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Let’s Talk Judge Priscilla Owen and Abortion Rather Than Focus on Kenneth Marra’s Judicial Nomination

Let’s be clear that the opposition to Justice Owen was all about abortion. Justice Owen is a friend of President Bush from Texas.

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EXECUTIVE SESSION

______

NOMINATION OF KENNETH A. MARRA, OF FLORIDA,

TO BE UNITED STATES  DISTRICT JUDGE

FOR THE SOUTHERN DISTRICT OF FLORIDA

[Senate]
[Pages S8340-S8350]
From the Congressional Record Online through the Government Publishing Office www.gpo.gov]

SEPT 9, 2002 | REPUBLISHED BY LIT: AUG 31, 2021

[Congressional Record Volume 148, Number 112 (Monday, September 9, 2002)]

The PRESIDING OFFICER. Under the previous order, the hour of 1 p.m.
having arrived, the Senate will proceed to executive session and
proceed with the consideration of Executive Calendar No. 889, which the
clerk will report.

The legislative clerk read that nomination of Kenneth A. Marra, of
Florida, to be United States District Judge for the Southern District
of Florida.

The PRESIDING OFFICER. The Senator from Vermont.

Mr. LEAHY. Madam President, I do believe that Judge Kenneth Marra
will be confirmed to the U.S. District Court for the Southern District
of Florida. I have heard of no opposition.

This is a judge who got strong bipartisan support in the Senate Judiciary Committee,
which usually guarantees a confirmation on the floor. When that happens, the
Democratic-led Senate will confirm its 74th judicial nomination made by
President George W. Bush.

This will also be the 25th judicial emergency vacancy that we have
filled since I became chairman last summer, and the 18th since the beginning of this year.

The confirmation of Judge Marra will bring additional resources to
the U.S. District Court for the Southern District of Florida. Judge
Marra was nominated to fill a new position Congress created by statute
to address the large caseload, particularly the immigration and
criminal cases, facing the Federal court in Florida.

He is one of three Federal judicial nominations on the Senate Calendar for action.
I recall during the past administration, the Clinton administration,
we all worked very hard in cooperation with Senator Graham and Senator
Mack to ensure that the Federal court in Florida had its vacancies
filled promptly with consensus nominees. Due to the bipartisan
cooperation between one Democrat Senator and one Republican Senator and
a Democratic President, the Senate was able to confirm 22 judicial
nominees from Florida, including 3 nominees to the Eleventh Circuit.
But it is unfortunate that this tradition of cooperation, coordination,
and consultation has not continued with the current administration.

By my recollection, it was only the nomination of Judge Rosemary
Barkett of the Florida Supreme Court to the Eleventh Circuit that
generated any significant controversy or opposition. I do recall that
she was strongly

[[Page S8341]]

opposed by a number of Republican Senators because they did not agree with her judicial philosophy.

Those voting against her included  Senators Hatch, Grassley, McConnell, Specter, and Thurmond,as well as Senators Lott, Nickles, and Hutchison of Texas.

They have an absolute right to do that, of course. I respect that right.

Judge Barkett received the highest rating of the ABA, “well qualified,” and yet 36 Republicans voted against her confirmation, even though she had the
strong bipartisan support of her home State Senators.

Recent claims by  some that it is unprecedented to vote against a judicial nominee with a “well qualified” rating and to vote against her
based on her judicial philosophy thus ring hollow.

Unfortunately, that is not the way the administration has dealt with
Senators Graham and Nelson now. But it is a tribute to Senator Graham
and Senator Nelson that we have made the progress we have had. They
could very easily have exercised their right as Senators and refused to
accept the nominees of President Bush. Of course, they would go no
further under the blue-slip policy that both Republicans and Democrats
strongly support. But they have been more than gracious in their
willingness to support these nominees. That is why they have gone
through.

This Democratic-led Senate has expeditiously moved President Bush’s
judicial nominees. We have worked hard to provide bipartisan support
for the White House’s nominations in spite of an almost unprecedented
lack of willingness on the part of the White House to work with us.

In fact, I have been here 26 years: During the terms of President
Ford, President Carter, President Reagan, President George Herbert
Walker Bush, President Clinton, and now President George W. Bush. This
administration is the least willing of any White House during all that
time–Republican or Democrat–to work with the Senate on judicial
nominations. But even without that cooperation, even with the
unprecedented lack of cooperation, we are making progress.

I would like to discuss the progress we have made. This chart shows
what has happened in the 15 months the Democrats have controlled the
Senate. Contrast that to the Republicans’ first 15 months when they
controlled the Senate. In less than 15 months of Democratic control of
the committee, we have held more hearings for more nominees, voted on
more nominees in committee, and confirmed more nominees than the
Republicans did in their first 15 months of control of the committee in
1995 and 1996.

We have confirmed more of President George W. Bush’s Federal trial
court nominees in less than 15 months than were confirmed in the first
2 years of his father’s Presidency. In fact, we confirmed more in the
first 15 months than the Republicans were willing to confirm in their
last 30 months.

I mention this because there seems to be some idea that somehow the
Democratic-led Senate is holding up judges. I think most of the
Presidents with whom I have served would have been delighted to have
had a Senate as cooperative as we have been.

Let me repeat that. In 15 months, Democrats have done more on
judicial confirmations than Republicans did in 30 months.
They, on the other side, do not want to compare our record of
accomplishment in evaluating judicial nominees with theirs in their
prior 6 1/2 years of control. They do not want to own up to their
delay and defeat through inaction of scores of judicial nominees during
the last administration.

All too often the only defense of their record we hear is the claim
that President Clinton ultimately appointed 377 judicial nominees, 5
fewer than President Reagan. This statement overlooks the fact that the
Republicans only allowed 245 of President Clinton’s judicial nominees
to be confirmed. That averages, incidentally, to about 38 confirmations
per year during their 6 1/2 years of control. We confirmed 74 judicial
nominees in less than 15 months, including 13 to the circuit courts. I
believe we have reported 80 out of the Judiciary Committee.

I mention this because of the persistence of the myth of inaction in
face of such in the face of such a clear record of progress by
Democrats. After a while, if someone keeps distorting the facts, if
someone keeps stating things that are not true, people actually come to
believe it is true. I am reminded of what Adlai Stevenson once said. I
will quote him:

I have been thinking that I would make a proposition to my
Republican friends . . . that if they will stop telling lies
about the Democrats, we will stop telling the truth about
them.

The truth is, of course, as these charts show, that we have a pretty
good record of accomplishment despite the lack of cooperation from the
administration.

With today’s vote, the Democratic-led Senate will confirm its 74th
judge–exceeding the number of circuit and district court nominees
confirmed in the last 30 months of Republican control of the Senate. We
have done more than Republicans did, and we have done it in less than
half the time.

We have confirmed more of this President’s nominees, both circuit and
district court nominees, in less than 15 months, than were confirmed in
the comparable 15 months of the first term of former President Reagan,
the first President Bush, and President Clinton.

Let’s take a look at what has happened in the first 15 months. With
today’s vote, the Democratic-led Senate has confirmed 74 of this
Republican President’s judicial nominees in less than 15 months.
Under President Reagan–and incidently, I might point out, he had a
Senate of his own party–there were 54 confirmation in the first 15
months. Under George H. W. Bush, there were 23; for the first 15 months
of President Clinton, 45. Incidentally, that is with a Senate under the
control of his own party. And now, in 15 months, under President George
W. Bush, we have had 74 judicial confirmations–74. By any standard you
want, here is a case where a different party than the President has
controlled the Senate, and we have done more than was done for
President Reagan when his own party controlled the Senate, for
President Bush when another party controlled the Senate, for President
Clinton when we, the Democrats, controlled the Senate.

It shows we can move and will move, and we have been doing that
notwithstanding the fact that there has been less cooperation from the
White House than I have seen with either Democratic or Republican
Presidents in 26 years in the Senate.

It is unfortunate. President Bush will probably get a record number of his judges  through at the current pace of confirmations.

But I have to think how much better it could be done with less rancor and with even a modicum of cooperation.

We have acted fairly and expeditiously notwithstanding the fact that Democrats have felt very concerned that for year after
year after year after year in many of the circuit courts of this
country, Republicans refused to even hold hearings for the nominees,
even though they had the highest ratings of the American Bar
Association.

They would not even hold hearings, to say nothing about having a vote.

Then when the Republicans came in, suddenly there was an emergency;
they had to fill the vacancies in those circuits. Their obstruction
created the problem. But notwithstanding that, in many of those cases
where Democrats were not allowed to even have a hearing year after year
after year, we have in the last 15 months moved forward with hearings
and votes, and positive votes, on the vast majority of his judicial
nominees.

I have no idea what political game is being played at the White
House. I know the people are very nice. Judge Gonzalez is a very nice,
very polite person. He is charming to be with. But the cooperation is
not there. The President is very nice, very charming. But the
cooperation is not there. We could do far better if they would just
pick up the phone and call the last three people from the last three
Republican administrations–they do not even have to call a Democratic
administration–and see how well this could be done.

As the distinguished ranking member, my good friend from Utah, knows,
I went down several times and worked with the Clinton White House so
they could have cooperation with, and they did cooperate with,
Republican Senators in moving through judges. I would hope that with
that precedent in mind, some might do the same.

Democrats have reformed the process for considering judicial nominees
to

[[Page S8342]]

ensure bipartisan cooperation and greater fairness. For example, we
have ended the practice of secretive, anonymous holds that plagued the
period of Republican control, when any Republican Senator could hold
any nominee from his or her home state, his or her own circuit or any
part of the country for any reason, or no reason, without any
accountability. We have returned to the Democratic tradition of
regularly holding hearings, every few weeks, rather than going for
months without a single hearing. In fact, we have held 23 judicial
nominations hearings in our first 13 months, an average of almost two
per month.

In contrast, during the six and one-half years of Republican control,
they went 30 months without holding a single judicial nominations
hearing. By holding 23 hearings for 84 of this President’s judicial
nominees, we have held hearings for more circuit and district court
nominees than in 20 of the last 22 years during the Reagan, first Bush,
and Clinton Administrations.

As this chart shows, we have held more hearings for President Bush’s
judicial nominees in less than 15 months than were held in 15 months
for any of the past three Presidents. In the first 15 months of the
first term of President Reagan, 17 judicial nominations hearings were
held. In the first 15 months of President George H.W. Bush’s term, 11
hearings were held. And, in the first 15 months of President Clinton’s
first term, 14 judicial nominations hearings were held. In contrast, we
have held 23 hearings in less than 15 months. That is almost as many as
were held in the first 15 months of the terms of the first President
Bush and President Clinton combined. We have more than exceeded the
number of hearings held in the last 30 months of Republican control of
the Senate, when they held only 15 hearings.

While some complain that a handful of circuit court nominees have not
yet had hearings, they fail to acknowledge that Democrats have held
hearings for more of President Bush’s circuit court nominees, 18, than
in any of the six and one-half years in which the Republicans
controlled the Committee before the change in majority last summer.
Republicans have utterly failed to acknowledge this fairness and
progress under the Democratic majority. The myth of obstruction of
judicial nominees fits their political strategy better than the truth.

The years of Republican inaction on a number of circuit court
vacancies has made it possible for Democrats to have several
“firsts,” or astounding accomplishments in addressing judicial
vacancies. For example, we held the first hearing for a nominee to the
Sixth Circuit in almost five years (that is more than one full
presidential term) and confirmed her, even though three of President
Clinton’s nominees to the Sixth Circuit never received a hearing or a
vote. We held the first hearing on a Fifth Circuit nominee in seven
years (including the entire period of Republican control of the Senate)
and confirmed her last year, while three of President Clinton’s Fifth
Circuit nominees never received hearings or votes on their nominations.

We held the first hearing on a Tenth Circuit nominee in six years, and
we have confirmed two of President Bush’s nominees to the Tenth
Circuit, while two of President Clinton’s nominees to that circuit
never received hearings or votes. We held the first hearing for a
Fourth Circuit nominee in three years, for Judge Roger Gregory, and the
first hearing for an African American nominee to that court in United
States history, even though Judge Gregory and four other nominees to
that circuit (including three other African Americans) never received
hearings or votes during Republican control of the Senate. These are
just a few examples of the historic accomplishments of the Democratic-
led Senate which debunk Republican myths that Democrats caused the
vacancy crisis, are delaying judicial appointments or have been
retaliating for years of obstruction on circuit court vacancies by
Republicans.

There were only 16 circuit court vacancies when Republicans took over
the Senate in January 1995. Unfortunately, from January 1995 until
Republicans relinquished control and allowed the Judiciary Committee to
be reorganized in the summer of 2001, circuit court vacancies more than
doubled from 16 to 33. Republicans executed a partisan political
strategy to hold vacancies open on the circuits for a Republican
president to fill. It would certainly have been easier and less work
for Democrats to retaliate for the unfair treatment of the last
President’s circuit court nominees. We did not. We have been, and will
continue to be, more fair than the Republican majority was to President
Clinton’s judicial nominees.

Here is another chart that shows that more of President Bush’s
judicial nominees have been given committee votes than the nominees of
prior presidents. Unlike my Republican predecessor, I have scheduled
hearings and votes on district and circuit court nominees whom I do not
support. The Judiciary Committee has voted on 82 judicial nominees and
favorably reported 80. In less than 15 months, we have voted on more of
President Bush’s district and circuit court nominees than were voted on
in the first 15 months of any of the past three Presidents. Moreover,
we have voted on more nominees in less than 15 months than were voted
on in the first 15 months of Presidents Reagan and George H.W. Bush
combined, or Presidents George H.W. Bush and Clinton combined. We have
even voted on more nominees in less than 15 months than were voted on
in the last 30 months of Republican control of the Senate, when 73
nominees were voted on by the Committee.

Because we have moved quickly and responsibly, the number of
vacancies is not at the 153 mark it would be had we taken no action.
Vacancies have been reduced to 79 and are headed in the right
direction. On July 10, 2001, with the reorganization of the Senate, we
began with 110 vacancies. When Republican gained control of the Senate
in 1995 the federal judicial vacancies numbered 65. The vacancies
increased during their six and one-half years to more than 110. Under
the Democratic majority, by contrast, the number of vacancies is being
significantly reduced. Despite the large number of additional vacancies
that have arisen in the past year, with the 61 district court
confirmations we have as of today, we have reduced district court
vacancies to 50, almost to the level it was at when Republicans took
over the Senate in 1995.

In fact, when we adjourned for the August recess we had given
hearings to 91 percent of this President’s judicial nominees who had
completed their paperwork and who had the consent of both of their
home-State Senators. That is, 84 of the 92 judicial nominees with
completed files had received hearings.

When we held our most recent hearing on August 1, we had given
hearings to 66 district court nominees and we had run out of district
court nominees with completed paperwork and home-State consent. Only
two district court nominees were eligible for that hearing. This is
because the White House changed the process of allowing the ABA to
begin its evaluation prior to nomination. This change has cost the
federal judiciary the chance over the last year to have 12 to 15 more
district court nominees on the bench and hearing cases, because now the
ABA can only begin its evaluation once the nomination is submitted to
the Senate. The ABA also must wait until the Administration provides
the Senate with the nominee’s public questionnaire, and lately the
nominees’ documents have been arriving on a delayed basis, as well.
Indeed, many of the two dozen nominations most recently received will
likely not get hearings before adjournment this year in large measure
because the White House unilaterally changed the process for
consideration and has built additional delays into it.

In January I had proposed a simple procedural adjustment to allow the
ABA evaluation to begin at the same time as the FBI investigation, as
was the practice in past Republican and Democratic Administrations over
50 years. Had this proposal been accepted, I am confident there would
be more than a dozen fewer vacancies in the federal courts. Instead,
our efforts to increase cooperation with the White House have been
rebuffed. We continue to get the least cooperation from any White House
I can recall during my nearly three decades in the Senate. Yet, even
with such lack of cooperation from the White House, the Senate has set
an impressive rate of confirming judicial nominees.

[[Page S8343]]

Here is another chart that shows how Democrats have dramatically
reduced the time between nomination and confirmation of circuit court
nominees. Since the Democrats assumed the majority last July, the
average time to confirm circuit court nominees has been drastically
reduced to 147 days, from a high during the most recent years of
Republican control of 374 days. We have reduced the average time from
nomination to confirmation to two-and-a-half times less than the
average time to confirmation during Republican control during the 106th
and 105th Congresses when it took an average of 374 and 314 days,
respectively, to confirm President Clinton’s circuit court nominees.
The Judiciary Committee has reported two more circuit court nominees
favorably to the Senate. We have held hearings on 18 circuit court
nominees and the Judiciary Committee has already voted on 17 of those
18 nominees.

In spite of the obstacles the White House has put in the way of their
own nominees through their lack of consultation and cooperation, we
have been able to have a productive year while restoring fairness to
the judicial confirmation process. I regret that the White House has
chosen the strident path that it has with respect to judicial
nominations, especially to the circuit courts. As several Senators
noted last week, the Administration does not have carte blanche to
insist on an ideological takeover of the Courts of Appeals with
activist ultra-conservative nominees intended to tip the balance in
circuits around the country. The total number of district and circuit
court confirmations now stands at 74, and there remain a few weeks left
in this session. So while we have been working hard and productive, the
Judiciary Committee and the Senate have not become a rubber stamp.
I am proud of the efforts of the Senate to restore fairness to the
judicial confirmation process over this time. The Senate Judiciary
Committee is working hard to schedule hearings and votes on additional
judicial nominees, but it takes time to deal with a mess of the
magnitude we inherited. I think we have done well by the federal courts
and the American people, and we will continue to do our best to ensure
that all Americans have access to federal judges who are unbiased,
fair-minded individuals with appropriate judicial temperament and who
are committed to upholding the Constitution and following precedent.
When the President sends judicial candidates who embody these
principles, they will move quickly, but when he sends controversial
nominees whose records demonstrate that they lack these qualities and
whose records are lacking we will take the time needed to evaluate
their merits and to vote them up or down.

I would like to thank the Members of the Judiciary Committee who have
labored long and hard to evaluate the records of the individuals chosen
by this President for lifetime seats on the federal courts. The
decisions we make after reviewing their records will last well beyond
the term of this President and will affect the lives of the individuals
whose cases will be heard by these judges and maybe millions of others
affected by the precedents of these decisions of these judges.
Before anyone takes for granted how fairly Democrats have treated
this President’s judicial nominees, receiving up or down votes, they
should take a look at how poorly judicial nominees were treated during
the 6\1/2\ years of Republican control of the Senate. In all, several
dozen judicial nominees of President Clinton never received a hearing
or a vote.

When confronted with this, Republicans often lament that about 50 of
the first President Bush’s judicial nominees did not get a hearing
before the end of the session in Congress in 1992. What they
consistently fail to mention about this, however, is quite revealing.
That year, the Senate confirmed more of President George H.W. Bush’s
judicial nominees than in any year of his presidency. He had 66
judicial nominees confirmed that year, but the Senate simply could not
get to the other 53 nominees he submitted in response to the creation
of dozens of new judgeships. So, even though some of his nominees were
returned, the Senate confirmed a substantial number, 66, of his
judicial nominees in the 10 months they were in session that year,
which was an election year, by the way.

Perhaps coincidentally, 66 is the highest number of judicial
confirmations in one year that Republicans ever allowed President
Clinton to reach. They averaged 38 judicial confirmations per year. In
the last two years of the Clinton Administration, Republicans allowed
only 33 and 39 judges to be confirmed, respectively in 1999 and 2000.
President George H.W. Bush had 66 confirmations in his last year of
office, an election year. In President Clinton’s last year in office
only 39 judges were confirmed, during Republicans control. In 1996,
Republican allowed only 17 judges to be confirmed, none to the circuit
courts. In those two election years combined Republicans allowed only
56 confirmations. In 1992, an election year, Chairman Biden pushed
through 66 confirmations.

Unlike Democrats in 1992, Republicans cannot honestly claim that they
moved a substantial number through but could not get to them all.
Confirming only 39 judicial nominees in 2000 and returning more than
that, 41, in that year alone, simply does not compare with what
happened in 1992 when Democrats worked hard to move through 66 of the
first President Bush’s judicial nominees in the space of 10 months. If
66 was such an easy number to reach, why did Republicans reach that
level only once in six years of control? The answer is easy. They did
not want to do so. I think Republicans wanted to ensure that they never
treated President Clinton better than the best year of former President
Bush (his last year) and they wanted to ensure that President Clinton
did not beat President Reagan’s number of confirmations, as a matter of
partisan pride.

Had Republicans kept up the pace of confirmation set by Democrats in
the first President Bush’s last year and the first two years of the
Clinton Administration, President Clinton would have appointed
substantially more than the 377 judges who were ultimately confirmed in
his two terms as president, and the Democratic-led Senate Judiciary
Committee would not have begun last July with 110 vacancies.
Ironically, perhaps, Democrats have been so fair to President George W.
Bush, despite the past unfairness of Republicans, that if we continue
at the current pace of confirmation and vacancies continue to arise at
the same rate, then Bush will appoint 227 judges by the end of his
term. If he were elected to a second term, at the current pace, he
would amass 454 judicial confirmations, dramatically more than
President Reagan, who Senator Hatch often calls the all-time champ.
This, too, demonstrates how fair Democrats have been. Perhaps some may
say we have been foolishly fair, given how Democrats were treated in
the past. We have exceeded the pace set in 1992, 1993 and 1994, with 74
confirmations to date in little more than a year.

In fact, when we adjourned for the August recess we had given
hearings to 91 percent of this President’s judicial nominees who had
completed their paperwork and who had the consent of both of their
home-State Senators. That is, 84 of the 92 judicial nominees with
completed files had received hearings.

Any way you look at the numbers, raw numbers or percentages,
comparisons with the prior six years of Republican control or with
prior Congresses and Republican presidents, the Democrats have done
more in less time. We have been more fair by far. Yet we have been
unfairly labeled as obstructionist because we have not been able to
have hearings for every single judicial nominee in the short period we
have been in the majority. This President still has over two years left
in his term.

I withhold the remainder of my time.

The PRESIDING OFFICER. The Senator from Utah.

Mr. HATCH. Madam President, I rise today to respond to some of the
amazing assertions made by my distinguished colleague and friend from
Vermont. Of course, I do so with some trepidation because each time we
have a back and forth like this one, I help my colleague further the
impression that he is out to create and that he has done a good job of
creating, especially with the press.

The impression my colleague is seeking to create is that both sides
come to

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the table with unclean hands in the matter of confirmations. It is a
false impression and it provides a smokescreen of the stark reality of
the poor performance of the Judiciary Committee this past year and
during this session.

Naturally, my friend takes pride in his accomplishments this year,
but not all of them. Let me list a few he misses. President Reagan took
pride in nominating the first woman to the Supreme Court. My Democrat
colleagues have now presided over the “Borking” of the first woman in
history, and one of the leading women jurists in this country,
Priscilla Owen.

My colleague has also set a new record for a Judiciary Committee
chairman. He has voted in 1 year against more judicial nominees than
any chairman in the 212 years of the Republic. Moreover, most of my
Democrat colleagues on the Judiciary Committee have voted against more
judicial nominees in this last one year than I have in my 26 years on
the Judiciary Committee. I voted against only one Clinton nominee, only
one, but as painful as that was, I did it standing straight for all to
see in the disinfectant light of the Senate floor, not in the shadows
of a committee vote.

Also, in rejecting Justice Owen, my Democrat colleagues rejected for
the first time in history a nominee who has received the American Bar
Association’s unanimous rating, highest rating of well qualified, the
rating that earlier this year they announced to be the gold standard
for judicial nominees and which, of course, they now criticize because
the independent body has rated President Bush’s nominees as highly
qualified as any we have ever seen.

In other words, Priscilla Owen, who had the support of both home
State Senators, which is a requisite for consideration by the
Committee, who had the highest rating given by the American Bar
Association for a judicial nominee, who is a supreme court justice in
Texas, and who, by anybody’s measurement who is fair, is in the
mainstream of American jurisprudence, was dumped unceremoniously in the
committee by a 10-to-9 party vote, a partisan party vote at that, and
without giving her nomination the chance of being brought up on the
floor of the Senate where I believe she would have passed, if not
overwhelmingly, certainly comfortably.

I have heard my colleague from Vermont defend against that by listing
the 42 judicial nominees who did not get confirmed by the end of the
Clinton administration. He doesn’t point out that there were 54
nominees left hanging at the end of the first Bush administration when
they were in charge. And he does not explain that most, if not all, of
the nominees left hanging at the end of the Clinton administration,
however qualified, did not progress because either they were nominated
too late or did not have their home state Senators’ support or had
other problems that we cannot address.

In an attempt to cloud up the rejection of Justice Owen’s nomination,
I have also heard my colleagues point to the Clinton judges from Texas
in particular who never got a hearing. One said at the Owen hearing
that I did not give them a hearing. It was a very unfair
characterization, and I will respond to it now.

As my friend knows well enough, neither of those nominees had the
support of their home state Senators. This prevented me, and would have
prevented the distinguished Senator from Vermont, if he were in my
shoes, from scheduling a hearing for them. In part, this was because
President Clinton ignored the Texas Senators and the Texas nominating
commission in making those nominations. The practice of honoring the
home State Senators is not one I put in place; it was put in place
under Democrat leadership of the committee, and appears agreeable to
both parties.

Today, Democrat Senators from the States of North Carolina,
California, and Michigan have prevented the Judiciary Committee from
holding hearings on six of President Bush’s original Circuit Court of
Appeals nominees who were nominated a year and a half ago, some of the
greatest nominees I have seen in the whole time I have been in the
Senate and on the Judiciary Committee, now 26 years.

I know there are those who seem to justify wrong in childlike fashion
with the intellectual crutch of, “They did it, too.” Let me say that
we Republicans have never done what was done to Justice Owen. I can’t
think of anything in history that compares to that. Some Democrats have
attempted to leave the impression that Republicans have unclean hands
so as to soften the scrutiny of what was done to Justice Owen. The
American people will see through this.

But let me assure you, none of those nominees who did not get
hearings would trade places with Charles Pickering of Mississippi or
Priscilla Owen of Texas. It is beyond peradventure that they would
prefer to be ghosts of nominations past than called racists, unjustly
called racists, and have their fine records of public service soiled by
the Judiciary Committee.

I am heartened to know that beyond the overwhelming support from her
home State of Texas and scores of op-eds written across the country in
support of the Owen nomination, Justice Owen’s nomination to the Fifth
Circuit has received editorial support from over 24 newspapers
published across the Nation and across the political spectrum. I have
previously submitted these for the Record.

Prior to the vote in Committee, only three newspapers, in fact–in
New York, Los Angeles, and San Francisco–had come out firmly against
the nomination.

I am heartened by this national support not just for the sake of
Justice Owen, but because at her hearing I expressed alarm at the
efforts of some to introduce ideology into the confirmation process. I
am heartened that editorial and op-ed writers across the country
reflect not only support for Justice Owen but also the near universal
rejection of this misguided effort to make the independent Federal
judiciary a mere extension of Congress and less than the independent,
coequal branch it was intended to be.

Let me respond further to my good friend from Vermont. He is right
that in this session so far the Senate has confirmed 73 judges. There
is much eagerness in my friend’s voice asserting that this number
compares favorably to the last three sessions of Congress during which
I was chairman.

Although I am flattered to hear my record used as the benchmark for
fairness, I am afraid this does not make for a fair comparison because
I was never chairman during any of President Clinton’s first 2 years in
office.

Let me repeat that. I was never chairman of the Judiciary Committee
during any President’s first 2 years in office. I am glad to say,
therefore, that the proper comparison is not, as they say, about me.

My colleague speaks of the last 15 months when I was chairman, but
this compares apples to oranges.

During President Clinton’s first Congress, when Senator Biden was the
chairman of the Judiciary Committee, the Senate confirmed 127 judicial
nominees. And Senator Biden achieved this record despite not receiving
any nominees for the first 6 months–in fact, Senator Biden’s first
hearing was held on July 20 of that year, more than a week later than
the first hearing of this session, which occurred on July 11, 2001.
Clearly, getting started in July of year one is no barrier to the
confirmation of 127 judges by the end of year two. But we have
confirmed only 73 nominees in this session.

Senator Biden’s track record during the first President Bush’s first
two years also demonstrates how a Democrat-led Senate treated a
Republican President. Then-Chairman Biden presided over the
confirmation of all but 5 of the first President Bush’s 75 nominees in
that first two-year session. Chairman Thurmond’s record is similar. The
contrast to the present could hardly be starker.

Mr. President, we are about to close President Bush’s first 2 years
in office having failed the standards set by Chairmen Biden and
Thurmond. That is nothing over which to be proud. We still have 80
vacancies on the courts, and 32 emergency vacancies.

Mr. President, one final point about Justice Owen. Much of the
opposition against her was driven by interest groups that advocate for
the right to abortion. Yet in Justice Owen we had the first nominee we
have considered this session who has, as a judge, read those cases,
cited them, quoted them, applied them and followed them. She did,
however, interpret the new Texas parental notice law and sought in one

[[Page S8345]]

particular case to make it rarer to bypass than some of her colleagues
on the court, although the Texas Supreme Court agreed in most all other
respects.

Of course, the charge that she is a judicial activist was a cynical
trick of words from Washington special interest lobbyists who have made
their careers taking positions without letting the words of the
Constitution stand between them and their political objectives.

Why did they oppose her? Ironically enough, they are doing so because
they do not like the Texas statute requiring parental notice in cases
of abortions for children. Justice Owen voted to give the statute some
meaning. Justice Owen’s opponents think a minor should always be able
to avoid the Texas Legislature’s standards. It is the groups allied
against Justice Owen who are the judicial activists, the ones who are
looking to achieve in the courts an outcome that is at odds with the
law passed by the elected legislators.

Let’s be clear that the opposition to Justice Owen was all about abortion.

But in Justice Owen’s case, it was not that she opposed
abortion rights–no decision of hers ever denied that right.

I fear  that the opposition to Justice Owen is not about abortion rights
exactly, but something much more insidious–it was not about abortion
rights exactly but about abortion profits.

Simply put, the abortion industry is opposed to parental notice laws
because they place a hurdle between them and their clients–not the
girls who come to them, but the adult men who pay for the abortions.

These adult men, whose average age rises the younger the girl is, are
eager not to be disclosed to parents, sometimes living down the street.

At $1,000 per abortion and nearly 1 million abortions per year, the
abortion industry is as big as any corporate interest that lobbies in
Washington. They not only ignore the rights of parents to hide their
young daughters’ abortions, they also protect sexual offenders and
statutory rapists.

And who are the lobbyists for the abortion industry? Exactly the same
cast that has launched an attack on Justice Owen. One wonders, as
columnist Jeff Jacoby did in the Boston Globe, who are the extremists
on this issue, who is out of the mainstream? Not Justice Owen–82
percent of the American people favor consent and notice laws such as
Justice Owen interpreted–86 percent in Illinois.

I will say it again, while my colleagues continue in general to apply
an abortion litmus test, the assault against Justice Owen was not about
abortion rights, it was about abortion profits. It is not about a
woman’s right to an abortion, it is about assailing parental laws that
threaten the men who pay for abortions. It is whether parents should at
least know, not even consent to, but just know, when a minor child is
having an abortion paid for by an adult.

Let’s speak truth to power.

Justice Owen was picked to be opposed because she is a friend of President Bush
from Texas.

She was opposed by an axis of profits.

This axis of profits combines the money of trial
lawyers and the abortion industry to fund the Washington special
interest groups, and spreads its influence to the halls of power in
Washington and in State courts across this country.

The Opposition against Justice Owen was intended not only to have a
chilling effect for women jurists that will keep them from weighing in
on exactly the sorts of cases that most invite their participation and
their perspectives as women, but also on all judges in all State courts
who rule on cases the trial lawyers want to win and cash in on.

When my colleagues voted against her, they chose to besmirch a model
young woman from Texas, who grew up, worked hard and did all the right
things–including repeatedly answering the call of public service at
sacrifice of personal wealth and family. My Democrat colleagues voted,
in effect, against the American promise of fairness.

This is a young woman who gave up a lucrative career to give public
service on the Texas Supreme Court, and who deserves to be on the Fifth
Circuit Court of Appeals.

Such a vote should have taken place in the light of this Senate
floor, but the American people will hear of the result notwithstanding
the shadows.

I only hope the American people will repair the damage done to the
Constitution when they vote in November.

I have reviewed Mr. Marra’s distinguished career and I can say, without hesitation, that he will be an excellent addition to the
prestigious Southern District of Florida.

Mr. Marra comes to the federal bench with a unique and extremely
useful qualification: Judge Marra is a former Social Studies teacher at
Elmont Memorial High School in Elmont, New York. After teaching high
school for several years, Judge Marra inexplicably decided to change
career paths and went to law school, graduating from Stetson University
College of Law in 1977. He then went to work for the United States
Department of Justice as part of its honor law graduates program. While
at the Department of Justice, he was involved in litigation which
sought to protect the land, water and mineral rights of Native
Americans from encroachment and to regain such resources that had been
wrongfully lost over the years.

After three years with the Department of Justice, Judge Marra joined
the law firm of Wender, Murase & White of Washington, D.C., where he
was involved in patent and trademark litigation, corporate law and
litigation in the area of federal Indian law. In 1984 Judge Marra
joined the law firm of Nason, Gildan, Yeager, Gerson & White. He worked
at that firm for the next twelve years focusing on commercial
litigation and representing clients at both the trial and appellate
levels. Judge Marra gained experience in a variety of matters,
including antitrust, contracts, construction defects, condominium and
homeowner association disputes, and employment and housing
discrimination.

In 1996 Judge Marra was appointed to the Fifteenth Judicial Circuit
in Palm Beach County, Florida. He has served in the civil, family and
criminal divisions.

Judge Marra will make a fine member of the Federal bench.

I reserve the remainder of my time.

The PRESIDING OFFICER. The Senator from Vermont is recognized.

Mr. LEAHY. Madam President, I am sure it was inadvertent that when
the distinguished Senator from Utah was talking about the editorials
against the nominee, Priscilla Owen, he said there were only three
against.

I refer, for example, to the Atlanta Journal-Constitution, and I will
quote from it and then put the whole editorial in the Record.
I ask unanimous consent that articles in opposition to her be printed
in the Record.

There being no objection, the material was ordered to be printed in
the Record, as follows:

[From the New York Times, Sept. 4, 2002]

The Wrong Judge

Priscilla Owen, President Bush’s latest nominee to the
United States Court of Appeals for the Fifth Circuit, has
been at times so eager to issue conservative rulings in cases
before her on the Texas Supreme Court that she has ignored
statutory language and substituted her own views. This
criticism comes not from the “special interest groups” she
has charged with misstating her record, but from Alberto
Gonzales, President Bush’s own White House counsel.

Mr. Gonzales, who served with Justice Owen on the Texas high
court, once lambasted her dissent in an abortion case for
engaging in “unconscionable . . . judicial activism.” Mr.
Gonzales says today that he nonetheless supports the
elevation of Justice Owen. We do not.

In choosing a nominee for the Fifth Circuit–the powerful
federal appeals court for Texas, Mississippi and Louisiana–
President Bush has looked to the extreme right wing of the
legal profession. Even on Texas’ conservative Supreme Court,
Justice Owen has distinguished herself as one of the most
conservative members. A former lawyer for the oil and gas
industry, she reflexively favors manufacturers over
consumers, employers over workers and insurers over sick
people. In abortion cases Justice Owen has been resourceful
about finding reasons that, despite United States Supreme
Court holdings and Texas case law, women should be denied the
right to choose.

Justice Owen’s views are so far from the mainstream that,
on those grounds alone, the Senate should be reluctant to
confirm her. But what is particularly disturbing about her
approach to judging is, as Mr. Gonzales has identified, her
willingness to ignore that text and intent of laws that stand
in her way.

In an important age discrimination case, Justice
Owen dissented to argue that the plaintiff should have to
meet a higher standard than Texas law requires.

Justice Owen has also shown a disturbing lack of
sensitivity to judicial ethics.

She has raised large amounts of campaign contributions
from corporations and law firms, and

[[Page S8346]]

then declined to recuse herself when those contributors have
had cases before her. And as a judicial candidate, she
publicly endorsed a pro-business political action committee
that was raising money to influence the rulings of the Texas
Supreme Court.

After the Senate Judiciary Committee rejected Judge Charles
Pickering, another far-right choice, for a seat on the Fifth
Circuit earlier this year, the Bush administration declared
that it would not be intimidated into choosing more centrist
nominees. Sadly, the administration has lived up to its
threat. In this dispute the Senate is right: the
administration should stop trying to use the judiciary to
advance a political agenda that is out of step with the views
of most Americans.

Justice Owen is a choice that makes sense for Justice Department ideologues who want to turn the courts into a champion of big business, insurance companies and the religious right. But the American people deserve better. Justice Owen’s nomination should be rejected.
____

[From the Los Angeles Times, July 23, 2002]

Ideologues All in a Row

Last year President Bush eliminated the American Bar Assn.
from the process of vetting potential judicial nominees, a
role it performed ably and in a nonpartisan way for the nine
presidents before him. Now he relies on the ideological tests
of the very conservative Federalist Society.

Not surprisingly, the men and women who pass this rigid
test look remarkably alike on the bench. They often side with
business in disputes involving employee rights, consumers and
the environment. They strongly oppose abortion, and their
opinions reveal a strong streak of judicial activism dressed
up as traditional principle.

Priscilla Owen is among them. A protege of Bush confident
Karl Rove, who engineered her 1994 election to the Texas
Supreme Court, Owen is a nominee to a seat on the U.S. 5th
Circuit Court of Appeals. She comes before the Senate
Judiciary Committee today to defend a record of indifference
to the problems of most Americans.

Senators should ask her why, for example, she voted to
reverse a jury verdict in favor of a woman who had sued her
health insurance company for refusing necessary surgery to
remove her spleen and gallbladder. Her colleague on the Texas
high court, Alberto Gonzales, now Bush’s top legal advisor,
dissented, writing that Owen’s decision turned the legal
standard in that case “on its head.”

Gonzales, a solid conservative himself, also took issue
with Owen in an abortion case that should draw tough
questions from Sen. Dianne Feinstein (D-Calif.), chairwoman
of today’s hearing. Texas law allows pregnant teenagers in
some instances to seek permission from a judge to have an
abortion without their parents’ consent. Owen has staunchly
opposed such “judicial bypasses.” In one case, Gonzales,
wrote, Owen’s opinion would have “create[d] hurdles that
simply are not found in the . . . statute” and would be “an
unconscionable act of judicial activism.” in other cases,
her colleagues have accused her of “inflammatory rhetoric.”
For all this, Owen’s nomination puts Feinstein in a tough
spot. She was chairwoman last March when the Judiciary
Committee rejected Charles Pickering, another Bush pick for
the 5th Circuit. She is anxious to avoid being labeled
obstructionist. But given her repeated calls for mainstream
nominees, not to mention her long support for abortion
rights, Feinstein should vote no, and so should her
colleagues.

Although it is now one of the most conservative appellate
federal courts, the 5th Circuit has a long and honorable
history–defending civil rights during the 1960s and the
rights of asbestos workers, systematically deceived and
injured by their employers, in the 1970s. Owen would add
nothing positive to that legacy.

Americans want independent, common-sensical and capable
judges, not those whose political ideology–from either
direction–wins them a nomination. As long as Bush continues
to exclude the American Bar Assn. from the nomination
process, he should not be surprised that his choices draw
fire.
____

[From the San Antonio Express-News, July 21, 2002]

Bush Court Choice Should Be Rejected

Once competency is established, the most important
qualification for a judge is commitment to following the law
as it is written–regardless of personal philosophy.
Justice Priscilla Owen is clearly competent, but her record
demonstrates a results-oriented streak that belies
supporters’ claims that she strictly follows the law.

Because of Owen’s record as a member of the Texas Supreme
Court, the Senate Judiciary Committee should reject her
nomination to sit on the U.S. 5th Circuit Court of Appeals.
Her most infamous opinions involve cases in which minors
were seeking a legal bypass allowing them to get an abortion
without parental consent.

In those cases, she consistently landed in a small court
minority that opposes such bypasses, while a majority of her
fellow judges on an all-Republican court upheld the law as
legislators wrote it.

Former Justice Al Gonzales clearly pointed that out. In an
opinion that countered a dissent she supported, he wrote:
“To construe the Parental Notification Act so narrowly as to
eliminate bypasses, or to create hurdles that simply are not
to be found in the words of the statute, would be an
unconscionable act of judicial activism.”

Now serving as President Bush’s White House counsel,
Gonzales is defending his former state court colleague.
However, opinions she wrote in the parental consent cases
show a clear line between strict constructionist judges and
activists.

Owen, who remains on the state’s high court, is an
activist.

In recent years, judicial nomination struggles on Capitol
Hill have become a game, played by both parties, or petty
obstructionism.

The Senate should not block a judicial nominee simply
because he or she is more conservative or more liberal than
the Senate’s majority party.

It also should not engage in petty personal attacks. But
concerns about Owen go to the heart of what makes a good
judge.

When a nominee has demonstrated a propensity to spin the
law to fit philosophical beliefs, it is the Senate’s right–
and duty–to reject that nominee.

A hearing on Owen’s nomination is set for this week.

Although Owen should be rejected for a lifetime
appointment, the Democrat-controlled Senate should have given
her a hearing long ago. Bush nominated Owen on May 9, 2001.
Owen and the president were owed better treatment. Even
nominees who are destined for rejection deserve timely
consideration, and the Democrats should pick up the pace in
considering Bush’s judicial picks.

During his years as Texas governor, Bush did a masterful
job of selecting quality, moderate judges. But his decision
to nominate Owen is a disappointment.

We urge Bush to take more care in future nominations and
return to his previous policy of nominating judges who
believe in the law more than any ideological agenda.
____

[From the San Francisco Chronicle, July 23, 2002]

Feinstein’s Decisive Moment

Sen. Dianne Feinstein, D-Calif., faces a momentous
decision. Today, the Senate Judiciary Committee will hold
hearings on Priscilla Owen, the president’s candidate for a
lifetime appointment to the United States Court of Appeals
for the Fifth Circuit. With the committee divided along party
lines, Feinstein could cast the decisive vote.

When George W. Bush became president, he excoriated
judicial activism and vowed to nominate justices who
interpret the law, instead of trying to rewrite it.

Priscilla Owen simply does not satisfy the president’s own
criteria for this position. According to a report issued by
People For the American Way, a liberal advocacy group, Owen
has demonstrated a disturbing pattern of overruling the law
when it clashes with her conservative ideology.

In one case, for example, Owen’s dissenting decision would
have effectively rewritten a key Texas civil rights law by
making it more difficult for employees to prove
discrimination. Her colleagues on the bench–mostly Bush
appointees–wrote that her ruling “defies the Legislature’s
clear and express limits on our jurisdiction.”

With respect to reproductive rights, Owen advocated a far
more restrictive interpretation of the Texas law that allows
a minor to obtain an abortion without parental notification.
Her dissent prompted then-Justice Alberto Gonzales, now the
White House counsel, to write that her opinion constituted
“an unconscionable act of judicial activism.” Gonzales,
naturally, now expresses the White House party line, hailing
Owen’s integrity and ability. “I’m confident she will follow
the law as defined by the Supreme Court,” Gonzales was
quoted as saying in the San Antonio Express-News.

But close observers of her Texas record are less confident
of her objectivity. Danielle Tierney, a Planned Parenthood
spokeswoman from Texas, said Owen has “a record of active
opposition to reproductive and women’s rights.”

Owen has also tried to finesse laws that protect public
information rights, the environment, and jury findings.

The point is, Owen has created a strong record of “rewriting”
the law when it does not match her conservative convictions.

This is why it is vital that Feinstein reject this  nomination.
____

[From the Dallas Morning News, July 16, 2002]

Justice Owen: Perpetrator or Victim of Politics?

her activism has been extreme, even by texas standards

(By Craig McDonald)

Texas Supreme Court Justice Priscilla Owen, who faces a
Senate Judiciary Committee hearing Thursday on her nomination
to the 5th U.S. Circuit Court of Appeals, flunks the stated
judicial criteria of both President Bush and the Democratic
chairman of the Judiciary Committee.
Although the president nominated Justice Owen, she flunks
his own pledge to appoint “strict constructionists” who
narrowly interpret laws rather than write opinions promoting
a political agenda. “I want people on the bench who don’t
try to use their position to legislate from the bench,” Mr.
Bush has said. Yet Justice Owen’s record on the Texas Supreme
Court is one of a judicial activist who seeks to make laws
from the bench.

[[Page S8347]]

Justice Owen also flunks the criteria of Senate Judiciary
Committee Chairman Patrick Leahy, who has pledged to stop any
“ideological court packing.” Justice Owen’s record has
established her as an ideological extremist out of the
mainstream–even on the all-conservative Texas Supreme Court.

Justice Owen’s extreme opinions have mobilized a large
coalition of Texas organizations working to stop her
appointment. The groups fighting her nomination range from
the Texas chapter of the American Association of University
Women to the Women’s Health and Family Planning Association.

They include the AFL-CIO, the National Association for the
Advancement of Colored People, Planned Parenthood, the Texas
Civil Rights Project, the Texas Abortion Rights Action League
and others.

While each of those organizations has its own reasons for
opposing Justice Owen, my group–Texas for Public Justice–is
particularly troubled by the fact that she has amassed a body
of rulings that advance the agendas of the special interests
that bankrolled her judicial campaigns. Thirty-seven percent
of the $1.4 million that Justice Owen raised for her Supreme
Court campaigns came from donors with a direct stake in case
in her court.

Letting special interests bankroll judicial campaigns has shattered public confidence in Texas courts.

A 1999 Texas Supreme Court poll found that 83 percent of Texans,
79percent of Texas lawyers and 48 percent of Texas judges say
campaign contributions significantly influence judicial
decisions.

Commenting on the poll, U.S. Supreme Court Justice Anthony Kennedy said, “The law commands allegiance only if it commands respect. It commands respect only if the public thinks judges are neutral.”

Since Justice Owen joined the high court in 1995, she has
written and joined a slew of opinions that favor businesses
over consumers, defendants over plaintiffs and judges over
lawmakers and juries. A 1999 study by Austin-based Court
Watch found that individuals won just 36 present of their
cases during Justice Owen’s tenure, compared to a win rate of
66 percent for businesses, 70 percent for insurers and 86
percent for medical interests.

While all nine Texas Supreme Court justices are pro-business conservatives, Justice Owen and Nathan Hecht became an isolated bloc of extremist dissent about 1998.

Masquerading as “strict constructionists,” Justices Owen
and Hecht have promoted the interests of big business and the
far right with much less restraint than their fellow Texas
justices. That ultraconservative activism is all the more
disturbing, given that it mirrors the agenda of the top
donors to their judicial war chests.

In making lifetime appointments to federal appeals courts,
the president and the Senate can–and should–do better.

Justice Owen lacks criminal trial experience, has taken more
than $500,000 in judicial contributions from interests with
cases in her court and has produced a body of activist
opinions that are extremist–even by Texas standards.
____

[From the San Antonio Express-News, July 21, 2002]

Judge Owens Flunks Bush’s Own “Strict Constructionists” Test

(By Jan Jarboe Russell)

In a perfect world, there wouldn’t be “liberal” judges or
“conservative” judges, there would just be good judges.
After all, if you ask ordinary people what they want in a
federal judge, what they want are judges who are fair,
learned and impartial, judges who have the ability to lay
aside their own political views and do their public duty.

Why then is it so darn hard to find these kind of plain-
and-simple judges? The answer, of course, is the dreaded P
word; politics. The ongoing battle in the Senate Judiciary
Committee over the nomination of Priscilla Owen to the 5th
U.S. Circuit Court of Appeals is a perfect example of how
politics is making a certifiable mess of America’s judicial
system.

In seven years on the Texas Supreme Court, the only way
moderate-thinking people in Texas survived Owen’s relentless
ultra-conservative dissents was to toughen our stomachs and
take her many efforts to rewrite our state laws one day at a
time. This is a woman who has consistently ruled against
consumers, has routinely overturned decisions of juries, has
curtailed access to public records, and by anyone’s measure
is an avid anti-abortion ideologue.

Mind you: the Texas Supreme Court is no bastion of
liberalism. The nine members of the court are 100 percent
pedigree Republican, but Owen was such a right-wing activist
she managed to earn the nickname “Justice Enron” for
accepting $8,600 in Enron campaign funds in one year–$1,000
of it from Kenneth Lay himself–and turning around the next
and writing an opinion that saved Enron $225,000 in school
taxes.

As one of only nine states in the nation with the sorry
system of electing our judges with expensive campaigns paid
for by the very lawyers and businesses that come before these
judges for justice, Texas gets exactly the kind of justice we
deserve. In the case just mentioned, for example, Enron paid
for the privilege of robbing the public school children of
Spring, a Houston suburb, of their rightful share of taxes.

I don’t expect President Bush to nominate judges to the
federal bench with whom I agree politically. But I do expect
Bush to nominate people to lifetime positions on the federal
bench who meet Bush’s own standards of “strict
constructionists,” judges who will interpret rather than
write the law. Owen fails the Bush test.

In no less than a dozen cases in which the Texas Supreme
Court was asked to allow a pregnant teenager to bypass the
state’s parental notification requirement and have an
abortion, Owen voted every time to deny the bypass and
created hurdles that were not written in the state’s law. In
one case, when lawyers for a high school senior requested
that the court act quickly on the girl’s request for
permission to bypass the notification requirement, Owen wrote
a dissent that asked: “Why then the rush to judgment?” The
girl was in the 15th week of pregnancy at the time.

Owen’s rulings in these abortion notification cases were so
strident that Alberto Gonzales, now Bush’s White House
counsel but then a member of the Texas Supreme Court, wrote
in a majority opinion that Owen and two other dissenting
justices were thwarting the clear intent of the law. To
accept their reasoning, he wrote, “would be an
unconscionable act of judicial activism.”

Gonzales finds himself in the role of reluctant cheerleader
for Owen. In a telephone interview from his office in the
West Wing the other day, Gonzales claimed that he never
accused Owen of judicial activism and believes she would be
an excellent judge. His opinion has written in black-and-
white only two years ago–he clearly called her dissent an
“unconscionable act of judicial activism”–but maybe in his
struggle to find the gray, Gonzales meant that he thought all
of three of the judges were unconscionable. Who knows?

Politics makes people parse words very carefully.

Owen’s political credentials are indeed impressive. She is
a protege of Karl Rove, the president’s political adviser,
and it is Rove who is pushing her judicial nomination. But
politics should not be the primary measure of a judge’s
ability to administer justice.

As much as it pains me to say it, Justice Enron should stay
put in Texas.
____

[From the Houston Chronicle, July 31, 2002]

DiFi, Owen Would Be Very Odd Couple

(By Cragg Hines)

Sen. Dianne Feinstein, a wonderfully calm, cool
Californian, loves to be the swing vote. It increases the
sense that she is unbought and unbossed, and it makes her
political currency slightly more valuable than that of
colleagues who fall predictably one way or another on an
issue.

Part of this is political tromp l’oeil, an illusion so
strong that it’s difficult to tell it’s not genuine. For,
when the roll is called, only rarely is Feinstein not
reliably found where she sought to be–in her regular center-
left Democratic pew.

Which brings us to the nomination of Justice Priscilla Owen
of the Texas Supreme Court to be a judge on the 5th U.S.
Circuit Court of Appeals, a place where the conservative
judicial activist, corporate suck-up and made member (blood
oath?) of the Federalist Society has no earthly place being.

Feinstein ran last week’s hearing by the Senate Judiciary
Committee on Owen’s nomination and said she was “keeping an
open mind” regarding President Bush’s determination to give
Owen lifetime employment. (For the forgetful: Bush and Owen
both got their start in statewide politics as clients of the
White House political high priest, Karl Rove.)

Feinstein’s self-advertised “open mind” is about the only
hope for supporters of Owen. The Judiciary Committee’s nine
Republicans need one of the panel’s 10 Democrats to vote with
them to get the nomination to the floor.

If the nomination is not cleared by the committee, it’s
dead. None of this sending it to the floor without a
recommendation in a Senate with a one-vote Democratic margin
and run by Majority Leader Tom Daschle, D-S.D.

(Owen opponents would still like to hear something definitive from two other Demoracts–Sen. Joseph R. Biden, Jr. of Delaware, who did not show up for last week’s hearing, and the enigmatic gentleman from Wisconsin, Sen. Russell D. Feingold–but the focus is on Feinstein.)

Owen’s opponents believe that Feinstein will eventually
vote against the Texas jurist, but they cannot be absolutely
certain. Feinstein is not about to help them divine the
oracle at the moment.

“I’ve been giving it a great deal of thought,” Feinstein
said this week as the Senate headed toward summer recess.

“I’m not going to let my decision be known, but at an
appropriate time, I will.

“What I’ve said, and I’ve taken this position, I think,
rather scrupulously, is that I don’t make up my mind until
after the hearing.”

There was little in the hearing that should lead Feinstein,
or any senator, to believe that Owen is anything but the very
bright, very ideological, very driven hard-right jurist
revealed in her work over the last seven years on Texas’
highest civil court.

Finally, Sen. Richard J. Durbin, D-Ill, asked Owen directly
about her position on abortion.

“My position is that Roe v. Wade has been the law of the land for many, many years . . . ,”

Owen said, noting that decision had been modified
(and made more restrictive bysubsequent rulings).

“None of my personal beliefs would get
in the way of me applying that law or any other law.”

[[Page S8348]]

But Owen’s record, in a series of recent abortion-related
cases, suggests otherwise. In all but one of the cases, Owen
sought to tweak and torture the Texas law to something not
intended by the Legislature.

Feinstein was listening to all of this and, one assumes,
took it on board. In case she didn’t, an editorial in The Los
Angeles Times the morning of the hearing should have helped:

The work of Owen and similarly situated conservative jurists “reveal(s) a strong streak of judicial activism dressed up as traditional principle.”

The home state newspaper parsed Feinstein’s situation: She
also chaired the hearings earlier this year in which the
Judiciary Committee rejected Bush’s nomination of Charles
Pickering of Mississippi for a seat on the 5th Circuit Court.

“She is anxious to avoid being labeled obstructionist,”
The Times said of Feinstein. “But given the repeated calls
for mainstream nominees, not to mention her long support of
abortion rights, Feinstein should vote no, and so should her
colleagues.” Feinstein said she weighs such opinion but that
it is not dispositive.

One piece of baggage Feinstein would like to discard in the Owen matter is that her vote will have anything to do with a business relationship that the senator’s husband, Richard C. Blum, has with Dr. James Leininger of San Antonio, a generous supporter of Owen’s judicial campaign.

“I’ve never met (Leininger), talked with him, seen him,
heard from him–and that’s that,” Feinstein said. Nor, she
said, “have I ever talked to my husband about this, nor has
he ever talked to me about it.”

So Feinstein should be able to vote against Owen with a
clear conscience.

Mr. LEAHY. In part, this article says:

Senate Judiciary Committee Chairman Patrick Leahy has held
hearings on 82 Bush judicial nominations, 80 of which have
been approved by the committee. Most of those nominees have
been pro-life conservatives whose performance on the bench
the committee still judged to be fair and professional. For
example, last week the committee unanimously reported on
President Bush’s choice of Federal District Judge Reena Raggi
of New York for the U.S. Circuit Court of Appeals for the
Second Circuit.

Parenthetically, I might add that Judge Raggi was originally
appointed by President Ronald Reagan, a conservative Republican who
promised to appoint only judges who satisfied his litmus test.

The American people appreciate balanced judging, and thanks
to the Senate Judiciary Committee, they’re getting it.

I ask unanimous consent that the editorial be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

Through constant repetition, conservatives have managed to
make a code phrase out of “judicial activism,” applying it
to rulings that in their mind go beyond the words in
legislation or the U.S. Constitution. But conservatives
themselves are hardly immune from the problem.

Case in point: Texas Supreme Court Justice Priscilla Owen, rejected last week for the 5th U.S. Circuit Court of Appeals by the Senate Judiciary Committee because of her record of making law from the bench. The committee made the right decision for the American people.

Owen’s activist judging has gone so far beyond the statutes
enacted by the Texas Legislature that she was even criticized
by fellow conservatives on the state Supreme Court, including
Alberto Gonzales, who is now Bush’s White House counsel.

On abortion, age and employment discrimination, insurance
and tax matters, the former corporate oil lawyer repeatedly
embellished the plain language of the law to rewrite it to
conform with her own ideological views. She also found ways
to side consistently with corporations, including Enron,
which contributed generously to her Supreme Court election
campaign.

President Bush has accused the Senate Judiciary Committee
of blind partisanship, but the facts don’t bear that out. In
less than two years, the Democratic-controlled committee has
approved more Bush nominees for the federal bench than the
Republican-controlled Senate Committee did in six years with
President Clinton.

Senate Judiciary Chairman Patrick Leahy (D-Vt.) has held
hearings on 82 Bush judicial nominations, 80 of which have
been approved by the committee. Most of those nominees have
been pro-life conservatives whose performance on the bench
the committee still judged to be fair and professional. For
example, last week the committee unanimously confirmed Bush’s
choice of Federal District Judge Reena Raggi of New York for
the 2nd U.S. Circuit Court of Appeals.

Nevertheless, Bush lashed out angrily at the Owen defeat:
“I don’t appreciate it one bit, and neither do the American
people.”

Quite the contrary, Mr. President. The American people
appreciate balanced judging, and thanks to the Senate
Judiciary Committee, they’re getting it.

Mr. LEAHY. Madam President, I ask unanimous consent for 1 more
minute, with another minute to be given to the Senator from Utah.

Mr. REID. Will the Senator yield?

Mr. LEAHY. Yes.

Mr. REID. I was going to go into a quorum call for 5 or 6 minutes
anyway. If the Senators would like 3 more minutes each or something,
that is fine. Otherwise, I will go into a quorum call.

Mr. LEAHY. Madam President, I ask unanimous consent for that time.

The PRESIDING OFFICER. Without objection, it is so ordered.

Mr. LEAHY. Madam President, there was a suggestion made–I am sure
inadvertent–by the distinguished Senator from Utah that it was
unprecedented to see a nominee with a well-qualified rating be voted
against. Actually, the Senator from Utah has voted against such a
person, like Judge Rosemary Barkett of Florida, as have a number of
others. But then there were a whole lot of others who we can say were
not voted against? Why? Because they were never allowed to have a vote
during Republican control of the Senate.

This is a partial list of nominees who never had a vote, but they had
the highest rating possible: H. Alston Johnson from the Fifth Circuit
was never given a hearing by the Republicans; James Duffy from the
Ninth Circuit was never given a hearing; Kathleen McCree Lewis from the
Sixth Circuit was never given a hearing or a vote; Judge James Lyons,
from the Tenth Circuit, was never given a vote or a hearing; Allen
Snyder, from DC, had a hearing but no vote; Judge Robert Cindrich, from
the Third Circuit, was never given a hearing or a vote; Judge Stephen
Orlofsky, from the Third Circuit, was never given a hearing or a vote;
Judge Andre Davis, from the Fourth Circuit, was never given a hearing
or a vote; and Enrique Moreno, of the Fifth Circuit, was never given a
hearing and never given a vote.

These are people with the highest possible rating from the ABA.
Republicans can say they never voted against them. Why? Because they
were never brought up and never given a vote. If they had been given a
vote, they would have known where they stood.

My good friend from Utah, perhaps inadvertently, thought I was
comparing a time when he was not chairman. I do compare a time when he
was chairman. I will take the first 15 months that he was chairman with
a Democratic President.

The Democratic President nominees got 14 hearings in 15 months; the
Republican President nominees, under my chairmanship, got 23 hearings.
Nominees who received hearings under Republicans were 67; under the
Democrats with a Republican President, 84.

Nominees confirmed, 56; in the same period of time, it was 74 with
us.

Nominees voted on in committee: They allowed 61 during that 15
months. We have had votes on 82 of this President’s judicial nominees.
It is nice to say nominations are not being handled fairly. The fact
is, if we used the Republican precedent as a mark of fairness, we would
not have to do anything else for the rest of the year because we are
way beyond what they did.

I reserve the remainder of my time.

Mr. HATCH. Madam President, how much time remains on each side?

The PRESIDING OFFICER. The Senator from Utah has 4 minutes 5 seconds.

Mr. HATCH. How much on each side?

The PRESIDING OFFICER. The Senator from Vermont has 7 seconds.

Mr. HATCH. Madam President, again, the Senator from Vermont and I are
friends, but I totally disagree with what he has been saying. It is a
smoke screen.

Allow me to address the fate of nominees first sent up by the first
President Bush. In fact, some pending today without a hearing who were
nominated by the first President Bush nearly 10 years ago.

These are nominees still on the list after 10 years that the Democrats have not
allowed to come up:

Terrence Boyle for the Fourth Circuit and John Roberts for the DC Circuit,

considered one of the two or three greatest appellate lawyers in the country
before the Supreme Court; Henry Saad for the Sixth Circuit; Ronald Leighton
for the Western District of Washington; and Richard Dorr for the Western District
of Missouri.

All five of these nominees were nominated by the first President Bush,
better than 10 years ago, but never received committee action at that
time. I hope they, too, will soon

[[Page S8349]]

receive their long-awaited hearings and confirmation votes.
By the way, there were 42 left over at the end of the Clinton
administration. Nine of them were put up so late, there was no way
anybody could have gotten them through. That brings us down to 33, and
of the 33, there were others who did not have the support of both home-
State Senators. There were those who, for one reason or another, could
not make it.

Contrast that when Bush 1 left office and the Democrats were in
control. There were 54 left over. That is 11 more than were left when
President Clinton left office.

If you want to talk statistics, I can talk them all day long, and I
can tell you we have been much more fair than what we have seen in the
first 2 years of the Bush 2 administration.

I suggest that instead of spending our time talking about the same
small handful of Clinton nominees, we should focus on the ones pending
before us today who never saw the light of day the last time the
Democrats controlled the Senate.

Justice Owen, for instance–and this is an important point–is
literally the first one in history who had the support of both-home
State Senators, the highest rating of the American Bar Association, and
was voted down in committee and not even given a chance to have a vote
on the Senate floor.

Currently, there are 80 empty seats on the Federal judiciary. That is
a 9.3-percent vacancy rate, one of the highest in modern times. This
means that 9.3 percent of all Federal courtrooms are presided over by
an empty chair.

There are currently 21 nominees who are slated to fill positions
which have been declared judicial emergencies by the Administrative
Office of the Courts. Of those, 11 are Circuit Court of Appeals
nominees.

Only 5 of President Bush’s first 11 circuit court nominees nominated
on May 9, 2001–a year and a half ago almost–have had hearings. In
other words, the Judiciary Committee has taken no action whatsoever on
nearly half of the circuit court nominations that have been pending for
over 16 months.

There is no reason for this other than stall tactics. All of these
nominees received qualified or well-qualified ratings from the American
Bar Association.

There were 31 vacancies in the Federal courts of appeals on May 9,
2001, and there are 28 today. The Senate Democrats are trying to create
an illusion of movement by creating great media attention and
controversy concerning a small handful of nominees in order to make it
look like progress. But we are not making any progress in filling
circuit vacancies.

President Bush has responded to the vacancy crisis in the appellate
courts by nominating a total of 32 top-notch men and women to these
posts–but the Senate is simply stalling them. Over the past year, the
Senate has confirmed only 13. There are still 19 Circuit Court nominees
pending in Committee. By comparison, at the end of President Clinton’s
second year in office, we had confirmed 19 circuit judges and had 15
circuit court vacancies.

There were only two Circuit Court nominees left pending in committee
at the end of President Clinton’s first year in office. In contrast,
there were 23 of President Bush’s Circuit Court nominees pending in
Committee at the end of last year.

Some try to blame the Republicans for the vacancy crisis, but that is
bunk. At the end of the 106th Congress when I was chairman, we had 67
vacancies in the Federal judiciary. During the past 9 months, the
vacancy rate has been hovering right around 100. Today is at 80.
Some think that the point of “advise and consent” is to match
statistics from previous years. This rear-view-mirror driving is
nonsense. The Senate has a duty to exercise its advice and consent, and
it has done so on only 40 percent of President Bush’s appellate court
nominations so far this Congress. The question is not: How many judges
should we let President Bush have? The question is: Is the Senate
getting its work done?

The Sixth Circuit Court of Appeals, which encompasses the states of
Michigan, Ohio, Kentucky and Tennessee, has only 8 of 16 seats filled,
leaving that court half-empty. The President has nominated 8
individuals to fill these vacancies, but only two have received a
hearing, despite the fact that two of these nominees have been pending
since May 9, 2001.

The U.S. Court of Appeals for the District of Columbia is also
functioning far below its normal capacity, with 4 out of 12 authorized
judgeships currently vacant. Although the President nominated Miguel
Estrada and John Roberts on May 9, 2001, to fill seats on this Court,
they have not yet been given a hearing.

The PRESIDING OFFICER. The Senator’s time has expired.

Mr. LEAHY. Madam President, last year when the Republicans controlled
the Senate Judiciary Committee, they did not hold one hearing on
President Bush’s nominees. We have done 82.

Mr. GRAHAM. Mr. President, I would like to thank the Judiciary
Committee for recognizing the needs of Florida and favorably reporting
the nomination of Judge Kenneth A. Marra.

Ken Marra, a skilled and respected Judge in Florida’s Fifteenth
Circuit, has been nominated to serve as a Federal judge in the busy
Southern District of Florida. If confirmed, he will fill a newly
created and much needed judgeship position.

Judge Marra’s solid qualifications make him an ideal candidate for
service on the Federal bench. A circuit judge since 1996, he currently
serves in the Palm Beach County Court’s civil, family and criminal
divisions. Before his tenure as a circuit judge, Judge Marra spent 16
years practicing commercial litigation in Palm Beach County and
Washington, DC. He also served as a trial attorney with the United
States Department of Justice.

Judge Marra is a graduate of the State University of New York at
Stony Brook and earned his law degree from the Stetson University
College of Law in 1977. Before attending law school, the judge taught
social studies to high school students in New York.

The strength of Judge Marra’s nomination is evident from the strong
support that he has earned from his local bar.

When asked to comment on his nomination for a January 4 Palm Beach Post
article, Amy Smith,president of the Palm Beach County Bar Association, said,

“He is an absolutely perfect choice: impeccable background, extremely intelligent, consistently one of the highest rated judges in the judicial evaluations done here.”

Ms. Smith said;

Marra’s judicial demeanor “is gracious and humble. The President couldn’t have made a better choice.”

When the Palm Beach County Bar Association released its biennial
survey of circuit and county judges earlier this spring,

Judge Marra ranked the highest in the neutrality and fairness category, with 63 percent of the attorneys rating him as “outstanding.”

In Florida, Judge Marra submitted his application to a judicial
nominating committee comprised of a diverse group of Floridians, who in
turn recommended three candidates to the President for consideration.
Senator Bill Nelson and I interviewed these candidates.

In summary, Mr. Marra is an intelligent, well-respected, and
qualified candidate for the Federal bench.

I appreciate the Senate’s consideration of Judge Marra’s nomination
and look forward to working with my colleagues to confirm additional
nominees to Florida’s Southern and Middle Districts, two of the largest
and busiest judicial districts in the country.

The PRESIDING OFFICER. All time has expired.

The PRESIDING OFFICER. The question is, Will the Senate advise and
consent to the nomination of Kenneth A. Marra, of Florida, to be United
States District Judge for the Southern District of Florida? The yeas
and nays have been ordered. The clerk will call the roll.

The bill clerk called the roll.

Mr. REID. I announce that the Senator from Hawaii (Mr. Akaka), the
Senator from Illinois (Mr. Durbin), the Senator from Iowa (Mr. Harkin),
the Senator from Connecticut (Mr. Lieberman), the Senator from Maryland
(Ms. Mikulski), the Senator from Washington (Mrs. Murray), are
necessarily absent.

Mr. NICKLES. I announce that the Senator from Colorado (Mr. Allard),
the Senator from Missouri (Mr. Bond), the Senator from Kentucky (Mr.
Bunning), the Senator from Colorado

[[Page S8350]]

(Mr. Campbell), the Senator from New Hampshire (Mr. Gregg), the Senator
from North Carolina (Mr. Helms), the Senator from Arkansas (Mr.
Hutchinson), the Senator from Pennsylvania (Mr. Santorum), the Senator
from Alabama (Mr. Sessions), the Senator from Alabama (Mr. Shelby), the
Senator from New Hampshire (Mr. Smith), the Senator from Pennsylvania
(Mr. Specter), are necessarily absent.

The PRESIDING OFFICER (Mr. Nelson of Florida).

Are there any other Senators in the chamber desiring to vote?

The result was announced–yeas 82, nays 0, as follows:

[Rollcall Vote No. 211 Ex.]

YEAS–82

Allen
Baucus
Bayh
Bennett
Biden
Bingaman
Boxer
Breaux
Brownback
Burns
Byrd
Cantwell
Carnahan
Carper
Chafee
Cleland
Clinton
Cochran
Collins
Conrad
Corzine
Craig
Crapo
Daschle
Dayton
DeWine
Dodd
Domenici
Dorgan
Edwards
Ensign
Enzi
Feingold
Feinstein
Fitzgerald
Frist
Graham
Gramm
Grassley
Hagel
Hatch
Hollings
Hutchison
Inhofe
Inouye
Jeffords
Johnson
Kennedy
Kerry
Kohl
Kyl
Landrieu
Leahy
Levin
Lincoln
Lott
Lugar
McCain
McConnell
Miller
Murkowski
Nelson (FL)
Nelson (NE)
Nickles
Reed
Reid
Roberts
Rockefeller
Sarbanes
Schumer
Smith (OR)
Snowe
Stabenow
Stevens
Thomas
Thompson
Thurmond
Torricelli
Voinovich
Warner
Wellstone
Wyden

NOT VOTING–18

Akaka
Allard
Bond
Bunning
Campbell
Durbin
Gregg
Harkin
Helms
Hutchinson
Lieberman
Mikulski
Murray
Santorum
Sessions
Shelby
Smith (NH)
Specter

The nomination was confirmed.

Mr. REID. I move to reconsider the vote.

Mr. LEAHY. I move to lay that motion on the table.
The motion to lay on the table was agreed to.

The PRESIDING OFFICER. Under the previous order, the President will
be notified of the Senate’s action.

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Appellate Judges

The Eleventh Circuit Issues Another Glossed Opinion to Dismiss a Pro Se Lawyer’s Appeal

All motions under Rule 60(b) OTHER THAN those based on Rule 60(b)(4) must be made within a reasonable time.

Published

on

Henry v. City of Mount Dora, No. 21-14120 (11th Cir. Sep. 16, 2022)

REPUBLISHED BY LIT: SEP 17, 2022

Before LUCK, LAGOA, and ANDERSON, Circuit Judges. PER CURIAM:

Marie Henry, proceeding pro se, appeals the district court’s denial of her Federal Rule of Civil Procedure 60(b)(4), (d)(3) motion seeking relief from the court’s order dismissing her federal claims raised pursuant to several federal statutes, and remanding to state court her state law claims raised pursuant to Florida state law.

After filing an ethics complaint against one of the defendants and a pro se motion to disqualify a judge in a predatory lending case, Henry was referred to a Florida Bar grievance committee on two counts of misconduct and, after disciplinary proceedings that she challenged as defective, she was suspended for 6 months.

She originally filed her complaint in Florida state court, but the Florida Bar removed her case to the United States District Court for the Middle District of Florida.

On appeal, she argues, first, that the district court erred by denying her Rule 60 motion as untimely.

Second, she contends that the court abridged her due process right to an impartial tribunal, notice, and an opportunity to be heard by dismissing her federal claims where the defendants did not unanimously consent to removal, the court judicially noticed facts without a hearing, and the judge was a member of an adverse party.

Third, she asserts that the court erred by failing to analyze fraud on the court.

Finally, she argues that the court’s denial of an extension to file objections to a magistrate judge’s report and recommendation violated 28 U.S.C. § 2072.

I.

LIT OBJECTS TO THE PANEL SUMMARY, WHICH DOES NOT PROVIDE DATES FOR THE FLORIDA BAR SUSPENSION, WHICH WAS IN MARCH 2015 , AND GLOSSES OVER THE FACT IT TOOK THE BAR YEARS TO PROSECUTE AND REACH ITS FINAL DISPOSITION.

We review de novo the denial of a motion to set aside a judg-ment for voidness under Rule 60(b)(4).

Stansell v. Revolutionary Armed Forces of Colom., 771 F.3d 713, 736 (11th Cir. 2014).

Motions pursuant to Rule 60(b)(4) are not subject to a reasonable timeliness requirement or a typical laches analysis.

Id. at 737-38.

But “Rule 60(b)(4) does not provide a license for litigants to sleep on their rights.”

United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 275 (2010).

When considering whether a movant slept on her rights, we have noted that subject matter jurisdiction cannot be waived and have addressed the merits of the movant’s jurisdictional argument.

See Stansell, 771 F.3d at 737

(holding that movant waived “his right to object to any defects in the service of process or to any denial of his right to be heard” because he “sat on his rights for nine months” but addressing alleged jurisdiction issues).

We may affirm for any reason supported by the record.

Bircoll v. Miami-Dade Cnty., 480 F.3d 1072, 1088 n.21 (11th Cir. 2007).

Here, the district court applied a reasonable time requirement to Henry’s Rule 60(b)(4) motion, but that requirement was inappropriate.

See Stansell, 771 F.3d at 737.

However, Henry sat on her rights by waiting more than 2 years to file her Rule 60(b)(4) motion.

See id. at 737-38.

Thus, we affirm the district court as to any issues raised by Henry that do not relate to subject matter jurisdiction because she slept on her rights for over two years.

Bircoll, 480 F.3d at 1088 n.21.

Like in Stansell, however, we next consider Henry’s arguments that the district court lacked subject matter jurisdiction.

See Stansell, 771 F.3d at 737.

LIT DISAGREES WITH THE PANEL OPINION WHICH CONTRADICTS ITSELF AND THIS COURT’s OWN RULINGS TO RELY UPON A SCOTUS BANKRUPTCY CASE, WHICH IS INAPPOSITE TO THE FACTS HERE.

FURTHERMORE, THE CITE, WHEN READ FULLY, IS NOT ABOUT DELAY IN APPEALING AT ALL:

“United had actual notice of the filing of Espinosa’s plan, its contents, and the Bankruptcy Court’s subsequent confirmation of the plan. In addition, United filed a proof of claim regarding Espinosa’s student loan debt, thereby submitting itself to the Bankruptcy Court’s jurisdiction with respect to that claim…. United therefore forfeited its arguments regarding the validity of service or the adequacy of the Bankruptcy Court’s procedures by failing to raise a timely objection in that court.

United Student Aid Funds v. Espinosa, 559 U.S. 260, 275 (2010)

—————

Before HULL, MARCUS and WILSON, Circuit Judges.:

“All motions under Rule 60(b) other than those based on Rule 60(b)(4) must be made within a reasonable time. See Fed. R. Civ. P. 60(c). ” Sec. & Exch. Comm’n v. J&J Mgmt. Consulting, No. 15-14628, at *4 (11th Cir. Oct. 3, 2016)

II.

Federal Rule of Civil Procedure 60(b)(4) provides relief from a final judgment or order if the judgment is void.

Fed. R. Civ. P. 60(b)(4).

A judgment is not void under Rule 60(b)(4) merely because it was erroneous.

Espinosa, 559 U.S. at 270.

Generally, it is void solely if it is premised on a jurisdictional error depriving the court of even arguable jurisdiction or on a due process violation that deprived a party of notice or the opportunity to be heard.

See id. at 271.

Federal courts always have jurisdiction to determine their own jurisdiction.

In re Nica Holdings, Inc., 810 F.3d 781, 789 (11th Cir. 2015).

The Rooker-Feldman1 doctrine is a narrow jurisdictional doctrine concerning a court’s subject matter jurisdiction that bars parties who lose a case in state court from appealing their loss in a federal district court.

Behr v. Campbell, 8 F.4th 1206, 1208 (11th Cir. 2021);

Alvarez v. Att’y Gen for Fla., 679 F.3d 1257, 1264 (11th Cir. 2012).

Neither res judicata nor the requirement that all defendants consent to removal is jurisdictional.

See Narey v. Dean, 32 F.3d 1521, 1524-25 (11th Cir. 1994);

In re Bethesda Mem’l Hosp., Inc., 123 F.3d 1407, 1410 n.2 (11th Cir. 1997).

An appellant abandons any argument not briefed before us, made in passing, or raised briefly without supporting arguments or authority.

Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004);

Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014).

We can consider sua sponte an abandoned issue if a forfeiture exception applies and extraordinary circumstances warrant review.

United States v. Campbell, 26 F.4th 860, 873 (11th Cir. 2022) (en banc), petition for cert. filed (U.S. May 17, 2022) (No. 21-1468).

Here, Henry was not entitled to relief pursuant to her Rule 60(b)(4) motion because she did not identify any jurisdictional defect depriving the district court of arguable jurisdiction.

See Espinosa, 559 U.S. at 271.

The requirement that all defendants consent to removal is not jurisdictional.

See In re Bethesda Mem’l Hosp., Inc., 123 F.3d at 1410 n.2.

Res judicata is not jurisdictional either.

Narey, 32 F.3d at 1524–25.

Moreover, to the extent Henry argues that the district court erred by concluding the Rooker-Feldman doctrine applied, that is an argument over which the court had jurisdiction because a court always has jurisdiction to determine its own jurisdiction.

See In re Nica Holdings, Inc., 810 F.3d at 789.

Moreover, Henry points to no error in the district court’s application of the doctrine, nor to any other possible jurisdictional problem that might have deprived the district court of arguable jurisdiction.

Thus, we affirm the district court’s denial of Henry’s Rule 60(b)(4) motion.

1 Rooker v. Fid. Tr. Co., 263 U.S. 413 (1923); D.C. Court of Appeals v. Feld- man, 460 U.S. 462 (1983).

III.

We review a district court’s denial of a Rule 60(d)(3) motion for relief from a judgment due to the opposing party’s fraud on the court for abuse of discretion.

See Cox Nuclear Pharm., Inc. v. CTI, Inc., 478 F.3d 1303, 1314 (11th Cir. 2007) (Rule 60(b)(3) motion).

Rule 60 does not limit a court’s power to set aside a judgment for fraud on the court.

Fed. R. Civ. P 60(d)(3).

A movant must prove fraud on the court with clear and convincing evidence.

See Booker v. Dugger, 825 F.2d 281, 283-84 (11th Cir. 1987)

(appealing denial of Rule 60(b) motion after denial of § 2254 petition).

Fraud on the court is limited to exceptional conduct like bribery or evidence falsification involving an attorney.

Rozier v. Ford Motor Co., 573 F.2d 1332, 1338 (5th Cir. 1978) (prior version of Rule 60).

We have held that, in independent actions challenging a judgment for fraud on the court, the alleged fraud must not have been raised in the original litigation, and it must not have been possible for the complaining party to raise the issue through reasonable diligence.

See Travelers Indem. Co. v. Gore, 761 F.2d 1549, 1552 (11th Cir. 1985).

Here, the district court addressed fraud on the court, and it correctly found that Henry failed to show sufficiently egregious conduct.

The conduct Henry points to on appeal, even if true, does not fall within the category of egregious conduct that can constitute fraud on the court, but instead amounts to, at most, arguably erroneous legal arguments, or conduct that occurred before she filed her complaint, neither of which come close to the necessary showing of fraud on the court.

See Rozier, 573 F.2d at 1338.

Furthermore, she does not challenge any conduct that was not raised before her Rule 60 motion or that she could not have raised through reasonable diligence.

See Travelers Indem. Co., 761 F.2d at 1552;

Bircoll, 480 F.3d at 1088 n.21.

Thus, we affirm the denial of her Rule 60(d)(3) motion.

LIT OBJECTS TO THE PANEL SUMMARY, WHICH DOES NOT PROVIDE THE ‘CONDUCT’ AT ISSUE, AND BLANKS HENRY’S ARGUMENTS.

IV.

We review a district court’s denial of a motion for extension of time for abuse of discretion.

See Lizarazo v. Miami-Dade Corr. & Rehab. Dep’t, 878 F.3d 1008, 1010-11 (11th Cir. 2017)

(extension of time to file motion for substitution).

A request for an extension should be granted if good cause is shown. Fed. R. Civ. P. 6(b).

Here, Henry arguably has shown good cause for an extension in her motion for an extension to file objections to the magistrate judge’s report and recommendation concerning her Rule 60 motion because she asserted that she did not receive the report and recommendation until after the time for her to file objections had passed and she had been occupied caring for a family member.

We assume arguendo that she showed good cause for an extension.

However, the consequence for failing to object to the magistrate’s report and recommendation is waiver of the right to challenge those issues on appeal.

11th Cir. R. 3-1.

Because we have reviewed Henry’s arguments as if she had not waived them for failing to object, we affirm the denial of her motion for the reasons discussed above.

See R. 3-1; Fed. R. Civ. P. 6(b).

AFFIRMED.

LIT OBJECTS TO THE SCANT LEGAL ANALYSIS OF THE ‘CONSEQUENCE FOR  FAILING TO OBJECT TO THE MAGISTRATE REPORT’.

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Continue Reading

Appellate Circuit

Constance Daniels, Student of Hard Knocks, Admonished Florida Lawyer and Friend of The Eleventh Circuit

LIF cannot comprehend how the People of Florida and the United States of America are so accepting of Brazen Corruption.

Published

on

LIF UPDATE

OCT 26, 2022

Five months after the 11th Circuit saved a colleague and lawyer from foreclosure, the mandate issued (without en banc hearing) and as instructed (reversed and remanded) the lower court has reopened the case.

LIT will be tracking this case closely, stay tuned.

LIF COMMENTARY

The article below starts with Constance Daniels failure to pay for her law school tuition loan issued in 2003. She defaulted in 2005 per the complaint. The USA won a judgment of $164k+ in 2011.

In 2010, Wells Fargo commenced foreclosure proceedings in state court, Hillsborough County.

While all this was going on, Ms Daniels, a Republican, was attempting to become a State judge in 2014, which failed.

In late November of 2017 a settlement was reached, dismissing the Wells Fargo foreclosure complaint.

In 2017-2018, lawyer Daniels was failing to look after her client(s). Many moons later, in 2021, that would result in a slap on the wrist by the referee, Hon. Daniel D. Diskey for Fl. Bar.

Then we move onto the June 2018 complaint, filed by Daniels against the mortgage servicer. It was removed to the lower court in Middle District  of Florida Federal Court.

The court, via one of the Moody clan of judges, sided with Select Portfolio Servicing, LLC and this formed the appeal which was decided this week by the 11th Circuit.

In Nov. 2020, Wells Fargo filed a renewed foreclosure complaint against Daniels and her homestead in State court. In Sept 2021, Wells Fargo voluntarily dismissed the case and terminated the lis pendens ‘due to loan modification’.

The issue for LIF in this case is quite clear. Who the 11th Circuit has chosen to upend it’s prior stance that mortgage servicers can do no wrong under the FDCPA, despite irrefutable facts confirming otherwise.

For example, LIF refers to the case we highlighted regarding a deficiency judgment (State case, March 2022):

Florida Lawyer Stephanie Schneider Appeals a Mortgage Foreclosure Deficiency Judgment

In that case, LIF investigated beyond the court opinions to discover the wife is a Florida Lawyer and her husband, Laurence Schneider is owner of S&A Capital, Inc., a mortgage investment company, has built a national portfolio of performing mortgages that have been written off by other financial institutions.

Our angst is clear. Lawyers are being treated preferentially by the courts over regular citizens and homeowners.

In the case of Daniels, whilst she may have legitimate arguments, there have been many citizens who have failed before her by the wordsmithing by the Federal and Appellate Court(s), which has refused to apply the correct legal interpretation of the FDCPA, or clarify the question(s) with the federal consumer agency, the CFPB.

Whilst LIF is unhappy with the anti-consumer watchdog, the Consumer Financial Protection Bureau (CFPB) which is a revolving door for staff to leave the Bureau and go work for a creditor rights law firm without any restriction or time limit (non-compete), the Daniels case should have been referred to the CFPB for interpretation about the matters of ‘first impression’.

The Second Circuit recently did so for a RESPA question in Naimoli v Ocwen and we highlighted the case on our sister website, LawsInTexas.com (Laws In Texas). Instead of doing so in Daniels, there is a dissenting opinion by Judge Lagoa, who’s father in law is a  senior judge in SD Florida (Paul C. Huck) and her hubby is a Jones Day Partner and apparently the leader of the Miami Chapter of the Federalist Society. Lagoa herself is a former Florida Supreme Court justice appointed by Gov DeSantis who ‘ensured he puts conservatives on the bench so that anyone coming to court knows how the court will rule’.

LIF anticipates the Daniels case will be subject to a rehearing petition and presented to the full en banc court for reconsideration. The opinion here is similar to the recent Newsom FDCPA opinion, which was too negative towards Wall St and the financial banking services community. As such, it was vacated by the en banc panel while they reconsider. The courts’ decision is currently pending.

In this case, there is still time for the 11th Circuit to correctly ask the CFPB to provide its opinion on the underlying facts raised on appeal and decided by the 3-panel.

However, what the judiciary won’t do is apply this retroactively to the thousands of cases which have been incorrectly tossed in the last 14 years, resulting in homeowners losing their homes to wrongful foreclosures.

United States v. Daniels (2011)

(8:11-cv-01058)

District Court, M.D. Florida

MAY 13, 2011 | REPUBLISHED BY LIT: MAY 26, 2022

USA Motion for Summary Judgment with Exhibits, Doc. 13, Aug 17, 2011

ORDER granting  Motion for summary judgment in favor of the Plaintiff and against the defendant in the amount of $109,813.74,

together with accrued interest in the amount of $54,097.10 as of February 28, 2011,

plus interested at the rate of 8.25 percent per annum and a daily rate of $24.80, until the date of judgment;

for post-judgment interest, at the legal rate, from the entry of final judgment until the date of payment;

and for such other costs of litigation otherwise allowed by law.

The Clerk of Court is directed to close the case.

Signed by Judge Elizabeth A. Kovachevich on 9/22/2011.

(SN) (Entered: 09/22/2011)

U.S. District Court
Middle District of Florida (Tampa)
CIVIL DOCKET FOR CASE #: 8:11-cv-01058-EAK-AEP

USA v. Daniels
Assigned to: Judge Elizabeth A. Kovachevich
Referred to: Magistrate Judge Anthony E. Porcelli
Demand: $164,000
Cause: 28:1345 Default of Student Loan
Date Filed: 05/13/2011
Date Terminated: 09/22/2011
Jury Demand: None
Nature of Suit: 152 Contract: Recovery Student Loan
Jurisdiction: U.S. Government Plaintiff
Plaintiff
USArepresented byI. Randall Gold
US Attorney’s Office – FLM
Suite 3200
400 N Tampa St
Tampa, FL 33602-4798
813/274-6026
Fax: 813/274-6247
Email: FLUDocket.Mailbox@usdoj.gov
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
V.
Defendant
Constance Danielsrepresented byConstance Daniels
PO Box 6219
Brandon, FL 33608
PRO SE

 

Date Filed#Docket Text
05/13/20111COMPLAINT against Constance Daniels filed by USA. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Civil Cover Sheet)(MRH) (Entered: 05/13/2011)
05/13/20112Summons issued as to Constance Daniels. (MRH) (Entered: 05/13/2011)
05/13/20113ORDER regulating the processing of civil recovery actions. Service must be perfected by 09/10/2011. Signed by Deputy Clerk on 5/13/2011. (MRH) (Entered: 05/13/2011)
05/13/20114STANDING ORDER: Filing of documents that exceed twenty-five pages. Signed by Judge Elizabeth A. Kovachevich on 7/15/08. (MRH) (Entered: 05/13/2011)
05/19/20115NOTICE of designation under Local Rule 3.05 – track 1 (CLM) (Entered: 05/19/2011)
05/20/20116CERTIFICATE OF SERVICE re 3 ORDER regulating the processing of civil recovery actions by USA (Gold, I.) Modified on 5/20/2011 (MRH). (Entered: 05/20/2011)
05/25/20117CERTIFICATE OF SERVICE by USA (Notice of Designation Under Local Rule 3.05) (Gold, I.) (Entered: 05/25/2011)
07/06/20118RETURN of service executed on 7/5/11 (Marshal 285) by USA as to Constance Daniels. (MRH) (Entered: 07/06/2011)
07/27/20119MOTION for default judgment against Constance Daniels by USA. (Gold, I.) Modified on 7/27/2011 (MRH). NOTE: TERMINATED. INCORRECT MOTION RELIEF. ATTORNEY NOTIFIED. ATTORNEY TO REFILE. (Entered: 07/27/2011)
07/27/201110MOTION for entry of clerk’s default against Constance Daniels by USA. (Gold, I.) Motions referred to Magistrate Judge Anthony E. Porcelli. (Entered: 07/27/2011)
07/28/201111CLERK’S ENTRY OF DEFAULT as to Constance Daniels. (MRH) (Entered: 07/28/2011)
07/29/201112ANSWER to 1 Complaint by Constance Daniels.(BES) (Entered: 07/29/2011)
08/17/201113MOTION for summary judgment by USA. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Gold, I.) (Entered: 08/17/2011)
09/09/201114ENDORSED ORDER TO SHOW CAUSE as to Constance Daniels.. The plaintiff filed a motion for summary judgment on 8/17/11. The defendant had up to and including 9/3/11 to respond to the motion. To date no response has been filed. Therefore, it is ORDERED that the defendant has up to and including 9/19/11 in which to show cause why the pending motion should not be granted. Signed by Judge Elizabeth A. Kovachevich on 9/9/2011. (SN) (Entered: 09/09/2011)
09/22/201115ORDER granting 13 Motion for summary judgment in favor of the Plaintiff and against the defendant in the amount of $109,813.74, together with accrued interest in the amount of $54,097.10 as of February 28, 2011, plus interested at the rate of 8.25 percent per annum and a daily rate of $24.80, until the date of judgment; for post-judgment interest, at the legal rate, from the entry of final judgment until the date of payment; and for such other costs of litigation otherwise allowed by law. The Clerk of Court is directed to close the case.. Signed by Judge Elizabeth A. Kovachevich on 9/22/2011. (SN) (Entered: 09/22/2011)
10/12/201116ABSTRACT of judgment as to Constance Daniels. (DMS) (Entered: 10/12/2011)

Order GRANTING Summary Judgment for $164k Student Loan Debt, Doc. 15, Sep 22, 2011

Daniels v. Select Portfolio Servicing, Inc.

(2018-Present)

(8:18-cv-01652)

District Court, M.D. Florida

ORDER

THIS CAUSE comes before the Court upon Defendant’s Motion to Dismiss Plaintiff’s Second Amended Complaint (Dkt. 24) and Plaintiff’s Response in Opposition (Dkt. 27).

The Court, having reviewed the motion, response, and being otherwise advised in the premises, concludes that Defendant’s motion should be granted.

Specifically, Plaintiff’s second amended complaint will be dismissed with prejudice because any further amendment is futile.

BACKGROUND

As the Court explained in its prior Order granting Defendant’s motion to dismiss, (see Dkt. 22), Plaintiff Constance Daniels initially filed suit in Florida state court against Defendant Select Portfolio Servicing, Inc. (“SPS”) alleging three Florida claims, which included a claim under Florida’s civil Racketeer Influenced and Corrupt Organizations (“RICO”) Act.

On July 10, 2018, SPS removed the case to this Court based on diversity jurisdiction.

On August 6, 2018, SPS moved to dismiss the entire complaint.

In relevant part, SPS argued that the complaint failed to allege any of the elements of a RICO claim.

On August 27, 2018, Daniels filed an amended complaint, which mooted SPS’s motion to dismiss.

Daniels’ amended complaint alleged two claims: a claim under the Fair Debt Collection Practices Act (“FDCPA”) and a claim under the Florida Consumer Collections Practices Act (“FCCPA”).

Both claims relied on the same allegations.

To summarize, Daniels alleged that SPS had “improperly servic[ed]” her mortgage loan “in reckless disregard” of her consumer rights. (Dkt. 12).

The amended complaint did not attach any mortgage statements.

SPS moved to dismiss Daniels’ amended complaint based on her failure to allege that SPS ever attempted to collect the mortgage balance.

The Court granted SPS’s motion.

The Court noted that the amended complaint did not identify or attach any communication from SPS to Daniels.

The Court also surmised that the dispute was more akin to a dispute about an improper accounting of Daniels’ mortgage.

The Court dismissed the FDCPA and FCCPA claims and provided Daniels a final opportunity to amend her complaint.

Daniels filed a second amended complaint.

The allegations are largely unchanged.

But, significantly, Daniels attaches multiple monthly mortgage statements that SPS sent to her.

She now claims that these mortgage statements constitute debt collection activity under the FDCPA and FCCPA.

SPS’s motion to dismiss argues that the monthly mortgage statements comply with Regulation Z of the Truth in Lending Act (the “TILA”)—they were not communications in connection with the collection of a debt—and therefore do not constitute debt collection activity under the FDCPA and FCCPA.

As explained further below, the Court agrees with SPS’s position based on the Court’s detailed review of the monthly mortgage statements.

Therefore, the second amended complaint will be dismissed with prejudice.

STANDARD OF REVIEW

Federal Rule of Civil Procedure 12(b)(6) allows a court to dismiss a complaint when it fails to state a claim upon which relief can be granted.

When reviewing a motion to dismiss, a court must accept all factual allegations contained in the complaint as true.

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal citation omitted).

It must also construe those factual allegations in the light most favorable to the plaintiff.

Hunt v. Aimco Properties, L.P., 814 F.3d 1213, 1221 (11th Cir. 2016) (internal citation omitted).

To withstand a motion to dismiss, the complaint must include “enough facts to state a claim to relief that is plausible on its face.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

A claim has facial plausibility “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Pleadings that offer only “labels and conclusions,” or a “formulaic recitation of the elements of a cause of action,” will not do.

Twombly, 550 U.S. at 555.

DISCUSSION

The FDCPA and FCCPA prohibit debt collectors from using a “false, deceptive, or misleading representation or means in connection with the collection of any debt.”

See e.g. 15 U.S.C. § 1692e (emphasis added);

Fla. Stat. § 559.72 (“In collecting debts, no person shall . . .”) (emphasis added).

It is axiomatic then that the “challenged conduct is related to debt collection” to state a claim under either statute.

Reese v. Ellis, Painter, Ratterree & Adams, LLP, 678 F.3d 1211, 1216 (11th Cir. 2012);

see also Garrison v. Caliber Home Loans, Inc., 233 F. Supp. 3d 1282, 1286 (M.D. Fla. 2017) (“the FCCPA is a Florida state analogue to the federal FDCPA.”) (internal citations omitted).

“[T]he Eleventh Circuit has not established a bright-line rule” as to what qualifies as “in connection with the collection of any debt.”

Dyer v. Select Portfolio Servicing, Inc., 108 F. Supp. 3d 1278, 1280 (M.D. Fla. 2015).

“As a general principle, the absence of a demand for payment is not dispositive,” and courts should “instead consider whether the overall communication was intended to induce the debtor to settle the debt.”

Wood v. Citibank, N.A., No. 8:14-cv-2819-T-27EAJ, 2015 WL 3561494, at *3 (M.D. Fla. June 5, 2015) (citations omitted).

The second amended complaint attaches multiple monthly mortgage statements.1

Because the communications at issue here are all monthly mortgage statements, a discussion of the TILA is necessary.

The TILA requires SPS, a servicer, to send monthly mortgage statements.

12 C.F.R. § 1026.41. Specifically, 12 C.F.R. § 1026.41(d) requires that servicers provide debtors with detailed monthly mortgage statements containing, among other things: the “amounts due;” the “payment due date;” “the amount of any late payment fee, and the date that fee will be imposed if payment has not been received;” “an explanation of amount due, including a breakdown showing how much, if any, will be applied to principal, interest, and escrow and, if a mortgage loan has multiple payment options, a breakdown of each of the payment options;” “any payment amount past due;” a breakdown of “the total of all payments received since the last statement” and “since the beginning of the current calendar year;” “a list of all transaction activity that occurred since the last statement;” “partial payment information;” “contact information;” and detailed “account information” and “delinquency information.”

The Consumer Financial Protection Bureau (the “CFPB”) has issued a bulletin providing that a

“servicer acting as a debt collector would not be liable under the FDCPA for complying with [monthly mortgage statement] requirements.”

Implementation Guidance for Certain Mortgage Servicing Rules, 10152013 CFPB GUIDANCE, 2013 WL 9001249 (C.F.P.B. Oct. 15, 2013).

Courts have largely followed this guidance.

See, e.g., Jones v. Select Portfolio Servicing, Inc., No. 18-cv-20389, 2018 WL 2316636, at *3 (S.D. Fla. May 2, 2018) (citing 12 C.F.R. § 1026.41(d));

Brown v. Select Portfolio Servicing, Inc., No. 16-62999-CIV, 2017 WL 1157253 (S.D. Fla. Mar. 24, 2017) (noting the guidance and finding that monthly mortgage statements in compliance with the TILA were not debt collection).

The monthly mortgage statements at issue here were in conformity with the TILA requirements.

Moreover, the subject statements were substantially similar to model form H-30(B) provided by Appendix X to Part 1026 of TILA Regulation Z.

See also Jones, 2018 WL 2316636, at *4 (noting the similarities between a monthly mortgage statement and the model form in concluding no debt collection).

Although the monthly mortgage statements may not be identical to model form H-30(B), the differences are not significant deviations.

Notably, the plaintiff in Brown brought a nearly identical lawsuit against SPS.

The court explained in detail why the plaintiff was unable to state a claim under the FDCPA and FCCPA because the monthly mortgage statement was required to be sent pursuant to the TILA.

The complaint in Brown was dismissed with prejudice because “amendment would be futile” given that the basis for the claims was a monthly mortgage statement that was not actionable as a matter of law.

See 2017 WL 1157253, at *2-*4.

Also, the Jones court discussed in detail the numerous prior decisions addressing this issue, including multiple cases from this district that have held that monthly mortgage statements

“are almost categorically not debt collection communications under the FDCPA.”

2018 WL 2316636, at *5 (citing cases).

The particular monthly mortgage statements before the court in Jones were also sent by SPS and were substantively identical to the statements at issue in this case and in Brown.

Most recently, in Mills v. Select Portfolio Servicing, Inc., No. 18-cv-61012- BLOOM/Valle, 2018 WL 5113001 (S.D. Fla. Oct. 19, 2018), the court “agree[d] with the reasoning in Jones and [concluded] that the Mortgage Statements at issue [were] not communications in connection with a collection of a debt.” Id. at *2.

In conclusion, the substance of the monthly mortgage statements at issue in this case is substantially similar to model form H-30(B).

Any minor discrepancies in the language—when taken in the context of the document as an otherwise carbon copy of form H-30(B)—do not take the statements out of the realm of a monthly mortgage statement and into the realm of debt collection communications.

It is therefore ORDERED AND ADJUDGED that:

1. Defendant’s Motion to Dismiss Plaintiff’s Second Amended Complaint (Dkt.

24) is granted.

2. Plaintiff’s Second Amended Complaint is dismissed with prejudice.

3. The Clerk of Court is directed to close this case and terminate any pending motions as moot.

DONE and ORDERED in Tampa, Florida on December 18, 2018.

 

 

 

 

Copies furnished to: Counsel/Parties of Record

Judge Bert Jordan’s “Reputation” Warning to New Florida Lawyers

Constance Daniels Admonished by the Florida Bar (2021)

Constance Daniels, P.O. Box 6219, Brandon, admonishment in writing and directed to attend Ethics School effective immediately following a November 24 court order.

(Admitted to practice: 1995)

Daniels failed to act with reasonable diligence and failed to communicate with her client in connection with a dissolution of marriage action.

Daniels also failed to timely respond to the Bar’s formal complaint.

(Case No: SC21-683)

Constance Daniels v. Select Portfolio Servicing, Inc. (2022)

11th Cir., Published Opinion

(19-10204, May 24, 2022)

“A matter of first impression” 14 Years after the great recession and greatest theft of citizens homes in the history of the United States.

It’s quite incredulous how the 11th Circuit selects a Sanctioned Fl. Republican Lawyer, a failed judicial candidate and one who is facing foreclosure, for this ‘landmark’ published opinion in 2022.

Panel Author, Judge Bert Jordan, joined by Judge Brasher with a dissenting opinion by Judge Babs Lagoa

11th Circuit revives FDCPA lawsuit over mortgage statement language

How Westlaw is Summarizing the Latest Eleventh Circuit Opinion

(May 26, 2022)

Resolving an issue of first impression, a divided federal appeals panel has held that mortgage servicers can be liable under the Fair Debt Collection Practices Act for inaccuracies in monthly mortgage statements that contain additional debt-collection language.

Daniels v. Select Portfolio Servicing Inc., No. 19-10204, (11th Cir. May 24, 2022).

In a 2-1 decision, the 11th U.S. Circuit Court of Appeals on May 24 reinstated Constance Daniels’ lawsuit against Select Portfolio Servicing Inc., in which she alleges the company used faulty mortgage statements to try to collect payments she did not owe.

Writing for the panel majority, U.S. Circuit Judge Adalberto J. Jordan acknowledged that Select Portfolio was required to issue the mortgage statements under the Truth in Lending Act, 15 U.S.C.A. § 1638.

However, the mortgage statements fell within the scope of the FDCPA’s prohibition on false or misleading representations, 15 U.S.C.A. § 1692e, because they included additional debt-collection language — “this is an attempt to collect a debt” — the opinion said.

Judge Jordan reasoned that “in determining whether a communication is in connection with the collection of a debt, what could be more relevant than a statement in the communication than ‘this is an attempt to collect a debt’?”

U.S. Circuit Judge Barbara Lagao dissented, saying the majority treated the language like “magic words” that could convert an otherwise routine mortgage statement into a communication covered by the FDCPA.

Judge Lagoa also argued that the decision created a circuit split, although the panel majority insisted that the facts of Daniels’ case distinguished it from others in which federal circuit courts seemed to reach a contrary result.

District Court tosses FDCPA claims

Daniels sued Select Portfolio in the U.S. District Court for the Middle District of Florida in July 2018.

According to the suit, Daniels had prevailed in a state court foreclosure action brought by lender Wells Fargo in 2015, with the judge sanctioning Wells Fargo and enforcing an earlier loan modification agreement between the parties.

But Daniels’ mortgage servicer, Select Portfolio, later issued several monthly mortgage statements misstating the principal balance and amount due, and falsely claiming that her loan was in arrears, the suit says.

At least three of the mortgage statements included the sentence, “This is an attempt to collect a debt,” according to the suit.
Daniels accuses Select Portfolio of using false or misleading representations in connection with the collection of a debt, in violation of the FDCA and the Florida Consumer Collection Practices Act, Fla. Stat. Ann. § 559.72.

Select Portfolio moved to dismiss, saying Daniels was attempting hold it liable for issuing mortgage statements that are required under the Truth in Lending Act.

U.S. District Judge James S. Moody Jr. agreed and dismissed the suit in December 2018. Daniels v. Select Portfolio Servs. Inc., No. 18-cv-1652, (M.D. Fla. Dec. 18, 2018).

Judge Moody said that any discrepancies in language between Select Portfolio’s monthly statements and what is required under TILA “do not take the statements out of the realm of a monthly mortgage statement and into the realm of debt collection communications.”

On appeal, Daniels argued that compliance with TILA does not make a mortgage servicer immune from suit under the FDCPA and, even if it did, the monthly statements at issue included language beyond what is necessary under TILA.

Kaelyn S. Diamond and Michael A. Ziegler of the Law Office of Michael A. Ziegler represented Daniels.

Benjamin B. Brown and Joseph T. Kohn of Quarles & Brady LLP represented Select Portfolio.

By Dave Embree

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Appellate Circuit

Deutsche Bank and Nationstar Watch as 11th Circuit Discharge the Shotgun Despite Hunt’s Pleadings

There can be no doubt that this is a frivolous appeal and we would not hesitate to order sanctions if appellant had been represented by counsel.

Published

on

Hunt v. Nationstar Mortg., No. 21-10398

(11th Cir. May 27, 2022)

MAY 27, 2022 | REPUBLISHED BY LIT: MAY 30, 2022

Before ROSENBAUM, GRANT, and MARCUS, Circuit Judges. PER CURIAM:

Christopher M. Hunt, Sr., proceeding pro se, appeals following the district court’s dismissal of his civil complaint arising out of his 2006 purchase of residential property located in Atlanta, Georgia (the “Property”).

Hunt purchased the Property using proceeds from a loan that he eventually defaulted on, which prompted Nationstar Mortgage, LLC (“Nationstar”), then servicer of the loan, to seek a non-judicial foreclosure on the Property.

After filing or being named in a variety of related lawsuits,1 Hunt filed the instant pro se complaint in Georgia state court in June 2020 and named as defendants Nationstar, the Deutsche Bank National Trust

1 See, g., Hunt v. Nationstar Mortg., LLC, 684 F. App’x 938 (11th Cir. 2017) (unpublished) (“Hunt I”);

[MARCUS, ROSENBAUM AND ANDERSON]

Hunt v. Nationstar Mortg., LLC, 779 F. App’x 669 (11th Cir. 2019) (unpublished);

[PRYOR,W., GRANT AND ANDERSON]

Hunt v. Nationstar Mortg., LLC, 782 F. App’x 762 (11th Cir. 2019) (unpublished);

[PRYOR,W., GRANT AND ANDERSON]

Deutsche Bank Tr. Co. Am., as Tr. for Fifteen Piedmont Ctr. v. Hunt, 783 F. App’x 998 (11th Cir. 2019) (unpublished).

[TJOFLAT, JORDAN AND NEWSOM]

Companies (“Deutsche Bank”), and Jay Bray, the CEO of Nationstar.

He alleged that they had committed, inter alia, mortgage fraud and wrongful foreclosure in violation of federal laws, including the Sarbanes-Oxley Act and the Dodd-Frank Act.2

The district court denied a variety of preliminary motions filed by Hunt;

dismissed, without prejudice, the complaint as to defendant Bray for failure to effect proper service;

and

dismissed, with prejudice, the complaint as to Deutsche Bank and Nationstar, because it was a “shotgun” pleading, was barred by res judicata, and failed to state a claim upon which relief could be granted.3

After thorough review, we affirm.

I.

Whether a court has subject-matter jurisdiction, including removal jurisdiction, is a question of law that we review de novo.

See McGee v. Sentinel Offender Servs., LLC, 719 F.3d 1236, 1241 (11th Cir. 2013).

We also review de novo a denial of a motion to

2 Sarbanes-Oxley Act of 2002, Pub. L. No. 107-204, 116 Stat. 745 (hereinafter “Sarbanes-Oxley Act”), and the Dodd-Frank Wall Street Reform and Con- sumer Protection Act, Pub. L. No. 111-203, 124 Stat. 1376 (2010) (hereinafter “Dodd-Frank Act”).

3 Hunt also named Christian Sewing, the Chief Executive Officer (“CEO”) of Deutsche Bank, as a defendant, but he later voluntarily dismissed him.

And after filing the complaint, Hunt sought to add yet another defendant, the Albertelli Law Firm (“Albertelli Law”).

Bray, Sewing and Albertelli Law have not filed any briefs on appeal.

remand to state court. Conn.

State Dental Ass’n v. Anthem Health Plans, 591 F.3d 1337, 1343 (11th Cir. 2009).

A district court’s decision regarding the indispensability of a party is reviewed for abuse of discretion.

United States v. Rigel Ships Agencies, Inc., 432 F.3d 1282, 1291 (11th Cir. 2005).

We will disturb a district court’s refusal to change venue only for a clear abuse of discretion.

Robinson v. Giarmarco & Bill, P.C., 74 F.3d 253, 255 (11th Cir. 1996).

We also review the district court’s denial of a motion for recusal for abuse of discretion.

Jenkins v. Anton, 922 F.3d 1257, 1271 (11th Cir. 2019).

We review a district court’s grant of a motion to dismiss for insufficient service of process, under Rule 12(b)(5), by applying a de novo standard to questions of law, and a clear error standard to the court’s findings of fact.

Albra v. Advan, Inc., 490 F.3d 826, 829 (11th Cir. 2007).

But when a party fails to object to a magistrate judge’s findings or recommendations in a report and recommendation, he “waives the right to challenge on appeal the district court’s order based on unobjected-to factual and legal conclusions.” 11th Cir. R. 3-1.

Under the circumstances, we review a claim on appeal only “for plain error,” if “necessary in the interests of justice.” Id.

We review the dismissal of a “shotgun” pleading under Rule 8 for abuse of discretion.

Vibe Micro, Inc. v. Shabanets, 878 F.3d 1291, 1294 (11th Cir. 2018).

When appropriate, we will review a district court’s dismissal for failure to state a claim under Rule 12(b)(6) de novo.

Am. United Life Ins. Co. v. Martinez, 480 F.3d 1043, 1056–57 (11th Cir. 2007).

We will also review a dismissal

based on res judicata de novo.

Jang v. United Techs. Corp., 206 F.3d 1147, 1149 (11th Cir. 2000).

We review de novo a district court’s conclusions on collateral estoppel, but review its legal conclusion that an issue was actually litigated in a prior action for clear error.

Richardson v. Miller, 101 F.3d 665, 667–68 (11th Cir. 1996).

While pro se pleadings are liberally construed, issues not briefed on appeal are normally forfeited and we will generally not consider them.

Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008).

An appellant can abandon a claim by:

(1) making only passing reference to it;

(2) raising it in a perfunctory manner without supporting arguments and authority;

(3) referring to it only in the “statement of the case” or “summary of the argument”;

or

(4) referring to the issue as mere background to the appellant’s main arguments.

Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681– 82 (11th Cir. 2014).

In addition, if a district court’s order rested on two or more independent, alternative grounds, the appellant must challenge all of the grounds to succeed on appeal.

See id. at 680.

When an appellant fails to challenge on appeal one of the grounds on which the district court based its judgment, he is deemed to have abandoned any challenge of that ground, and it follows that the judgment is due to be affirmed.

See id.

II.

Liberally construed, Hunt’s brief on appeal seeks to challenge the district court’s decisions:

(1) denying remand of his case to state court

and

denying his request to file an amended complaint adding another defendant, Albertelli Law;

(2) denying his request

to transfer the case;

(3) denying his request to disqualify the judge;

(4) dismissing, without prejudice, his complaint as to defendant Bray for failure to effect proper service;

and

(5) dismissing his complaint, with prejudice, as to Deutsche Bank and Nationstar.

To be sure, Hunt’s arguments about these decisions by the district court are not clearly stated.

But even if we were to assume that he has preserved his arguments on appeal, they fail on the merits.

First, we are unpersuaded by Hunt’s arguments that the district court should have allowed him to file an amended complaint to add another party to the suit, which would have deprived the federal court of jurisdiction, and should have remanded the case to state court.

Federal courts have diversity-of-citizenship jurisdiction when the parties are citizens of different states and the amount in controversy exceeds $75,000.

28 U.S.C. § 1332(a)(1).

A corporation is a citizen of every state where it was incorporated and the one state in which it has its principal place of business.

Daimler AG v. Bauman, 571 U.S. 117, 133, 137 (2014); 28 U.S.C. § 1332(c)(1).

A defendant may remove any civil action brought in a state court to a federal district court that has original jurisdiction over the action.

28 U.S.C. § 1441(a).

The removing party bears the burden of proving that removal jurisdiction exists.

McGee, 719 F.3d at 1241.

Here, the district court did not err in denying Hunt’s motion to remand. As we’ve held in a previous appeal, his motion was based on his belated and fraudulent attempts to join Albertelli Law, in an effort to defeat the district court’s diversity jurisdiction.

See Hunt I, 684 F. App’x. at 942-44.

However, Hunt asserted federal

claims in his complaint, so the district court had jurisdiction in any event.

28 U.S.C. § 1441(a).

Accordingly, the district court correctly denied Hunt’s requests to remand the case and acted within its discretion to deny joinder.

Rigel Ships Agencies, Inc., 432 F.3d at 1291.

We also find no merit to Hunt’s claims that the district court should have transferred venue of his lawsuit.

A district court may transfer a civil action to any other district or division where it may have been brought “for the convenience of the parties and witnesses, and in the interest of justice.”

Robinson, 74 F.3d at 260 (quoting 28 U.S.C. § 1404(a)).

But in this case, the district court did not err because Hunt did not provide any cognizable reason for a transfer.

It appears that Hunt’s transfer request was based on his belief that case law in the United States District Court for the Middle District of Georgia would be more favorable to him – which is not a legitimate reason for transfer.

See 28 U.S.C. § 1404(a).

Similarly, we reject Hunt’s argument that the district court judge should have recused himself.

A judge must sua sponte recuse himself “in any proceeding in which his impartiality might reasonably be questioned” or “

[w]here he has a personal bias or prejudice concerning a party.”

28 U.S.C. § 455(a), (b)(1).

“The test is whether an objective, disinterested, lay observer fully informed of the facts underlying the grounds on which recusal was sought would entertain a significant doubt about the judge’s impartiality.”

Parker v. Connors Steel Co., 855 F.2d 1510, 1524 (11th Cir. 1988).

“Ordinarily, a judge’s rulings in the same or a related case may not serve as

the basis for a recusal motion.”

McWhorter v. City of Birmingham, 906 F.2d 674, 678 (11th Cir. 1990).

“The judge’s bias must be personal and extrajudicial; it must derive from something other than that which the judge learned by participating in the case.”

Id.

“The exception to this rule is when a judge’s remarks in a judicial context demonstrate such pervasive bias and prejudice that it constitutes bias against a party. Mere friction . . . however, is not enough to demonstrate pervasive bias.”

Thomas v. Tenneco Packaging Co., 293 F.3d 1306, 1329 (11th Cir. 2002) (quotation marks omitted).

As the record before us makes clear, no “objective, disinterested, lay observer fully informed of the facts underlying” these circumstances “would entertain a significant doubt about the judge’s impartiality.”

Parker, 855 F.2d at 1524.

Accordingly, the district court did not abuse its discretion in denying Hunt’s request for recusal or disqualification.

Nor do we find any merit to Hunt’s argument that the district court erred in dismissing the complaint against defendant Bray for lack of proper service.

When a federal court is considering the sufficiency of process after removal, it does so by looking to the state law governing process.

See Usatorres v. Marina Mercante Nicaraguenses, S.A., 768 F.2d 1285, 1286 n.1 (11th Cir. 1985).

Georgia law provides that service made “outside the state” of Georgia is to be done “in the same manner as service is made within the state.”

O.C.G.A. § 9-10-94.

Under Georgia law, service on natural persons is to be made “personally, or by leaving copies thereof at the defendant’s dwelling house or usual place of abode with some

person of suitable age and discretion then residing therein, or by delivering a copy of the summons and complaint to an agent authorized . . . to receive service of process.”

O.C.G.A. § 9-11-4(e)(7).

Notably, Hunt does not dispute these proposed findings set forth by the magistrate judge’s Report and Recommendation (“R&R”), that Hunt:

(1) mailed service to Bray;

and

(2) completed “corporate service” on Deutsche Bank, which Hunt asserted was also effective to serve Bray.

11th Cir. R. 3-1.

But, as the district court determined, Georgia law applied here and required personal service in these circumstances.

Albra, 490 F.3d at 829; O.C.G.A. § 9-11-4(e)(7).

Bray therefore was not properly served under Georgia law, and, for that reason, the district court did not err in dis- missing Hunt’s suit without prejudice as to Bray.

Finally, we find no error in the district court’s denial of injunctive relief and its dismissal of Hunt’s complaint against the two remaining defendants, Nationstar and Deutsche Bank.

A district court has the inherent authority to control its docket and ensure the prompt resolution of lawsuits, which includes the ability to dismiss a complaint on “shotgun” pleading grounds.

Shabanets, 878 F.3d at 1295.

We have described four types of “shotgun” com- plaints:

(1) those containing multiple counts where each count adopts all allegations of all preceding counts;

(2) those replete with conclusory, vague, and immaterial facts not obviously connected to any particular cause of action;

(3) those that do not separate each cause of action or claim for relief into different counts;

and

(4) those asserting multiple claims against multiple defendants without

specifying which of the defendants are responsible for which acts or omissions, or which of the defendants the claim is brought against.

Weiland v. Palm Beach Cnty. Sheriff’s Off., 792 F.3d 1313, 1321–23 (11th Cir. 2015).

“Shotgun” pleadings violate Rule 8, which requires “a short and plain statement of the claim showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), by failing to, in one degree or another, give the defendants adequate notice of the claims against them and the grounds upon which each claim rests.

Shabanets, 878 F.3d at 1294–96.

We generally require district courts to allow a litigant at least one chance to remedy any deficiencies before dismissing the complaint with prejudice, where a more carefully drafted complaint might state a claim.

See id.; Silberman v. Miami Dade Transit, 927 F.3d 1123, 1132 (11th Cir. 2019).

But it need not grant leave to amend the complaint when further amendment would be futile.

Silberman, 927 F.3d at 1133.

Under federal law, res judicata, or claim preclusion, bars a subsequent action if

“(1) the prior decision was rendered by a court of competent jurisdiction;

(2) there was a final judgment on the merits;

(3) the parties were identical in both suits;

and

(4) the prior and present causes of action are the same.”

Jang, 206 F.3d at 1148– 49 & n.1 (quotation marks omitted).

We have held that “if a case arises out of the same nucleus of operative facts, or is based upon the same factual predicate, as a former action, the two cases are really the same ‘claim’ or ‘cause of action’ for purposes of res judicata.”

Baloco v. Drummond Co., Inc., 767 F.3d 1229, 1247 (11th

Cir. 2014) (quotation marks omitted and alterations adopted).

“In addition, res judicata applies not only to the precise legal theory presented in the prior case, but to all legal theories and claims arising out of the nucleus of operative fact” that could have been raised in the prior case.

Id. (quotation marks omitted and alterations adopted).

Collateral estoppel, or issue preclusion, “refers to the effect of a judgment in foreclosing relitigation of a matter that has been litigated and decided.”

Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 77 n.1 (1984).

Thus, “collateral estoppel is appropriate only when the identical issue has been fully litigated in a prior case.”

In re McWhorter, 887 F.2d 1564, 1567 (11th Cir. 1989) (quotation marks omitted).

“The party seeking to invoke collateral estoppel bears the burden of proving that the necessary elements have been satisfied.”

Id. at 1566.

“[C]hanges in the law after a final judgment [generally] do not prevent the application of res judicata and collateral estoppel, even though the grounds on which the decision was based [may be] subsequently overruled.”

Precision Air Parts, Inc. v. Avco Corp., 736 F.2d 1499, 1503 (11th Cir. 1984).

To safeguard investors in public companies and restore trust in the financial markets, Congress enacted the Sarbanes-Oxley Act of 2002, 116 Stat. 745.

See S. Rep. No. 107-146, pp. 2–11 (2002).

The Act contains several provisions, including a whistleblower protection provision which prohibits a publicly traded company or its officers from discharging an “employee” for providing information to a supervisory authority about conduct that the employee

“reasonably believes” constitutes a violation of federal laws against mail fraud, wire fraud, bank fraud, securities fraud, any SEC rule or regulation, or any provision of federal law relating to fraud against shareholders.

See 18 U.S.C. § 1514A(a)(1).

The Dodd-Frank Act whistleblower provision provides protection to individuals who provide “information relating to a violation of the securities laws to the” Securities and Exchange Commission (“SEC”).

15 U.S.C. § 78u-6(a)(6).

Thus, “[t]o sue under Dodd-Frank’s anti-retaliation provision, a person must first provide information relating to a violation of the securities laws to the [SEC].”

Dig. Realty Trust, Inc. v. Somers, 138 S. Ct. 767, 772–73 (2018) (quotation marks omitted and alterations adopted).

In his brief on appeal, Hunt does not expressly address the lower court’s “shotgun” pleading determination, and, as a result, the district court’s dismissal of the complaint is due to be affirmed.

Sapuppo, 739 F.3d at 681–82.

But in any event, the district court did not err in finding that his complaint was a “shotgun” pleading.

As the record reflects, the complaint consisted of three numbered paragraphs that spanned paragraphs and pages; failed to isolate claims by defendants;

and largely failed to discuss any facts — thereby falling into several of our identified categories of prohibited “shotgun” pleadings.

Weiland, 792 F.3d at 1321-23.

The district court also was correct that amendment would have been futile.

For one, res judicata and collateral estoppel barred Hunt’s claims for breach of contract and fraud, since Hunt sued the same parties for the same alleged breach of contract and fraud in several prior cases.

See, e.g., Hunt I, 684 F. App’x at 944.4

These decisions were final judgments and were “rendered by a court of competent jurisdiction,” “on the merits,” against the same parties, and “the prior and present causes of action [were] the same.”

Jang, 206 F.3d at 1149.

Moreover, even if some of Hunt’s claims had not been explicitly presented in any of his prior cases, they would still be barred by res judicata because every claim arose from the same facts as each of his prior cases, and he could have raised them in any of the prior proceedings.

Baloco, 767 F.3d at 1247.

Also, despite Hunt’s arguments, there have been no “changes in the law” that would “prevent the application of res judicata and collateral estoppel” in this case.

Precision Air Parts, 736 F.2d at 1503.

In addition, Hunt’s claims under the Sarbanes-Oxley Act and Dodd-Frank Act were futile because they fail to state a claim upon which relief could be granted.

As the record reflects, Hunt did not allege that he was an “employee” under the Sarbanes-Oxley Act, nor that he “provide[d] information relating to a violation of the securities laws to the [SEC]” as required under the Dodd-Frank Act.

4 To the extent that Hunt challenges the district court’s decisions under Fed. R. Civ. P. 60(b), we conclude that he has not identified any “extraordinary circumstances” entitling him to relief, and the district court did not abuse its discretion in this respect.

Toole v. Baxter Healthcare Corp., 235 F.3d 1307, 1316 (11th Cir. 2000) (quotation marks omitted).

Somers, 138 S. Ct. at 772–74.

Accordingly, Hunt did not state a cause of action under these statutes, and we affirm.

AFFIRMED.5

5 All of Hunt’s pending motions, which he filed after we imposed a filing restriction on him, are DENIED to the extent they request any relief.

For their part, Nationstar and Deutsche Bank have filed renewed motions for sanctions, requesting monetary sanctions against Hunt for his numerous motions before this Court under 11th Cir. R. 27-4.

Hunt is pro se and we DENY the motions for sanctions at this time.

See Woods v. I.R.S., 3 F.3d 403, 404 (11th Cir. 1993)

(“There can be no doubt that this is a frivolous appeal and we would not hesitate to order sanctions if appellant had been represented by counsel. However, since this suit was filed pro se, we conclude that sanctions would be inappropriate.”).

Although we are reluctant to impose sanctions on pro se appellants, we warn Hunt that our Court has imposed sanctions in circumstances like these, even for pro se litigants, and he is strongly cautioned against bringing any further frivolous motions or claims.

See Ricket v. United States, 773 F.2d 1214, 1216 (11th Cir. 1985)

(imposing sanctions on a pro se appellant who had been warned by the district court that the issues on appeal were frivolous).

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