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July 10, 2020

A Short Tutorial On The General Flynn Case Procedures [AlexTheChick]

A primer on just what is going on right now from a procedural posture in the Flynn case. Please note that this is just that, a primer, and thus significant amounts of nuance will be left out. As will the profanity I used while typing this.

Cast of characters: Department of Justice – the prosecutor. Flynn – the defendant. Sullivan – the judge. DC Circuit – the circuit court (appellate court) that oversees Sullivan’s district.

Flynn filed a writ of mandamus (do the thing) which the DC Circuit granted. That decision was made by a three judge panel. Three judge panels are how matters are heard initially on the appellate level with some very limited exceptions.

Yesterday, Sullivan asked for a rehearing en banc. That means the entire panel hears it. Requests for en banc are a possible step in the appellate process. En banc is generally denied but it is not uncommon for en banc to be requested. Why is it requested? Because that gives the entire circuit the chance to issue a ruling and thus make clear that this is what the circuit holds, not just three judges.

Today, the DC Circuit issued an order on its own motion (sua sponte) ordering Flynn to file a response to Sullivan’s petition. In other words, the court wants to hear from Flynn directly why en banc should be denied. The DOJ may also file a response, though that is not mandatory. Flynn’s response is mandatory. Sullivan has been prohibited from filing a reply to that.

The ten day time limit is the normal time period for responses. The word limit is a bit unusual but not overly so. The stay is completely routine. Since the court wants briefing, the court will stay until briefing is done.
Despite the unique factual circumstances at issue, the procedural matters are standard. Order entered, en banc requested, reply requested, order stayed. That’s how the procedure goes.

Stop reading into matters being filed at deadline. Everyone does that. Stop reading into the court requesting a reply. That’s routine. Stop even attempting to figure out how votes will go because of the stay. That’s pretty much required.

As to how is Sullivan a party in this? Because the writ is directed to him. His actions are at issue and thus he is the actual party at interest.

Welcome to the insane world of the Federal Rules of Appellate Procedure.

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posted by Open Blogger at 05:30 PM

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