ever been a party to appeal an adverse decision by their superior court. Sullivan has made himself a party to the dispute. The roll of the judge is supposed to be as a neutral arbitrator between parties in dispute. When there is no dispute between the parties, their is NO ROLL for the judge, and so yes, dismissal is a rubber stamp. If a judge is a party in a dispute, he must either recuse of be replaced. The Court of Appeals erred in not removing Sullivan as he has made himself a party in the dispute, and can therefore no longer serve as the arbiter of said dispute.
“But the full Court may refuse to take the case”…..
which part of the full courts ‘butt’ do you think this will ‘rest on’?
id bet its the ‘crack’ up the middle..
which shows how much black robes these days believe the lie that they are the law…
wait til they’re ‘canceled’
The full banc will likely not take the case. When that happens Sullivan will take an appeal to the USSC which predictably not take up the case unless there’s some statute that says it must.
I believe if the appeals court *was* going to take this up, they would have already. Since they didn’t, I would surmise that the more leftist judges on the court have no desire to stick their necks out for the certainty of having the Supremes watching these turkeys with cranberry sauce and gravy all prepared. Worse, Sullivan’s last-gasp to the appeals court was messy, as if he really didn’t care and just threw everything in that had already been rejected with cut-and-paste.
With that in mind, and as I understand the process, once the 15th rolls around with no response, Sullivan has to either dismiss or find something even *dumber* to do than before. That’s going to be difficult.
Never underestimate the stupidity of a Democrat…..
Or, their level of corruption.
And what is the test, if any, for determining whether an appeals court intervention is timely or “premature”? /sarc
It’s been almost three weeks since he was ordered to dismiss which means within that time he and Gleeson have been working the phones.
They must believe they have the numbers hence this latest action.
They will get their enbanc hearing and a decision will be made on party lines is my prediction.
What must be remembered is that the government’s brief was signed by the Solicitor General, two of his four top lieutenants, as well as the US Attorney. This just never happens. The SG almost never gets involved in arguing for Mandamus at this level. Most of his work is at the Supreme Court, where he is the only attorney outside the Judiciary who has an office there. Moreover, the case was argued by one of those assistants before the panel, and not a lowly AUSA like Brandon Van Grack. The SG got involved because the AG (and thus DOJ) believes this to be a critical Separation of Powers issue (encroachment into Executive Branch decision making process by the Judiciary). His presence at the top of the brief says that the DOJ will almost certainly immediately appeal to the Supreme Court, if they lose in the DC Circuit, that the Supreme Court will very likely accept the appeal (they are highly differential to the SG in this regard), and with the 5/4 Court mix, will likely side with the DOJ over Sullivan. I would suggest that the likelihood of that result increased significantly, with their siding with the Executive against the Legislative Branch their Separation of Powers decision this week (because siding with Sullivan would look like a power grab on their part, and CJ Roberts is very conscious of Judicial Branch appearances).
FYI: I have been proven wrong, and my optimistic view of the appeals court tarnished since they *have* decided to play along with Sullivan’s charade. Darnit.
I have to agree that CA DC will not take the case en banc for a number of reasons even though it was likely wrongly decided – it was a procedural issue which procedural rules are easy to screw up.
the reasons for not hearing en banc
A) the case is highly political which cuts against en banc
b) it is a procedural case
C) the court is probably fully aware of the unique and volumunus nature of the corruption involving the FBI & DOJ in the prosecution.
So while procedurally the case was wrongly decided, it was the correct decision in the interest of justice, so not likely to re hear
So how much longer will this drag out? Weeks? Months? Years?
The Federal judiciary is an open sewer of corruption, bias and favoritism. And this kind of sleaze is how you get a full-scale civil war.
We will found out soon – if they do not grant him a stay, it will be over soon. If they DO give him a stay while they consider, that will mean the Fix is In, and they lntend to stall all of this until President Biden can reinstate the charges.
It must be an affirmative action thing.
Of course, they are going to take the case. There is little harm to them in doing so and they benefit by delaying for longer and longer until they can “hope to change” things in November.
This ploy is obvious. There’s no way to convict Flynn, but they can try to keep him quiet by waiting until after their plan of a government takeover in November.
“There’s no way to convict Flynn, but they can try to keep him quiet by waiting until after their plan of a government takeover in November.”
Never underestimate the ability of kangaroo courts to get what they want.
Imagine . . . And yeah, who would’ve thought?
(Among perhaps a myriad others, in fact I did, a few weeks ago.
And just as I’d hoped I was wrong then about this motion coming to pass, so I hope I’m wrong now, that — given the astonishing, yet predictably imprudent and traitorous irrationality with which the Dem-Lefty-Globes, and their far fewer but no less world-state-intoxicated, high-benched, federal, black-robed apologists and facilitators have driven this high-speed train, called The US Express, to crash the nation as we know it today into the deep, dark ravine in a fully designed and aimed, neat and timely manner — the full, 11-member DCCCA court will be redeciding General Flynn’s petition for Mandamus, thus en banc.
Yes, then, enough time will’ve been used up until the presently undecided and unended matter re Flynn can, in some unexhausted, still pending form, can make itself facile for retreading if and when Joe Stalin II & Co, I mean Biden, holds the office of P-Elect-OTUS.
With that done, a yet-experienced, alternate universe, as it were, comes into existence. The laws as we knew them — in their evolution through all of time — will’ve suddenly ceased to operate. Kant’s nightmare — the heavens’ feared fall — will be in effect.
A long night will be upon us, but I digress.)
We’ll see what happens soon w/r/t all concerned as we await the Court’s reply to Judge Sullivan’s attorney’s, Beth Wilkinson’s request.
The harm is getting slapped down hard by SCOTUS if they overrule their panel. If they do that, with the SG on the govt’s brief, it will be immediately appealed to SCOTUS, the petition almost assuredly accepted, and the en banc court quickly reversed. See above for my reasoning.
They must have something real damning on him.
People like the guy that put Sullivan on the bench must never again be allowed in a position of power.
This why Sullivan’s actions increasingly paint him as either a total political shill or insane.
A prosecutor comes to a judge and says, we have exceptionally strong evidence that not only is the defendant not guilty, but that significant prosecutorial misconduct occurred. For that reason, the prosecution is not going to proceed in the further prosecution of this defendant. In addition, we strongly urge the court to set aside the convenience plea of the defendant and dismiss all charges. In a sane legalistic world, the judge would go “hurrumph, hurrumph”, castigate the prosecution for allowing such activity to occur and dismiss all charges with prejudice. The cae against the Bundy’s was dismissed in this exact manner, over the objections of the prosecution on far less evidence that any misconduct occurred.
However, Sullivan sits on the bench and essentially calls the current prosecution liars and demands that some third party assume the prosecutorial duties of the state. What does that tell us about the judge?
Well, I guess there is a chance they may haul him off strapped down to a plank…
And put him in a rubber room.
It is all so simple. Sullivan is a judge of the The People’s Court (Volksgerichtshof). It is a Sondergericht (“special court”) of the Sozialdemokratische Partei regime, set up outside the operations of the constitutional frame of law.
The Germans had such a way with words. Maybe Obama can translate that into Austrian.
The Germans are quite something. Even their little children can speak German.
What are the chances of impeaching him? It would be a yuck to see him banished in disgrace.
Yes, the outrageous thing about this obstruction by Sullivan is that there is no dispute about the government’s misconduct. We have the clear admissions from the FBI agents’ own notes that they concluded that Flynn had broken no laws, and that the purpose of the multiple interviews was to try to entrap him. We also have the former prosecutor’s own sworn statement to the court that there was no side agreement to the plea deal, which was blatantly perjurious, as the prosecutor knew full well that Flynn was only agreeing to plead guilty in order to keep his son from becoming the target of another malicious prosecution by DOJ. It is not as if there are disputed material facts here regarding the Obama administration’s grossly unethical and illegal conduct in this prosecution, and it is outrageous for Sullivan to continue stringing this travesty out.
If they take the case, they are in effect saying a 9-0 SCOTUS decision is not valid.
Will the seven Socialist-Democrat appointees ignore the SCOTUS Rinaldi decision? Or their own precedent in Fokker? A lot depends on whether politics trumps law and precedent for at least six of the seven.
The purpose of the delay tactics is to goad Trump into pardoning Flynn..
Judge Emmet must have been a frequent flyer on Lolita One or he owes somebody else who was and who is also on “the list”.
I can hardly wait until General Flynn obtains a forum to lay it all out there.
I had stated that Sullivan was a pathological narcissist, but, I believe that diagnosis was way off the mark. This man is clinically insane.
This fool/tool Sullivan is like the dildo in 5th grade: best 3 out of 5, no wait best 5 out of 7, no wait…
Keep them goalposts moving.
He is insane. Hanging around with the harpies Howell and Berman Jackson too much.
I have seen more than a few judges develop a case of hubris because the judiciary has no taming process for Federal judges.
“People like the guy that put Sullivan on the bench must never again be allowed in a position of power.”
Sullivan appointed to judgeships by Reagan, G.H.W. Bush, and Clinton.
True. Reagan appointed him to the District of Columbia’s Superior Court bench (not the Federal District Court for the District of Columbia). Bush 41 put him on the District of Columbia’s Court of Appeals (again not the Federal bench) and Slick Willie appointed him to the US District Court.
Motion to amend my initial complaint:
People like the guy that put Sullivan on the federal bench must never again be allowed in a position of power.
Yes. Chief Justice Roberts told us there were no Obama judges. Then he became one.
Does Sullivan even have standing to ask for a rehearing? Our system of law is an adversarial process – it requires adversaries. The prosecution and the defense do not disagree, there are no adversaries. Allowing Sullivan to appeal the decision moves the court without a motion from either party before the bench. In so doing, he is taking a side, a side which has already given up the fight and admitted wrong-doing.
Can Flynn be charged with perjury without likewise charging both the prosecutors and Flynn’s former attorneys (who both lied to the court when they said there were no side deals appended to the plea)? Because both the prosecution and the defense had reason to believe Flynn wasn’t guilty, aren’t both sides guilty of suborning perjury by cajoling a guilty plea out of Flynn?
Someone help me out here.
There’s court precedent that a public official assumes the position of a litigant, with the same rights as a litigant, in the context of a mandamus action. The public official is being ordered to do something s/he wasn’t willing to, s/he is entitled to a hearing to make the case their actions are appropriate. It’s a little unusual when the public official is a judge – usually the PO is “the government” – but there is precedent giving judges the same privileges.
Yes, he has standing because he’s the one who’s (improperly in his view) been ordered to do something. He has the right to have that decision reviewed.
Thanks, Milhouse and Zumkopf.
I have to wonder if Sullivan played it this way intentionally to put himself into a position in which he has more leverage than he, as a judge, would usually have.
A judge who becomes a party to a dispute under their jurisdiction must either recuse or be removed from arbitration of said dispute. The only roll is for a judge to serve as an neutral arbiter between parties in dispute. If there is no dispute between parties, the judge has no roll and cannot force a dispute or insert himself within that dispute thus created. To do so makes him a party to the dispute, and therefore requires recusal or removal as the judge cannot serve as a neutral arbiter in a dispute in which the judge is a party. The Court therefore erred when they failed to remove Sullivan from the case.
The only exception is in the case of contempt of court, which has long been seen as a judicial prerogative but which Sullivan has not alleged, and has even less basis than his other ludicrous rantings and assertions relating to this matter.
I’ll try Dave,
This is like a tennis match, where both players have stopped playing, and the umpire insists the game continue. Not only that, he has hopped right onto the clay and is smacking the ball all over the place.
Remember it is called a tennis court!!
Apologies to Prof. Jacobson.
How much did the the taxpayers of this country pay his lawyer to write this up and drag it out even longer?
I think I read somewhere where Wilkinson bills out at $1,500 per hour.
nice work if you can get it
How can he file this motion? He does not have standing. He is not a party.
He is a party to the mandamus order.
Of course, had he acted properly when DOJ filed for dismissal, there would have been no request for mandamus in the first place.
Of course, but he’s still a party. And as a matter of law he’s probably correct on this point.
And therefore placed himself in a position of dispute between the DOJ and Flynn, which has no dispute. Therefore, Sullivan has placed himself as a party in dispute, and cannot act as judge in that dispute. He either has no standing, or must be removed from the dispute. He may take up the other legal issues with the Court that supervises him as litigant, but he cannot drag outside parties into said dispute.
Is Sullivan’s petition for en banc legalese for “don’t leave me hangin’, bro”?
Paul Cassell and Michael Luttig, two people whose legal expertise and conservative credentials are not open to challenge, both believe Sullivan is right on this one and the panel was wrong.
As a non-lawyer, I read their articles (in part, and sniping around paywalls), and I can’t find where they actually believe Flynn is guilty of the ‘lying to the FBI’ charge. That only makes sense, because it would be exceedingly difficult to prove in court now that the handwritten 302 forms and transcript have been produced by Brady, as well as many other exculpatory materials. So they leave the actual nut of the argument alone (where they would lose) and proceed to make a great number of assumptions that Judge Sullivan is indeed acting in good faith in his actions by dragging this dead horse through unprecedented judicial steps for the purposes of beating it.
Sidney should have prevailed on her request to have this yanked out of Sullivan’s hands and passed to a real judge. He’s making a mockery out of the judicial system. End it.
They don’t believe that. At all. This is no longer about his guilt or innocence, it’s about the legality of the strange process Sullivan has chosen to follow. They say that as a matter of law Sullivan is correct and the appeals panel was wrong, and that for the good of the law the panel decision should be reversed. The ultimate result will be the same anyway. Flynn is innocent and should be quit of all this. But Sullivan is (according to them) within his legal rights to drag it out like this, even if he’s being a jerk.
I’m not about to pay to see why they believe Rinaldi and Fokker are not applicable in this case. Alleged conservative credentials most assuredly do not preclude a conclusion “Orange Man Bad” is part of the decision making process for one or both.
He’s positioning himself for promotion in horrifying event that PDJT is not re-elected.
BTW: has anyone else seen the slick propaganda billboard campaign urging mail-in ballots (because waiting on line to vote is a ‘waste of time’)?
Time to start hanging traitorous judges.
Time to start hanging traitorous judges.
It must be sad that you lost and yet you just can’t admit it and walk away. It smells of a person who was paid a lot of “off the books” money and knows that if he doesn’t come threw…he could end up being just another name on the “he died in a car crash” list. Otherwise, he has no reason to do it.
We have all seen how contagious and crippling TDS is, he could be just another severe case of TDS who happens to be a judge.
Is there a mask for that?
What is absolutely shocking is the blatant disregard Judge Sullivan and those siding with him have for the rigths of the defendant.
Justice delayed is justice denied, as the well-known saying goes. And that is precisely the intention here. The punishment is the process, and the intentional dragging out that process is punishment without due process.
Even though the founders clearly were aware – much more aware than the current crowd – of the fallen nature they obviously had a blind spot that did not allow them to foresee the depravity of the likes of Sullivan that would enthusiastically throw away all pretence of impartiality to conduct their political vendettas.
In our judicial system, “the public has a right to every man’s evidence.” so said SCOTUS in yesterdays decision regarding Trump’s taxes. Therefore, we should demand Sullivan’s “evidence” in the form of every communication he and his staff have had in the last year, or so. Sullivan is up to something and now the public has a right to know
. . . and his tax returns . . .
What has me shocked is the nature of the crime Flynn is accused of. I could understand all this effort to get Flynn if it was a case of rape, murder or something else of extreme significance to public safety, but this is a case of lying to the FBI. Should Sullivan drop the case as directed, then is there a fear that Flynn will go on to murder or rape more people? No. There is no danger to the public should Flynn be released. The pubic should be asking why this is such a critical hill to die upon for Sullivan and the Left. Answer this question and the real reason for much of this becomes apparent and it is a reason that the Left cannot justify nor does the Left want to be known.
Team Flynn has exposed the FBI as liars and cheats (withholding Brady material). Sullivan wants to make an example of Flynn, not to prevent him from doing it again, but to prevent others from doing it in the future.
Yup. Flynn has violated the Deep State’s omertà. They will stop at virtually nothing to punish him.
I belief Sullivan went after the DOJ in the Stevens case for withholding. IMO, Sullivan wants Flynn kept quiet to protect Obama from his criticism
But, not until Stevens was good and dead and that Senate seat safely in Democrat hands
This case went from US v Flynn to Barry v DJT a long time ago and similarly Sully morphing into DA from from judge. Case has always been fake – which Sully has always known . So he could have ended matters way before now.
But because Sullly is prosecuting case for Barry he Sully is never going to voluntarily give up. Especially when he Sully knows majority of DC Appeals Ct hates DJT as well as the big equalizer Robby Roberts.
Is anyone or anything entitled to not be criticised?
Trump most certainly has the right to be critical of the broad pattern of judges encroaching on his legitimate presidential authority.
I’ve long passed the point of being surprised by decisions made by politicians, particularly politicians on the Federal bench. It would not be a complete surprise if at least another five (counting Wilkins on the yea column) of the Socialist-Democrat appointees decided to ignore Rinaldi and their own Fokker Services precedents to vote to re-review the case en banc. Such a decision would clearly show it was political.
It is ironic that judges feel much like the Black Liars Movement, though I think most judges are trying to what is right, I cannot say the same for the Black Liars Movement.
Justice is supposed to be blind but activist judges can’t do that. If they are Hispanic then they want open borders. If they are black then all blacks had to have come from Africa and need operations because all others are racists. They can’t just look at each case and judge it based on facts and evidence, nope, they have to put a liberal political spin on it…not what is correct or is, dare I say it, the Law.
that should be reparations not operations…darn spell-check.
The irony though is that the longer Sullivan keeps this case open, the more discovered information Barr and Durham are going to feed to Flynn’s lawyers and put in the case’s court record. It is a free pipeline to release things like Strozk’s notes and any evidence that the Flynn takedown was directed by Obama.
Take stupid cases to the Supreme Court, win stupid prizes.
Persons in black robes with political immunity, lifetime appointments with large swaths of judicial power and precedent are the very definition of tyranny. Even “if” the panel got it wrong, sullivan got it wrong by not dismissing. He is not a party but has made himself one.
It is a matter of time before the pictures come out about Epstein’s world, then their cover will be exposed.
Since so much exculpatory evidence has been released, why hasn’t Von Grack und Herr Müller been arrested?
Since so much exculpatory evidence has been released, why hasn’t Von Grack und Herr Müller been arrested?
another damning tweet from Catherine Herridge
why aren’t there people outside Sullivan’s courthouse and his home demanding an end to this nonsense.
Judge Sullivan is just an outright disgrace and should be removed from the bench for playing politics and taking an activist role in this case. And that is why conservatives cannot rely on the courts to protect us and our rights.
Just remember this factoid from the prior courtroom appearances: In open court, a judge with a lifetime appointment, referred to a decorated military veteran as a “traitor.”
Yeah, he walked it back in the afternoon session (it wasn’t a trial) but he still gets my vote for lifetime federal judge POS.
They stayed it – https://twitter.com/dsamuelsohn
#FLYNN NOW: Court of Appeals gives parties 10 days to argue for/or against full panel hearing. Then, Court of Appeals will decide whether to hear “en banc” or reject Judge Sullivan request. Pending outcome, June 24 Court of Appeals order to dismiss Flynn suspended. @RobLegare