                                In the

United States Court of Appeals
                 For the Seventh Circuit

No. 10-3243

JASON M. SENNE,
                                                    Plaintiff-Appellant,
                                    v.

V ILLAGE OF P ALATINE,
ILLINOIS,
                                                   Defendant-Appellee.

               Appeal from the United States District Court
          for the Northern District of Illinois, Eastern Division.
            No. 1:10-cv-05434—Matthew F. Kennelly, Judge.



                O N M OTION FOR S TAY OF M ANDATE


                        S EPTEMBER 6, 2012 



   R IPPLE, Circuit Judge (in chambers). This matter is here
on the motion of the Village of Palatine for a stay of this
court’s mandate pending the disposition of a petition for
a writ of certiorari by the Supreme Court of the United
States. Because I believe that the Village has not carried
its burden of showing that there is a reasonable prob-



    This opinion was released initially in typescript form.
2                                                   No. 10-3243

ability that four Justices will vote to grant the writ of
certiorari and that there is a reasonable possibility that
five Justices will vote to reverse this court’s judgment,
I must deny the requested relief. Alternatively, assuming,
for the sake of argument, that the Village has shown
the requisite probability of success on the merits, the
Village has not met its burden of showing the requisite
harm if the stay is not granted.
  This case presented our court with an issue of first
impression both in this circuit and in the United States.
After a thorough review at the panel level, the court, sitting
en banc, reversed the district court’s dismissal of Jason
Senne’s action against the Village of Palatine. Senne v. Vill.
of Palatine, No. 10-3243, 2012 WL 3156335, at *10 (7th Cir.
Aug. 6, 2012) (en banc). Mr. Senne had alleged viola-
tions of the Driver’s Privacy Protection Act, 18 U.S.C.
§§ 2721-25. The court determined that his complaint
plausibly alleged a violation of the statute. While noting
the “very real safety and security concerns at stake,” we
left it to the district court to explore on remand
whether the information disclosed by the Village’s police
department was used for a purpose exempted from the
non-disclosure provisions of the statute. Senne, 2012 WL
3156335, at *9-10. We further pretermitted any discus-
sion of the burden of proof with respect to the statutory
exceptions as well any determination of the measure
of damages.1



1
   Our mandate was scheduled to issue on August 27, 2012. The
filing of this motion to stay has stayed temporarily its issuance.
No. 10-3243                                                 3

   The standards that govern the disposition of this
motion are well established. “When a party asks this
court to stay its mandate pending the filing of a petition
for a writ of certiorari, that party must show that the
petition will present a substantial question and that
there is good cause for a stay.” Books v. City of Elkhart,
239 F.3d 826, 827 (7th Cir. 2001) (Ripple, J., in chambers)
(citing Fed. R. App. P. 41(d)(2)(A)). The grant of a
motion to stay the mandate “is far from a foregone con-
clusion.” 16AA Charles Alan Wright, Arthur R. Miller &
Edward H. Cooper, Federal Practice and Procedure § 3987.1
(4th ed. 2008). Instead, the party seeking the stay
must demonstrate both “’a reasonable probability of
succeeding on the merits’ and ‘irreparable injury absent a
stay.’” Bricklayers Local 21 of Illinois Apprenticeship &
Training Program v. Banner Restoration, Inc., 384 F.3d 911,
912 (7th Cir. 2004) (Ripple, J., in chambers) (quoting
Galdikas v. Fagan, 347 F.3d 625, 625 (7th Cir. 2003) (Ripple,
J., in chambers)); see also Williams v. Chrans, 50 F.3d 1358,
1360 (7th Cir. 1995) (per curiam); United States v. Holland, 1
F.3d 454, 456 (7th Cir. 1993) (Ripple, J., in chambers).
More precisely, in order to demonstrate a reasonable
probability of succeeding on the merits of the proposed
certiorari petition, a party must demonstrate a rea-
sonable probability that four Justices will vote to grant
certiorari and that five Justices will vote to reverse the
judgment of this court. See California v. American Stores
Co., 492 U.S. 1301, 1307 (1989); United States v. Warner, 507
F.3d 508, 511 (7th Cir. 2007) (Wood, J., in chambers);
Williams, 50 F.3d at 1360. In applying this standard, we
must consider carefully the issues that the applicant
4                                                No. 10-3243

plans to raise in its certiorari petition in the context of
the case history, the Supreme Court’s treatment of other
cases presenting similar issues and the considerations
that guide the Supreme Court in determining whether
to issue a writ of certiorari. Williams, 50 F.3d at 1361.
   Noting that Congress enacted the Driver’s Policy Pro-
tection Act under its Commerce Clause power, see Reno
v. Condon, 528 U.S. 141, 148 (2000), the Village states that
it intends to argue that regulating the use of personal
information on parking tickets—as opposed to the sale
of personal information—exceeds Congress’s authority
under the Commerce Clause. The contours of the com-
merce power argument that the Village intends to
present to the Supreme Court are not discernible
with any precision from the laconic reference in the
motion. However, one nearly insuperable barrier to its
consideration by the Court is evident. The issue never
was raised throughout the proceeding in this court. It
would be indeed a rare occasion for the Supreme Court
to consider on certiorari an argument that could have
been presented to the court of appeals in the normal
course of litigation, but was not, appearing only after
the last drop of ink had been expended in not one, but
two, rounds of consideration by the court of appeals.
  It is difficult to ascertain the precise commerce power
argument the Village has in mind. Nevertheless, for the
sake of completeness, I simply shall point out that, al-
though the Supreme Court recently has explored the
boundaries of the commerce power, see, e.g., Nat’l Fed’n
of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2587 (2012), this
No. 10-3243                                              5

case presents a far different situation and one upon
which the Court already has passed. Here, there is no
instance of the federal government forcing a state or
an individual to participate in an interstate market.
Indeed, the answer that the Court gave to a constitu-
tional challenge to the DPPA in Reno, seems unaffected
by National Federation:
   The United States bases its Commerce Clause argu-
   ment on the fact that the personal, identifying infor-
   mation that the DPPA regulates is a “thin[g] in inter-
   state commerce,” and that the sale or release of that
   information in interstate commerce is therefore a
   proper subject of congressional regulation. United
   States v. Lopez, 514 U.S. 549, 558-559 (1995). We agree
   with the United States’ contention. The motor vehicle
   information which the States have historically sold
   is used by insurers, manufacturers, direct marketers,
   and others engaged in interstate commerce to
   contact drivers with customized solicitations. The
   information is also used in the stream of interstate
   commerce by various public and private entities
   for matters related to interstate motoring. Because
   drivers’ information is, in this context, an article of
   commerce, its sale or release into the interstate stream
   of business is sufficient to support congressional
   regulation.
Reno, 528 U.S. at 148 (emphasis added). Notably,
Reno does not appear to rely on the sale of any informa-
tion. Instead, it identifies the information that the state
possesses and “release[s]” into interstate commerce as
6                                                       No. 10-3243

“an article of commerce.” 2 The states’ ongoing decision
to release that article would seem to be the critical dis-
tinction here. Under the reading of the DPPA adopted
by this court, states are not penalized for inactivity, nor
are they forced into activity; they simply are regulated
in an activity they voluntarily undertake because that
activity involves data that the Supreme Court already
has determined to be “an article of commerce.”
  The Village also plans to submit to the Supreme Court
several arguments about this court’s interpretation of the
statute. It begins by suggesting that the purpose of the
DPPA was limited to the sale of personal information
by state motor vehicle departments. Although the Village


2
   Reno v. Condon, 528 U.S. 141 (2000), involved the sale of
information by the State of South Carolina, and the Court
based its preliminary holding that the statute is within the
commerce power on that set of facts. In accepting the
argument that the Commerce Clause directly authorized
regulation, the Court explicitly declined to address the alter-
native argument for constitutionality, “that the States’ indi-
vidual, intrastate activities in gathering, maintaining, and
distributing drivers’ personal information have a sufficiently
substantial impact on interstate commerce to create a constitu-
tional base for federal legislation.” Id. at 148-49. In Reno,
therefore, the Government supplied the Court with a
rationale that would have allowed them to uphold the
DPPA’s regulation data under an even more attenuated rela-
tionship to commerce; without limiting its holding to data
that actually was sold, see id. at 148 (referencing “sale or release”),
the Court viewed the data as a sufficient item in interstate
commerce itself to justify regulation.
No. 10-3243                                                7

generally condemns our court for ignoring a plain lan-
guage approach in its interpretation of the statute, it
ignores the fact that the plain language of the statute
supports the view that the statute’s scope, while
certainly including the sale of such information, facially
regulates other sorts of dissemination as well. The terms
of 18 U.S.C. § 2721(a) are clear. The statute regulates a
state’s ability to disclose (not simply to “sell”). Employing
“disclose” rather than “sale” does not appear to be an
unconscious use of a more general term by Congress
in crafting its background rule of non-release of infor-
mation because the statute later, in subsection (c), specifi-
cally regulates “[r]esale or [r]edisclosure.” Reading
these two subsections side-by-side, it is clear that
Congress consciously chose to regulate activity beyond
sales and, indeed, to establish a broad background rule
of non-disclosure from which the listed exceptions obtain.
The statutory language alone, therefore, undercuts
any argument that Congress intended to limit the
reach of the statute to commercial transactions.
  The motion continues its condemnation of the court’s
statutory analysis by suggesting that this case presents,
in stark relief, a division among the circuit judges over
the proper methodology of interpreting statutes. In the
Village’s view, the dissenters have adhered to the plain
text, while the court has rewritten the statute to cover
what it believes Congress should have included in order
to achieve its goals. Def.’s Mot. to Stay 12 (citing Lewis
v. City of Chicago, 130 S. Ct. 2191, 2200 (2010)). A
fair reading of the court’s opinion makes very clear the
unfairness of this characterization. Indeed, the court in
8                                                No. 10-3243

its textual analysis emphasized the importance of the
“basic canon of construction to give meaning to every
word of a statute.” Senne, 2012 WL 3156335, at *7
(citing Duncan v. Walker, 533 U.S. 167, 174 (2001)). At
bottom, what separates the judges of the circuit is a
respectful disagreement about what the words of the
statutory text convey.
   The motion makes several more points about the
merits of the case and its candidacy for a grant of certio-
rari. It suggests that the mere fact that our court decided to
hear the case en banc demonstrates that the court’s final
disposition of the case is worthy of review on certiorari.
This argument, occupying a significant amount of space
in the motion, needs little comment. The grant of an en
banc hearing by a court of appeals can be motivated
by many factors, including a belief that a panel’s deci-
sion is so wrong that it will frustrate the statutory intent
and upset the settled understanding of the statute’s
command. Indeed, it is not at all clear, despite two
rounds of appellate hearings, that the absence of earlier
litigation on this statutory provision is due to anything
other than forthright obedience to the plain command
of the statute.
  The procedural posture of this litigation also makes
this case a very poor candidate for a grant of certiorari.
As noted earlier, the district court must address on
remand whether the information in question was used
for a governmental activity mentioned in the statutory
exemptions. See Senne, 2012 WL 3156335, at *10. The
Village has not been heard on this important question.
No. 10-3243                                             9

Secondly, the court pointedly pretermitted any discus-
sion about the appropriate measure of damages.
  I turn now to the alternate ground of irreparable in-
jury. Because the court of appeals merely reversed the
grant of a motion to dismiss for failure to state a cause
of action, there is no monetary judgment at issue. More-
over, before the en banc court, the Village represented
that it had modified its practices. There is no indication
that modification of traffic citation practice to ensure
that irrelevant personal information was eliminated
from public view was a significant burden. No argu-
ment is made that elimination of such information
has hampered in any way law enforcement efforts.
  Because the Village has not met the established criteria
for the granting of a stay, I must deny the motion.




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