                                   IN THE

                UNITED STATES COURT OF APPEALS

                      FOR THE SEVENTH CIRCUIT

                            _________________

No. 10-3243

JASON M. SENNE,

                                                               Plaintiff-Appellant,

                                      v.

VILLAGE OF PALATINE,
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.

                                 __________

                ON MOTION FOR STAY OF MANDATE

                           SEPTEMBER 6, 2012*

                                 __________




      *
          This opinion is being released in typescript form.
No. 10-3243                                                                 Page 2

        RIPPLE, 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 probability 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, WL
3156335, at *10 (7th Cir. Aug. 6, 2012) (en banc). Mr. Senne had alleged
violations 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 discussion of the burden of proof with respect to the
statutory exceptions as well any determination of the measure of damages.1

         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 conclusion.” 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


        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                                                                   Page 3

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 reasonable 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 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 Protection 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
commerce 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, although 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 case presents a far different situation and one
No. 10-3243                                                                    Page 4

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 constitutional challenge to
the DPPA in Reno, seems unaffected by National Federation:

        The United States bases its Commerce Clause argument on the
        fact that the personal, identifying information that the DPPA
        regulates is a “thin[g] in interstate 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 information. Instead, it identifies the information that the
state possesses and “release[s]” into interstate commerce as “an article of
commerce.”2 The states’ ongoing decision to release that article would seem to


        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 alternative argument for constitutionality, “that
the States’ individual, intrastate activities in gathering, maintaining, and
distributing drivers’ personal information have a sufficiently substantial impact
on interstate commerce to create a constitutional base for federal legislation.”
Id. at 148-49. In Reno, therefore, the Government supplied the Court with a
                                                                     (continued...)
No. 10-3243                                                                    Page 5

be the critical distinction 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 generally
condemns our court for ignoring a plain language 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 information because the statute later, in
subsection (c), specifically 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


        2
          (...continued)
rationale that would have allowed them to uphold the DPPA’s regulation data
under an even more attenuated relationship 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                                                                   Page 6

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 its textual analysis
emphasized the importance of the “basic canon of construction to give meaning
to every word of the 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 certiorari. 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 decision 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. Secondly, the court pointedly pretermitted any discussion about the
appropriate measure of damages.

         I turn now to the alternate ground of irreparable injury. 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. Moreover,
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 argument is made that elimination of such information
has hampered in any way law enforcement efforts.
No. 10-3243                                                               Page 7

        Because the Village has not met the established criteria for the granting
of a stay, I must deny the motion.
