Thomas Fry v. Exelon Corporation Cash Balance Pension Plan

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-1135
THOMAS FRY,
Plaintiff-Appellant,
v.
EXELON CORPORATION CASH BALANCE PENSION PLAN,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 06 C 3723—William T. Hart, Judge.
DECIDED AUGUST 12, 2009
Before EASTERBROOK, Chief Judge, in chambers.
EASTERBROOK, Chief Judge. This appeal was decided on
July 2, and a petition for rehearing en banc was filed on
July 15. Eight days later AARP and the Pension Rights
Center sought leave to file a brief as amici curiae in sup-
port of the petition. I denied that request as untimely,
and on July 30 the court entered an order denying re-
hearing and rehearing en banc. On August 3 the court
received a motion to reconsider the denial of leave to

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2 No. 08-1135
participate as amici curiae. Because it would be possible
for the court to recall its mandate, receive the amicus
brief, and reconsider the petition for rehearing en banc,
I think it appropriate to address this motion and explain
for the bar’s benefit why I deem the request untimely.
The proposed amici rely on Fed. R. App. P. 29(e), which
says that “[a]n amicus curiae must file its brief, accompa-
nied by a motion for filing when necessary, no later than
7 days after the principal brief of the party being sup-
ported is filed.” And Rule 26(a)(2) adds that, when
another rule gives a period less than 11 days, weekends
and holidays are excluded from the count. So 7 days
becomes at least 9, and the filing 8 days after the petition
is timely, the argument concludes. (When changes to
Rule 26 take effect on December 1, 2009, the 7 days
of Rule 29(e) will become real calendar days, but for now
7 = 9.)
The problem with relying on Rule 29(e) is that the
brief must be filed within 7 days of “the principal brief
of the party being supported”. The “principal brief” of
Thomas Fry, the party being supported, was filed on
April 10, 2008, more than a year before the potential
amici tendered their brief. A “principal brief” is the open-
ing brief on the merits, as opposed to a reply brief or
another variety of brief. A petition for rehearing en banc
is not a “brief” of any kind; further briefing may follow
a grant of rehearing, but the petition for rehearing is a
request for discretionary relief rather than a brief. Rule 29,
which covers amicus briefs, appears in a sequence of
rules (28 through 32.1) that deals with the contents, form,

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No. 08-1135 3
and timing of merits briefs; Rule 34 deals with oral argu-
ment; and Rules 35 through 41 with post-decision mat-
ters. It would be unsound to treat the phrase
“principal brief” in Rule 29(e) to refer to a document
other than the opening brief on the merits.
Not only unsound but also unfortunate. This circuit
handles petitions for rehearing, and rehearing en banc,
with dispatch. Each petition is distributed to the judges
immediately. Within 10 days a judge on the panel should
vote on the petition for rehearing, and each active judge
not on the panel should decide whether to call for a
response to a request for rehearing en banc. Operating
Procedure 5(a), 9(e). If none of the judges calls for a
response within 10 days, the court enters an order as soon
as the vote on the request for rehearing by the panel
has been completed. This court denied Fry’s petition for
rehearing en banc on the 11th business day after its
filing. It would not be possible to act on this schedule
if the court always had to wait at least 9 days after the
petition’s filing to see whether an amicus brief would
be tendered.
Moreover, distributing an amicus brief a week or more
after a petition for rehearing would increase the
judicial time needed to resolve the case. Most judges read
and act on petitions for rehearing (or rehearing en banc)
the day they are received. A late-arriving amicus brief
would require the judge not only to read the amicus
filing but also to re-review the panel opinion and the
petition for rehearing, in order to supply the context for
the amicus’s submission. Rule 29(e) does not cause such

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4 No. 08-1135
repetitious work when applied to briefs on the merits,
for none of the merits briefs is distributed to the judges
until all are in. The extra 7 days permit a potential
amicus to avoid repeating arguments that appear in the
principal briefs. This conserves judicial time. Allowing
an amicus brief to be filed 7 or more days after a petition
for rehearing, by contrast, would squander judicial time.
Someone who wants to file as amicus curiae in support
of a petition for rehearing, or rehearing en banc, must
use the same schedule as the petitioner. A potential
amicus who needs extra time should ask the litigant to
seek an extension from the court and defer filing the
petition. AARP and the Pension Rights Center did not
do this. Their submission was properly returned as un-
timely. The court has discretion to accept an untimely
filing when the value of the potential amicus brief
justifies the inconvenience of requiring the judges to
review a case multiple times, but in my judgment this
brief did not possess that exceptional quality. The
motion for reconsideration is denied.
8-12-09

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