THREAD re: Michael Flynn en banc mandamus

1) It is VERY likely that the DC Circuit will issue its en banc judgment and opinion on the Flynn mandamus case this upcoming Monday, August 31, due to Judge Thomas Griffith being set to leave the court effective Sept. 1.

2) There are two types of federal appellate judges: active duty and senior status. A judge who takes senior status takes a kind of semi-retirement whereby he or she can still fully work as a judge, but it opens a slot for a new appointment to the court.

3) Judge Griffith is NOT taking senior status. Rather, this upcoming Tuesday, September 1, he is leaving the bench entirely.

4) As I read the relevant rules and caselaw, the only way Judge Griffith can actually have a vote on the Flynn decision is if the Court hands down the decision BEFORE he officially leaves the court, despite his having participated in oral argument.

5) Under 28 USC Section 46(c) an en banc court "shall consist of all circuit judges in regular active service....." It also provides for when senior status judges may participate in en banc decisions, but this is irrelevant here bc Judge Griffith is not taking senior status.

6) About a year-and-a-half ago, the SCOTUS clarified Section 46(c)'s meaning in a matter that, for practical purposes, is identical to Judge Griffith's impending retirement. See Yovino v. Rizo, 139 S.Ct. 706 (2019).

7) In Rizo, the Ninth Circuit issued an en banc decision via an opinion written by Judge Stephen Reinhardt, the longtime liberal lion on that court (and the last remaining active-duty Judge appointed by Carter).

8) The only problem was that by the time the Ninth Circuit issued Judge Reinhardt's opinion, he had been dead for 11 days. (cont)

9) To make things even worse, Judge Reinhardt was the swing vote in the case.

10) The Ninth Circuit's opinion had a footnote stating, "Prior to his death, Judge Reinhardt fully participated in this case and authored this opinion. The majority opinion and all concurrences were final, and voting was completed by the en banc court prior to his death."

11) SCOTUS unanimously vacated the Ninth Circuit's decision, finding the Ninth Circuit's footnote and justification to be "inconsistent with well-established judicial practice, federal statutory law, and judicial precedent." Rizo, 139 S.Ct. at 708.

12) The Court noted how "a judge may change his or her position up to the very moment when a decision is released." Id. at 709. Thus, it was irrelevant that at the time of Judge Reinhardt's death, the votes appeared to be clear--they were not yet official.

13) The Court further intrepreted Section 46(c)'s reference to "active duty judges" as being those judges who are active duty at the time the en banc court issues its formal opinion and judgment, and not to before that time. Id.

14) "When the Ninth Circuit issued its opinion in this case, Judge Reinhardt was neither an active judge nor a senior judge. For that reason, by statute he was without power to participate in the en banc court's decision at the time it was rendered." Id.

15). "Because Judge Reinhardt was no longer a judge at the time when the en banc decision in this case was filed, the Ninth Circuit erred in counting him as a member of the majority." Id.

16) Similar to Rizzo, Judge Griffith will no longer be a judge--active or senior--on the DC Circuit as of September 1. If the DC Circuit does not issue a decision on the Flynn matter before Sept. 1, Judge Griffith will have no vote on the matter.

17) Accordingly, it is highly probable that the DC Circuit issue its en banc ruling on the Flynn mandamus case this upcoming Monday, Aug. 31, to ensure Judge Griffith gets to vote on the matter.

END

*will issue

@SidneyPowell1