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 September 14, 2007.

In her petition for rehearing with suggestion for rehearing 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 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. 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 appellate 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 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.
4 No. 06-1646

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...)

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 exceptional 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 support 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,
No. 06-1646 5

1 (...continued)

purports to satisfy the standards for panel rehearing, we do

not believe sanctions are appropriate in this case.

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
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, according 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 presenting 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 rehearing 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 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.

IT IS SO ORDERED.

USCA-02-C-0072—7-3-08