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As I understand it, Judge Sullivan is appealing a writ of mandamus in the Flynn case.

As the Supreme Court has interpreted the Federal Constitution as having a case or controversy requirement that embodies a requirement of injury in fact and party seeking review must have suffered an injury, what is the injury here?

Either Judge Sullivan is standing in for the American people and acting on behalf (but in opposition to) the executive branch (which would create a precedent that the judicial branch can step in and perform the executive branch function), or he has some some other injury. But as the judicial branch is expected to just be impartially interpreting law, it does not seem as though he would have any real injury in fact here, even if he is unhappy with the outcome of a particular case.

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    This "rewording" changed the meaning of the question. The question cited, specifically, the issue of standing. Mainly that he either has standing to represent America (which raises a separation of powers question) or he has personal standing (which makes little sense as he has no injury). – Oliver Aug 3 at 15:41
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    @Oliver Its apparent rantiness aside, your original question body was a false dichotomy. "Does the judicial branch now have a never before recognized right to execute the law for the good of America, or does he have standing because he was injured by the deprivation of the pleasure of punishing Michael Flynn?" I thought a neutral and more substantive answer than "neither" was appropriate. I think you are free to reverse the edit, make your own edit or keep my edit. Your question body had at least two downvotes and two VTCs (none mine btw). I think the question title is an interesting question. – Lag Aug 3 at 16:00
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    @Lag edits are not meant to challenge the OP's frame. As it is, the edit broadened the question. The "how can this be?" is a much broader question than "how can he have standing?" It is customary not to significant change the main direction of questions after some answers have already been provided. For example, the 1st sentence of user6726's answer makes sense given the original question, but makes little sense given this new wording. Please, don't make edits that significantly stray away from the original author's intent. – grovkin Aug 3 at 21:35
  • @grovkin I won't interfere with any future edits of this question whether they simply revert to the original or take a different tack to mine. But I don't think mine is worse than or so different from the original. – Lag Aug 4 at 7:10
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    OK I tried to restore the question's original meaning but remove the controversial/political/sarcastic tone. I hope this satisfies the critics while removing the discrepancy between the question's wording and the selected answer. – Oliver Aug 4 at 18:50
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This is one of the arguments made by Flynn in his opposition to the appeal (p. 8).

No rule or precedent authorizes a district judge to seek rehearing of a mandamus order. A district court ordered to respond to a petition for a writ of mandamus is not thereby endowed with the rights of a party. The resulting mandamus from this Court to Judge Sullivan—just like any appellate order to a district court—does not give the judge standing to litigate issues “as a party, intervenor, or amicus.” Ligon v. City of New York, 736 F.3d 166, 170 (2d Cir. 2013).

...

Judge Sullivan, the supposed umpire, does not make it to first base. He has no injury.

Of course, we'll have to see whether the courts agree.

This question (and answer by ohwilleke) raises the question of whether Sullivan can appeal. The Main Answer is, The Judge Can't Appeal; But Other People Can. Specifically,

The attorney appointed by the judge to present a position that the Justice Department abandoned, might have standing to do so, but the judge himself or herself, while listed as the Respondent in the case, is only a nominal party and not a true real party in interest.

He notes that

A request for writ of mandamus ... is structured in the old fashioned approach used in federal court as a lawsuit against a judge brought in a court with supervising authority over the judge. But, in substance, this is a legal fiction and formality used ... to provide review of trial court decisions prior to the entry of a final decision on the merits in a case ... Originally, a writ of mandamus really was a lawsuit against a judge ... But, now that is just a formality and not a real lawsuit in this context, and that has been the case in cases involving writs of mandamus filed against judges for hundreds of years.

The fact that the judge's name appears in the ruling as a nominal party is the legal fiction here: the judge is not a party in this case.

Then, of course, to keep up with breaking news, as of today there is no longer a ruling for Sullivan to appeal: it was vacated from on high.

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    This does not address the question, specifically what might allow Sullivan to have standing; it simply reiterates one of the opposing counsel's claims. – jeffronicus Aug 3 at 15:41
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    That is because the question was completely rewritten: it didn't ask to make up a story whereby he has standing. – user6726 Aug 3 at 15:45
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    I'm going to pick this as the correct answer. Mainly because the other available answer didn't even discuss standing. It may have been written after the edits, but I still wanted the answer to at least bring the issue up. It's true the other answer used language of judges asking for review of a decision, but even then there is a case and controversy requirement. This is the answer that at least brought it up, even though it may not come up with the excuse the judge might use as to why he has standing. – Oliver Aug 3 at 16:07
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The Court of Appeals made Judge Sullivan the respondent.

Flynn petitioned the Court of Appeals for a writ of mandamus to order the inferior court to dismiss the criminal proceedings against Flynn.

Normally the adversary in the 'parent' proceedings would oppose such a petition but in this case the adversary, the Department of Justice, supported Flynn's petition.

The Court of Appeals made Judge Sullivan the respondent and did not appoint an amicus curiae.

That allowed Judge Sullivan to seek a review en banc of the Court of Appeals' 24 July 2020 decision.

The Court of Appeals has since vacated the 24 July 2020 decision and will re-hear the petition for the writ of mandamus en banc. It has asked parties to consider whether there are "no other adequate means [than mandamus] to attain the relief" desired.


Federal Rules of Appellate Procedure, Rule 21. Writs of Mandamus and Prohibition, and Other Extraordinary Writs:

The court of appeals ordinarily will be adequately informed not only by the opinions or statements made by the trial court judge contemporaneously with the entry of the challenged order but also by the arguments made on behalf of the party opposing the relief. The latter does not create an attorney-client relationship between the party's attorney and the judge whose action is challenged, nor does it give rise to any right to compensation from the judge.

If the court of appeals desires to hear from the trial court judge, however, the court may invite or order the judge to respond. In some instances, especially those involving court administration or the failure of a judge to act, it may be that no one other than the judge can provide a thorough explanation of the matters at issue. Because it is ordinarily undesirable to place the trial court judge, even temporarily, 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. In those instances in which the respondent does not oppose issuance of the writ or does not have sufficient perspective on the issue to provide an adequate response, participation of an amicus may avoid the need for the trial judge to participate.


Interesting point made at 41:00 in episode 175 of The National Security Law Podcast by Bobby Chesney and Steve Vladeck: the Court of Appeals didn't address the question of 'standing' or whether Sullivan was a proper party to make a petition. The Court announced that "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 eligible to participate" they ordered the re-hearing of Flynn's petition en banc.

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    FWIW, en banc review was sought by the dissenting judge in the panel and that request is the one that was granted, not Judge Sullivan's. washingtonpost.com/local/legal-issues/… – ohwilleke Aug 3 at 21:02
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    @ohwilleke You may be right but I don't think the WP article supports you. It says "A majority of the 10 D.C. circuit judges to consider Sullivan’s request for rehearing agreed to the en banc review." The order says "Upon consideration of the petition" - so far as I'm aware there was only Sullivan's petition. Also when did Wilkins make that request? I think Sullivan waited two weeks for a sua sponte decision, it didn't come so he filed the petition. (I have read that any active judge except those on the original panel can ask for a rehearing en banc but I haven't yet found that in the rules.) – Lag Aug 4 at 7:18
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    @lag I've looked, but the only request I've found is from Wilkinson, Sullivan's attorney. – Just a guy Aug 4 at 7:43
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    @lag If you haven't seen it, you might find this short piece on the history of 48(a) interesting. It argues 48(a) was written to keep well-connected defendants from getting off: stanfordlawreview.org/online/… – Just a guy Aug 4 at 7:48
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    @Lag Far enough. I must have seen it in a different source. – ohwilleke Aug 4 at 14:18

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