Appellate Circuit

Why the Chief Can’t Judge Everything – Even with Judicial Immunity

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.

The following motion was denied by Judge Owen herself.

COURT ORDER FILED that Appellants’ opposed motion to disqualify Chief Judge Priscilla R. Owen is DENIED. The following transaction was entered on 07/07/2021 at 2:40:21 PM CDT and filed on 07/07/2021.

APPELLANTS’ MOTION TO DISQUALIFY CHIEF JUDGE PRISCILLA OWEN

JUL 1, 2021 | REPUBLISHED BY LIT: JUL 3, 2021

RELIEF REQUESTED

The evidence is clear and convincing. It reaches all the rule standards and  case law cited in this motion to disqualify the Chief Judge.  The Burkes hereby request (i) disqualification of the Chief Judge of the Court of the Appeals for the Fifth Circuit, Priscilla R. Owen; (ii) dissolution of the 3-panel she assigned, and; (iii) vacate the void 3-panel order of March 30, 2021 dismissing the Burkes appeals after consolidation. The Chief Judge’s acts are unconstitutional and as such it requires a rewind of these two appeals to the position they were before she unlawfully dismantled the two appellate panels. Finally, considering the above, the Burke’s ask that this court seek reassignment of the Burkes appeal(s) to another circuit, with the exception of the Eleventh Circuit.

Appellants, Joanna Burke and John Burke (“Burkes”), now file a motion to disqualify Chief Judge Priscilla  R. Owen.

See; Lewis v. Lumpkin, No. 19-10303, at *2 (5th Cir. Apr. 21, 2021)

(“The Supreme Court has recognized that recusal may be constitutionally required even when a judge has no actual bias. Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 825 (1986).

“Recusal is required when, objectively speaking, ‘the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.'”

Rippo v. Baker, 137 S. Ct. 905, 907 (2017) (quoting Withrow v. Larkin, 421 U.S. 35, 47 (1975)).

Diagram citing 5th Circuit 2021 case with citations removing Judge Lynn Hughes from lower court case, along with convincing evidence in the Burkes case – repelling Owen’s unfounded statement. Full-sized image;  https://2dobermans.com/woof/31

Presumptive bias occurs when a judge

(1) “has a direct personal, substantial, and pecuniary interest in the outcome of the case,”

(2) “has been the target of personal abuse or criticism” from the party before the judge, or

(3) “has the dual role of investigating and adjudicating disputes and complaints.” Buntion v. Quarterman, 524 F.3d 664, 672 (5th Cir. 2008). ”).

STATEMENT OF FACTS & ARGUMENT

This court sua sponte decided to appoint a new 3-panel and consolidate the Burkes two appeals, namely Burke v Ocwen and Burke v Hopkins.[1]

The panel included the Chief Judge, Priscilla Owen along with Judges’ Dennis and Davis. The opinion was issued prematurely[2] on March 30 of this year (See Burke v. Ocwen Loan Servicing, L.L.C., No. 19-20267 (5th Cir. Mar. 30, 2021). This replaced the 3-panel of Judges Higginbotham[3], Southwick and Willett in the Ocwen appeal and

[1] Burke v. Ocwen, Civil Action H-18-4544 (S.D. Tex.) and Burke v. Hopkins, Civil Action H-18-4543 (S.D. Tex.)

[2] Jackson v. Cruz, No. 19-10158, at *2 (5th Cir. Mar. 24, 2021); re “premature[ly]”.

[3] Shortly after receiving the Texas Center for Legal Ethics Pope Award, in oral argument in the foreclosure case Reinagel v. Deutsche Bank Nat’l Trust Co., 735 F.3d 220 (5th Cir. 2013), Judge Patrick Higginbotham is clearly heard saying;  “Ain’t no free lunch and there sure ain’t no free house (laughing)…”

While he was the Motion judge in the Burkes Ocwen case, and when most of the judges at the Fifth Circuit had eloped to the Federalist Society National Convention in Washington D.C., November 14 through November 16 (see; https://2dobermans.com/woof/2m) – on Monday, Nov. 18, 2019, he would deny the Burkes motion for reconsideration of a clerk’s order denying the Burkes to supplement the record within a few short hours of the Burkes electronic submission. See https://2dobermans.com/woof/2n The motion was very detailed and clearly a cursory dismissal was made without reaching the merits of the motion and exhibits. The Burkes would appeal this decision to the 3-panel who would affirm, but the true facts are undeniable – this led to the case being held in abeyance for the next 15 plus months.

while he was the Motion judge in the Burkes Ocwen case, and when most of the judges at the Fifth Circuit had eloped to the Federalist Society National Convention in Washington D.C., November 14 through November 16 (see; https://2dobermans.com/woof/2m) – on Monday, Nov. 18, 2019, he would deny the Burkes motion for reconsideration of a clerk’s order denying the Burkes to supplement the record within a few short hours of the Burkes electronic submission. See https://2dobermans.com/woof/2n

The motion was very detailed and clearly a cursory dismissal was made without reaching the merits of the motion and exhibits.

The Burkes would appeal this decision to the 3-panel who would affirm, but the true facts are undeniable – this led to the case being held in abeyance for the next 15 plus months.

Judges Clement[4], Elrod and Higginson[5] in the Hopkins appeal.

The Burkes argue the reason it was issued prematurely is the fact that this court had stayed the appeals of CFPB v All American Check Cashing, No. 18-60302[6]  and more recently in Collins v Mnuchin, No. 17-20364 (now Collins v Yellen), pending the US Supreme Court decisions.[7]

The Burkes had filed a motion to stay their appeals as well (see detailed motions and Burkes arguments on the docket(s)) which were routinely denied, however, the timeline of the appeals and the periods of time where there has been little or no activity, strongly suggests that a stay was ‘unofficially’ provided in the Burkes cases.

The presumptive test for bias #3 cited above is particularly relevant to this appeal and recusal motion.

[4] Misconduct Complaint Alleges 5th Circuit Judge Issued Partisan Attacks on Colleagues https://2dobermans.com/woof/5  Judge Clement would deny the Burkes a copy of her judicial misconduct file directly as the Motion judge in the Burkes case, despite knowing this is an improper procedure, as all complaints and related requests are routed through the Chief Judge and the Judicial Conduct section.

[5] Judge Stephen A. Higginson was the author of the first opinion for the panel in Deutsche Bank v Burke, No. 15-20201 (2016). He would also refer to Deutsche Bank as the “mortgage servicer”, requiring Hon. Stephen Wm. Smith to write to this court for reconsideration of the erroneous judgment as it made no sense. Higginson did not self-recuse when assigned to the Ocwen appeal, contrary to the rules.

[6] Judge Higginson issued the now vacated opinion in the All American case where Judge Higginbotham joined and Judge Smith dissented, alleging that the judges’ reasoning was based on ‘personal vendettas’ and in contravention of the courts binding authority, etc. The release date of the appeal decision was also vilified by law professor Josh Blackman. “Circuit Judges should know their role. When a Supreme Court case is pending, hold your pens.”, see Reason.com article; https://lawsintexas.com/pr/10j

[7] The Burkes made inquiry to the Fifth Circuit re All American’s Oral Argument and this was the courts’ reply; “Ms. Burke; Case 18-60302 was not heard on 9/21/20, therefore there is no recording to make available.  The case was removed from the calendar on 9/8/20 and has been placed in abeyance pending a decision in 2 US Supreme Court cases, 19-422 & 19-563.” (Via Email, Oct 5, 2020).

DEUTSCHE BANK NATIONAL TRUST CO., v. BURKE (2011-2018)

Upon review of the history of the Burkes and this court, Judge Owen first became visible in the Burkes  cases in 2019, when she signed (March 29, 2019) and issued (April 3, 2019) on behalf of the Appellate Review Panel of the Judicial Council, the denial of the Burke’s appeal of the 3-Judge complaint against the panel in the underlying Deutsche Bank appeal (#18-20026), comprising of Judges Haynes, Graves and Davis, which would be erroneously dismissed by then Chief Judge Carl E. Stewart[8] (March 11, 2019).

JUDICIAL MISCONDUCT RULE CHANGE

For the record, the Burkes complaint against each judge in the 2019 judicial complaint included attaching Exhibits. Shortly after dismissal (March 2019) of the Burkes complaint, this court immediately modified the rules to prohibit attaching exhibits to judicial complaints.[9]

[8] Judge Carl Stewart claimed at Oral Argument in Colbert v. Wells Fargo Bank, No. 20-10394 (5th Cir. Mar. 10, 2021) that “he doesn’t claim to be an expert in this Texas foreclosure procedure – at all….” (verbatim).

[9] See Amendments 6(a) and (f); https://2dobermans.com/woof/34

BURKE V. OCWEN & BURKE V. HOPKINS (2018-PRESENT)

Fast forward to the current consolidated appeal and the Burkes would file a judicial complaint against Senior United States District Judge David Hittner, S.D. Texas, Houston Division. In the interim period, Judge Owen was installed as the new Chief Judge on October 1, 2019.

During this time, the Burkes were actively pursuing the two civil cases before this court and which were originally filed in state court, before two separate judges.

These cases were unlawfully removed by opposing counsel to S.D. Texas, Houston Federal Court on Dec. 3, 2018.

Both cases would be [re]assigned to Judge Hittner[10] and his new Magistrate Judge and former Public Defender, Peter Bray. This assignment would also be in defiance of the ‘blind draw’ system.

See; “[J]udges do not choose their cases, and litigants do not choose their judges. We all operate on a blind draw system. . .” McCuin v. Texas Power Light Co., 714 F.2d 1255, 1265 (5th Cir. 1983).

[10] Judge Hittner was assigned the Deutsche Bank v. Burke case (2011-2018). The Magistrate Judge at that time, Hon. Stephen Wm. Smith, rejected the banks’ wrongful foreclosure not once, but twice, ruling consecutively in favor of the Burkes.

First, the Ocwen case would be improperly dismissed by Judge Hittner on March 19, 2019.

The Burkes timely appealed and the case was transmitted by June 10, 2019.

It should be noted that this case was subsequently fully briefed by Oct 11, 2019 and yet it was not decided until March 30, 2021.

As discussed and cited herein, the Burkes attempts to stay and supplement the case would be continually denied by this court. As such, there should have been no reason for this court to delay in deciding the appeal.

However, delay this court did, leaving any observers – including the Burkes – to reach the reasonable conclusion that the abatement must have been due to the pending US Supreme Court cases.

Second, the Hopkins case would also be unlawfully dismissed by Judge Hittner, via an ultra vires act during the pandemic. It was exactly a year later he dismissed the Hopkins case without a de novo review of the Magistrates’ M&R, on March 19, 2020.

This abuse of power was the final straw for the Burkes, who would file a motion to disqualify Judge Hittner (April 2, 2020).

This was prior to the Burkes filing a motion to alter the judgment on April 14, 2020.

Hittner would deny the disqualification motion on April 6, 2020 and deny the reconsideration on May 4, 2020.

The Burkes would both timely appeal (April 15, 2020) and register a formal complaint with this court against Judge Hittner (March 27, 2020).

The appeal was transmitted by June 4, 2020.

MOTION TO INTERVENE IN CFPB V. OCWEN, S.D. FL. (2018-PRESENT)

While these cases and events were happening in Texas, the Burkes had filed a motion to intervene in the CFPB v. Ocwen case in S.D. Fl. District Court, Judge Kenneth Marra presiding.

In particular, the Burkes were seeking to obtain evidence that would help their Texas cases, including documents from the Florida case and the Burkes original loan file from Ocwen.

In short form, the Burkes request to intervene would be denied. However, during the Burkes appeal to the Eleventh Circuit, it was discovered that the Greens, who were also litigating in S.D. Texas Federal Courthouse, Bankruptcy Div’n, obtained documents from the Ocwen case in Florida denied to the Burkes by Judge Marra.

Despite overwhelming documentary evidence supporting intervention and perjury by Judge Marra’s in his own Order, the Eleventh Circuit would issue an opinion on Monday, Nov. 2, 2020 (https://2dobermans.com/woof/1g) affirming the Burkes dismissal of their motion to intervene.

THE TIMELINE IS TELLING (AS ANY INVESTIGATOR WOULD TELL YOU)

The timeline is important. That same week, in Texas, the Burkes met the deadline of Friday, Nov. 6, 2020 to file their reply brief (https://2dobermans.com/woof/36) in the Hopkins case.

Two days later, a Sunday no less, Chief Judge Owen signed the dismissal of the Burkes complaint against Hittner.

Diagram showing Burke Complaints (2011-2021). Full-sized image: https://2dobermans.com/woof/32

However, Owen would not only dismiss the complaint, she would also threaten the Burkes with ‘frivolous’ filing restrictions.[11]

All this while the summary and timeline of events presented in her dismissal were entirely inaccurate, as was her understanding of the judicial complaint rules post “Breyer Report”[12] and Rippo v. Baker, 137 S. Ct. 905 (2017).

In conclusion, her order is gravely flawed.

[11] Compare to pro se litigant Crosson, who has filed eighteen (18) lawsuits (IFP) in Vermont federal district court in 2021 alone, without being labeled a ‘vexatious’, ‘frivolous’ or ‘repetitive’ filer by the court; https://2dobermans.com/woof/3b

[12] The Judicial Conduct and Disability Act Study Committee issued a Report to the Chief Justice of the US Supreme Court. The chair of this committee was Justice Stephen Breyer. The Burkes refer to this report as the “Breyer Report” herein.

On Feb. 1, 2021, the Burkes filed a petition for review (https://2dobermans.com/woof/35)  against Judge Owen’s order and despite the well-reasoned arguments therein, it would be denied on March 2, 2021 by Judge Jennifer Elrod[13] for the Judicial Council.

What followed next was the dismantling of the Burkes two appeal panels, consolidating both cases on appeal by the Chief Judge and (i) included herself on the new panel; (ii) along with a Judge who sat on the original Deutsche Bank case reversing the Burkes wrongful foreclosure and; (iii) including Judge Dennis, who wrote a 49-page[14] dissenting opinion as to why Judge Porteous should not be impeached for his crimes[15]. He was impeached and removed from office.[16]

[13] Listen to former Clerk for Both Judges Hittner and Elrod, Catherine Eschbach in this HBA video https://2dobermans.com/woof/2h starting at 27.17 minutes and then Listen to Oral Argument: 19-20140 | 02/04/2021: Fulton v. Untd Airlines where Judge Elrod excusing and then praising Hittner (The Burkes herein provide a combined audio with Eschbach leading into oral comments re Hittner); https://2dobermans.com/woof/2q

Elrod’s signed order for the Judicial Council was issued within a month of this hyperbole (The Fulton opinion is still pending at the Fifth Circuit).

[14] See; https://2dobermans.com/woof/1r

[15] Impeached Judges https://2dobermans.com/woof/1l

[16] See; https://2dobermans.com/woof/2o

Diagram showing Congress Impeachment of Judge Thomas Porteous. Full-sized image: https://2dobermans.com/woof/37

THE OPINION ISSUED IN THE BURKES CONSOLIDATED APPEALS CAN ONLY BE DESCRIBED AS “AN ABOMINATION”

The Burkes have outlined, as best they could in a very restrictive 3,900 word-limit Petition for Rehearing En Banc, the awful opinion by this per curiam panel. The Burkes need not repeat the totality of errors herein, a review of the latest Petition will suffice. When Judge Higginson stated that panels will not give as much thought to appeals which do not receive oral argument which will result in affirmation (“you lose”)[17], it is more likely he meant that the [junior] clerks are entirely responsible and will write the draft opinion and it will be signed off without meaningful review or debate by the 3 assigned circuit judges (you did lose), depriving litigants of due process and a fair appeal. No other excuse could be given for the opinion issued in the Burkes consolidated appeals.

In support, the Burkes also rely upon Judge Oldham’s statements as evidence.[18] Judge Oldham confirmed in video testimony[19] that he assigns a “Quarterback” clerk and only supervises as needed. He admits to being amazed at how much time he is afforded to attend the Federalist Society and related requests for appearances, outwith the allegedly busiest circuit court in the country. Indeed, he stated he would never have been able to have so much free time in his old job (General Counsel to Governor of Texas Greg Abbott).

CHANGING THE LOCAL RULES ON THE FLY AS PUNISHMENT AGAINST ELDER AND DISABLED PRO SE LITIGANTS

The Burkes timely filed their Petition for Rehearing En Banc but the clerk rejected the filing as insufficient. 

[17] See Above the Law Article (2017); https://2dobermans.com/woof/2z

[18] Also confirmed by former Clerk for Both Judges Hittner and Elrod, Catherine Eschbach in this HBA video https://2dobermans.com/woof/2h starting at 35.17 minutes which confirms “you may not like how I come down on the issue [appeal] and how I frame it”.

[19] See Bolch Institute; Judgment Calls: A Conversation with Judge Andrew Oldham https://2dobermans.com/woof/30 (start at 45.30 mins for points raised)

Diagram showing docket timeline with comments. Full-sized image: https://2dobermans.com/woof/2r

The saga of these events is detailed in motion filings and orders on the appeal docket. In short form, the following ensued;

(i) the Burkes refiled their Petition, addressing all the deficiencies listed and resubmitted the compliant Petition to the court email(s);

(ii) the clerk rejected the Petition again, adding a new deficiency not raised before;

(iii) the Burkes attempted to resolve this via direct email communication but the clerk would not budge, stating that the Burkes could file an objection via motion to the clerk’s attorney advisor for review.;

(iv) the Burkes filed the motion[20] and it wasn’t the clerk’s attorney advisor who replied, it was a motion judge, in this case Judge Dennis.

[20] See Motion, Apr. 23, 2021; https://2dobermans.com/woof/2v

After a series of further responses and orders as shown in the diagrams presented herein, the final result was provided on Monday, June 21, two days before the US Supreme Court ruled in Yellen.

The prejudiced 3-panel woke up to issue their order, affirming that it’s perfectly within the rules for a deficiency to be added after the initial set of deficiencies were timely addressed by the Burkes, and a new compliant Petition for Rehearing En Banc was filed with the clerk via email, as instructed.

Diagram showing docket timeline with comments. Full-sized image: https://2dobermans.com/woof/2s

In concluding this matter, the one-sided 3-panel believes that despite the Burkes relying upon the accepted Fifth Circuit Petition for Rehearing En Banc in their 2018 appeal by prior counsel, Hagens Berman – which did not include a ‘Statement of Facts’ and; combined with Exhibit examples of other ‘non-compliant’ Petitions by lawyers and a well-admired Federal Judge; the “little folks”[21] are required to resubmit another Petition.

This is contrary to the provisional conclusions of the Federal Appellate Advisory Committee’s proposed rule changes, as shown and hyperlinked in the stated footnote. The Advisory committee also raised alarm, astounded that this court still requires a Certificate of Service, despite the fact this has not been required since 2019[22];

 “Mr. Byron…. added that the Fifth Circuit seems to be the prime offender.”

The Burkes provide the full commentary in the relevant certificate section below.

During this timeline, the court would make a Rule[23] change in June 2021.

[21] “Judge Bybee stated that this could be very difficult for little folks; Mr. Byron responded that a pro se letter could be treated as a petition.” See p. 14, Minutes of the Fall 2020 Meeting of the Advisory Committee on the Appellate Rules October 20, 2020. https://2dobermans.com/woof/2u

[22] See, for example; Appellees’ Hopkins brief, dated October 2, 2020, p. 41 of 42, Certificate of Service, ‘Via ECF’; https://2dobermans.com/woof/39

[23] See Motion, Apr. 23, 2021; https://2dobermans.com/woof/2v

The Burkes contend this was a premeditated change, in order to limit the Burkes open communication with the clerk’s office via email. As per the diagram above, the clerk informed the Burkes in a cover letter dated 8 June, by referencing a document on the Fifth Circuit, namely an Adobe Portable Document Format (.pdf).

When this document’s metadata[24] was reviewed and earlier copies taken from the internet archive[25], it was clear to see the restrictive new rule, preventing email communication with the clerk’s office, was a recent document change, e.g. on or around the time of the letter issued by the court to the Burkes.

In fact, this Rule change flies in the face of a recent (June 29, 2021) ‘show cause’ order (https://2dobermans.com/woof/3a)  by a fellow federal [chief] judge in the District of Vermont;

Ms. Crosson shall appear for the hearing in person. If she does not appear, the court will enter an order limiting her contact with court personnel to mail, email, and in person or electronic filing. Geoffrey W. Crawford, Chief Judge.

REASONS FOR RECUSAL

First, let’s take a recent case from the highest court, the United States Supreme court. The Supreme Court denied cert in Ali v. Biden (May 17, 2021).

[24] See United States v. Turner, 839 F.3d 429, 434 (5th Cir. 2016).

[25] See Valentine v. Collier, No. 20-20525, at *16 n.29 (5th Cir. Mar. 26, 2021).

Diagram showing 3-panel assignments in Burkes appeals at Fifth Circuit. Full-sized image; https://2dobermans.com/woof/38

This case was filed by Abdul Ali, a Guantanamo Bay detainee. Justice Gorsuch and Justice Kavanaugh took no part in the consideration or decision of this petition.

Houston Law Professor and Federalist Society Member Josh Blackman, who is well known in this court[1], wrote an article on Reason.com[2] where he stated in part:-

“Justice Kavanaugh’s recusal makes sense. He wrote the panel decision in 2013. But what about Justice Gorsuch? My theory: he recused based on his service in DOJ. From 2005-06, Gorsuch served as the Principal Deputy to the Associate Attorney General. He was assigned to work on the war on terror cases. He also helped draft the Detainee Treatment Act.”

In the instant case, in the hand-picked panel by Chief Judge Owen, Judge Davis was assigned, despite his assignment on the 2018 appeal by $7.2 Billion Dollar admonished[3] Deutsche Bank National Trust Company and as such a

[26] See Federalist Society Events; The United States Constitution (2014); https://2dobermans.com/woof/2w The National Lawyers Convention (2019); https://2dobermans.com/woof/2x

[27] See; Justices Gorsuch and Kavanaugh Recuse from Guantanamo Bay Case, The Volokh Conspiracy: https://2dobermans.com/woof/2i

[28] See Department of Justice ‘settlement’ with Deutsche Bank who would ultimately renege on the deal. How one can do so, when it’s the US Government, is another conversation – but that also raises the question – Why Deutsche Bank has never lost an appeal in this court in 13 years, despite the predatory lending settlement?; https://2dobermans.com/woof/2p ;

In part;   “To make matters worse, the Bank’s conduct encouraged shoddy mortgage underwriting and improvident lending that caused borrowers to lose their homes because they couldn’t pay their loans.  Today’s settlement shows once again that the Department will aggressively pursue misconduct that hurts the American public.” That would include the predatory lending in the Burkes case. Where’s the restitution?

named Judge in the prior complaint by the Burkes, which Owen dismissed for the Judicial Council on appeal.[1]

It is the Burkes understanding that the Fifth Circuit uses PANLOG[2] to ‘randomly assign panel judges’. However, when these two panels were dismantled and the cases consolidated, it was a deliberate and manual process overseen by the Chief Judge[3] as administrator for the court.[4]

[29] See; Isom v. Arkansas, 140 S. Ct. 342, 344 (2019).

[30] See BAFFC.ORG “Answer to Common Questions Concerning Fifth Circuit Procedures” https://2dobermans.com/woof/29

[31] FIFTH CIRCUIT RULE 34; 34.1 Docket Control. In the interest of docket control, the chief judge may from time to time appoint a panel or panels to review pending cases for appropriate assignment or disposition under this rule or any other rule of this court.

[32] See Entin, Jonathan L., “The Sign of The Four”: Judicial Assignment and the Rule of Law” (1998). Faculty Publications. 377. https://2dobermans.com/woof/2j

“On July 30, 1963, Judge Benjamin Franklin Cameron threw the United States Court of Appeals for the Fifth Circuit into turmoil, charging Chief Judge Elbert P. Tuttle with manipulating the composition of panels in civil rights and desegregation cases so as to influence their outcome. Armstrong v. Board of Educ., 323 F.2d 333, 358-59 (5th Cir. 1963).”

Referencing (a) the pointed threats of sanctions[33] toward the Burkes in the Chief Judges’ slipshod opinion when dismissing the complaint against Judge Hittner; (b) combined with the authoring of the judicial complaint letter affirming dismissal in 2019 (on behalf of the Judicial Committee) and (c) noting the dissolution of the two appeal panels in preference for a panel which would include herself[34] and two judges as discussed, it begs the following questions;

[33] The Judicial Conduct and Disability Act (1980) (“the Act”) authorizes any person to file a complaint alleging that a federal judge has engaged in conduct “prejudicial to the effective and expeditious administration of the business of the courts.”

[34] The public may reasonably suspect “judges [who] sometimes gain access to a panel” do so “in order to affect the outcome of a case.” J. Robert Brown, Jr. & Allison Herren Lee, Neutral Assignment of Judges at the Court of Appeals, 78 TEX. L. REV. 1037, 1066 (2000).

1. After reading the Burkes complaint in tandem with the Chief Judge’s opinion and in light of the pro se litigants appeals before this court, would an outside observer reach the conclusion that the Chief Judge was involved in judicial complaint proceedings which were integral to the arguments on appeal and as such it falls squarely into #3 above (“has the dual role of investigating and adjudicating disputes and complaints.”).

2. Would an observer conclude that the sanctions and threats[35] assigned to the elder, law-abiding citizens could be viewed as a premeditated act, designed to intimidate the pro se litigants, to refrain them from submitting another judicial complaint – or a disqualification motion like this very one, seeking removal of a predisposed (Chief) judge?[36]

3. Would an observer reach the conclusion that the Chief Judge is erroneously depending upon “merit-related” reasoning to dismiss the complaint, when, in fact, that is not the standard which should be relied upon based on the Breyer Report[37] and Rippo?

[35] “This is the Burkes’ third merits-related and conclusory judicial misconduct complaint.”

“The Burkes are WARNED that should they, together or separately, file a further merits-related, conclusory, frivolous, or repetitive complaint, their right to file complaints may be suspended and, unless they are able to show cause why they should not be barred from filing future complaints, the suspension will continue indefinitely.”

[36] See In re Complaint of Judicial Misconduct, 605 F.3d 1060, 1063 (9th Cir. 2010) (“ A misconduct claim isn’t the property of any particular complainant. ”)

[37] For example; see the Breyer report, “that the judge ruled against the complainant…because the judge doesn’t like the complainant personally, is not merits-related.” p.54.

4. Would an observer reach the conclusion that the Chief Judge did not investigate the Burkes judicial complaint (https://2dobermans.com/woof/2l) properly when you take for example, the Burkes footnotes numbered 19; failure to inquire as to a judges bias e.g. lower court judge(s)) and 21; failure to investigate adequately that a judge ordered the transcript altered when her reply was generalized[38] and, without more, would fail the Breyer standard of review – as she did not properly investigate these specific complaints?

5. Would an observer reason that if Supreme Court Justice(s) are recusing because they sat on prior case(s) involving the party, then in the instant consolidated appeal, why would the Chief Judge appoint Judge W. Eugene Davis, and even if she did not appoint Judge Davis, one would expect there to be a discussion between the judges after reviewing

(a) the Certificate of Interested Persons;

(b) the Burkes case(s), and

(c) including the judicial complaints where she had only recently written an order of dismissal and as a result, Judge Davis would be disqualified, either by his own choice or after discussion by the panel of judges?

6. Would an observer have expected the Chief Judge or the Judicial Council to (a) correct materially incorrect summary of the facts in the hostile Order, dismissing the Burkes judicial complaint, when it was brought to their attention and which is published on the Fifth Circuit website;

[38] See order, in two sentences disposing of the complaint generally, in contravention of the rules; “To the extent that these allegations relate directly to the merits of decisions or procedural rulings, they are subject to dismissal under 28 U.S.C. § 352(b)(l)(A)(ii)”; and “In other respects, any assertions of “willful misconduct” or bias appear entirely derivative of the merits-related charges, but to the extent the allegations are separate, they are wholly unsupported, and are therefore subject to dismissal under 28 U.S.C. § 352(b)(l)(A)(iii) as “lacking sufficient evidence to raise an inference that misconduct has occurred.””

(b) especially an Order which goes on to sanction and threaten the complainants based on incorrect legal standards (for example, three complaints in 11 years does not warrant sanctioning, as after 7 years the first complaint is automatically removed from any calculation and at least five complaints is required to reach the minimum sanctionable standard) and

(c) where for example, previous erroneous Orders by assigned judges had been corrected in the Burkes cases e.g. Deutsche Bank opinion No. 15-20201?

7. Would an observer reach the conclusion that since the lower court cases

(a) involved so many judicial misconduct allegations and

(b) in tandem with the judicial complaint(s), is the abhorrent and admitted misconduct of attorney Mark Hopkins while acting in a pro se capacity at a hearing before the Magistrate Judge wherein he made false allegations that “The Burkes wanted certain judges to be shot”, and

(c) in light of the Magistrate Judge Peter Bray’s own [in]actions and that of Judge David Hittner as discussed in the complaint and filings and their failure to report Hopkins to the State Bar, Prosecutor or sanction his misconduct but rather support his admitted lies, and

(d) considering the new panel member Judge James L. Dennis has previously dissented in a judicial complaint where he objected to impeachment of a federal judge who would be subsequently impeached and removed from office – this clearly meets the presumptive test standard in Rippo above (citing Withrow) and the “Breyer Report” standard?

8. Would it be fair to conclude by disposing of the judicial complaint against United States District Judge David Hittner, and considering the Burkes allegations therein, Chief Judge Owen has already prejudged the now consolidated appeal before even taking ‘a seat with her judicial colleagues’ and that decision would be – and indeed is – adverse to the Burkes?

9. Would an observer reach the conclusion that the March 30, 2021 Opinion of the 3-Panel for the Court of Appeals for the Fifth Circuit, affirming the lower court in consolidated appeal Burke v Ocwen No. 19-20267 (and 20-20209) is void?

The Burkes proclaim the answer would be an affirmative Yes to all questions.

Attorney Thomas “Tom” Goldstein, who has argued over 100 cases before the highest court and is co-founder of SCOTUSblog.com, winner of The Peabody Award, echo’s the Burkes argument(s) in a 2014 Petition;

Plainly, a rule that expressly permitted judges to call dibs on class action cases, or ask the clerk’s office for preferential assignment to antitrust cases, would be intolerable.

To “perform its high function in the best way ‘justice must satisfy the appearance of justice.’” In re Murchison, 349 U.S. 133, 136 (1955).

An essential part of the public perception and reality of judicial impartiality arises from the fact that judges are assigned, rather than allowed to select, their cases.

The public may reasonably suspect “judges [who] sometimes gain access to a panel” do so “in order to affect the outcome of a case.” J. Robert Brown, Jr. & Allison Herren Lee, Neutral Assignment of Judges at the Court of Appeals, 78 TEX. L. REV. 1037, 1066 (2000).

Indeed, the public would be justified in assuming that a judge who selects a particular case based on its subject matter will often bring to the case an atypically strong set of preconceived views about the proper disposition of the case.

See; Motorola Mobility LLC v. AU Optronics Corporation, 14-1122 (Pet. Denied) https://2dobermans.com/woof/2y

The Burkes reinforce Goldstein’s arguments, as presented herein. As such, it requires this court’s immediate correction.

RELIEF REQUESTED

The evidence is clear and convincing. It reaches all the rule standards and  case law cited in this motion to disqualify the Chief Judge.  The Burkes hereby request

(i) disqualification of the Chief Judge of the Court of the Appeals for the Fifth Circuit, Priscilla R. Owen;

(ii) dissolution of the 3-panel she assigned, and;

(iii) vacate the void 3-panel order of March 30, 2021 dismissing the Burkes appeals after consolidation.

The Chief Judge’s acts are unconstitutional and as such it requires a rewind of these two appeals to the position they were before she unlawfully dismantled the two appellate panels.

Finally, considering the above, the Burke’s ask that this court seek reassignment of the Burkes appeal(s) to another circuit, with the exception of the Eleventh Circuit.[39]

CONCLUSION

Appellants Joanna & John Burke civilly request the relief requested herein.

Respectfully submitted,

[39] “We embrace the method utilized in United States v. Couch, in dealing with this sensitive situation. In Couch the Chief Judge of the Fifth Circuit assigned the case to a judge outside of the district in which it originated to adjudicate the claims of partiality.” U.S. v. Jordan, 49 F.3d 152, 159 (5th Cir. 1995).

CERTIFICATE OF SERVICE (NOT REQUIRED)

See p. 20/21, Minutes of the Fall 2020 Meeting of the Advisory Committee on the Appellate Rules October 20, 2020. https://2dobermans.com/woof/2u

I.           Review of Impact and Effectiveness of Recent Rule Changes

The Reporter stated that Rule 25(d) was amended in 2019 to no longer require proof of service for documents served via the court’s electronic docketing system. At the last meeting, it was reported that some courts of appeals were still requiring proof of service despite this rule change.

The Reporter added that research indicates that some courts of appeals continue to have local rules that require proof of service, but that at least one of these  courts does not in practice require such proof of service, and is working on revisions to its local rules.

Mr. Byron stated that DOJ continues to have problems and urged that we reach out again.

He added that the Fifth Circuit seems to be the prime offender.

 

           s/ Joanna Burke                             

JOANNA BURKE

           s/ John Burke                                  

JOHN BURKE

CERTIFICATE OF COMPLIANCE

The undersigned counsel certify that this motion complies with the type-volume limitation of Fed. R. App. P. 27(d)(2)(A) because this motion contains 5,200 words according to Microsoft Word’s word count, excluding the  parts of the motion exempted by Fed. R. App. P. 32(f).

         s/ Joanna Burke                              

JOANNA BURKE

         s/ John Burke                       

JOHN BURKE

Res Judicata Interpreted by 5th Circuit Judge Jerry Smith when Applied to Attorneys’ [Fees]

Res judicata bars causes of action or defenses which arise out of the same subject matter as the initial suit.

Texas Lawyer Mary Lou Serafine Labeled a Vexatious Litigant in 2021

Mary Lou Serafine is a lawyer in Austin, Texas. Serafine commenced litigation under federal civil rights law, Section 1983, against five Texas judges – two at the district court in Austin, and three at the Third Court of Appeals in Austin. She’s now been labeled a vexatious litigant.

The Gushing from the Fifth Circuit 3-Panel in this Sexual Assault Case is Not Believable.

The allegations in this case are sickening. Priscilla Lefebure alleges that Barrett Boeker, her cousin’s husband, raped and sexually assaulted her on multiple occasions at his home on the grounds of the Louisiana state prison where he serves as an assistant warden. – Judge Jim Ho.

Why the Chief Can’t Judge Everything – Even with Judicial Immunity
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