Fifth Circuit ClerkGate Corruption Scandal Tracker: ECF Filing Permissions

Burke v. Ocwen et al, 4:21-cv-2591 (10 Aug., 2021, S.D. Tex.)

Motion for ECF Filing Permissions and Disclosure of Interested Parties submitted by mail as court refused to accept efile.

AUG 23, 2021 | REPUBLISHED BY LIT: AUG 23, 2021

Facts

The Burkes first sent an email only letter dated 17 August 2021 to Case manager for Judge A. H. Bennett, Lisa Edwards, included as Exhibit A.

Ms. Edwards would respond by email to this emailed letter at 10.29AM on the same day. However, the first email is factually erroneous;

Ms. Burke,

The Court does not accept filings by email. You must file the document in person :

Bob Casey United States Courthouse
515 Rusk Avenue
Houston, TX 77002

Or  Mail the document to:

Clerk of Court
P.O. Box 61010
Houston, TX 77208

Thank you

The second email on Friday at 3.57 PM, and after prompting the court by email;

CONSTITUTIONAL VIOLATION : REMINDER, 8/20/2020

BURKE V. OCWEN ET AL

4:21-cv-2591 (10 Aug., 2021, S.D. Tex.)

This court is in violation of Gov. Abbott’s August 2021 EXECUTIVE ORDER GA 38 and silence is not an argument on the back of an unconstitutional email from Ms. Edwards.

“Moreover, temporarily enjoining the In-Person Requirements plainly promotes “the public interest in … safeguarding public health” because it aligns with the public health guidance to eliminate unnecessary travel and in-person contact. Pashby , 709 F.3d at 331. ” pic.twitter.com/Pp3ZAZ1ZSv

— LawsInTexas (@lawsintexasusa) August 18, 2021

“Moreover, temporarily enjoining the In-Person Requirements plainly promotes “the public interest in … safeguarding public health” because it aligns with the public health guidance to eliminate unnecessary travel and in-person contact. Pashby , 709 F.3d at 331.”

For your information, we emailed a letter to the Fifth Circuit’s pro_se email (“By email only due to Pandemic: pro_se@ca5.uscourts.gov”) on 17 August, 2021 and they responded on 19 August, 2021, with a letter via email (Case: 19-20267 Document: 00515985014 Page: 1 Date Filed: 08/19/2021).

We respectfully anticipate the same courtesy here.

Sincerely

J&J Burke

The response expanded on Ms. Edward’s first email somewhat;

Mrs. Burke,

In accordance with our operating procedures, in the event of an emergency you may submit documents via email to Houston_Operations@txs.uscourts.gov, however, all filings in bankruptcy, civil and criminal cases should be filed via the Case Management/Electronic Case Filing (“CM/ECF”) system. Filings should comply with the Local Rules for this district. For those without access to CM/ECF, documents may be submitted by mail, or in person. Please see the court’s website for additional information.

Thank you

The issues with this response include;

New post: Rather than Resign for the “ClerkGate” Corruption Scandal, Fifth Circuit Chief Judge Owen Deflects Blame https://t.co/BN6rW67UeO

— LawsInTexas (@lawsintexasusa) August 12, 2021

ECF Filing Permissions

Ms. Edwards claims however, all filings in bankruptcy, civil and criminal cases should be filed via the Case Management/Electronic Case Filing (“CM/ECF”) system and goes on to say For those without access to CM/ECF, documents may be submitted by mail, or in person.

This Court Accepted the Burkes Initial Filings by Efile

As stated in Exhibit A, this is contradictory to what happened in this case. First, the court accepted the Burkes complaint by efile and took payment by efile.

Special Permissions May Be Granted to File by ECF  in S.D. Tex.

Second, nowhere in this email does it state that a motion can be filed to obtain access to file, leading one to believe that ECF filing permissions are not available to pro se/non-attorney/non-prisoners in this court. Actually, permissions may be specially granted. See; “Pro se litigants in the Southern District of Texas cannot file documents electronically without special permission and, instead, need to mail or deliver documents to the clerk’s office. ” Pena v. Lone Star Nat’l Bank, No. 18-40653, at *4 n.2 (5th Cir. May 28, 2020).

W.D. and N.D. Texas District Courts Allow Pro Se Filing Permissions

As well as this, the Burkes were able to confirm two sister District Courts in Texas allow ECF permissions to pro se/non-prisoner/non-attorney’s. See; “Although Plaintiff is proceeding pro se , she has permission to file and receive documents in this case electronically.” Rosas v. Univ. of Tex. at San Antonio, CIVIL No. SA-18-CV-0536-DAE, at *2 (W.D. Tex. Oct. 4, 2018) and Nicholson v. Bank of America et al., 3:21-CV-01779-G-BK (N.D. Tex, July 30, 2021).

The ‘Emergency’ Court Email is Invalid

The email address which is on the website and referenced herein by Ms Edwards, Houston_Operations@txs.uscourts.gov  does not accept mail as it appears the account does not exist.

Therefore, the Burke included staff emails and also a working email which is Houston_Operation@txs.uscourts.gov (without the ‘s’) in their email communications.

Governor Abbott’s Emergency Executive Order

Returning to Ms Edwards late Friday email, she stated; In accordance with our operating procedures, in the event of an emergency you may submit documents via email to Houston_Operations@txs.uscourts.gov.

As expressed in the Burkes email communications to this court, Gov. Greg Abbott signed into effect Emergency Executive Order GA-38, which is enclosed herein as Exhibit B.

See; “1. Governor Abbott has declared a state of disaster in all 254 counties in the State of Texas in response to the imminent threat of the COVID-19 pandemic. This Order is issued pursuant to Section 22.0035(b) of the Texas Government Code.”.

The next sentence (no. 2) states;

2. “The Thirty-Eighth Emergency Order (Misc. Dkt. No. 21-9060) is renewed as amended.”

Interpreting the text of the Order, that would qualify as an ‘emergency’ which would allow for, at minimum, this court to continue to accept efiling (to a working email at the court), from the Burkes.

New post: Judge Jeff Brown Reverses Judge Al Bennett re Special Exceptions which Included Implied Threats of Murder https://t.co/8p5IZDlFBN

— LawsInTexas (@lawsintexasusa) August 11, 2021

The Supreme Court’s Emergency Executive Order

The Supreme Court of Texas followed suit, issuing it’s Fortieth Emergency Order Regarding the Covid-19 State of Disaster, enclosed as Exhibit C.  Clearly, that would also qualify as an ‘emergency’ which would allow for, at minimum, this court to continue to accept efiling (to a working email at the court), from the Burkes. Furthermore, Federal Courts take judicial notice of Texas State’s Orders from both the Governor and the Supreme Court. See; “The Court has already found the Ambiguous Emergency Orders apply in federal court, and under this finding, the Allens timely filed their Motion.” Allen v. Sherman Operating Co., Civil No. 4:20-cv-290-SDJ-KPJ, at *25 (E.D. Tex. Feb. 18, 2021).

Request for Relief and Conclusion

The First Amendment “right of the people … to petition the Government for a redress of grievances,” which secures the right to access the courts, has been termed “one of the most precious of the liberties safeguarded by the Bill of Rights.” BE & K Const. Co. v. NLRB, 536 U.S. 516, 524–25, 122 S.Ct. 2390, 153 L.Ed.2d 499 (2002) (internal quotation marks omitted, alteration in original)

See also Christopher v. Harbury, 536 U.S. 403, 415 n. 12, 122 S.Ct. 2179, 153 L.Ed.2d 413 (2002) (noting that the Supreme Court has located the court access right in the Privileges and Immunities clause, the First Amendment petition clause, the Fifth Amendment due process clause, and the Fourteenth Amendment equal protection clause).

As such, in the current State of Disaster and Emergency, this request for ECF filing permissions, and/or efile, along with email notifications is both meritorious and necessary. This motion should be granted.

RESPECTFULLY submitted this 23rd day of August, 2021.

Just under half a million confirmed COVID-19 cases in Harris County, Texas as at Thursday, Aug 18, 2021. https://t.co/WdWzX737aD #coronavirus #txlege pic.twitter.com/HWb3I2qnOm

— LawsInTexas (@lawsintexasusa) August 19, 2021