@JohnBasedow @St. Louis Hawk @pablow @dgordo
Clerk Order in Ct. of Appeals today. Flynn's counsel given until July 20th to file a Response in Opposition to the request for en banc rehearing. Government is not required to file a response but is granted leave to do so by July 20th as well. Unless otherwise ordered by the Court, no reply brief shall be allowed.
Reading some materials last night suggesting that, under FRAP 21 and FRAP 35, Judge Sullivan should not be considered a "party" and, because he is not a "party," he should not be permitted to seek an en banc rehearing. Interesting argument from a statutory construction perspective - particularly if you look at FRAP 21's Advisory Notes. I'll be curious to read if Flynn and/or the Government raise that argument in their response briefs and, if so, whether the Court would allow Judge Sullivan to reply to that argument only.
Law professors who teach civil/appellate procedure across the country are taking copious notes to figure out how to incorporate this procedural "knot" into a final examination question.
From the panel decision -
Beth A. Wilkinson argued the cause for respondent Judge Emmet G. Sullivan. With her on the response to the petition for a writ of mandamus were Kosta S. Stojilkovic and Rakesh Kilaru.
The court has treated Sullivan as a party. Might be a nice academic point, but ain't going to fly anywhere. I hope Flynn's lawyer don't waste time on it.