Flynn Opposition To Rehearing en Banc
Flynn Opposition To Rehearing en Banc
Flynn Opposition To Rehearing en Banc
No. 20-5143
TABLE OF CONTENTS
IV. The Panel Properly Issued the Writ to Confine the District Court
Within its Authority and to Order Dismissal. ............................... 14
Addendum
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TABLE OF AUTHORITIES
Cases
Bankers Life & Cas. Co. v. Holland, 346 U.S. 379 (1953) ...................... 17
*In re United States, 345 F.3d 450 (7th Cir. 2003) ............................. 8, 14
__________________________________________________________________
* Authorities upon which we chiefly rely are marked with asterisks.
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Seila Law LLC v. Consumer Fin. Prot. Bureau, No. 19-7, 2020 WL
3492641 (U.S. June 29, 2020) (revised July 8, 2020) .................... 15, 16
*United States v. Ammidown, 497 F.2d 615 (D.C. Cir. 1973) .. 1, 3, 13, 17
Statutes
Rules
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the case. Rehearing should be denied because the panel properly applied
do so.” Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 26 (1943). Here, it
is both.
there is no conflict with any decision. The opinion is not only consistent
with—but required by—United States v. Fokker Servs. B.V., 818 F.3d 733
(D.C. Cir. 2016), and United States v. Ammidown, 497 F.2d 615 (D.C. Cir.
the Second Circuit wrote when reversing then Judge Gleeson for self-
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head.” United States v. HSBC Bank USA, N.A., 863 F.3d 125, 136 (2d
Cir. 2017).
power.” In re Sealed Case No. 98-3077, 151 F.3d 1059, 1067 (D.C. Cir.
1998) (citing Schlagenhauf v. Holder, 379 U.S. 104, 111 (1964)); see Ex
parte Peru, 318 U.S. 578, 587 (1943) (“delay and inconvenience of a
proceedings in the district court”). The district court’s delay here has
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and eighty pages of new exculpatory documents. ECF No. 198. These
with the agents,” and the FBI had ordered the investigation of him closed
information. Id. More stunning text messages from Agent Peter Strzok
and agents’ notes demonstrated the directors of the FBI and others
sought to set Flynn up, “prosecute” him, or “get him fired.” Id. at Ex. 7,
filed notice of consent. ECF Nos. 198, 199, 202. Dismissal was required
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Both the dissent and the PFR rely on the misconception that the
wrong.
On May 11, 2020, at 4:58 p.m., the Robbins Russell firm emailed
Judge Sullivan directly, the clerk of the district court, and lead counsel
64-73. General Flynn promptly opposed any amicus, urged granting the
The district judge entered a minute order a few hours later at 5:57
p.m., stating: because of “the current posture of this case, the Court
Court to file amicus curiae briefs.” Pet. App. 74-75. The court’s order
recognized no rule allowed it, recited the standard (which would foreclose
amicus here), and said it would enter a scheduling order “at the
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General Flynn revised his opposition and filed it publicly two hours
later: 7:59 p.m., May 12, 2020. ECF No. 204. The defense wrote: “A
and certainly not to usurp the role of the government’s counsel. For the
the court to grant the Government’s Motion to Dismiss. ECF No. 204.
The next morning, May 13 at 9:42 a.m., Judge Sullivan denied General
advise “whether the Court should issue an Order to Show Cause why Mr.
Flynn should not be held in criminal contempt for perjury.” ECF No. 205;
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Six days later, on May 19—after Judge Sullivan denied both defense
the Executive and increase Flynn’s exposure, General Flynn filed for
(D.C. Cir. May 19, 2020). It was not May 21. Addendum at 3a.
May 19, at 4:36 p.m.—after the Clerk of this Court docketed the
The PFR relies heavily on the novel notion that Judge Sullivan has
dismiss this case because General Flynn had “two separate ‘judgment[s]
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Judge Contreras was recused almost immediately for reasons long known
to the Government but not to Flynn. “If a judge ‘should have been
recused from the . . . proceedings, then any work produced’ by that judge
Judge Sullivan’s “extended” colloquy. Not only did Judge Sullivan fail to
ask core questions, he ended his proceeding stating he had “many, many,
many questions” about the factual basis for the plea. Pet. App.
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Government files it. In re United States, 345 F.3d 450 (7th Cir. 2003);
This Court should deny rehearing en banc for multiple reasons: (i)
correct and consistent with all precedent; and, (iii) there is no case and
controversy.
for a writ of mandamus is not thereby endowed with the rights of a party.
any appellate order to a district court—does not give the judge standing
York, 736 F.3d 166, 170 (2d Cir. 2013). The “irreducible constitutional
imminent.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). Judge
Sullivan, the supposed umpire, does not make it to first base. He has no
injury.
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get into the game by seeking reconsideration of its order reassigning one
Ligon, 736 F.3d at 170-171. Or, in lay terms, umpires don’t get to swing
bats or run bases; they suffer no harm when one team wins and the other
loses. Likewise, this Court’s order to grant dismissal was not an injury
appear through counsel and respond to a petition for mandamus but held
that this did not give Judge Scheindlin the status of a litigant. This Court
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active litigant.
of justice.” PFR 1. Not only does the law require him to have granted
also granted General Flynn’s two motions opposing amicus. ECF. No.
201, 204. He had six more days to reconsider before General Flynn
Ligon quoted from the Ninth Circuit: “In the scheme of the federal
judicial system, the district court is required to follow and implement our
decisions just as we are oath- and duty-bound to follow the decisions and
mandates of the United States Supreme Court.” Ligon, 736 F.3d at 171
n.12 (quoting Brown v. Baden, 815 F.2d 575, 576 (9th Cir. 1987)).
1 The D.C. Circuit Rules of Appellate Procedure bar any suggestion that a judge
in a mandamus proceeding becomes a party. Fed. R. App. P. 21(b).
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mandamus must issue instanter. United States v. Nixon, 418 U.S. 683,
The panel opinion did not make new law. Every reported decision
only in the rare case where the Government provided nothing more than
Dismiss is not only fully briefed but is also heavily documented with
2 To the extent the district court is trying to expand the power of the Article III
judiciary to probe the prosecutorial decision-making of the Executive Branch through
a Rule 48(a) motion, the Supreme Court’s standing doctrine squarely forecloses it.
Raines v. Byrd, 521 U.S. 811, 819-21 (1997) (denying standing to Congressmen even
as parties to assert the diminution of legislative power and imposing an “especially
rigorous” standing inquiry in assessing a constitutional power challenge between two
branches).
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ignores—along with all Flynn’s motions. ECF Nos. 198, 151, 153, 106-2.
decision to dismiss the case does not confer the right to contest it himself
3 The dissent’s only Rule 48(a) case “requiring a hearing” arose from a prosecutor’s
attempt to dismiss a sexual misconduct charge in a territorial court of the Virgin
Islands twenty years ago. In re Richards, 213 F.3d 773 (3d Cir. 2000). Even there, a
hearing was warranted only because the prosecutor made a mere allegation that
dismissal was in the “public interest.” Id. at 789.
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Supreme Court.” PFR at 6. Rinaldi stands for the principle that the
prejudice.4 Id. at 29 n.15; 31. Rinaldi does not hold that a hearing is
Even if one could argue that, by its silence, the Supreme Court
curtailed here was far more searching and intrusive than a “review of the
4 Judge Sullivan himself has held that dismissal must be with prejudice to protect
the defendant, and he added with prejudice to the government’s dismissal order.
United States v. Pitts, 331 F.R.D. 199, 206 (D.D.C. 2019) (citing Ammidown, 497 F.2d
at 620).
5 The Court often refuses to address any issue but the one squarely before it, as
the Rinaldi Court pointed out itself : “[I]t is unnecessary to decide whether the court
has discretion under these circumstances, since, even assuming it does, the result in
this case remains the same.” Rinaldi, 434 U.S. at n. 15; accord In re Michael T. Flynn,
Petitioner, No. 20-5143, 2020 WL 3895735 at *6 (D.C. Cir. July 10, 2020) (“Whatever
the precise scope of Rule 48’s ‘leave of court’ requirement, this is plainly not the rare
case where further judicial inquiry is warranted.”).
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hearing, Rinaldi would not conflict with the panel’s reasoned decision on
IV. The Panel Properly Issued the Writ to Confine the District
Court Within its Authority and to Order Dismissal.
434 U.S. at 31-32; Fokker Servs., 818 F.3d at 749. The district court had
matter of law. Fokker Servs., 818 F.3d at 749; In re United States, 345
F.3d at 452-54.
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right to Due Process. Id. (deciding the right to writ first). When a
Cty., 354 F.3d 438, 445 (6th Cir. 2003) (interpreting Elrod v. Burns, 427
Judicial one. See In re Cheney, 406 F.3d 723, 731 (D.C. Cir. 2005) (en
banc).
General Flynn also has a right not to hemorrhage time and money
a live controversy. See Greenlaw v. United States, 554 U.S. 237, 246
(2008) (quoting United States v. Nixon, 418 U.S. 683, 693 (1974)); see also
Seila Law LLC v. Consumer Fin. Prot. Bureau, No. 19-7, 2020 WL
3492641, at *15 (U.S. June 29, 2020) (revised July 8, 2020) (affirming
travel freely, obtain employment, or enjoy a normal life until this case is
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harm, and the gravity of the district court’s usurpation of power demands
a prompt dismissal. Fokker Servs., 818 F.3d at 750; Roche, 319 U.S. at
26.6
General Flynn. Not only did he wrongfully tar General Flynn with a
baseless assertion of treason, but he has been vocal that General Flynn
should be punished severely. Pet. App. 77; ECF No. 205 (suggesting
F.3d at 742-43.
48(a): “[N]umerous decisions of the Supreme Court and this court made
6 The PFR broadly cites the Supreme Court’s recent decision in Seila Law LLC v.
CFPB, No. 19-7 , 2020 WL 3492641 (U.S. June 29, 2020) (revised July 8, 2020) as if
it contradicts the panel decision. PFR 2, 13. Seila Law reaffirmed the powers of the
Article II Executive Branch and merely eschewed any expansion of those limits.
Indeed, the majority held that “[under] our Constitution, the ‘executive Power’—all
of it—is ‘vested in a President,’ who must ‘take Care that the Laws be faithfully
executed.’” Slip op. at 1-2 (citing Art. II § 1, cl. 1).
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v. Sineneng-Smith, 140 S. Ct. 1575 (2020). Courts, “do not, or should not,
sally forth each day looking for wrongs to right. [They] wait for cases to
come to [them], and when [cases arise, courts] normally decide only
United States v. Smith, 55 F.3d 157, 160 (4th Cir. 1995) (“A substantial,
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to civil cases. United States v. Juvenile Male, 564 U.S. 932, 936 (2011).
Thus, if the Government and defendant agree that the case should be
for the court to impose judgment against the defendant, and there is no
basis for the further exercise of the court’s judicial power. “It is a basic
“extant at all stages of review, not merely at the time the complaint is
filed.” Arizonans for Official English v. Arizona, 520 U.S. 43, 67 (1997)
(citations omitted).” Juvenile Male, 564 U.S. at 936. The umpire cannot
force the teams to play extra innings after the game is over. He, the
players, and the spectators need to go home and turn off the floodlights.
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VI. Conclusion
for almost three months for its own purposes. For these reasons and
those in Flynn’s Petition and Reply, and the arguments and briefs of the
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This brief complies with the type-volume limit of this Court’s July
10, 2020 Order because it contains 3,897 words. This brief also complies
typeface.
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CERTIFICATE OF SERVICE
foregoing brief with the Clerk of Court by using the appellate CM/ECF
system. I further certify that the participants in the case are registered
CM/ECF system.
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ADDENDUM
Notice of Electronic Filing from the U.S. District Court for the District of Columbia
for Judge Sullivan’s May 12, 2020 Minute Order Regarding Participation of Amici
Notice of Electronic Filing from the U.S. District Court for the District of Columbia
for General Flynn’s May 12, 2020 Unsealed Motion Opposing Amicus Participation
1a
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Notice of Electronic Filing from the U.S. District Court for the District of Columbia
for Judge Sullivan’s May 13, 2020 Minute Order Denying General Flynn’s Motions
Opposing Amicus Participation
Notice of Electronic Filing from the U.S. District Court for the District of Columbia
for Judge Sullivan’s May 13, 2020 Order Appointing John Gleeson Amicus Curiae
Docket entry from the U.S. Court of Appeals for the District of Columbia for the
filing of General Flynn’s Petition for a Writ of Mandamus
2a
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Notice of Electronic Filing from the U.S. District Court for the District of Columbia
for Judge Sullivan’s May 19, 2020 Minute Order Setting Briefing Schedule for
Consideration of Governments’ Rule 48(a) Motion to Dismiss
3a