Posner Provides Explanation for Missing Footnote

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By Bernie Pazanowski

The per curium opinion didn’t have the usual footnote explaining why the U.S. Court of Appeals for the Seventh Circuit didn’t hold oral argument in a case, so Judge Richard Posner concurred May 5 to explain the decision ( Myrick v. Greenwood , 2017 BL 151067, 7th Cir., No. 16-3342, 5/5/17 ).

The usual footnote used when deciding a case without argument is based on Federal Rule of Appellate Procedure 34(a)(2)(C), and reads: “We have agreed to decide this case without oral argument because the briefs and record adequately present the facts and legal arguments, and oral argument would not significantly aid the court.”

Here, though, the pro se petitioner’s filings fell woefully short of the requirements of the rule, Posner said. The appellate record consisted solely of the petitioner’s complaint and brief, and the district judge’s order dismissing the case.

The brief contained “almost nothing” that amounted to a legal argument, Posner said.

Therefore, the appeal was frivolous under Rule 34(a)(2)(A), Posner said.

The petitioner was a mother seeking damages from the state court judges who presided over the proceedings that awarded custody of her son to her ex-husband. It was dismissed on sovereign immunity grounds.

Chief Judge Diane P. Wood and Judge Frank H. Easterbrook were also on the panel.

Jennifer J. Myrick of Lakewood, Colo., represented herself. The defendants didn’t participate.

To contact the reporter on this story: Bernie Pazanowski in Washington at bpazanowski@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

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