Appellate Law

7th Circuit Court of Appeals Dismisses Petition For Panel Rehearing That Only Argued New Issue

By Steven R. Merican

After Ms. Easley lost her appeal in the 7th Circuit U.S. Court of Appeals, she moved for an en banc rehearing. But her petition did not follow Federal Rule of Appellate Procedure 35, which requires a statement of one of two things: (1) that the opinion of the appellate court is in conflict with an opinion of the U.S. Supreme Court; or (2) that the appeal involves a question of ?exceptional importance.?

Ms. Easley?s petition did neither, so the court considered it as a petition for rehearing by the original panel. But the motion only raised an issue that was not argued in the original appellate proceeding. Nor did it otherwise comply with Federal Rule of Appellate Procedure 40, which governs panel rehearings. FRAP 40 requires a petition for rehearing to ?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.?

The appellate court denied the petition for panel rehearing because: ?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.?

All brief writers should read this opinion because it explicitly states the 7th Circuit?s expectations for rehearing petitions. Get the whole case, Easley v. Reuss, No. 06-1646 (7/3/08), by clicking here.

Full post as published by Illinois Appellate Lawyer Blog on July 08, 2008 (boomark / email).