Easley v. Reuss, 06-1646, ON PETITION FOR REHEARING.
In her petition for rehearing with suggestion for rehearing en banc, Ms. Easley requests that this court revisit its 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 governing 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 extraordinary circumstances, we shall not entertain arguments raised for the first time in a petition for rehearing.
Petitions for rehearing en banc are governed by Appellate 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 conflicting 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 concisely stated; for example, a petition may assert that a proceeding presents a question of exceptional importance 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. Fed. R. App. P. 35(b)(1) (emphasis added).
To summarize, 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 exceptional cases. See Roberts v. Sears, Roebuck & Co., 723 F.2d 1324, 1348 (7th Cir. 1983) (en banc).
With these standards in mind, we turn to Ms. Easley’s petition for rehearing, with suggestion for rehearing en banc. 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.
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.
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.
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 petitions 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.
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For more about attorney Michael J. Petro, visit www.mjpetro.com.