## Facts

- Cynthia Easley, individually and as administrator of Christopher Easley’s estate, brought a 42 U.S.C. § 1983 action after Christopher was shot and killed during an altercation with police officers.
- Sergeant Michael B. Reuss, the highest-ranking officer on the scene, was sued on a supervisory-liability theory.
- The district court granted summary judgment to Reuss on qualified-immunity grounds.
- The Seventh Circuit affirmed by an order dated September 14, 2007.
- Easley filed a petition for panel rehearing (Fed. R. App. P. 40) and a suggestion for rehearing en banc (Fed. R. App. P. 35).
- In the rehearing petition, Easley raised for the first time a substantive due-process “state-created danger” theory, arguing it had been overlooked.
- The panel also identified an administrative irregularity: the September 14, 2007 order had been issued without final approval by all panel members.

## Issues

1. Whether panel rehearing under Federal Rule of Appellate Procedure 40 may be used to present a new legal theory not raised in prior filings.
2. Whether rehearing en banc under Federal Rule of Appellate Procedure 35 was warranted based on a newly raised “state-created danger” argument.
3. Whether the court should take action to correct an administrative error in issuing the prior affirmance order.

## Decision

- The court granted rehearing only to correct the administrative error by formally adopting and approving the September 14, 2007 order as the action of all panel members.
- The court otherwise denied rehearing and declined to revisit the merits of the qualified-immunity affirmance.
- The court denied the suggestion for rehearing en banc.
- The prior judgment affirming summary judgment for Reuss on qualified-immunity grounds remained in effect.

## Legal Principles

- A petition for panel rehearing under Rule 40 is limited to identifying points of law or fact previously raised that the panel allegedly overlooked or misapprehended; it is not a vehicle for new arguments.
- An appellate court generally will not consider arguments raised for the first time in a rehearing petition, absent extraordinary circumstances such as avoiding manifest injustice.
- Rehearing en banc under Rule 35 is disfavored and appropriate only to maintain decisional uniformity or to address a question of exceptional importance, not to relitigate case-specific disputes or introduce waived theories.
- An issue not presented in the district court or in appellate briefing cannot be treated as “overlooked” on appeal for rehearing purposes.

## Conclusion

The Seventh Circuit used the rehearing proceedings to enforce waiver rules and clarify that rehearing petitions must target previously presented matters rather than introduce new theories; it corrected an administrative issuance defect while leaving intact its earlier affirmance of qualified immunity for the supervising officer.


Easley v. Reuss, 532 F.3d 592 (7th Cir. 2008)