Burke v Ocwen (11th Cir.) Intervenor Appeal
MAR 1, 2022 | REPUBLISHED BY LIT: MAR 2, 2022
Before WILSON, NEWSOM, and ANDERSON, Circuit Judges. PER CURIAM:
John and Joanna Burke, pro se, appeal the denial of their re- newed motion to intervene and their motion for reconsideration and for Judge Kenneth Marra’s recusal.
The Burkes raise two issues on appeal.
First, they argue that the district court erred by finding that it lacked jurisdiction to entertain their renewed motion to intervene because it was brought after the Consumer Financial Protection Bureau filed its notice of appeal.
Second, they argue that the district court abused its discretion by denying their motion to recuse.1
As we anticipated, the panel member in this outrageous opinion, Judge Kevin Newsom’s opinion in the Richard Hunstein v. Preferred Collection and Management Services, Inc. appeal would be vacated. En banc decision now pending.
1 We review de novo questions about the district court’s jurisdiction. Zakrzewski v. McDonough, 490 F.3d 1264, 1267 (11th Cir. 2007) (per curiam).
Regarding our jurisdiction, the so-called “anomalous rule” gives us provisional jurisdiction to determine whether the district court erroneously denied leave to intervene.
Fed. Sav. & Loan Ins. Corp. v. Falls Chase Special Taxing Dist., 983 F.2d 211, 214 (11th Cir. 1993).
We review de novo the denial of a motion to intervene as of right and for “clear abuse of discretion” the denial of permis- sive intervention.
Fox v. Tyson Foods, Inc., 519 F.3d 1298, 1301 (11th Cir. 2008).
We may affirm the judgment of the district court on any ground supported by the record, even if the district court did not consider or rely on that ground in its ruling.
Kernel Recs. Oy v. Mosley, 694 F.3d 1294, 1309 (11th Cir. 2012).
I
The district court held that it lacked jurisdiction to decide the Burkes’ motion to intervene because the CFPB had filed a notice of appeal in the underlying case.
Filing a notice of appeal divests the district court of jurisdiction “over those aspects of the case involved in the appeal.”
Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982) (per curiam).
But the district court retains jurisdiction over collateral matters that are separate and distinct from the questions presented on appeal.
Weaver v. Fla. Power & Light Co., 172 F.3d 771, 773 & n.4 (11th Cir. 1999)
(explaining that res judicata and waiver defenses were separate and distinct from the merits of employment discrimination claims).
Here, the district court erred by concluding that the CFPB’s notice of appeal divested it of jurisdiction over the Burkes’ renewed motion to intervene.
The CFPB’s appeal relates to whether its suit against Ocwen was barred by an earlier consent judgment between those two parties.
By contrast, the Burkes’ motion sought to inter- vene in the suit between the CFPB and Ocwen so that they could acquire certain documents.
The issues presented by the Burkes in their motion for intervention were collateral to those presented in the CFPB’s appeal.
Thus, the district court erred when it dismissed for lack of jurisdiction.
It may turn out that the Burkes’ motion is barred under the law-of-the-case doctrine.
Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1289, 1291 (11th Cir. 2005) (per curiam).
But that issue implicates the merits of their motion, not the district court’s jurisdiction to consider that motion.
We cannot address the merits because “were we to range beyond the jurisdictional issue here and reject [the Burkes’] claim on the merits, we would, in effect, be directing a dismissal with prejudice—and thereby altering the district court’s judgment.”
In re Breland, 989 F.3d 919, 923 (11th Cir. 2021) (emphasis omitted).
“That, we cannot do.”
Id.2
Schiavo ex Rel. Schindler v. Schiavo, 403 F.3d 1289, 1291 (11th Cir. 2005)
(“The doctrine operates to preclude courts from revisiting issues that were decided explicitly or by necessary implication in a prior appeal. Luckey v. Miller, 929 F.2d 618, 621 (11th Cir. 1991); see also Burger King Corp. v. Pilgrim’s Pride Corp., 15 F.3d 166, 169 (11th Cir. 1994) (“[T]he law of the case encompasses all things decided by necessary implication as well as those decided explicitly.””)
The panel did not explicity or by necessary implication discuss Doc. 411, the Judge Kenneth Marra codicil.
From the Burkes’ Petition for Rehearing En Banc in Intervention I:
INTERVENTION AS A RIGHT
The Panel is Guilty of a Manifest Error in Excluding Judge Kenneth A. Marra’s Codicil, Which Irrefutably Confirms in Writing He Knowingly Withheld Evidence from the Burkes and as Such Committed Perjury.
It is difficult to discern why the panel found justifiable reason to exclude any reference to Doc. 411, which proved beyond a reasonable doubt the unlawful withholding of evidence and perjury by the Judge’s own words in the codicil;
“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.
However, by its complete absence, it only illuminated the fact that the panel’s exclusion is not permitted in law. It is a manifest error which commands reversal. In this petition, the Burkes clearly show they are entitled to both Intervention as a right and also permissively.
See;
Chevron U.S.A., Inc. v. Traillour Oil Co., 987 F.2d 1138, 1150 (5th Cir. 1993)
(“In this appeal, the law of the case doctrine is inapplicable. In Chevron I, we did not expressly or implicitly decide whether the investors were obligated to furnish Chevron with replacement letters of credit. ”)
Terrell v. Household Goods Carriers’ Bureau, 494 F.2d 16, 19 (5th Cir. 1974)
(“We have also made it clear that the doctrine is not an inexorable command that rigidly binds the court to its former decisions, but rather is an expression of good sense and wise judicial practice. White v. Murtha, supra, 377 F.2d at 431; Poster Exchange, Inc. v. National Screen Service Corp., 5 Cir. 1966, 362 F.2d 571, 574. See 1B Moore, supra, at 573-74. Some circumstances may warrant a re-examination of the earlier decision.”)
United States v. Bazemore, 839 F.3d 379, 386 (5th Cir. 2016)
(“ Wright et al., supra , at § 4478 (“Actual decision of an issue is required to establish the law of the case. Law of the case does not reach a matter that was not decided .” (footnote omitted)).”)
II
Judge Marra did not abuse his discretion in declining to recuse because the Burkes improperly requested recusal for the first time in a motion for reconsideration.3 A party may not use a motion to reconsider to “raise [an] argument or present evidence that could have been raised prior to the entry of judgment.”
2 The Burkes abandoned their challenge to the denial of their motion to reconsider intervention by failing to present any argument about reconsideration in their opening brief.
Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014).
Burkes’ initial Brief
Statement of the Case section
“Marra also denied the subsequent Motion to Disqualify after he failed to self-recuse, despite the Burkes implied warnings it was mandated that he should automatically recuse.”
Thereafter, practically the whole brief is about the motion for reconsideration…
3 We review for abuse of discretion a judge’s decision not to recuse under 28 U.S.C. § 455.
Murray v. Scott, 253 F.3d 1308, 1310 (11th Cir. 2001).
CONCLUSION
The Burkes have presented an assortment of options for the panel to choose from and which would allow this court to correct Marra’s manifest injustices, void the lower court judgments denying the Burkes Renewed Motion to Intervene (MIT Doc. 787) with Memorandum in Support (MIS Doc. 786) and, if necessary, reassign the case to an impartial judge.
Michael Linet, Inc. v. Vill. of Wellington, 408 F.3d 757, 763 (11th Cir. 2005).
Additionally, the Burkes’ argument for recusal was based on Judge Marra’s adverse ruling on their motion to intervene, and “ordinarily, 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, 678 (11th Cir. 1990) (per curiam);
see also In re Walker, 532 F.3d 1304, 1311 (11th Cir. 2008) (per curiam)
(“Adverse rulings are grounds for appeal but rarely are grounds for recusal.”);
In re Evergreen Sec., Ltd., 570 F.3d 1257, 1274 (11th Cir. 2009)
(“Challenges to adverse rulings are generally grounds for appeal, not recusal.”).
The district court’s dismissal of the Burkes’ renewed motion for intervention is VACATED.
The district court’s denial of the Burkes’ motion for recusal is AFFIRMED.
Woide v. Fed. Nat’l Mortg. Ass’n (In re Woide), No. 17-10776, at *10 (11th Cir. Apr. 5, 2018)
(“After the bankruptcy court issued its order reopening the case, the Woides moved for reconsideration. The bankruptcy court judge denied the motion, but just days later recused himself sua sponte and vacated the order denying the motion for reconsideration (the “recusal order”). The case was then reassigned to a different bankruptcy judge.”)
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