ROTFL. Easy enough to cheery-pick, misrepresent, etc. See the dissent by Wilkins. He just needs a majority of the Circuit to take that tack. Rule of Law! It's magic. It can deliver whatever result its players want.
Wilkins has the power to ask for the panel to vote on undertaking an en banc review.
Sullivan can file a request. All it has to do is mouth the magic words in Rule 40.
While the courts can and should be fundamentally honest, it is naive to believe they actually are. The stakes are high.