Appellate Circuit

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Circuit Judges should know their role. When a Supreme Court case is pending, hold your pens. says Professor Josh Blackman. Will the 11th Circuit Comply?

On Friday, 24th April, 2020, the Homeowners request a Stay in Proceedings until Selia Law Supreme Court Decision is Published





Appellants, Joanna Burke and John Burke (“Burkes”), now file a second Motion to Stay proceedings in order to preserve their due process and constitutional rights in this matter and prevent a premature decision when the higher court has a case which could materially affect the Burkes intended responses and the courts final opinion in this case.

The Burkes hold the opinion that to deny motion (and taking into account the Burkes prior motions’ low success rate) would confirm the Court of Appeals for the Eleventh Circuit panel assigned to this case is acting ‘above the law’:

“that no [wo]man in this country is so high that [s]he is above the law; no officer of the law may set that law at defiance with impunity; all the officers of the government, from the highest to the lowest, are creatures of the law, and are bound to obey it.” –Cunningham v. Macon Brunswick R.R. Co., 109 U.S. 446, 462 (1883)


The current pandemic has emphasized the distinct roles between the 3 branches of government. Only yesterday, it was concisely summarized by the Supreme Court of Texas, wherein it issued a per curiam order which commenced with the following two sentences;

“The Constitution is not suspended when the government declares a state of disaster. Nor do constitutional limitations on the jurisdiction of courts cease to exist.”[1]

The Texas Supreme Court was clearly irritated that these Texas Judges were before them;

“It is not a question for judges to ask other judges to decide.”

And this court would agree with the initial statement, in principle;

“Not every right created by Congress or defined by an executive agency is automatically enforceable in the federal courts. Our tripartite system of government recognizes that “there is no liberty if the power of judging be not separated from the legislative and executive powers.” The Federalist No. 78 , at 465 (Alexander Hamilton) (Clinton Rossiter ed. 1961). To protect this separation of powers, we must assure ourselves that our exercise of jurisdiction falls within the Constitution’s grant of judicial power – Salcedo v. Hanna, 936 F.3d 1162, 1166 (11th Cir. 2019).

While the Burkes admit there is a live controversy before the court in this instance, this is only because the lower court Judge Kenneth Marra erroneously applied his personal opinion to state that the CFPB is constitutional[2], despite the CFPB admitting itself that it wasn’t.

Secondly, the controversy is currently before the US Supreme Court, a higher authority to which lower courts should defer. Thus, for these explanations, in conjunction with the reasons below, the court should stay the proceedings in this matter while there is a pending decision from a higher court.


The Burkes assume the court is familiar with the background to the current unconstitutional CFPB case and the questions raised in the pending Selia Law case (#19-7) before the US Supreme Court. These were discussed in earlier motions by the Burkes, which have been reviewed and acted upon by the 3-panel judges. Based on the Burkes first stay request (Oct. 7, 2019), single Judge Martin denied in part and granted in part (Oct. 25, 2019), allowing the Burkes a 90-day stay, thus extending the due date for the Burkes initial brief until January 27, 2020. In compliance, the Burkes timely filed their brief and appendix.


A Sister Court, the Fifth Circuit, has a ‘Selia Law’ related case on the docket (again, referenced and detailed in the Burkes earlier motions). Namely, the All American appeal.[3] The 3-Panel included Judges Higginson, Higginbotham and Jerry Smith. On the day of oral arguments in the Selia Law case before the Supreme Court, the 3-panel at the 5th Circuit issued its opinion in All American.[4] In a 2-1 decision, Judges Higginson and Higginbotham deemed the CFPB constitutional while Smith dissented. Quite rightly, this caused uproar, as detailed in the an article published on; “Divided Fifth-Circuit Panel Submits Untimely Amicus Brief in Seila Law v. CFPB” by well-known law professor Josh Blackman, who has a Supreme Court Fantasy League (predicting case decisions) which is very popular and also authors books on the Constitution; “An Introduction to Constitutional Law: 100 Supreme Court Cases Everyone Should Know.”

Professor Blackman concluded;

“Circuit Judges should know their role. When a Supreme Court case is pending, hold your pens.” (Emphasis added).

It was very surprising that Fifth Circuit Judge Stephen Higginson authored the opinion, when reviewing his Congressional Questionnaire;

“LEGISLATING FROM THE BENCH is never a proper role for a JUDGE. Policy considerations are reserved by the Constitution to Congress and the Executive, NOT JUDGES.” [5] (emphasis added).

For Judge Higginson to meekly state he would have preferred to wait[6] for the Supreme Court decision in Selia Law was grave error, as he would shortly find out. En banc, the 5th Circuit vacated the 3-Panel Opinion[7] and the case is now pending a rehearing – after the opinion of the US Supreme Court – which should be released in the next 4-8 weeks.


The Burkes reply brief(s) in response to Ocwen and the CFPB/BCFP is currently due to be answered by the 29th April, 2020. The Burkes wish to stay proceedings and the due date for the reply, as they are constitutionally entitled to the same relief as provided in All American by the sister court, the Fifth Circuit.

Appellants now respectfully requests that this Honorable Court grant this Motion to Stay Proceedings until the US Supreme Court decides the Selia Law petition, or in the alternative, a 60-day extension, thus revising the due date up to and including Monday, 29th June, 2020.

Respectfully submitted as pro se




[2] Case 9:17-cv-80495-KAM Doc. 521; Marra, legislating from the bench states; “The Court is unconvinced that the CFPB’s structure is unconstitutional…. Additionally, the Court notes that even if the Supreme Court finds the CFPB’s for-cause removal to be unconstitutional, the proper remedy would be severance of 12 U.S.C. § 5491(c)(3), pursuant to 12 U.S.C. § 5302, not dismissal of the CFPB’s case against Ocwen with prejudice.”

[3] Consumer Fin. Prot. Bureau v. All Am. Check Cashing, Inc., No. 18-60302 (5th Cir.)

[4] Consumer Fin. Prot. Bureau v. All Am. Check Cashing, Inc., No. 18-60302

(5th Cir. Mar. 3, 2020)

[5] Fifth Circuit Judge Stephen A. Higginson’s response to QFR from Senator Chuck Grassley (Nomination).

[6] “As my colleagues are aware, my own preference in this specific, post-Collins case would have been to hold our matter several months in abeyance. ” Consumer Fin. Prot. Bureau v. All Am. Check Cashing, Inc., No. 18-60302, at *2 (5th Cir. Mar. 3, 2020)

[7] Consumer Fin. Prot. Bureau v. All Am. Check Cashing, Inc., No. 18-60302

(5th Cir. Mar. 20, 2020)

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Laws In Texas is a blog about the Financial Crisis and how the banks and government are colluding against the citizens and homeowners of the State of Texas and relying on a system of #FakeDocs and post-crisis legal precedents, specially created by the Court of Appeals for the Fifth Circuit to foreclose on homeowners around this great State. We are not lawyers. We do not offer legal advice. We are citizens of the State of Texas who have spent a decade in the court system in Texas and have been party to during this period to the good, the bad and the very ugly.

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