LIT Asks A Circuit Judge and Law Professor on Advisory Committee on Rules of Appellate Procedure About Judge Bennett’s Order

Howdy Hon. Bybee,

CA5 ‘CLERKGATE’ SCANDAL

We’ve read with interest, the Advisory Committee on the Appellate Rules Minutes in the last year or so, but which have abruptly stopped. It’s nearly a year since y’all convened.

We write to ask for a few minutes of your time, if you would be so gracious.

A Short Summary

The case involves/involved two 80+ year old pro se litigants who have been fighting wrongful foreclosure since 2011 – post the greatest theft of American residential housing in American history.

Tragically, John Burke unexpectedly passed on Sunday, September 4, 2022, leaving his wife of 64 years completely shattered.

A few days earlier, while John Burke was in hospital fighting for his life, Judge Alfred H. Bennett of SDTX, Houston Division released a surprise order on August 29, after hours, to the docket. This sua sponte order dismissed the Burkes’ latest lawsuit, and violated many legal, constitutional and civil rights, which we will touch on below.

The reason we’re writing to you is because of the facts of the Burke’s latest lawsuit, which involves Appellate rules and procedures which were unlawfully circumvented by the Court of Appeals for the Fifth Circuit.  For example, CA5’s Chief Judge Priscilla Owen-Hecht would dismantle 2 independent 3-panels for the Burkes two appeals. She would hand-pick a consolidated 3-panel, including herself, despite the fact there was a clear conflict of interest in her taking a seat on the panel.

That stated, the crux of the case revolves around the Appellate court striking the Burkes petition for rehearing en banc in order to issue the judgment(s) and mandate(s) to the lower court. That’s because the ‘motion for reconsideration’, which triggered the striking of the Burkes petition for rehearing, and entry of final judgment, was not submitted, approved, nor signed by the pro se litigants. No, it was submitted by Fifth Circuit Clerk Christina Gardner on her own volition, and in violation of federal and appellate rules and laws.

In Judge Bennett’s Order, he blanked the majority of the Burkes sound legal arguments and case law, and erroneously granted defendants judgment on the pleadings (Doc. 50).

Our Assessment

It is clear to the Burkes and LIT, Judge Bennett’s arguments in his Order, fail in law. For the purposes of our question to you, we’re only focusing the actions of the Clerk, Ms. Christina Gardner, and the resulting [re]action from the 3-panel.

The Fifth Circuit panel relied upon a fraudulent motion, not approved nor submitted, nor signed by the Burkes, but rather submitted unlawfully by a Clerk. Relying on this fraudulent motion, the panel would strike the Burkes Petition for Rehearing En Banc, thus ending the case.

As a result, the Burkes immediately filed a new lawsuit in SDTX, which was ‘randomly’ assigned to Judge Bennett. (Here’s a link to the first amended complaint, which is the operative complaint).

Our Question for Judge Bybee

As soon as the 3-Panel relied upon a fraudulently submitted motion, the court lost its jurisdiction. As a result, the judgment is void.

We suggest that Judge Bennett purposefully avoided the question of jurisdiction in order to issue his erroneous Order.  He never addressed the judicial usurpation and all the other misconduct arguments raised by the Burkes in response to the premature motions for judgment on the pleadings, with cited case law. Indeed, his own cited case law includes an unpublished opinion or citations which are inapposite.

As a Senior Circuit Judge and Chair, Advisory Committee on Appellate Rules (US Courts), LIT now respectfully seeks your legal and professional opinion as to whether a Fifth Circuit Clerk can impersonate the Burkes, file a fraudulent motion, and then the court rely upon that motion to ultimately end the appeal?

And finally, there’s the fantastical explanation by Judge Bennett that the Fifth Circuit Clerk, who had just spoken to one of the parties about their “Motion to Clarify” would, according to the judge, ‘relabel’ the Motion to Clarify as a “Motion for Reconsideration” and backdate it.  Relabeling is not in the federal or appellate rules or laws we’ve reviewed. Backdating is not allowed either, the docket must be in chronological format.

All motions, especially revised motions, require resubmission to the appellate court, signed by the parties (not a Clerk) and in compliance with the strict procedures, including conferencing with opposing counsel.

None of that happened when the Clerk filed the fraudulent motion.

But that is not the end of this debacle. The Burkes had already filed a “Motion for Reconsideration” which was denied by the court, so this redundant motion could not be filed by the Burkes, or it would be stricken.

However, it was allowed at CA5, when filed by Clerk Christina Gardner. Apparently, the rules and the laws do not apply to Clerks. (The 3-Panel would then rely upon this void motion to dismiss the petition for rehearing en banc and issue the final judgments and mandates to the lower court).

All the Burkes arguments in this respect were also blanked in Judge Bennett’s Order.

Do you agree or disagree with Judge Bennett’s Order, relative to the discussion herein?

Case status

Joanna Burke responded to the Order, Doc. 50, seeking to vacate the judgment and also requesting a 90-day continuance so she could grieve, and also address her own escalating medical issues, which is pending before the court.

Case Links

We’ve provided a link to our case tracker page for this ClerkGate Scandal on LIT, which provides pretty much the full docket and case background.

Thank you for your time and consideration of our request.

Y’all have a great day.

Howdy Ms Struve,

CA5 ‘CLERKGATE’ SCANDAL

We’ve read with interest, the Advisory Committee on the Appellate Rules Minutes in the last year or so, but which have abruptly stopped. It’s nearly a year since y’all convened.

We write to ask for a few minutes of your time, if you would be so gracious.

A Short Summary

The case involves/involved two 80+ year old pro se litigants who have been fighting wrongful foreclosure since 2011 – post the greatest theft of American residential housing in American history.

Sadly, John Burke unexpectedly passed on Sunday, September 4, 2022, leaving his wife of 64 years completely shattered.

A few days earlier, while John Burke was in hospital fighting for his life, Judge Alfred H. Bennett of SDTX, Houston Division released a surprise order on August 29, after hours, to the docket. This sua sponte order dismissed the Burkes’ latest lawsuit, and violated many legal, constitutional and civil rights, which we will touch on below.

The reason we’re writing to you is because of the facts of the Burke’s latest lawsuit, which involves Appellate rules and procedures which were unlawfully circumvented by the Court of Appeals for the Fifth Circuit.  For example, CA5’s Chief Judge Priscilla Owen-Hecht would dismantle 2 independent 3-panels for the Burkes two appeals. She would hand-pick a consolidated 3-panel, including herself, despite the fact there was a clear conflict of interest in her taking a seat on the panel.

That stated, the crux of the case revolves around the Appellate court striking the Burkes petition for rehearing en banc in order to issue the judgment(s) and mandate(s) to the lower court. That’s because the ‘motion for reconsideration’, which triggered the striking of the Burkes petition for rehearing, and entry of final judgment, was not submitted, approved, nor signed by the pro se litigants. No, it was submitted by Fifth Circuit Clerk Christina Gardner on her own volition, and in violation of federal and appellate rules and laws.

In Judge Bennett’s Order, he blanked the majority of the Burkes sound legal arguments and case law, and erroneously granted defendants judgment on the pleadings (Doc. 50).

Our Assessment

It is clear to the Burkes and LIT, Judge Bennett’s arguments in his Order, fail in law. For the purposes of our question to you, we’re only focusing the actions of the Clerk, Ms. Christina Gardner, and the resulting [re]action from the 3-panel.

The Fifth Circuit panel relied upon a fraudulent motion, not approved nor submitted, nor signed by the Burkes, but rather submitted unlawfully by a Clerk. Relying on this fraudulent motion, the panel would strike the Burkes Petition for Rehearing En Banc, thus ending the case.

As a result, the Burkes immediately filed a new lawsuit in SDTX, which was ‘randomly’ assigned to Judge Bennett. (Here’s a link to the first amended complaint, which is the operative complaint).

Our Question for Ms Struve

As soon as the 3-Panel relied upon a fraudulently submitted motion, the court lost its jurisdiction. As a result, the judgment is void.

We suggest that Judge Bennett purposefully avoided the question of jurisdiction in order to issue his erroneous Order.  He never addressed the judicial usurpation and all the other misconduct arguments raised by the Burkes, with cited case law. Indeed, his own cited case law includes an unpublished opinion or citations which are inapposite.

As a Law Professor and Reporter, Standing Committee on the Rules of Practice and Procedure (US Courts), LIT now respectfully seeks your legal and professional opinion as to whether a Fifth Circuit Clerk can impersonate the Burkes, file a fraudulent motion, and then the court rely upon that motion to ultimately end the appeal? And finally, do you agree or disagree with Judge Bennett’s Opinion, relative to the discussion herein?

Case status

Joanna Burke responded to the Order, Doc. 50, seeking to vacate the judgment and also requesting a 90-day continuance so she could grieve, and also address her own escalating medical issues, which is pending before the court.

Case Links

We’ve provided a link to our case tracker page for this ClerkGate Scandal on LIT, which provides pretty much the full docket and case background.

Thank you for your time and consideration of our request.

Y’all have a great day.

Professor Sachs presented the subcommittee’s report regarding Rules 35 (dealing with hearing and rehearing en banc) and Rule 40 (dealing with panel rehearing). (Agenda book page 137). He noted that the Committee has been considering amendments to these rules for some time and had sought the Standing Committee’s permission to publish a draft for public comment, but the Standing Committee remanded for the Committee to take a freer hand in combining and clarifying Rules 35 and 40.

A redline of the subcommittee’s proposal is in the agenda book (page 138). Rather than describe Rule 30 as abrogated, the proposal describes it as transferred to Rule 40. Rule 40(a) is designed to tell a party exactly what to do, front-loading the general requirement of filing a single document. Rule 40(b)(2) states clearly four grounds for petitioning for rehearing en banc, and Rule 40(c) incorporates those by reference in stating when rehearing en banc is ordinarily granted. It also reiterates clearly that a court may act sua sponte. The time to seek initial en banc hearing is

changed in Rule 40(g) to the date when a party’s principal brief is due. Corresponding changes are made to the Committee Note.

Judge Bybee thanked Professor Sachs, noting how much time he and the subcommittee had put into this project.

The Reporter added that Professor Struve had noticed that the reference in the conforming amendment to Rule 32(g)(1) should be to Rule 40(d)(3)(A), not simply Rule 40(d)(3). He initially referred to the Appendix regarding length limits, but Professor Struve and Mr. Byron clarified that the text of Rule 32—which governs certificates of compliance—is where the conforming amendment needs to be changed.

A judge member thought that Rule 40(a) should include a reference to “both,” not simply a reference to a petition for rehearing or a petition for rehearing en banc. A lawyer member noted that the subcommittee had debated whether it was better to refer to two petitions or a single petition seeking two forms of relief. The judge member asked for more information about the nature of the problem.

Mr. Byron stated that in clarifying and combining Rule 35 and Rule 40, an issue arose about how to talk about the situation where a party seeks both panel rehearing and rehearing en banc. He is a little disappointed with where the subcommittee landed. It could be done more simply if it were not for the desire to allow for local rules providing for separate documents.

His recollection is that only the Court of Appeals for the Fifth Circuit has such a local rule, and that inquiry was being made about its attachment to that rule.

Judge Bybee stated that he had reached out to the Chief Judge and not received a response, which he took as standing by the existing local rule, but he will follow up.

The judge member who has asked for more information said that he now understood the nature of the problem, that he had not been aware of the practice in the Fifth Circuit and did not resist adding “or both.”

A liaison member provided some background, explaining that the proposed amendment would combine Rule 35 and 40, thereby eliminating lots of redundant material. Her court allows petitions to be joined but receives lots of separate petitions. She always liked including “or both,” noting that half of the cases are pro se cases.

Professor Sachs was comfortable with adding “or both,” but not “or for both.” Consensus was reached that the first sentence of Rule 40(a) should read, “A party may seek rehearing of a decision through a petition for panel rehearing, a petition for rehearing en banc, or both.”

A lawyer member praised the revision but asked why Rule 40(c) says that “ordinarily” rehearing en banc will not be ordered unless one of the criteria in Rule 40(b)(2)(A)–(D) is met. Professor Sachs responded that it is in existing Rule 35(a) and is designed to reflect the court’s discretion, discretion that there is no need to restrict. Judge Bybee added that there can be infighting in a court of appeals over whether it is permissible to use en banc procedures to engage in error correction; leave in “ordinarily.” A judge member agreed.

A lawyer member noted that in some places Rule 40 refers to “the petition” while in others it refers to “a petition.” Professor Sachs suggested that dealing with the apparent discrepancy could be left to the style consultants. A judge member suggested changing all instances of “the petition” to “a petition”; Professor Struve noted that the Rules contemplate other kinds of petitions as well. Working on a shared screen, the Reporter changed “the petition” to “a petition” in Rule 40(d)(1)(D), (d)(4), and (d)(5), noting that he can raise the issue with the style consultants.

A judge member suggested referring to a “petition under this Rule.” Professor Sachs responded that the Rule also governs petitions for initial hearing en banc. A lawyer member suggested being explicit: “a petition for panel rehearing or rehearing en banc.” A liaison member agreed that this adds clarity for the unsophisticated lawyers and pro se litigants. Judge Bybee stated that the phrase should be the same in 40(d) and 40 (e). The Committee agreed that both Rule 40(d) and Rule 40(e) should use the phrase “a petition for panel rehearing or rehearing en banc.”

The Reporter noted that Rule 40(b)(2)(C) refers to a decision that has addressed “the issue,” while Rule 40(b)(2)(D) refers to “one or more questions” of exceptional importance and that when the style consultants had reviewed an earlier version of this proposal, they had asked about the difference between an “issue” and a “question.” Apologizing that he had not raised this with the subcommittee, he suggested that the phrase “that has addressed the issue” be deleted from Rule 40(b)(2)(C). A judge member agreed, observing that for decisions to conflict they must involve the same issue, so the phrase is redundant.

Judge Bybee stated that if there were no further comment, he would invite a motion to approve the draft, with the changes made during this conversation, and ask the Standing Committee for permission to publish the proposal for public comment. The motion was made and approved without dissent.