THREAD re: Judge Sullivan and en banc review
1) Several commentators have suggested that Judge Sullivan cannot seek en banc review because, they say, he is not a party to the case. This is wrong.

2) While Judge Sullivan is not a party to the underlying criminal proceedings against Flynn, he IS a party to the mandamus proceedings in the DC Circuit Court of Appeals.

3) Keep in mind that the Flynn mandamus case is NOT an appeal of the Flynn criminal proceedings. Even though it looks like an appeal, feels like an appeal, and smells like an appeal, it is NOT an appeal. Instead, it is an ORIGINAL proceeding in the DC Circuit.

4) As an original proceeding in the DC Circuit, Flynn sought mandamus against Judge Sullivan himself, and NOT against the DOJ. The DOJ in turn, agreed mandamus was appropriate. That makes Judge Sullivan a party to the case.

5) Most of the time, "a writ of mandamus or prohibition is not actually directed to a judge in any more personal way than is an order reversing a court's judgment. Most often a petition for a writ of mandamus...is in reality an adversary proceeding between the parties." (cont)

6) The above quote is from the 1996 advisory committee notes to http://Fed.R.App .P. 21, which governs the filing of writs. Advisory committee notes to rules are generally considered binding (unlike the legislative history of a statute).

7) Thus, in most writ cases it is not necessary for the Judge himself to personally be a party because his interests are usually adequately represented by the lawyer for the party in the trial court opposing the writ.

8) But here, the DOJ did not oppose the writ. Instead, the DOJ supported the writ. As a result, Judge Sullivan himself had to respond to the writ.

9) The 1996 advisory committee notes further provide, "Because it is ordinarily undesirable to place the trial court judge...in an adversarial posture with a litigant, the rule permits a court of appeals to invite an amicus curiae to provide a response to the petition."

10) This plainly means that if--as in Flynn--the court does NOT appoint amicus curiae for the judge, but rather orders the judge to personally respond, it means the judge is in an adversarial position to the party seeking the writ, and is thus a party to the writ case.

11) But while Judge Sullivan CAN seek rehearing en banc, this does not mean that the DC Circuit will GRANT rehearing en banc if he seeks it. I will do a subsequent thread on this. My only point in this thread is that Judge Sullivan is, in fact, a party in the writ proceeding.
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