Read the Motion to Vacate and for Due Process of Law
Appellants, Joanna Burke and John Burke (“Burkes”), now file a Motion to Vacate this Courts unlawful filings and Order(s) as recorded on Friday, 15th November, 2019 and for Due Process of Law [as liberty has been abused and which commands repeal and rectification of this courts’ violative actions]. The relief requested is included in the 3 motions submitted by the Burkes, and should be granted by the 3-panel, in their totality.
The ‘Due Process of Law Clause’ has been Abused;
This motion revolves around the Magna Carta [1] and the Constitution, which has been brutally slighted by Judge Patrick E. Higginbotham (“JPEH”) and the Clerks handling the Burkes case and recent motions.
It should be noted, “Substantive due process” simply enforces the Constitution’s promise that government will not arbitrarily infringe individual rights, or act in ways that exceed the implicit limits on lawmakers’ authority. But because arbitrariness or the rightful limits on government power are matters that cannot be understood except by reference to moral considerations, enforcing the Due Process of Law Clause requires courts to address controversial principles of political philosophy.
While this may a complex undertaking, it does not entitle either judges or legislators to impose their subjective preferences on the citizenry. Instead, the Due Process of Law requirement puts legally enforceable boundaries around the power of government, and those boundaries are built on the foundation of equal liberty articulated in the Declaration of Independence and the Constitution.
The Docket;
As Courts quizzically do not implement the FIFO basis (First In, First Out) for motions, this can lead to confusion. It is apparent that is the case here. Below is a summary of the recent motions and orders per the docket in this case. It is obvious to the naked eye, the unlawful errors and rush to judgment by this Court and JPEH, in absence of a full 3-panel reconsideration, as claimed by the Burkes reconsideration motions, and in compliance with the law.
October 2019;
The Burkes filed 3 motions, summarized using this court’s internal referencing numbers; (i) 9170890 – 2 (STAY) (ii) 9148078 – 2 (BRIEFING) AND (iii) 9148078 – 3 (LETTER).
Court Action;
Single judge JPEH denied (ii) and (iii) above in his Order of 28th October, 2019. The Clerk(s) took the following action(s); Denying the Burke motion for leave with pleading and supplement exhibits on 28th October, 2019, but only referencing the exhibits in the docket [9176432 – 3].
November 2019;
The Burkes responded, seeking reconsideration of their 3 October Motions. Bafflingly, the 3-Panel denied (i) 9170890 – 2 in their Order of 13th Nov., 2019 – but that had not been ruled on, according to this Courts cross-referencing and docket.
Court Action;
To confuse matters somewhat, on Friday morning, and only a few short hours after the Burkes most recent motion filing, single judge JPEH vaulted into what can only be described as “reactionary action” (discussed below) to deny as MOOT (i) and apparently address a non-existent reference, 9170890 – 3. (This was never previously allocated to any motion by the Burkes in this courts’ docket).
To Summarize;
In November, the Burkes addressed the following Court orders; (i) Reconsideration of the single judge motion which addressed two parts, denying the BRIEFING and LETTER and (ii) Reconsideration of Clerks ORDER re supplement motion and; (iii) based on new and alarming information garnered on Thursday, 14th Nov., 2019, the Burkes submitted a new motion.
AG Constitutional Question(s) – No Record:
This motion put this court on notice about the facts that the Constitutional Challenge(s) have either not been acknowledged (by the State of Texas when directly questioned) or there is NO RECORD (as advised by the United States [DOJ] when directly questioned).
The Burkes immediately brought this to the attention of this court – for good reason and for immediate relief, both of which are clear and obvious – if the AG’s don’t have a record, there is no legal ‘Constitutional Challenge’ and the Burkes assume, just like say process of service, the service has to be started again with a new 60-day rule period, to be legally sufficient. [2]
United States Attorney Generals’ Office;
For the avoidance of doubt “Lynne” who works at Federal [Barr’s] AG office in Washington, advised during a telephone call on Thursday, 14th November 2019 (which coincided with the commencement of the Federalist Society Annual National Lawyers Conference, and is relevant to this motion as discussed herein) that there was ‘NO RECORD’ of the Constitutional Challenge.
Note; The Burkes Challenge(s) were filed on September 18th of September and the 5th Circuit issued the letter(s) to both AG’s (State and Federal) on 19th September, 2019, some 55 days earlier.
Fifth Circuit Administrative Procedures:
The Burkes are pro se and not familiar with the Court or their internal practices on following up on these ‘Constitutional Question(s) and Challenges’. Nevertheless, the Burkes decided to follow-up on the original request on day 55 of the 60-day rule to ask if the AG(s) were going to respond. However, the topic quickly and dramatically changed. Lynne of the AG’s office alarmingly ‘went on the record’, stating that they have NO RECORD (United States) of the Burkes Constitutional Challenge.
As a result of this call, the Burkes followed up on Friday morning to the Texas AG and Solicitor General, via email, asking for the same information. However, there has been no reply. If an Attorney General REFUSES TO ANSWER a direct communication about the Constitutional Challenge by the Burkes (as the State of Texas has continually elected to do), then it is clear and obvious; (a) that the Burkes performed due diligence which; (b) shows a Constitutional violation of due process in law and; (c) thus the 60-day rule cannot possibly, in law, have commenced.
To view it in any other way is unconstitutional and a violation of the Burkes due process in law. Furthermore, the fact that the Burkes have return receipts, dated 23 September from Barr’s office and 19 September 2019 from Paxton’s office in Texas, means that the Burkes have legally and until they denied any record, had sufficiently challenged the Attorney Generals’.
However, now that is in dispute, as with process of service, the Burkes assume another new Challenge will have to be submitted to the court by the Burkes and another letter will need to be issued by the 5th Circuit. That is the Burkes erie guess and they now seek clarification by this court.
Relief and Remedy;
If the AG’s have NO RECORD, or REFUSE TO RESPOND, then this is outwith the Burkes control. If the AG’s have not received or deny receiving the 5th Circuits letter of 19th September, 2019 regarding the Constitutional Challenge(s), then this Court has an ethical and legal responsibility pertaining to the due process of law clause to ensure the Burke’s Constitutional rights are maintained in this appeal. It is clear from the record, their rights are being violated, both by the AG’s and this Courts’ recent and astounding behavior and unlawful Court Orders.
The AG’s Don’t Care for Citizens or the CFPB;
Texas SUBMITTED AN AMICUS BRIEF, authored by Solicitor General Hawkins, on behalf of Texas and 11 other State AG’s in All American, [3] who snubbed this court. TEXAS STATED;
“The CFPB’s structure allows for an unelected and unaccountable director to effectively wield more power than any official in the U.S. government aside from the President of the United States,” Attorney General Paxton said.”
As an invited Speaker [4] to @fedsoc, United States Attorney General Bill Barr pointed his sword directly at the unconstitutional CFPB in his CONSTITUTIONAL ‘SEPARATION OF POWERS’ Originalist speech at the Federalist Society Convention on Friday, 15th November, 2019;
“This phenomenon first arose in the wake of the Great Depression, as Congress created a number of so-called “independent agencies” and housed them, at least nominally, in the Executive Branch. More recently, the Dodd-Frank Act’s creation of the Consumer Financial Protection Branch, a single-headed independent agency that functions like a junior varsity President for economic regulation, is just one of many examples.”
The Framers say it’s the People First, Let’s Return to Original Values;
It is unfathomable and unconscionable for this court to deny the Burkes motions. Said another way, by forbidding the government from depriving a person of life, liberty, or property except through due process of law, the Constitution bars legislators, presidents, or other government officials from going beyond the limits-whether explicit or implicit-on their authority.
If the Constitution is a kind of contract among the people, then government is an agent, “hired” for the purpose of protecting individual rights. And inherent in its “employment contract” is the principle that it may not violate those rights, or act in ways that only serve the rulers’ own self-interests. As already discussed and in motions presented to this court, the Ninth and Second Circuit have already stayed their CFPB / Dodd-Frank Act related cases and to deny homeowners the same relief as given to the businesses in those cases, violates the very core of the Constitution and Declaration;
For Clerks of this Court;
To refuse to file the Burkes motion(s) or claim the Burkes, as pro se’s, have not sought any relief (when they patently did) is unlawful (and appalling behavior), depriving the Burkes of liberty by suppressing their legal rights to be lawfully heard in this appeal.
The ‘Reactionary Action’ by JPEH;
It is recognized that the biased, easily inflamed and vocally repugnant single judge was ‘holding the fort’ while the 2,300+ lawyers and judges nationwide, descended on the Annual Federalist Society Convention in Washington, D.C. The Federalist Society is a private, subscription-based membership organization.
The Annual Convention, a partisan and political (republican) gathering, where speakers included Supreme Justice Kavanaugh and, as mentioned, Attorney General William Barr – who spent an hour talking about the Constitution and spewing out his biased political agenda. [5]
He was not alone at this convention, where [judicial] activism is rife and makes a mockery of the Questions for the Record (“QFR”) and which are now “of record” by judges seeking and subsequently obtaining appointment to this court.
In these QFRs they suffer from amnesia [6] related to @fedsoc, profess to follow the rule of law and the Constitution and are non-partisan, despite, in the majority, the judges in this circuit all holding membership of this “partisan” organization, in violation of the judges’ code of conduct. [7]
The 3-Panel Reconsideration Abuse:
Rather than waiting for the 3-panel, this was dealt with by a single judge as the Burkes contend the majority of the panel was unavailable on Friday and rather than wait until Monday, JPEH rushed to judgment, unlawfully getting ‘innovative and imaginative’ [8] with the Burkes pending motions (as only one had been reconsidered by the 3-Panel) and Constitutional Challenge(s). It was transparent, unlawful and crude in execution.
The E[e]rie and Empty Court of Appeals:
This skeleton court can be further confirmed by the lightness of the courts Orders. On Friday, 15th November, 2019, this court issued only 4 unpublished orders.
The cases and panels are shown below, all per curiam;
(i) No. 19-30149 Before STEWART, DENNIS, and HO, Circuit Judges. PER CURIAM:* (ii) No. 18-60755 Before KING, GRAVES, and WILLETT, Circuit Judges. PER CURIAM:* (iii) No. 18-11369 Before BENAVIDES, DENNIS, and OLDHAM, Circuit Judges. PER CURIAM:* (iv) No. 18-11050 Before KING, GRAVES, and WILLETT, Circuit Judges. PER CURIAM:*
Notably, the Burkes would suggest that the Federalist Society was attended by those Fifth Circuit judges who do not instantly qualify for IHOP’s senior breakfast value menu e.g.
Judge Andrew Oldham was a ‘Second Amendment’ moderator and others from this court were in attendance and/or speaking or moderating – included Judge Jennifer Walker Elrod and Judge Kurt Damian Engelhardt, who spoke on “Originalism” and Judge Elrod was also a moderator on “51 IMPERFECT SOLUTIONS FOR THE ETHICAL PRACTICE OF LAW”.
JUDGE ELROD opened with a rather problematic disclaimer about being ‘ethically’ comfortable moderating at @fedsoc as a ‘non-partisan’ [9] gathering…apparently she missed BARR’S SPEECH and any subsequent discussions about the speech (which was before her Saturday meeting), wherein he says, as confirmed by the transcript from the DOJ website;
“The fact of the matter is that, in waging a scorched earth, no-holds-barred war of “Resistance” against this Administration, it is the Left [10] that is engaged in the systematic shredding of norms and the undermining of the rule of law.”
(i) No. 19-30149 Before STEWART, DENNIS, and HO, Circuit Judges. PER CURIAM:*
STEWART
DENNIS
HO
(ii) No. 18-60755 Before KING, GRAVES, and WILLETT, Circuit Judges. PER CURIAM:*
KING
GRAVES
WILLETT
(iii) No. 18-11369 Before BENAVIDES, DENNIS, and OLDHAM, Circuit Judges. PER CURIAM:*
BENAVIDES
DENNIS
OLDHAM
(iv) No. 18-11050 Before KING, GRAVES, and WILLETT, Circuit Judges. PER CURIAM:*
KING
GRAVES
WILLETT
A Relevant, Related Case and Oral Hearing;
The Burkes have touched on the All American case above and they feel compelled to revisit it for several reasons. What is interesting to note is that JPEH commandeered much of the oral argument, especially the time allocated to cross examining All American’s counsel, Ms. Walker. The Burkes now discuss the incendiary interrogation by JPEH, who holds a historical record of being abusive to those before him, either virtually or in real life. JPEH arrives with a premeditated and prejudicial agenda.
The Oral Audio Dissected;
For example, JPEH (i) notably, at the end of counsel Walkers’ time for Appellants (All American) opening argument, (21.40 mins into oral argument audio) said;
“Wouldn’t it be pretty audacious of this panel to go ahead and make a decision on a Constitutional issue in terms of the removal issue….” (referencing the Collins en banc which has now been decided [and the FHFA is unconstitutional].
This begs the question;
“Isn’t it pretty damned audacious that a single judge is behaving unlawfully by discriminating against homeowners, violating their Constitutional rights and contradicting his own statements?”
Secondly, JPEH repeatedly cross-examined counsel at the oral hearing (starting at the timeline of 7.15 mins+ in the oral argument audio) and clearly frustrated, in just over 4 minutes of discussion, he stated at 11.32 mins,
“But the reality is, there is very little interest in this case…”
which, in the context of the audio, appears to infer that unless you’ve got a case that aids HIS interests e.g. if you are a small “single” case and you offer no political benefits (discussed below), you will not get the same consideration (as required by law).
Then JPEH escalates his irritation with Ms.Walker at 13.15 mins, stating; “you are not answering my question” and again at 14.02 mins and again at 14.56 mins (and where he also says counsel “is being evasive now”).
On rebuttal and while trying to be heard during the wrapping up section while JPEH was cracking jokes and overtalking her, Ms. Walker closed with
“The Framers purpose is very practical. It was to ensure that the People remain in control of the Executive Branch…and they were accountable to the American Citizen[s].”
It should also be acknowledged, Judge Higginson (not JPEH) interrupted, in part at least, to mediate and defuse the mounting aggression shown by JPEH towards Ms. Walker. However, he interjected with a statement which conflicts with Supreme Justice Sotomayor in Obduskey [11] – Judge Higginson said;
“We’re trying to tell Congress how to do it right”. (16.12 minutes)
On the other hand, Justice Sotomayor noted that it was “too close a case for [her] to feel certain that Congress recognized that this complex statute would be interpreted the way that the Court does today,” and that Congress could clarify the statute if the Court got it wrong.
The civility in words should never be underestimated.
Here, it confirms uniformity amongst the judges – as to how dictatorial and arrogant the Fifth Circuit appear to the people and their peers. Perhaps that was acceptable 20+ years ago, but the public are much more vocal and resistant to this type of judicial dictatorship. The Burkes predict it cannot be sustained.
Now, returning to JPEH, he kept demanding an answer to know what exact relief All American would seek if [hypothetically] the constitutional question was ignored. When he didn’t get a direct answer, he became vindictive and incensed, spurting out that All American’s case was inconsequential in the bigger picture and that it was more of a “Political Question” rather than a “Constitutional Question”.
The Burkes would suggest on review of this oral argument, where Ms. Walker was literally incinerated in the first 22 minutes by JPEH, the All American lawyers went back to Washington, took stock of the disastrous oral argument and advised their client that they felt the Fifth Circuit had left counsel, and their case, suffering from first degree burns, and as such they had no skin to lose but they did have a slim chance of a lifesaving skin graft by going direct to the US Supreme Court, thus snubbing the Fifth for their incivility in the oral proceedings and taking all the oxygen out of counsels’ lungs.
In rounding out this synopsis of the All American Oral argument, it is obvious, based on JPEH’s line of questioning and ego, he had come to the oral argument hoping he had found a landmark case similar to his UT Supreme Court case, as reviewed in the article ‘Patrick Higginbotham – A Brilliant, Fearless Judge’ to reinvigorate his diminishing judicial reputation and lack of civility, which was again, on show in this oral argument. Actually, he referred to the CFPB and related cases regarding the Constitutional Question(s) as a “hotbed” right now. However, he soon realized, All American would not be the case to serve HIS purpose well and this case was now over for All American and a frazzled Ms. Walker.
Conclusion:
Judges administering the predative view that government has a basic right to rule, and that individual rights are only privileges given to people for society’s benefit, refuse to defend constitutional guarantees that were written to give life to the principles of the Declaration of Independence. The Constitution’s actual pledges for liberty and due process in law thus remain improperly applied and this case is a perfect example of this judicial abuse.
The Burkes have noted that the Constitution was one of the main topics of @fedsoc. Indeed, Professor Josh Blackman, who attended @fedsoc was selling his newly released and co-authored book, “An Introduction to Constitutional Law: 100 #SCOTUS Cases Everyone Should Know” – and which Judge Elrod mentioned during her moderation.
Leading on from Blackman, the Burkes now cite one further recommended author, who was also a fellow panel member with a member of this Court, Judge Don Willett, while he was a Justice at the Supreme Court of Texas. That author is well-known in Texas, his name is Timothy Sandefur of the Goldwater Institute and the book is titled; “The Conscience of the Constitution, The Declaration of Independence and the Right to Liberty” and which cites all the relevant case law. It is a great read and highly recommended.
In relation to the “Separation of Powers”[12], the Texas State AG Ken Paxton link to their detailed arguments via amici are presented above, and Attorney William Barr succinctly summarized the Separation of Powers, in his own political format, during his @fedsoc speech.[13] The State of Texas, the United States, Kraninger herself and many lawyers and judges around the country agree, with the exception so far, of this court, that the CFPB and perhaps the whole of the Dodd-Frank Act is unconstitutional and that drastically impacts the Burkes case before this court.
For the foregoing reasons, the Burkes seek correction and relief in law, in the form of granting the pro se Burkes’ motions and any other relief to which they may be entitled.
Respectfully submitted,
1 “To no one will We sell, to no one will We deny or delay, right or justice.”
2 Under plain-error review, we consider whether there is: (1) a legal error; (2) that is “clear or obvious rather than subject to reasonable dispute”; (3) that affected the appellant’s substantial rights; and (4) that the court may use its discretion to remedy because the first three prongs are satisfied and the error “seriously affects the fairness, integrity or public reputation of judicial proceedings.” Puckett v. United States, 556 U.S. 129, 135 (2009) (citations omitted). – United States v. Chan-Xool, No. 16-41667 (5th Cir. Dec. 22, 2017).
3 Fifth Circuit case; Consum Fincl Protc Bur v. All Amer Check Cashing, Inc. (18-60302) and US Supreme Court No. 19-432.
4 The Federalist Society National Lawyers Convention [Nov. 14-16, Washington, D.C.]
5 U.S. Attorney General Bill Barr delivers the Barbara K Olson Lecture at the Federalist Society’s 2019 National Lawyers Convention. This takes place amid the second day of the public impeachment proceedings.
6 See, for example, JUDGE ANDY OLDHAM QFR ANSWER : “As best I can recall…I have spoken to audiences affiliated with the Federalist Society. Some of those speeches touched on administrative law issues, but each of those speeches was given on behalf of the Governor [Abbott]…”
7 THE FEDERALIST SOCIETY JUST BECAME A NO-GO ZONE FOR FEDERAL JUDGES
8 See Taylor v. Gibson, 529 F.2d 709 (5th Cir. 1976).
9 Blacks Law Dictionary; What is NON-PARTISAN? Non affiliation or non specific ownership with respect to any cause, party or group.
10 ‘Emphasis Added’ by DOJ on their website transcript.
11 Obduskey v. McCarthy & Holthus LLP, 139 S. Ct. 1029 (2019)
12 Collins v. Mnuchin, No. 17-20364 (5th Cir. Sep. 6, 2019).
13 “One of the ironies of today is that those who oppose this President constantly accuse this Administration of “shredding” constitutional norms and waging a war on the rule of law.” – United States AG, Bill Barr
