Petition for rehearing denied

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Attorneys who practice in federal court should consider themselves on notice: the Seventh Circuit Court of Appeals appears ready to start imposing sanctions on attorneys who file baseless motions for rehearing.

In a July 3 per curiam order, the court cautioned: “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.”

It is not clear from the order what was even in dispute in the case (although from the court’s earlier opinion in the case, it involved a Section 1983 action arising out of the shooting of a civilian by a police officer). The order itself is largely a discussion regarding the standards for such petitions.

The court began with Appellate Rule 40, petitions for panel rehearing, emphasizing that such a petition must state with particularity each point of law or fact that the court “has overlooked or misapprehended.”

Finding that the petitioner, Cynthia Easley, raised an issue in her petition that was not even raised in the initial appeal, the court observed, “It goes without saying that the panel cannot have ‘overlooked or misapprehended’ an issue that was not presented to it.”

However, the court did acknowledge an exception for “extraordinary circumstances” or “manifest injustice,” a standard not met in this case.

The court then moved to Appellate Rule 35, petitions for rehearing en banc, noting that there are only two grounds for such a petition.

First, if the panel decision conflicts with a decision of the U.S. Supreme Court, or a different decision of the Seventh Circuit.

Second, if the case involves a question of “exceptional importance.” The rule cites a conflict between different circuits as the only example.

The court distinguished the two rules as follows: “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).”

The court then noted that it has previously warned that parties who make no effort to fit their petitions into one of these criteria face sanctions, citing HM Holdings, Inc., v. Rankin, 72 F.3d 562, 563 (7th Cir. 1995).

The court further noted that, in all of the calendar year, it has issued only one en banc opinion.

However, the court declined to order sanctions against Easley for filing the petition. The court noted that the original opinion contained an administrative error and granted the petition for rehearing to cure it.

The court further noted that the petition “purports to satisfy the standards for panel rehearing.”

Given the absence of any substantive issues that would normally warrant publication of an order of this sort, however, this order should be considered a warning that, when petitions for rehearing do not meet the criteria, or even attempt to fit into the Rules’ criteria, sanctions will be forthcoming.

The case is Easley v. Reuss, No. 06-1646.