Apparently No Judicial Colleagues Want to Help Judge Marra Out of A Self-Inflicted Bind…
JUNE 10, 2021
Snr Judge Ken “Magic” Marra, S.D. Fl.
ORDER DISMISSING JOHN AND JOANNA BURKE’S PRO SE MOTION FOR RECONSIDERATION OF RENEWED MOTION TO INTERVENE FOR LACK OF JURIDSICTION AND ORDER DENYING MOTION FOR RECUSAL [DE 790]
THIS CAUSE is before the Court on John Burke’s and Joanna Burke’s pro se motion for reconsideration of this Court’s May 24, 2021 Order dismissing the Burkes’ renewed motion to intervene for lack of jurisdiction [DE 788], which includes a request for recusal of the undersigned based on claim that the Court’s decisions on intervention requests in this case indicate that the Court is biased against the proposed intervenors [DE 790].
In addressing a motion to recuse pursuant to 28 U.S.C. §455(a), the Court is tasked with determining “whether an objective, disinterested lay observer fully informed of the facts underlying the grounds on which recusal was sought would entertain a significant doubt about the judge’s impartiality. ”
Diversified Numismatics, Inc. v. City of Orlando, 949 F.2d 382, 385 (11th Cir. 1991).
As a general proposition, absent a showing of pervasive bias and prejudice, a judge’s rulings in the same or a related case may not serve as the basis for a recusal motion.
McWhorter v. City of Birmingham, 906 F.2d 674, 578 (11th Cir. 1990).
Applying these standards here, the Court denies the motion to recuse because the Burkes have not shown that an objective, disinterested lay observer would have any doubt regarding the Court’s impartiality.
The Burkes rely solely on the Court’s unfavorable rulings on intervention requests in this case, which is an insufficient premise for a recusal motion.
See e.g. Jerome v. Barcelo Crestline, Inc., 507 Fed. Appx. 861, 865 (11th Cir. 2013) (citing Diversified Numismatics, 949 F.2d at 385).
It is accordingly ORDERED AND ADJUDGED:
1 The Burkes’ pro se motion for reconsideration of the Court’s May 24, 2021 Order denying the Burkes’ renewed motion to intervene [DE 790] is DISMISSED FOR LACK OF JURISDICTION.
2 The Burkes’ pro se motion for recusal [DE 790] is DENIED.
DONE AND ORDERED in Chambers at West Palm Beach, Florida this 10th day of June, 2021.
Kenneth A. Marra
United States District Judge
Fl. Gov. @RonDeSantisFL gloats about how he changed the courts to ensure Koch, Blackock and Wall St Bankers never lose a case from a Partisan and Bias judiciary at the @flcourts during his visit to Texas @TPPF, funded by Koch and Dark Money. #txlege #Koch https://t.co/u53UAovBOW pic.twitter.com/ySmqIdiO8a
— LawsInTexas (@lawsintexasusa) June 10, 2021
Reconsideration & Recusal
JUNE 1, 2021
Snr Judge Ken “Magic” Marra, S.D. Fl.
MOTION FOR RECONSIDERATION & RECUSAL OF SENIOR JUDGE KENNETH A. MARRA
“A motion for reconsideration cannot be used to relitigate old matters . ..” Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 957 (11th Cir. 2009). Instead, a motion for reconsideration remains appropriate where “(1) an intervening change in controlling law has occurred, (2) new evidence has been discovered, or (3) there is a need to correct clear error or prevent a manifest injustice.” Barr v. Harvard Drug Grp., LLC, No. 13-CV-62019-KAM, 2015 WL 11181968, at *3 (S.D. Fla. Dec. 7, 2015) (Marra, K.). “The moving party must set forth facts or law of a ‘strongly convincing’ nature to induce the court to reverse a prior decision.”.
The Burkes filed a renewed motion to intervene and memorandum in support which was entered on the court docket on 19 May, 2021 (Doc. 786 and 787). This was recorded 28 days after entry of final judgment. The court denied the motion on May 24, 2021 (Doc. 788), falsely claiming lack of jurisdiction to consider the motion. Judge Kenneth A. Marra opined:
“The filing of a notice of appeal divests the district court of jurisdiction to decide matters related to the appeal. United States v. Tovar-Rico, 61 F.3d 1529, 1532 (11th Cir. 1995) (quoting Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982) (per curiam)). While certain exceptions to this rule are noted, United States v. Reed, 404 Fed. Appx 464, 465 (11th Cir. 2010)(issues collateral to the appeal); United States v. Noblitt, 343 F. Appx. 544, 546 (11th Cir. 2009) (motions under Rule 60(b); issues collateral to the appeal), they do not apply here. Because the present motion does not fall within any of the recognized exceptions, the Court lacks jurisdiction to entertain the motion.”
The Burkes contend this is a clear error of law and should be corrected to prevent a manifest injustice (See (3) above).
“Sometimes, however, a Court just gets it wrong. This is one of those cases. When that happens, a Court is at its best when it acknowledges its mistake, owns it without offering excuses, and then fixes it. And, while this process may be deservedly humbling, it is simply the right thing to do. Therefore, as explained more clearly below, the Court GRANTS Hudson’s Motion for Reconsideration [Doc. 21] in order to correct a clear error of law.”
Hudson Specialty Ins. Co. v. Snappy Slappy LLC, CIVIL ACTION No. 5:18-cv-00104-TES, at *2 (M.D. Ga. May 1, 2019).
SENIOR JUDGE KENNETH. A. MARRA AND “THE APPEARANCE OF BIAS AND PARTIALITY”
Before addressing the clear error of law, the Burkes wish to commence with the failure of the above named to self-recuse. In their memorandum the Burkes referenced a S.D. Texas United States Senior District Judge, Lynn N. Hughes, being removed by the Court of Appeals for the Fifth Circuit. See Miller v. Sam Hous. State Univ., No. 19-20752 (5th Cir. Jan. 29, 2021)
The Burkes, aware the content of their memorandum is very sensitive as it questions the integrity of the judges’ actions and orders in the first denial of intervention, decided that self-recusal would be mandatory. The citations were there as a subtle reminder of the Judges’ oath and canons. This would prove to be an incorrect thought. Judge Marra considered and denied the renewed motion to intervene. Certainly, you cannot write;
“In addition to the grounds stated in the Court’s Order Denying Intervention (ECF No. 375), the Court notes that intervention is not permitted to allow a party to seek or obtain evidence for other litigation as asserted by the proposed Intervenors. (See ECF No. 408 at 4).” -Signed by Judge Kenneth A Marra, United States District Judge, July 3, 2019.
…when it is clearly untruthful as parties similarly situated in the same courthouse in Texas obtained documents from this very case as detailed in the Burkes memorandum and ethically retain jurisdiction to decide the follow-up motion. Judge Marra denied the Burke’s due process and the ability to pursue with their proposed intervention. If there is any justice in a federal court, one cannot apply whiteout to the words in the order or deny the renewed motion to intervene by discounting the self-incriminating evidence and then decide to rule on the renewed motion to intervene when it directly questions the Judges’ integrity, honesty, bias and partiality. In short, the Burkes renewed motion and memorandum and this motion command (i) (self-)recusal and; (ii) reconsideration by another United States District Judge or the Chief Judge. See; U.S. v. Kelly, 888 F.2d 732, 744-45 (11th Cir. 1989):-
C. Recusal ; 1. Standard of Review
Recusal of federal judges is governed by 28 U.S.C.A. § 455 (West Supp. 1989), which provides, in section 455(a), that a “judge . . . shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Although 28 U.S.C.A. § 144 continues to provide for recusal upon affidavit submitted by a party, Congress rewrote section 455 in 1974 for the specific purpose of “broaden[ing] and clarify[ing] the grounds for judicial disqualification.” Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 108 S.Ct. 2194, 2197, 100 L.Ed.2d 855 (1988).
Under the new version of section 455, a judge is under an affirmative, self-enforcing obligation to recuse himself sua sponte whenever the proper grounds exist.
Section 455 does away with the old “duty to sit” doctrine and requires judges to resolve any doubts they may have in favor of disqualification. See United States v. Alabama, 828 F.2d 1532, 1540 (11th Cir. 1987), cert. denied sub nom. Alabama State Univ. v. Auburn Univ., ___ U.S. ___, 108 S.Ct. 2857, 101 L.Ed.2d 894 (1988).
“The very purpose of § 455(a) is to promote confidence in the judiciary by avoiding even the appearance of impropriety whenever possible.” Liljeberg, 108 S.Ct. at 2205.
Neither actual partiality, nor knowledge of the disqualifying circumstances on the part of the judge during the affected proceeding, are prerequisites to disqualification under this section.
The duty of recusal applies equally before, during, and after a judicial proceeding, whenever disqualifying circumstances become known to the judge. See id. at 2202-03.
The standard for recusal under section 455(a) is “`whether an objective, disinterested, lay observer fully informed of the facts underlying the grounds on which recusal was sought would entertain a significant doubt about the judge’s impartiality.'”
United States v. Torkington, 874 F.2d 1441, 1446 (11th Cir. 1989) (quoting Parker v. Connors Steel Co., 855 F.2d 1510, 1524 (11th Cir. 1988), cert. denied, ___ U.S. ___, 109 S.Ct. 2066, 104 L.Ed.2d 631 (1989)).
The standard employed by this Court in reviewing recusal decisions is whether the district court abused its discretion. Giles v. Garwood, 853 F.2d 876, 878 (11th Cir. 1988), cert. denied, ___ U.S. ___, 109 S.Ct. 1164, 103 L.Ed.2d 222 (1989).
The abuse of discretion standard has been described as allowing a range of choice for the district court, so long as that choice does not constitute a clear error of judgment. See Kern v. TXO Production Corp., 738 F.2d 968, 970 (8th Cir. 1984).
For other reasons, the court concluded;
“We are unable to avoid the conclusion that the district judge committed a “clear error of judgment” by failing to recuse himself in this case.”
RULE 60(B) (UNITED STATES V NOBLITT)
First, “Rule 60(b) provides in pertinent part that a “court may relieve a party or his legal representative” from a final judgment. (Emphasis added.)” Kem Manufacturing Corp. v. Wilder, 817 F.2d 1517, 1519-20 (11th Cir. 1987).
After considering the law and precedent, the Burkes concluded that whilst entitled to the relief available under Rule 60(b) (and the underlying legal reasons for those arguments were included in their denied motion to intervene and memorandum in support), first they would have to become ‘a party’ in order to assert the fraudulent and perjurious acts which determine this courts’ order as void, not voidable. See; U.S. v. Garrudo, 869 F. Supp. 1574, 1582-83 (S.D. Fla. 1994):-
“Federal Rule of Civil Procedure 60(b)(6) authorizes a district court, on motion and upon such terms as are just, to relieve a party from a final judgment for any “reason justifying relief from the operation of the judgment.” This case is an extraordinary circumstance and, with this decision as precedent, should not occur again. Although the finality of judgments is to be preserved, in this instance the court cannot run the risk that the reputation of the justice system may be tarnished. The court will thus grant a new trial to the defendants in this case.”
As such, the Burkes correctly and timely applied to the court by renewing the motion to intervene.
A SEPARATE ACTION TO ADJUDICATE INTERVENOR CLAIMS
Alternatively, the court could reach the motion itself;
“However, the question remains whether their intervention can cure the jurisdictional defect thereby giving the district court jurisdiction. It is well-settled that since intervention contemplates an existing suit in a court of competent jurisdiction and because intervention is ancillary to the main cause of action, intervention will not be permitted to breathe life into a “nonexistent” law suit.”…..
“However, a court has discretion to treat the pleading of an intervenor as a separate action in order that it might adjudicate the claims raised by the intervenor. ” – Fuller v. Volk, 351 F.2d 323, 328 (3d Cir. 1965).
ISSUES COLLATERAL TO THE APPEAL (REED/WEAVER)
Second, this court cites Reed, which upon review cites Weaver:
“The district court in this case enjoined the plaintiff and anyone acting on her behalf from arbitrating certain claims, because the district court had already decided those claims (and entered final judgment) and the claims were therefore barred by the doctrines of res judicata and waiver.
We hold that injunctive relief was improper because the defendant has an adequate remedy at law — namely, it can raise its defenses of res judicata and waiver before the arbitrators. Thus, the district court abused its discretion by entering the injunction.- Weaver v. Florida Power Light Co., 172 F.3d 771, 772 (11th Cir. 1999).”
Why did SCOTUS deny this citizens petition today when they have the FHFA consolidated cases due for release prior to the end of term?
— LawsInTexas (@lawsintexasusa) June 1, 2021
RES JUDICATA & THE CONSTITUTIONAL QUESTION(S)
In response, the Burkes return to this courts’ order dismissing the CFPB’s claims 1-9 for res judicata. This court also enjoined the defendant, Ocwen, from raising the question of the constitutionality of the CFPB.
The Burkes contested the same in their recorded memorandum, in part;
“What we appear to have in this case is Judge Marra trying to protect his error in judgment in prematurely deciding before Selia that the U.S. Supreme Court would find the CFPB constitutional.
When that backfired, he’s found for Ocwen for a different reason, namely ‘res judicata’ to try and claw back his unconstitutional tirade and sanctions on Ocwen’s arguments that the case should be dismissed for reasons discussed above.”
As cited above in Weaver, the Eleventh Circuit determined the district court abused its discretion and reversed. This is a similar matter.
Without the benefit of knowing the arguments which will be asserted by the parties during the Eleventh Circuit appeal and which is currently being briefed, the Burkes, for example, rely upon the facts (i) res judicata does not
apply to the Burkes claims on intervention; offers unique, discernable merits; for example, the Burkes never obtained any financial compensation or other benefit from the first National Mortgage Settlement; nor any other related payout in private litigation or otherwise; nor help from the CFPB – as documented in the original intervenor motion and memorandum, when the Burkes approached the CFPB before filing the first intervention they rejected assisting the Burkes, and; (ii) the Selia case rejected Judge Marra’s “constitutional” position and wherein he also abused his powers by preventing Ocwen from raising their constitutional question on appeal.
Essentially, the Eleventh Circuit should be bound by precedent of the highest court. Judge Marra’s order re Ocwen was an abuse of discretion.
summarize herein. Selia is now seeking to stay the mandate and submit another petition to the US Supreme Court. There is also a circuit split. In short, at this time, it is still very much a live controversy.
THE BURKES RENEWED MOTION IS ‘RENEWING’ THE FACTS FOR THE FIRST TIME AND WHICH WERE NOT CONSIDERED ON APPEAL
For example, the Burkes raised Judge Marra’s codicil as discussed in depth above and in the memorandum. The Eleventh Circuit refused to review as they claimed it was untimely and could not be considered (at that time). The Burkes renewed motion and memorandum in support is the first opportunity to renew those arguments and the Burkes did so in a timely manner.
RETURNING TO ISSUES COLLATERAL TO THE APPEAL AND THE COLLATERAL ORDER DOCTRINE
Under the collateral order doctrine, a district court’s order is reviewable if it conclusively determines an important issue completely separate from the
merits of the action that would effectively be unreviewable on appeal after entry of a final judgment.
Despite its statutory basis and the policies underlying the final judgment rule, the U.S. Supreme Court has recognized that there are situations where the rule must bend to avoid “the danger of denying justice by delay….” See Dickinson v. Petroleum Corp., 338 U.S. 507, 511 (1950). That danger applies to the Burkes, who are being wrongfully denied intervention for a second time and by a judge who should have automatically self-recused.
Appealability is decided for categories of orders rather than for individual orders, so courts cannot engage in a case-by-case balancing of the interests involved in order to determine whether immediate appeal is appropriate. See Johnson v. Jones, 515 U.S. 304,315 (1995).
Thus, when deciding the appealability of a category, the court should look to the “competing considerations underlying all questions of finality” including costs and inconvenience of piecemeal review on the one hand and the “danger of denying justice by delay” on the other.
The means for achieving such a balance and allowing immediate appeal when appropriate is found in the collateral order doctrine.
The purpose of the collateral order doctrine is to identify a “class of orders where the error-correcting benefits of immediate appeal likely outweigh the costs, delays, diminished litigation coherence, and waste of appellate court time potentially associated with multiple appeals.” See Behrens v. Pelletier, 516 U.S. 299, 315 (1996).
Because appeals allowed under the collateral order doctrine are exceptions to the final judgment rule, “the distinction between a final order and an interlocutory order that is nonetheless appealable under the collateral order doctrine is, as a practical matter, purely terminological.” See Occidental Petroleum Corp. v. S.E.C., 873 F.2d 325, 331 (D.C. Cir. 1989).
Thus, this court erred by stating;
“Because the present motion does not fall within any of the recognized exceptions, the Court lacks jurisdiction to entertain the motion.”
In light of the purely terminological standard as stated in Occidental, the Burkes also qualify for the allowed relief available under the collateral order doctrine, which includes “important rights”, the “unreviewability requirement”; including “significant, permanent, irreparable, or irreversible harm” and “rights that would be irretrievably lost”.
Based on the Burkes alternative arguments, they should not be required to go into depth on these standards. Why not? As the Burkes discuss herein, “the intervenor has a separate and independent basis for jurisdiction and in which failure to adjudicate the claim will result only in unnecessary delay.” (See footnote 8 below). However, the Burkes reserve their rights to expand on the collateral order doctrine, if necessary, and as part of any future appeal briefing at the Court of Appeals for the Eleventh Circuit.
THE DELAY AND WASTE IS UNNECESSARY IN APPEALING, AS THE ELEVENTh CIRCUIT WOULD STILL HAVE TO RULE ON THE MERITS
Appealing this courts erroneous and disingenuous decision not to reach the Burkes renewed motion to intervene on the falsehood of lack of jurisdiction will only delay matters when the law is so clear. The only barrier to jurisdictional review is Judge Kenneth Marra’s persistent ethical violations of
his oath and canons. The Burkes civilly request reconsideration by an impartial judge to prevent more delay and waste. For the reasons stated herein and the earlier memorandum in support, including;
“A Due Process Clause is found in both the Fifth and Fourteenth Amendments to the United States Constitution, which prohibits arbitrary deprivation of life, liberty, or property by the government except as authorized by law.”
John and Joanna Burke civilly request the Court permit their intervention as a matter of right in this action under Federal Rule of Civil Procedure 24(a)(2) or, in the alternative, permit them to intervene under Rule 24(b).