In re Flynn

973 F.3d 74

IN RE: Michael T. FLYNN, Petitioner

No. 20-5143

United States Court of Appeals, District of Columbia Circuit.

Argued August 11, 2020

Decided August 31, 2020

I.

In December 2017, Michael T. Flynn ("Petitioner") pleaded guilty to making false statements to FBI agents in violation of 18 U.S.C. § 1001. See Transcript of Proceedings at 7:22–13:15, United States v. Flynn , No. 1:17-cr-232, ECF No. 103 (D.D.C. Dec. 18, 2018); Transcript of Proceedings at 16:1–15, Flynn , No 1:17-cr-232, ECF No. 16 (D.D.C. Jan. 16, 2018); Plea Agreement, Flynn , No. 1:17-cr-232, ECF No. 3 (D.D.C. Dec. 1, 2017). In May 2020, before sentencing, the Government moved to dismiss all charges with prejudice, under Federal Rule of Criminal Procedure 48(a). Gov't Mot. Dismiss Crim. Info., Flynn , No. 1:17-cr-232, ECF No. 198 (D.D.C. May 7, 2020). Petitioner moved to withdraw his pending motions, including a motion to withdraw his guilty plea, Flynn's Mot. Withdraw Pending Mots., Flynn , No. 1:17-cr-232, ECF No. 199 (D.D.C. May 7, 2020), and he consented to the Government's motion to dismiss, Notice of Consent Gov't Mot. Dismiss, Flynn , No. 1:17-cr-232, ECF No. 202 (D.D.C. May 12, 2020).

On May 13, the District Court appointed an amicus curiae "to present arguments in opposition to the government's Motion to Dismiss," and to "address whether the Court should issue an Order to Show Cause why [Petitioner] should not be held in criminal contempt for perjury." Order Appointing Amicus Curiae at 1, Flynn , No. 1:17-cr-232, ECF No. 205 (D.D.C. May 13, 2020). On May 19, the District Court set a briefing schedule and scheduled argument on the Government's motion to dismiss, adding that the order was "subject to a motion for reconsideration, for good cause shown." Minute Order, Flynn , No. 1:17-cr-232 (D.D.C. May 19, 2020).

On the same day, Petitioner filed an Emergency Petition for a Writ of Mandamus in this Court, seeking expedited review. The Government did not file a petition for mandamus, but it has generally supported Petitioner's separation-of-powers arguments for mandamus relief. Petitioner sought to compel the District Court "immediately to (1) grant the Justice Department's Motion to Dismiss; (2) vacate its order appointing amicus curiae ; and (3) reassign the case to another district judge as to any further proceedings." Pet. 2. A three-judge panel of this Court ordered the District Judge to submit a brief in response to the Petition. Order, In re: Michael T. Flynn , No. 20-5143 (D.C. Cir. May 21, 2020) (per curiam). The panel heard oral argument and granted the Petition in part, issuing the writ to compel the District Court to immediately grant the Government's motion. Panel Maj. Op. ––––; Per Curiam Order. The panel majority declined to mandate that the case be reassigned to a different district judge, Panel Maj. Op. –––– – ––––, and, in light of its grant of the writ to compel immediate dismissal of the charges, the panel majority vacated the appointment of amicus as moot, id. at ––––. One member of the panel dissented from the grant of the writ and the mootness holding. See generally Panel Dissenting Op.

Following the issuance of the panel opinions but before the order became effective, see D.C. CIR. R. 41(a)(3), the District Judge made a filing in this Court entitled "Petition for Rehearing En Banc," to which Petitioner and the Government each filed a response. An active member of the Court also made a sua sponte suggestion that the case be reheard en banc . See D.C. CIRCUIT HANDBOOK OF PRACTICE AND INTERNAL PROCEDURES 60 (2019) ("[A]ny active judge of the Court, or member of the panel, may suggest that a case be reheard en banc ."). A vote was called, and a majority of those judges eligible to vote elected to rehear the case en banc ; the Per Curiam Order was consequently vacated, and the en banc Court considered the parties' filings and heard argument. Because this Court granted en banc review based on the suggestion of a member of this Court to do so sua sponte ,¹ we need not resolve the question of whether the District Judge—who is not formally a respondent under Federal Rule of Appellate Procedure 21 —is nevertheless a "party" who may petition for rehearing en banc pursuant to Federal Rule of Appellate Procedure 35(b). See In re Bos.'s Children First , 244 F.3d 164, 171 (1st Cir. 2001).² For the same reason, there is also no Article III problem in the en banc proceeding, as the Government acknowledged at oral argument. Oral Arg. Transcript at 61:23–25, 62:1–14.

As to Petitioner's first two requests—to compel the immediate grant of the Government's motion, and to vacate the District Court's appointment of amicus —Petitioner has not established that he has "no other adequate means to attain the relief he desires." Cheney v. U.S. Dist. Court for D.C. , 542 U.S. 367, 380, 124 S.Ct. 2576, 159 L.Ed.2d 459 (2004) (quoting Kerr v. U.S. Dist. Court for N. Dist. of Cal. , 426 U.S. 394, 403, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976) ). We also decline to mandate that the case be reassigned to a different district judge, because Petitioner has not established a clear and indisputable right to reassignment. See id. at 381, 124 S.Ct. 2576. We therefore deny the Petition.

II.

A petition for a writ of mandamus "may never be employed as a substitute for appeal." Will v. United States , 389 U.S. 90, 97, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967) ; see also Roche v. Evaporated Milk Ass'n , 319 U.S. 21, 26, 63 S.Ct. 938, 87 L.Ed. 1185 (1943) ("[Mandamus] may not appropriately be used merely as a substitute for the appeal procedure prescribed by the statute."). The writ is a "potent weapon[ ]," "a drastic and extraordinary remedy reserved for really extraordinary causes." Cheney , 542 U.S. at 380, 124 S.Ct. 2576 (citations and internal quotation marks omitted). "[T]he writ cannot be used ‘to actually control the decision of the trial court,’ " Platt v. Minn. Mining & Mfg. Co. , 376 U.S. 240, 245, 84 S.Ct. 769, 11 L.Ed.2d 674 (1964) (quoting Bankers Life & Cas. Co. v. Holland , 346 U.S. 379, 383, 74 S.Ct. 145, 98 L.Ed. 106 (1953) ), because "[a]s an appellate court, we are a court of review, not of first view," Capitol Servs. Mgmt., Inc. v. Vesta Corp. , 933 F.3d 784, 789 (D.C. Cir. 2019) (quoting Cutter v. Wilkinson , 544 U.S. 709, 718 n.7, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005) ).

Under governing law, the writ of mandamus should issue only if: (1) "the party seeking issuance of the writ [has] no other adequate means to attain the relief he desires"; (2) "the petitioner [satisfies] the burden of showing that his right to issuance of the writ is clear and indisputable"; and (3) "the issuing court, in the exercise of its discretion, [is] satisfied that the writ is appropriate under the circumstances." Cheney , 542 U.S. at 380–81, 124 S.Ct. 2576 (citations, alterations, and internal quotation marks omitted). All three requirements must be satisfied, and the absence of any one compels denial of the writ. "As this case implicates the separation of powers, the Court of Appeals must also ask, as part of this inquiry, whether the District Court's actions constituted an unwarranted impairment of another branch in the performance of its constitutional duties." Cheney , 542 U.S. at 390, 124 S.Ct. 2576.

A .

We first address Petitioner's request to compel the District Court to grant the Government's Rule 48(a) motion and vacate the appointment of amicus. We conclude that mandamus is unavailable because an "adequate alternative remedy exists." In re al-Nashiri , 791 F.3d 71, 78 (D.C. Cir. 2015) (quoting Barnhart v. Devine , 771 F.2d 1515, 1524 (D.C. Cir. 1985) ). Issuing the writ is "inappropriate in the presence of an obvious means of review." Id.

Here, Petitioner and the Government have an adequate alternate means of relief with respect to both the Rule 48(a) motion and the appointment of amicus : the District Court could grant the motion, reject amicus 's arguments, and dismiss the case. At oral argument, the District Judge's Attorney effectively represented that all these things may happen. See Oral Arg. Transcript at 122:24–25, 123:1–9. Even if the District Court were to deny the motion, there would still be an adequate alternate means of review perhaps via the collateral-order doctrine or a fresh petition for mandamus challenging the denial, see United States v. Fokker Servs. B.V. , 818 F.3d 733, 748–49 (D.C. Cir. 2016) ; United States v. Dupris , 664 F.2d 169, 173–74 (8th Cir. 1981), and certainly on direct appeal by Petitioner following sentencing (at which point he could raise amicus 's appointment as error), see 28 U.S.C. § 1291. Petitioner has not cited any case in which our Court, or any court, issued the writ to compel a district court to decide an undecided motion in a particular way —i.e., when the district court might yet decide the motion in that way on its own. Indeed, in Platt , the Supreme Court took the opposite course, vacating a writ of mandamus as improper where, after the district court denied a motion, the court of appeals undertook its own de novo examination and issued the writ to grant the motion instead of remanding the motion to the district court for reconsideration. 376 U.S. at 245–46, 84 S.Ct. 769. The interest in allowing the District Court to decide a pending motion in the first instance is especially pronounced here, given that neither Petitioner nor the Government raised an objection in the District Court to the appointment of the amicus or more generally to the course of proceedings for resolving the Rule 48(a) motion.

When ordinary appellate review (or even, as here, further proceedings before the District Court) remains available, the writ may not issue unless the petitioner "identif[ies] some ‘irreparable’ injury that will go unredressed if he does not secure mandamus relief." In re al-Nashiri , 791 F.3d at 79 (citations omitted). Petitioner has failed to do so. To be sure, Petitioner asserts that the continuation of the...