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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.