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.
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.”
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.”
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.