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:

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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