Easley, Cynthia v. Reuss, Michael B. ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-1646
CYNTHIA EASLEY, Individually and
as Administrator of the Estate of
CHRISTOPHER B. EASLEY, Deceased,
Plaintiff-Appellant,
v.
MICHAEL B. REUSS, Sergeant,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 02 C 1065—Thomas J. Curran, Judge.
____________
ON PETITION FOR REHEARING
____________
JULY 3, 2008
____________
Before COFFEY, RIPPLE and KANNE, Circuit Judges.
PER CURIAM. We grant the petition for rehearing to
cure an administrative error: The order of September 14,
2007, was inadvertently issued without the final approval
of all members of the panel. All of the panel members
hereby adopt and approve the order issued on Septem-
ber 14, 2007.
In her petition for rehearing with suggestion for rehear-
ing en banc, Ms. Easley requests that this court revisit its
2 No. 06-1646
prior decision. We decline to do so, but we take this
opportunity to explain our denial of further review in
order to provide litigants with some guidance concerning
the proper contents of petitions for rehearing and for
rehearing en banc.
Our discussion begins with the appellate rules gov-
erning petitions for rehearing and petitions for rehearing
en banc, Federal Rules of Appellate Procedure 40 and 35,
respectively. Although similar in some respects, the two
types of petitions for rehearing are governed by different
standards reflective of the purpose of that particular
procedural tool.
Appellate Rule 40 governs petitions for panel rehearing.
It provides, in pertinent part, that “[t]he petition must
state with particularity each point of law or fact that the
petitioner believes the court has overlooked or misapprehended
and must argue in support of the petition.” Fed. R. App. P.
40(a)(2) (emphasis added). As suggested by the rule,
petitions for panel rehearing should alert the panel to
specific factual or legal matters that the party raised, but
that the panel may have failed to address or may have
misunderstood. It goes without saying that the panel
cannot have “overlooked or misapprehended” an issue
that was not presented to it. Panel rehearing is not a
vehicle for presenting new arguments, and, absent extraor-
dinary circumstances, we shall not entertain arguments
raised for the first time in a petition for rehearing. See
DeWeerth v. Baldinger, 38 F.3d 1266, 1274 (2d Cir. 1994) (“It
is well established in this circuit that arguments raised
for the first time on a petition for rehearing are deemed
abandoned unless manifest injustice would otherwise
result.”); FDIC v. Massingill, 30 F.3d 601, 605 (5th Cir. 1994)
(stating that the court “will not entertain those thorny
No. 06-1646 3
questions presented for the first time in a[] petition for
rehearing” (internal quotation marks omitted)); Am.
Policyholders Ins. Co. v. Nyacol Prods., Inc., 989 F.2d 1256,
1264 (1st Cir. 1993) (“First, a party may not raise new and
additional matters for the first time in a petition for
rehearing.”); Costo v. United States, 922 F.2d 302, 302-03
(6th Cir. 1990) (“Generally, an argument not raised in an
appellate brief or at oral argument may not be raised for
the first time in a petition for rehearing.”); Peter v. Hess Oil
Virgin Islands Corp., 910 F.2d 1179, 1181 (3d Cir. 1990)
(denying petition for rehearing on issue that was raised
before the district court, but was not briefed before ap-
pellate court); Holley v. Seminole County Sch. Dist., 763
F.2d 399, 400-01 (11th Cir. 1985) (stating that arguments
not raised in briefing will not be entertained on rehearing).
Petitions for rehearing en banc are governed by Appel-
late Rule 35. According to the Rule, if en banc rehearing
is requested, the petition must begin with a statement that
either:
(A) the panel decision conflicts with a decision of the
United States Supreme Court or of the court to which
the petition is addressed (with citation to the con-
flicting case or cases) and consideration by the full
court is therefore necessary to secure and maintain
uniformity of the court’s decisions; or
(B) the proceeding involves one or more questions of
exceptional importance, each of which must be con-
cisely stated; for example, a petition may assert that
a proceeding presents a question of exceptional im-
portance if it involves an issue on which the panel
decision conflicts with the authoritative decisions of
other United States Courts of Appeals that have
addressed the issue.
4 No. 06-1646
Fed. R. App. P. 35(b)(1) (emphasis added). Again, as set
forth in the language of the rule, en banc rehearing has a
different focus than panel rehearing. Panel rehearings
are designed as a mechanism for the panel to correct its
own errors in the reading of the factual record or the law,
rehearings en banc are designed to address issues that
affect the integrity of the circuit’s case law (intra-circuit
conflicts) and the development of the law (questions of
exceptional importance). Given the “heavy burden” that
en banc rehearings impose on an “already overburdened
court,” such proceedings are reserved for the truly excep-
tional cases. See Roberts v. Sears, Roebuck & Co., 723 F.2d
1324, 1348 (7th Cir. 1983) (en banc) (separate opinion of
Posner, J.) (internal quotation marks and citations omitted).
Indeed, in the last calendar year, out of the thousands
of cases resolved by this court, only one en banc opinion
has been issued.
With these standards in mind, we turn to Ms. Easley’s
petition for rehearing, with suggestion for rehearing
en banc. Ms. Easley’s petition does not begin with the
statement set forth in Appellate Rule 35 and required for
all en banc petitions. By contrast, her statement in sup-
port of rehearing en banc appears to be aimed at satisfying
the grounds set forth in Rule 40 for panel rehearing; she
states: “This Court failed to address the state-created
danger exception . . . .” Petition for Rehearing at 1.1 We,
1
We previously have warned parties that make no effort to
“fit [their] petition[s] within the criteria for en banc review” that
sanctions may be imposed. HM Holdings, Inc. v. Rankin, 72
F.3d 562, 563 (7th Cir. 1995). However, because Ms. Easley
also requests panel rehearing, and because her statement
(continued...)
No. 06-1646 5
therefore, interpret Ms. Easley’s petition as requesting
panel rehearing.
As noted above, Ms. Easley seeks rehearing because
of the panel’s failure to address the “state-created danger
exception.” Id. Specifically, Ms. Easley states the basis for
her rehearing petition accordingly:
This Court failed to address the state-created danger
exception to the Due Process Clause of the Constitution
enunciated by the United States Supreme Court in
DeShaney v. Winnebago County Dept. of Soc. Serv., 489
U.S. 189 (1989), consistently applied by this Court in
Montfils v. Taylor, 165 F.3d 511 (7th Cir. 1998), and King
v. East St. Louis School Dist., 189, 06-3440 (7th Cir., 8-7-
2007), and extensively addressed in Windle v. City of
Marion, 321 F.3d 658, 663 (7th Cir. 2003), cited by this
Court in its September 14, 2007 Order affirming the
Motion for Summary Judgment and in Hernandez v.
City of Goshen, 324 F.3d 535, 538 (7th Cir. 2003), cited
by the District Court in its December 15, 2005 Order.
Id.
There is good reason why this court did not address the
“state-created danger exception” in its order disposing
of Ms. Easley’s appeal: Ms. Easley did not argue in her
briefs before this court that the “state-created danger
exception” applied. Indeed, prior to the submission of
her petition for rehearing, the words “state-created
danger” do not appear anywhere in Ms. Easley’s filings
with this court. Her briefs also are bereft of any mention
1
(...continued)
purports to satisfy the standards for panel rehearing, we do
not believe sanctions are appropriate in this case.
6 No. 06-1646
of DeShaney, any other cases which demonstrate this
court’s “consistent[] appli[cation]” of the state-created
danger doctrine, or Windle v. City of Marion, which, accord-
ing to Ms. Easley, “extensively addresse[s]” the issue. Id.
Similarly, the district court was not presented with any
argument that the state-created danger doctrine applied,
nor did Ms. Easley supply that court with any authority
that may have alerted it to the fact that she was raising
the issue. In short, Ms. Easley seeks to raise an issue in
her petition for rehearing that was not presented to the
district court and was neither briefed nor argued to this
court prior to the rehearing petition. The time for present-
ing new, substantive arguments to this court has passed:
“Having tried and appealed its case on one theory, an
unsuccessful party may not then use a petition for re-
hearing as a device to test a new theory.” United States v.
Sutherland, 428 F.2d 1152, 1158 (5th Cir. 1970).
Petitions for rehearing and petitions for rehearing en
banc are mechanisms governed by rule and designed to
ensure the integrity of individual panel decisions and the
consistent and thoughtful development of the law. The
criteria for both petitions are explicit, and, in submitting
petitions, we expect counsel to ensure that their peti-
tions meet those criteria. Ms. Easley’s petition does not
satisfy the requirements for panel or en banc rehearing.
Therefore, other than to affirm the September 14, 2007
order on behalf of the entire panel, we deny the petition
for rehearing.
IT IS SO ORDERED.
USCA-02-C-0072—7-3-08