However, here is a series of tweets by shipwreckedcrew in which he sets out how such a move would proceed:
... the full court can take the matter up "en banc" on its own. It will be a couple days before we know if any judge on the court asks for a vote on that option.
The fact that Judge Wilkins wrote a detailed dissent in the Flynn decision does increase the chances the full court [might] take up the matter. A "call" for an en banc vote -- basically a call for a vote on whether the full court should rehear the matter -- can be made by any judge.
All the full time active judges would then vote yes or no on rehearing the matter. If a majority vote yes -- and there are many more Dems on the Court now tha[n] GOP appointees -- would render null the panel decision.
Judge Wilkins dissent gives the judges two options to vote for -- to follow the majority and vote "no" on en banc review, or follow Judge Wilkins and vote yes. The easy justification for voting "yes" and tossing the panel decision is to simply say "mandamus" wasn't justified.
They can write an opinion that doesn't prejudge the outcome of Sullivan's hearing, but at the same time say the panel should not have used the extraordinary power of mandamus under the facts presented.
Counter-balancing that instinct may be a real feeling on the Circuit Court that "enough is enough", and a sentiment that everyone will be better served by allowing this circus to close.
I suspect that the decision will be that it's time to draw the curtain on this fake prosecution. Why jeopardize their reputations? Especially with the new revelations about Obama and Biden's interference in the case.
UPDATE 1: Here's something I've been wondering about, and the Circuit judges might well wonder about it, too. It has to do with the release yesterday of the Strzok notes. I ask myself: How long has Barr/Durham/Jensen been sitting on those notes? Is it possible that the earlier docs were released but the Strzok notes were held back--for future use? The letter transmitting the Strzok notes to Powell, as I noted earlier, specifically states that further docs may be released in the future. In an uncertain situation of that sort, would the full Circuit Court feel comfortable in interjecting itself? They could end up with egg on their faces. The case is going to be dismissed, one way or another, so why keep it at the top of the news. For Dems, it's pretty much a no win situation. Of course, for Trump it's a no lose situation. He likes it like that.
UPDATE 2: Margot Cleveland has weighed in on this topic: Circuit Court Just Ordered Flynn’s Criminal Charges To Be Dropped — But Judge Sullivan Might Escalate Things Anyway. Despite the caption, Cleveland appears to believe that such a move by Sullivan would be likely be akin to a suicide charge, for reasons not dissimilar to those that commenter Tom Bop and I have articulated (Tom particularly well):
At this point, Sullivan need only grant the Department of Justice’s motion to dismiss and enter an order dismissing the criminal charge against Flynn with prejudice. That would end the matter. But as the respondent to Flynn’s petition for mandamus, Sullivan has the same options a normal litigant would have, including seeking review of the panel decision by the entire D.C. Circuit or requesting review by the United States Supreme Court.
Given that Judge Robert Wilkins dissented from the majority opinion, authored by Judge Neomi Rao and joined by Judge Karen Henderson, Sullivan might just opt for open defiance. Such a course of action would be a mistake, though, as Rao penned a cautious opinion, focused on separation-of-powers concerns, that has an extremely limited reach. The majority opinion eviscerated every argument presented in Wilkins’ dissent.
Rarely do federal appellate courts go en banc to rehear a case with narrow reach, ...