Sullivan has gone "beyond the pale." The parties can petition the DC Circuit -- ask for a writ of mandamus or perhaps a writ of prohibition
By coincidence of timing, just last week, the SCOTUS/Ginsburg overturned a 9th Cir case where the court acted "beyond the pale" -- she really let them have it in an immigration case
"[T]he appeals panel departed so drastically from the principle of party presentation as to constitute an abuse of discretion. ..... A court is not hidebound by the precise arguments of counsel, but the Ninth Circuit’s radical transformation of this case goes well beyond the pale."
United States v. Sineneng-Smith - SCOTUSblog
You can almost feel the SCOTUS' growing impatience with the 9th Cir, which has gone completely off the rails. The SCOTUS is tired of having to reverse them all the time. Reversals are not something appellate courts enjoy doing. But the 9C keeps wasting their time by forcing them to keep doing it over and over. It has gotten so bad that even the higher court libs are getting sick of their fellow lib lower court judges.
Besides directly confronting this recent SCOTUS case, there is also a recent DC Cir case (which controls the DC Dist Ct) in direct opposition to Sullivan. In
US v. Fokker Services, Judge Leon refused to accept a deferred prosecution agreement between the Obama DOJ and a Dutch aerospace services company. He thought it was too lenient. The parties took a writ of mandamus to the DC Cir. A 3-judge panel nicely smacked Judge Leon about the head. They noted his position was "contrary to the law and constitutional understanding" -- lol.
United States v. Fokker Servs. B.V. | Case Brief for Law School | LexisNexis
If it happens this way, it might destroy Sullivan's career, so my sense is that he will back off.
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