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Like most appellate lawyers in this country, I have been following the Flynn saga in the DC Circuit. I was disheartened at them granting the order for en banc review. I believed the mandamus was proper and should have issued.
For those of you who are not law nerds, an order in mandamus is an order from a superior court to a lower court telling that court to do something it has an absolute duty to do. You cannot establish a duty through mandamus, you can only enforce a duty. So, unless there was a clear, existing right to the relief sought (dismissal) mandamus would have been inappropriate. The original writ court found that there was such a right. The en banc review cast a shadow on that determination.
St. Louis lawyer John M. Reeves published a tweet this morning regarding an order from the court. He linked to the order by the D.C. Circuit. That order requested argument on 28 USC § 455 which establishes the reasons why a court must recuse.
The first thing they want to hear from the lawyers is whether 455(a) applies. That section states:
I think it’s reasonable to question Judge Sullivan’s impartiality given the lengths to which he has seen fit to carry his jihad against General Flynn. He may not be biased; I cannot say. But the evidence of bias has piled up fairly high and needs to be evaluated. But far more interesting is the Court’s request for the parties to argue § 455(b)(5)(i) which states recusal is necessary if:
(i) Is a party to the proceeding, or an officer, director, or trustee of a party;
Recall that when Sullivan moved to get en banc review, both the United States and General Flynn pointed out that with respect to mandamus he was not a party in that he did not have any injury and couldn’t have any injury because he was not a party to the proceeding.
Under rules of standing a litigant who brings a matter forward for a court to decide must have standing to have that issue resolved. The issue that Sullivan sought to resolve was whether the mandamus was correctly issued. The Supreme Court has defined the standing inquiry under Article III of the Constitution as:
To establish injury in fact, a plaintiff must show that he or she suffered “an invasion of a legally protected interest” that is “concrete and particularized” and “actual or immi- nent, not conjectural or hypothetical.” Lujan, 504 U. S., at 560 (internal quotation marks omitted). We discuss the particularization and concreteness requirements below.
Spokeo v. Robins, 136 S.Ct. 1540 (2016). In describing the nature of this invasion of an interest the Court said:
For an injury to be “particularized,” it “must affect the plaintiff in a personal and individual way.” Ibid., n. 1; see also, e.g., Cuno, supra, at 342 (“ ‘plaintiff must allege personal injury’ ”); Whitmore v. Arkansas, 495 U. S. 149, 155 (1990) (“ ‘distinct’ ”); Allen v. Wright, 468 U. S. 737, 751 (1984) (“personal”); Valley Forge, supra, at 472 (stand- ing requires that the plaintiff “ ‘personally has suffered some actual or threatened injury’”); United States v. Richardson, 418 U. S. 166, 177 (1974) (not “undifferenti- ated”); Public Citizen, Inc. v. National Hwy. Traffic Safety Admin., 489 F. 3d 1279, 1292–1293 (CADC 2007) (collect ing cases). Particularization is necessary to establish injury in fact, but it is not sufficient. An injury in fact must also be “concrete.”
A “concrete” injury must be “de facto”; that is, it must actually exist. See Black’s Law Dictionary 479 (9th ed. 2009). When we have used the adjective “concrete,” we have meant to convey the usual meaning of the term— “real,” and not “abstract.” Webster’s Third New Interna- tional Dictionary 472 (1971); Random House Dictionary of the English Language 305 (1967).
As the judge, whatever interest Sullivan may have in being right, he has no particularized or concrete injury as a result of the mandamus. The only thing it affects is his reputation. So when he petitions the Court for en banc review, he asserts the rights of a party, and when the Court grants that petition for review, it elevates him to the status of a party. However, if the Court were actually to follow the Supreme Court’s mandatory directives on standing, Sullivan had no standing to petition for view, and the Court could not confer standing to him as a way of engaging in review.
Thus, the DC Circuit is attempting to put Sullivan in a box. Either he’s a party, and he has to recuse because of the statute, or he’s not a party, in which case he has no standing to demand en banc review. Interestingly, the order granting en banc review is below:
It begins this way:
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 …
In other words, the Court did not take up the case sua sponte, or on its own motion. It took it up and voted to rehear it only because of the petition. It seems pretty clear that this is clear error on the Court’s part if the judge is not a party with standing. A party without standing is not permitted to move a Court to act on a motion that produces no legal benefit for that party. Because Sullivan has no concrete and particularized injury, it seems clear that the Court’s review of the petition is error. The government explained this best in their brief:
Article III standing. A person has Article III standing to seek appellate review only if he has a “personal stake” in the litigation. Hollingsworth v. Perry, 570 U.S. 693, 707 (2013). But a judge does not have—and under the Due Process Clause, cannot have—such a stake. That is so even for a writ of mandamus, which “is not actually directed to a judge in any more personal way than is an order reversing a court’s judgment.” Fed. R. App. P. 21 advisory committee’s note to 1996 amendments (1996 Note).
But likely it was the government pointing out the fact that Sullivan was not a party that prompted the most recent order. In its brief the Solicitor General said:
Party status. Only a “party” may petition for rehearing en banc. Fed. R. App. P. 35(b). Judges were once considered nominal respondents in mandamus proceedings, but in 1996, “the rule [was] amended so that the judge is not treated as a respondent.” 1996 Note; see Fed. R. App. P. 21(a) (listing parties). The district judge thus is not a party—not even a nominal one.
Thus Judge Sullivan and his highly-paid counsel are in a box. If the Court admits that he is a party (creating legal error that the DOJ will be duty-bound to appeal) then it has to recuse from further work on the case. And if it reconsiders, in view of the arguments, that it’s granting of the petition for review was error, it can simply reinstate the original order in mandamus, make it immediately effective, and the deal is done.
In some ways it would be better if the Court determined that Sullivan was a party because he would have to recuse and any subsequent judge would be bound (based on the procedural history) to grant the motion to dismiss. On the other hand, if it determines that he was not a party, could not petition, but now suggests that the vote to rehear the case was on some basis other than the petition, it looks dishonest, and as if it is doing the political bidding of the Democratic party. It truly seems that this is a heads-I-win-tails-you-lose situation for Judge Sullivan.
Yet, given the twists and turns in this case, no one should expect that we’ll know anything by the close of oral argument on August 11.Published in