Appellate Circuit

Federal Law: The Rights of Elderly Litigants to Be Heard At an Oral Hearing

Justice Frankfurter believed that no better instrument has been devised for arriving at truth than the notice and hearing requirement.

PLAINTIFFS MOTIONS FOR REMOTE/ZOOM HEARING RE JUDGMENT ON THE PLEADINGS AND VEXATIOUS LITIGANTS MOTIONS BY DEFENDANTS

There’s two motions, pretty much identical, we’ve transcribed one, but the pdf is consolidated, so you’ll be able to read both.

DEC 10, 2021 | REPUBLISHED BY LIT: DEC 10, 2021

TO THE HONORABLE JUDGE OF SAID COURT:

Plaintiffs Joanna & John Burke (“Plaintiffs”) request a remote hearing on April 11, 2022, re the above motion and Plaintiffs  written reply, see Gray Panthers v. Schweiker, 652 F.2d 146, 172 (D.C. Cir. 1980):

“In sum, we believe the current procedures allotted to the elderly Medicare claimant, probably disadvantaged by disability and poverty, resemble playing against a stacked deck — notice that does not adequately inform him of the basis of the denial, no access to files or a summary of the evidence, no opportunity for any direct oral communication with the decisionmaker, a provider and a decisionmaker with possible bias, no appeal of any sort. This combination results in a significant possibility of deprivation. Our concern is that this combination be altered by the addition of some other protections in a way that will assure a claimant minimal due process, i. e., adequate notice and a genuine opportunity to present his case.”

This court’s original Order was for an “in-person” conference – rather than a remote hearing – which the Plaintiffs have continuously objected to due to the pandemic, their age, health, disability, as well as to ensure their own safety from threats by opposing counsel and/or the court, which they have been subjected to in the past in this courthouse and which is well-documented and docketed at S.D. Texas, Houston Division.

The Plaintiffs now provide a short sample of recent cases where remote hearings have been set:

Lynch v. Amazon.com Services, Inc. (4:21-cv-00234), Doc 16 Order; Motion Hearing set for 5/10/2021 at 02:00 PM in by telephone before Judge Keith P Ellison, filed (Entered: 05/04/2021);

White v. Bank of America, N.A. (4:21-cv-01134) Doc. 7, April 12, 2021, ORDER granting 6 Motion for Telephonic/Zoom Hearings.(Signed by Judge David Hittner) Parties notified(Entered: 04/12/2021).

Aleman v. Texas Medical Board (7:21-cv-00237) ORAL ORDER Granting 29 Unopposed Motion to Appear Remotely (*zoom) at Hearing. (by Judge Ricardo H Hinojosa) Parties notified (Nov. 2, 2021).

[1] The Plaintiffs filed their [Plaintiffs] Case Management Plan on Nov. 1, 2021. (Doc. 21).

Case Facts

The Burkes filed suit on Monday, Aug. 9, 2021 as filed on Aug. 10, 2021. (Doc. 1). The Court ordered the initial pretrial and scheduling conference for Nov. 5, 2021. (Doc. 4)

The Defendants motioned the court to continue the conference as counsel would be ‘out of town that day’ – at least that is what they claimed to Plaintiffs. (Doc. 10). This has proven to be untruthful. (Doc. 24 – Defendants filing [Joint] Case Management Plan on that day, Nov. 5, 2021).

The court granted the motion on September 21, 2021 and rescheduled the conference to Dec. 10, 2021. (Doc. 11).

On Nov 29, 2021, the Plaintiffs filed a Motion for Continuance due to a medical emergency concerning Plaintiff Joanna Burke, requesting a humanitarian continuance, resetting the initial conference to April 11, 2022. Joanna Burke supplied an unsworn affidavit in support expressing the full facts and reasons for the continuance.

Defendants past request for a [granted] continuance and case law supported the Plaintiffs request. See also; Garcia v. Acosta, Civil Action 4:21-cv-01649 (S.D. Tex. Aug. 17, 2021).

On Monday, Dec. 6, 2021, the Defendants emailed the Case Manager for Judge Bennett asking for a status update on the Conference. The reply stated:

“The motion and response are under the judge’s consideration. You will receive notice once it is signed.”

On Tuesday, Dec. 7, 2021, the court released an Order.

First, this is irrefutable evidence that the response by the Case Manager was deceptive, as the Order is signed and dated by Judge Bennett on Friday, Dec. 3, 2021, GRANTING the continuance. Hence, the response was not under the judge’s consideration, it had already been decided.

Second, the terms of the Order contradict this wording. It is interpreted as a DENIAL of the continuance by the Plaintiffs for the following reasons. The order states, in part:

“The Initial Conference is hereby CONTINUED pending the Court’s ruling on the pending dispositive motions.”.

Violations and Notice(s)

As stated, Plaintiff Joanna Burke, requested a humanitarian continuance, resetting the initial conference to April 11, 2022. This has, in effect, been DENIED by the court, based on the above order.

1. The order violates the Americans with Disabilities Act and US Supreme Court precedent. See Nov. 29 Motion for details (Doc. 36).

2. The order violates due process and the constitutional right to a hearing, despite the Plaintiffs repeated requests for a hearing prior to any order on the ‘pending dispositive motions’. See generally;

Gray Panthers v. Schweiker, 652 F.2d 146 (D.C. Cir. 1980) and citing Justice Frankfurter specifically; at 161 (“Justice Frankfurter believed that “no better instrument has been devised for arriving at truth” than the notice and hearing requirement. Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 171, 71 S.Ct. 624, 649, 95 L.Ed. 817 (1951) (Frankfurter , J., concurring).”)

3. The judge assigned to the case and also the case manager has the appearance of bias. Considering the lawsuit before the judge and his staff, specifically the Case Manager, it mirrors the complaint itself. The egregious acts by the clerks and judges at the Fifth Circuit are being repeated in this court and chambers. That is untenable, as it violates the Plaintiffs Constitutional rights to a fair and impartial tribunal.

4. No discovery has been discussed nor taken place, even minimal and the Plaintiffs wished to discuss that at the scheduled Oral hearing (the Initial Conference). For example, as per the Plaintiffs Case Management Plan, they seek to depose the clerks and judges of the Court of Appeals for the Fifth Circuit or, in the alternative (if discovery is restricted), submit a Request for Interrogatories to be formally answered by the Fifth Circuit clerks and judges.

5. The Defendants Motion was brought before the court for the purposes of harassment.

6. For the avoidance of doubt, the Plaintiffs now submit a “response specific” Motion for a Hearing re Defendants Vexatious Litigant Motion and the Plaintiffs subsequent response.

7. The order does not align with Judge Bennett’s past Orders granting continuances.

[2] See; Liteky v. United States, 510 U.S. 540, 551 (1994).

Arguments & Case Law

First, the Plaintiffs refer to Doc. 36, which clearly cited controlling case law from the highest court in the land and which confirms the continuance and future requested conference date of April 11, 2022 should have been granted, without modification.

Second, Joanna Burke’s request involves property, substantive due process in law and Constitutional rights which this court has willfully infringed, see:
Kinetica Partners v. U.S. Dep’t of Interior, 505 F. Supp. 3d 653, 681 (S.D. Tex. 2020) (“The court concludes that the ASLM failed to provide Plaintiff with notice and an opportunity to be heard before adjudicating Plaintiff’s property rights. The Order thus deprived Plaintiff of procedural due process. Because the procedure that resulted in the Order was contrary to a constitutional right, the proper remedy is to vacate and set aside the Order. 5 U.S.C. § 706 (2) (B).”)
Third, the elder, disabled litigants are pro se and they reminded this court (Doc. 36) of their obligations, which includes the right to a hearing, a fair trial and access to justice, see:

Acrea v. Johnson Controls, Inc., CA No. 3:01-CV-1933-R, at *1 (N.D. Tex. July 26, 2002); Rivers v. Schiwart, Civil Action No. 7:18-cv-00120-M-BP, at *5 (N.D. Tex. Mar. 25, 2020); Link v. Wabash Railroad Co., 370 U.S. 626, 649 (1962) (“It is of very great importance to everyone in this country that we do not establish the practice of throwing litigants out of court without notice to them”).

Fourth, the Plaintiffs are elderly and legally categorized as disabled, see:
PGA Tour, Inc. v. Martin, 532 U.S. 661, 674 (2001) (“Congress enacted the ADA in 1990 to remedy widespread discrimination against disabled individuals.”); and Waldrip v. General Elec. Co., 325 F.3d 652, 655 (5th Cir. 2003) as cited in Doc. 36.

Fifth, a historical review and sampling of Judge Bennett’s Orders granting Continuances do not align with the Order issued in this case. See:

Van Winkle v. Towne Center Venture, L.L.P. (4:15-cv-02282), Doc. 16. Judge Bennett’s Order, Doc. 18, allowing the case trial to be pushed back from Feb 13, 2017 to April 10 as counsel would be on vacation in the Dominican Republic; Fruge v. Westlake Chemical Corporation (4:15-cv-03734), Doc 4. Judge Bennett’s Order, Doc. 6, allowing the responsive motions to be filed before the initial conference, so a more ‘productive’ hearing would be achieved;

Sixth, an impartial judge and tribunal is required, see:

Gray Panthers v. Schweiker, 652 F.2d 146, 171 (D.C. Cir. 1980)
(“As a final fillip here, we note that the decisionmaker on review is himself an employee of the very private insurance carrier which previously denied the claim.

Moreover, this carrier has a financial interest in the outcome of the proceedings.

The possibility of bias inherent in utilizing the employees of an interested private party as administrative decisionmakers has led one court to hold the full fair hearings provided claimants of over $100 under Part B violative of due process.

The failure to provide an impartial tribunal, the court concluded, rendered the hearing fatally defective. The district court in McClure v. Harris, supra note 8, reasoned:

If hearing officers are potentially biased in favor of the carriers whose determinations they review, then the availability of an independent, administrative appeal beyond the hearing officer level might well mitigate the harmful effects of such bias.

On the other hand, if no independent tribunal is ever to review a hearing officer’s decision, the impartiality must be fully ensured at the hearing officer’s level.”)

Here, the federal judge is the decisionmaker who has an interest in the case result as the lawsuit is directed at the judicial machinery itself, and based on underlying events in this courthouse by judicial colleagues, as well as the Court of Appeals for the Fifth Circuit. The Plaintiffs are aware this is a highly sensitive, and indeed embarrassing case for the federal judiciary. However, violating the rights of the Plaintiffs does not offer the appearance of a fair tribunal, see:

United States v. Columbia Broadcasting System, 497 F.2d 107, 109 (5th Cir. 1974) (“The guarantee to the defendant of a totally fair and impartial tribunal, and the protection of the integrity and dignity of the judicial process from any hint or appearance of basis is the palladium of our judicial system. Cf. Mayberry v. Pennsylvania, 1971, 400 U.S. 455, 91 S.Ct. 499, 27 L.Ed.2d 532; Grizzell v. Wainwright, 5 Cir. 1973, 481 F.2d 405.”).

[3] Halliburton v. PHH Mortgage Corporation, on its own behalf and as successor-by-merger to Ocwen Loan Servicing, LLC et al, case no. 4:20-CV-00919.

The assigned judge has also shown bias. First, in the Order DENYING a hearing requested for April 11, 2022, when Plaintiffs cited Facille v. Madere & Sons Towing, Inc., CIVIL ACTION No. 13-6470 (E.D. La., 2014) wherein the “serious” personal problem was a conflicting diary due to an avoidable error in scheduling and as a result the lawyer would have to repay disgruntled clients and thus relinquish earned income.

It is admitted by the court that Fifth Circuit precedent was overruled to GRANT a 150+ day continuance to allow a jury trial to proceed. Here, there is no such requirement to resist Fifth Circuit precedent, it is a Due Process standard;

Secondly, the assigned judge recently denied the Plaintiffs First Amendment right to access to court records in the Halliburton case;

Third, the judge has not addressed the sham affidavit allegedly submitted by attorney Shelley Luan Hopkins for attorney fees in the Hicks case;

Fourth, as the timeline on the docket confirms, the judge appears to have conspired to allow the Defendants to submit the Vexatious Litigant Motion and the two Motions for the Judgment on the Pleadings (see Docs 18 and 19), yet refuses to allow Plaintiffs a legitimate continuance with an Oral Conference hearing to follow, in compliance with the Constitution, Due Process and the precedent and opinions by Justices of the highest court in the country as detailed herein,

and;

Fifth, the appointment of Judge Bennett is highly questionable, given the preceding list and also the fact that per Plaintiffs research, this is the only judge in the Houston Division of this court who has an active foreclosure case running in parallel with this case, where attorney(s) from Hopkins Law, PLLC, are named as counsel of record.

That “coincidence” is striking, considering the all the facts, the sham affidavit in Hicks and history of this litigation. See; Miller v. Sam Hous. State Univ., 986 F.3d 880 (5th Cir. 2021).

This court’s Order, based on its current textual interpretation and wording, is without doubt, discriminatory against the pro se, law abiding, elders, as disabled Plaintiffs.

To DENY the Plaintiffs an Oral hearing, which this court’s Order commands, requires immediate reconsideration and corrective action, in law.

See; U.S. Equal Employment Opportunity Commission v. American Piping Inspection, Inc. (4:21-cv-03187), wherein a Motion for Continuance was submitted to the court (Doc. 7, Nov. 22, 2021), requesting a 30-45 day continuance of the Initial Conference, which was granted by Judge Bennett within 24 hours, however, the Order does not specify a future date for the Initial Conference (Doc. 8, Nov. 23, 2021).

Then, via a separate Order (Doc. 10, Dec. 8, 2021), which is conveniently held over until after the Dec. 7 Order in this case (effectively denying an Oral Hearing/Initial Conference), provides a date of Jan. 28, 2022 for the Initial Conference.

This is yet another alarming timeline, where the usual 24-hour turnaround on Motions for Continuance did not apply in this case and the Order itself, which denies the relief requested, an Oral Hearing on April 11, 2022 and which questions the Plaintiffs constitutional rights to due process, a fair tribunal and an impartial judge and venue.

[4] Hicks v. Cenlar FSB, case no. 4:20-CV-01661.

[5] Dykes v. Hosemann, 776 F.2d 942, 954 (11th Cir. 1985) (“According to the majority, judicial immunity even protects a judge who acts without subject matter jurisdiction, without personal jurisdiction, and who unlawfully conspires with a party to violate another party’s federal constitutional rights.”)

This is not a conclusory, baseless or frivolous allegation, as cited in Plaintiffs Consolidated Response to All Defendants re Motion for Judgment on the Pleadings, see;

Crockett v. United States, 234 F.2d 560, 562 (5th Cir. 1956) (“But here the circumstances establish a chain of events which go far beyond the suspicion and conjecture stage.”);

See also: Bennett v. State Bar of Texas (4:21-cv-02829), granting (Doc. 6, signed by Judge Bennett, dated and docketed on the same day, Nov. 4, 2021) the Motion to Continue the Initial Conference, also within 24 hours, (Doc. 5, Nov. 3, 2021) rescheduled to Jan. 7, 2022.

Notice

“Due process requires notice and an opportunity to be heard.” Powell, 851 F.2d at 431….” The Plaintiffs herein request proper notice and an opportunity to be heard at the recommended remote Oral hearing on April 11, 2022. (See also; Plaintiffs Amended Reply re harassing Vexatious Litigant Motion by Defendants (Doc. 21 or 23) quoting request to be heard).

Conclusion

“During an oral hearing, the “Government” loses its nameless, faceless quality and comes into focus as another human being with whom the citizen can speak, present his or her case, and look to for a responsible decision.

To quote Justice Frankfurter again, no better way has “been found for generating the feeling, so important to a popular government, that justice has been done.”

This motion should be GRANTED and an order is attached to expedite the same.

RESPECTFULLY submitted this 10th day of November, 2021.

[6] Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 172, 71 S.Ct. 624, 649, 95 L.Ed. 817 (1951) (concurring).” – citing Gray Panthers v. Schweiker, 652 F.2d 146, 163 (D.C. Cir. 1980).

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Federal Law: The Rights of Elderly Litigants to Be Heard At an Oral Hearing
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