John M. Reeves+ Your Authors @reeveslawstl Founder and Member, Reeves Law LLC. Appellate Practitioner. May. 24, 2020 2 min read + Your Authors

1) Judge Sullivan's hiring of private counsel to represent him in the DC Circuit's proceedings on @SidneyPowell1 's writ of mandamus has made a rare, unusual situation even more rare and unusual, possibly unprecedented. #appellatetwitter

2) As I noted in my thread two days ago, by ordering (not requesting) Judge Sullivan (and not amicus) to personally respond to the writ petition, the DC Circuit took the most extreme and rare of options available. #appellatetwitter

3) So far as I have been able to determine, this is the first time the DC Circuit has ever ordered (not requested) a district judge to personally (and not through amicus) respond to a writ petition. #appellatetwitter

4) The only other federal appellate case I have been able to find in which a district judge was ordered to personally respond to a writ petition is a 1992 case from the Third Circuit. #appellatetwitter

The case in question is In re School Asbestos Litigation, 977 F.2d 764 (3d Cir. 1992), Cause No. 92-1053. #appellatetwitter

5) In that case, the petitioners asked the Third Circuit, among other things, to disqualify the trial judge from their lawsuit due to impartiality. #appellatetwitter

6) The Third Circuit ordered the district court judge to respond personally, and not through amicus. #appellatetwitter

7) Interestingly, then-Judge Samuel Alito was one of the 3 judges on the Third Circuit panel who ordered the district judge to respond. #appellatetwitter

8) The district court judge responded personally, but did NOT hire outside, private counsel to submit a response on his behalf. #appellatetwitter

9) The Third Circuit thereafter issued a lengthy opinion disqualifying the trial judge from the case due to impartiality, and reassigning the case to another judge for the remainder of the litigation. #appellatetwitter

10) As noted above, and unless I have missed something, this case from 1992 is the last time ANY federal appellate court ordered a district judge to personally, and not through amicus, respond to a writ petition, until now. #appellatetwitter

11) Both In re School Asbestos and @Sidneypowell's case have similarities. #appellatetwitter

12) Like the In re School Asbestos case, here @Sidneypowell is, among other things, seeking to disqualify Judge Sullivan due to impartiality. #appellatetwitter

13) And like the Third Circuit in In re School Asbestos, here the DC Circuit has ordered the district judge to personally, and not through amicus, respond to the writ petition. #appellatetwiter

14) But UNLIKE the district judge in In re School Asbestos, who responded himself to the writ petition, here Judge Sullivan has hired outside, private counsel to respond for him (which is not the same as amicus). #appellatetwitter

15) The Federal Rules of Appellate Procedure do not explicitly address such a situation, and it is far from clear whether a district court judge ordered to respond to a writ petition may do so by hiring private counsel. #appellatetwitter

16) What does seem to be clear is this.......(cont) #appellatetwitter

17) Judge Emmet Sullivan appears to be the first-ever federal judge who, having been ordered to personally respond to a writ petition, has hired outside private counsel as an attempted means of doing so. #appellatetwitter

18) I originally predicted this was going to be far from dull going forward. This is certainly appearing to be the case. #appellatetwitter
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