Pro Se Filers Face Capricious Clerks and Ambiguous Local Rules At the Federal Fifth Circuit

Pro se’s are being held to a higher standard than the laws and rules require and/or not being applied in a consistent manner. Pro se’s should not be penalized for court errors and capricious clerks.



Burke v Ocwen & Burke v Hopkins, 5th Cir., April 2021


Appellants, Joanna Burke and John Burke (“Burkes”), now file a Motion  for Other Relief. The Burkes timely filed their Petition for En Banc Rehearing (“Petition”) on April 13, 2021 and it was acknowledged and then reviewed. A non-compliant, deficiency letter was issued by Ms Wynne on April 14, 2021. The letter specified three requirements;

  1. Attach a copy of this courts order in consolidated case 19-20267.
  2. Add a Statement of the course of proceedings and disposition of the case (En Banc) 5th Cir.R.35.2.5.
  3. Fix the case caption.

The Burkes submitted a  timely corrected Petition addressing those three points on Thursday, April 22, 2021 in full compliance of the noted deficiencies and sent the amended Petition to Ms Wynne’s email as instructed and in the abundance of caution, the courts “pro se” email  due to this court’s past warning about “technical difficulties” receiving the Burkes email filings.

Ms Wynne rejected the compliant filing by adding a new issue not mentioned in her original deficiency notice, namely the Burkes did not include a Statement of Facts per Fifth Circuit R.35.2.6 (“Local Rule”).


The Burkes responded, which started a chain of conversation. The email thread is shown below for accuracy;

Wynne, 4.13 pm, 22 Apr, 2021

By the due date of your sufficient rehearing, which is 4/26/21

Burke, 3.59 pm, 22 Apr, 2021

What’s the deadline for both options  per your latest email Ms Wynne?

Wynne, 3.49 pm, 22 Apr, 2021

Ms. Burke,

It was an error for the clerk that handled the rehearing in 18-20026, without what is required for en banc rehearing’s; even if you are proceeding pro se.  Regardless, the rule states it is required.  (Please see below snip it from the rules)

You must follow the requirements listed in the Rule and not a filing made almost 3 years ago. If you choose not to make it sufficient, you can file a motion to accept it in present form and we will submit it to the Clerk’s Attorney advisor for review.

Burke, 2.41 pm, 22 Apr, 2021

Ms. Wynne

Please find attached copy screenshot of the index from our last petition for rehearing in case # 18-20026, submitted and accepted by the court by counsel from Hagens Berman.  We followed the same accepted structure in this petition and hence we suggest your rejection is unfounded, considering pro se are not held to the same standards as counsel. We would ask that you reconsider your request by return.

Wynne, 1.49 pm, 22 Apr, 2021

Ms. Burke,

The petition for rehearing en banc is still insufficient for the following:

Statement of the facts (En Banc) 5th Cir.R.35.2.6

Please correct and email sufficient rehearing to the “pro se email” address

Jann Heisser Wynne

Case Manager Clerk, STX/ETX Team

Burke, 10.20 am, 22 Apr, 2021

Dear Ms Wynne

Please find attached duly amended petition in compliance with your instructions for your consideration within the 10 day period.  If you have any questions, comments or feedback, please do not hesitate to reach out by responding to this email.

Otherwise, we look forward to obtaining a duly date-stamped copy in acceptance of our refiling.


Joanna Burke and John Burke

p.s. In the abundance of caution we have copied the pro_se email as there have been ‘technical difficulties’ in the past with the court email.



As shown, the Burkes communicated with Ms Wynne in a respectable manner and attempted to mediate directly. It proved to be a fruitless exercise with a Clerk determined to exceed her authority and abuse her administerial discretion.

As such, the Burkes have elected to take up her offer and filed this motion. The Burkes kindly request the court review the attached EXHIBIT A, which provides a summary of example cases at this circuit which are not in compliance with the local rule(s) but were accepted by the court, all submitted by lawyers.

This also includes a couple of other circuit cases including now Senior Judge Emmett Sullivan’s Petition re the highly publicized Flynn case at the DC Circuit and a Petition from the Sixth Circuit for comparison. The Burkes understand local rules are particular to every circuit court, however, as discussed, these are ambiguous and secondary to the Federal Rules of Appellate Procedure (“FRAP”) as promulgated by the Supreme Court of the United States on recommendation of an advisory committee, to govern procedures in cases in the United States Courts of Appeals.

The exhibit also includes the Hagens Berman Petition index the Burkes rely upon, as accepted by this court in Fifth Circuit appeal case 18-20026. Ms Wynne alleges this is error, but Exhibit A’s sampling rejects this argument as unfounded and even if true, this court’s error should not result in a penalty to the Burkes.

The pro se Burkes read R.35.2.6 as voluntary, based on the textual interpretation of the wording therein as highlighted in Exhibit A. It is also supported by the fact this court accepts filings regularly from lawyers who present regularly before this court but which exclude the Statement of Facts or comingle it with other local rule(s).

Finally, Ms Wynne’s deadline to comply is unreasonable and the Burkes suggest,  in violation of the rules, considering she raised a new deficiency for the first time after the Burkes filed their sufficient amended Petition. She cannot expect the same deadline for a “new issue” or deficiency she raised for the first time on April 22, 2021.


The Petition is accepted as submitted.


In the event this motion is denied, the Burkes herein request an extension of time, ten days to amend their Petition to include the Statement of Facts as raised for the first time on 22nd April, 2021 by Ms Wynne.


For brevity, and to prevent further delay, the Burkes assume that once the Petition is accepted by this court, the 20 printed copies from the Burkes is not required – based on Covid-19 and the Burkes previous waiver motion in the matter of case 20-20209 (See Reply Brief motion and subsequent order mooting necessity for printed copies).


Pro se’s are being held to a higher standard than the laws and rules require and/or not being applied in a consistent manner. Pro se’s should not be penalized for court errors and capricious clerks.  This is another[1] perfect example of the unruliness and abuse of power wielded by this court and its staff. Indeed, if the “Deputy Clerk”[2], with email signature; “Case Manager Clerk”, Ms Wynne actually read the Burkes Petition, she fits snugly into the issues raised therein pertaining to the violations of the Rule of Law, Due Process and the Burkes Constitutional rights to a Fair and Impartial hearing by rejecting a satisfactory and timely amended Petition.  As such, it requires correction.  Appellants Joanna & John Burke civilly request the relief requested herein.

Respectfully submitted,

DATED:   April 23, 2021


By      s/ Joanna Burke                                              



By      s/ John Burke                                       


[1] See Case: 20-20209, Document: 00515604894,  Date Filed: 10/16/2020 reversing a contemptible denial of 14 day extension of time, as signed by Ms Wynne, upon a reconsideration motion by the Burkes.

[2]Case: 19-20267, Document: 00515820967,    Date Filed: 04/13/2021

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Pro Se Filers Face Capricious Clerks and Ambiguous Local Rules At the Federal Fifth Circuit
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