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Volokh Conspiracy

The D.C. Circuit Will Rehear the Flynn Case En Banc

Look for the full appellate court to send the case back to the trial court - which is where it belongs.


This morning the D.C. Circuit, acting en banc, vacated the earlier panel decision in the Michael Flynn case.  The full Circuit will rehear the case en banc on August 11.  Here is the Court's order:

Upon 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 is

ORDERED that this case be reheard by the court sitting en banc. It is

FURTHER ORDERED that the court's order filed June 24, 2020, be vacated. It is

FURTHER 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).

VC readers will recall that a Government motion to dismiss is pending before Judge Sullivan in the District Court—and Judge Sullivan has asked for amicus briefing before making a ruling on the motion.  Flynn's attorneys sought a writ of mandamus from the D.C. Circuit, which would have compelled to Judge Sullivan to enter an immediate dismissal.  In my previous posts about the case, I argued that close scrutiny of the Government's motion to dismiss was unwarranted but that, nonetheless, the issue of considering the motion was one for the District Court–not the Court of Appeals. I thought that the 2-1 panel decision ordering Judge Sullivan to promptly dismiss the case was "dubious" and that it wouldn't be surprising to see rehearing en banc.

Now that the D.C. Circuit en banc has ordered rehearing, it is quite likely that the full court will deny Flynn's petition and simply send that case back to the District Court. The Circuit has asked the parties to address whether, under its earlier ruling in Cheney, there are "no other adequate means to attain the relief" desired. Put simply, Flynn's desired relief is dismissal of case against him—something that the District Court is obviously empowered to do. The District Court may well dismiss the case if given the opportunity to rule. Thus, there are other means to attain the relief Flynn desires. This is not a case that warrants appellate court intervention to provide "extraordinary" mandamus relief.