Last Term, the Supreme Court vacated former executive Conrad Black’s conviction on the ground that the “honest services” fraud instructions given in his case were invalid under Skilling v. United States, and remanded for a determination whether the error was harmless. On remand, the Seventh Circuit (Posner, Kanne, and Sykes–under circuit procedure, the same panel that heard his first appeal) reversed two fraud counts, but affirmed another, as well as an obstruction count.
Black filed a petition seeking only rehearing en banc–not panel rehearing. The court called for a response (indicating that, under Seventh Circuit procedures, one or more judges had requested one), and the government filed one. Because neither the Federal Rules of Appellate Procedure nor the Seventh Circuit rules provide for a reply brief as of right, Black filed it as an attachment to a motion requesting leave to file a reply. The motion was denied two days later (yesterday) in a single-judge order. The author of the order was Judge Posner, author of both of the Seventh Circuit’s opinions in the case.
Former Seventh Circuit clerks, chime in here, and I’ll update this post to correct any misstatements of Seventh Circuit procedures.
Under Seventh Circuit procedures, motions for leave to file a reply are considered “nonroutine,” and, after review by a staff attorney, are submitted to “the motions judge, and if necessary, the motions panel.” The Seventh Circuit’s written procedures don’t specify how the motions judge or panel are assigned. I would have thought that, following the practice for “duty” judges generally, the judge or judges randomly assigned to duty the day the motion was considered would pass on it. But (Seventh Circuit cognoscenti, a little help here please) it may be that motions involving an already-argued case are assigned to the presiding judge for that case, because Judge Posner also wrote the one-judge order denying leave to file a reply brief on rehearing back in 2008, the first time the court had the case (although the then-counsel was seeking a week to prepare the brief, and the Seventh Circuit makes a point of moving pretty expeditiously on rehearing petitions).
The Seventh Circuit does not have a blanket prohibition on reply briefs supporting en banc petitions; indeed, it has received such briefs on quite a number of occasions in the past. See, e.g., Smothers v. McCaughtry, 2005 U.S. App. LEXIS 22923 (Oct. 19, 2005); Chicago v. Dept of Treasury, 2004 U.S. App. LEXIS 28002 (Dec. 21, 2004); Manning v. Miller, 2004 U.S. App. LEXIS 7454 (Apr. 16, 2004); Weinberg v. City of Chicago, 320 F.3d 682 (2003). It also receives amicus briefs at the en banc stage, although it emphasizes they must be timely because the court likes to move quickly. See Fry v. Exelon Corp., 576 F.3d 723 (2009). The tendered reply brief here was only six pages long, arrived the next business day after the government’s opposition, and to my eyes appears to exclusively respond to matters in the government’s opposition, and not simply to repeat stuff already covered in the petition.
There is certainly nothing in the Seventh Circuit procedures that prohibits a member of a panel from acting as the sole judge determining whether his colleagues will receive a reply brief supporting an en banc petition seeking review of his opinion. Indeed, comparing the identity of the author of the two orders in this case with the author of the two opinions in it, that may be the court’s preferred practice. (UPDATE: A former Seventh Circuit law clerk emailed me to confirm that “motions to permit a reply, or for an extension of time to file a petition for rehearing, are routinely referred to the author of the panel opinion for decision.”) But it may not be best for a member of the panel whose decision is under review to be the sole gatekeeper determining whether his colleagues will receive additional argument on whether his panel opinion was correct.
The tendered reply brief didn’t go out of its way to curry favor with the panel members; in response to the government opposition’s repeated references to the panel’s unanimity, the reply brief noted (p.4) “[t]he same unanimous panel previously ruled against the defendants on two independent grounds, neither of which garnered a single vote in the United States Supreme Court.” But I suspect denial of the motion had more to do with Judge Posner’s belief that judges “have heavy caseloads” and so “need to minimize extraneous reading,” as my co-conspirator has discussed with respect to amicus briefs. Maybe so, but it still might be preferable for a judge other than a panel member to determine when the court has had enough argument on an en banc petition.