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Operation Whiteout: Lyin’ Senior Judge Kenneth “Magic” Marra Tosses CFPB Claims

Judge Kenneth A. Marra’s Void Order Granting Ocwen’s Motion for Summary Judgment on 9 out of 10 Claims on the basis of Res Judicata in Consumer Financial Protection Bureau v. Ocwen Financial Corp. Inc., S.D. Fl.

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Lyin’ Judge Marra and His Co-Conspirators, Lyin’ Counsel and the Outlaws in Robes at the 11th Circuit Want this Case Buried

Now that the Burkes intervention appeal at the Eleventh Circuit and the Judicial Complaint against Judge Kenneth A. Marra have been disposed, bar a petition for review, Marra feels confident he can release his corrupt opinion and ready himself for his delayed retirement – which should have been on Jan 1, 2021 after his replacement, Judge Aileen M. Cannon was confirmed and placed on the S.D. Fl. District Court.

It’s far from over as far as the Burkes are concerned, despite the mandate issued per the 11th Circuit to the lower court.. The order below is void in law as it’s been issued by a corrupt Judge and lyin’ lawyers.

ORDER GRANTING IN PART AND RESERVING RULING IN PART ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AS TO COUNTS 1-9; DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AS TO COUNT 10 OF PLAINTIFF’S AMENDED COMPLAINT [DE 730] AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON LIABILITY [DE 728]

I.                    INTRODUCTION

 The Consumer Financial Protection Bureau (“CFPB” or “the Bureau”), a federal agency charged with enforcing federal consumer financial laws, sued Defendants Ocwen Financial Corporation (“OFC”), Ocwen Mortgage Servicing, Inc. (“OMS”), and Ocwen Loan Servicing, LLC (“OLS”) (cumulatively “Ocwen”), alleging that the Ocwen companies violated the Consumer Financial Protection Act (“CFPA”), the Fair Debt Collection Practices Act (“FDCPA”), the Real Estate Settlement Procedures Act (“RESPA”) and Regulation X, the Truth in Lending Act (“TILA”) and Regulation Z, and the Homeowners Protection Act of 1998 (“HPA”). The Bureau alleges that since January 2014 Ocwen used inaccurate and incomplete information to service residential mortgage

Lyin’ Judge Kenneth Marra is replaced by Aileen Mercedes Cannon (cannon@flsd.uscourts.gov) to allow Marra to resign, thus Burke complaint will be dismissed in due course by Chief Judge as moot.

loans; inputted inaccurate and incomplete loan account information into its system of record; made material misrepresentations to borrowers regarding loan account information and monthly amounts due; mishandled borrowers’ loss mitigation applications, initiated premature foreclosures and other foreclosure-related misconduct; failed to provide accurate periodic statements to borrowers; engaged in improper escrow-related practices; and failed to terminate automatically private mortgage insurance (PMI) on scheduled termination dates. Familiarity with the underlying facts is presumed for the purposes of this Order.1

Currently before the Court is Ocwen’s motion for summary judgment [DE 730] on the ground, among others, that most of the Bureau’s current claims (Counts 1-9) are barred by the preclusive effect of a 2014 Consent Judgment entered by the United States District Court for the District of Columbia. As to the Bureau’s remaining claim (Count 10), Ocwen recognizes that this cause of action does not overlap with the causes of action governed by the 2014 Consent Judgment; however, it contends that the Bureau has failed to adduce sufficient proofs establishing each element of the alleged PMI irregularities, and that summary judgment is appropriately entered against it due to this evidentiary deficiency. As to all claims, Ocwen alternatively argues that the Bureau has failed to adduce individualized case-specific evidence demonstrating the alleged statutory violations as applied to each borrower. Further, it challenges the legal and evidentiary sufficiency of the Bureau’s claims on discrete damage issues and statutory violations.2

1 For a complete recitation of the Bureau’s factual allegations, see the November 5, 2019 Order Granting in Part and Denying in Part Defendants’ Motion to Dismiss Amended Complaint [DE 435].

2 Ocwen separately contends, for example, that it is entitled to summary judgment on the Bureau’s claim for recovery of certain foreclosure-related costs and its “foregone interest” claims. It also raises specific challenges to the Bureau’s claims on loss mitigation application mishandling (Count 3); escrow-related violations (Count 7); and defects in Ocwen’s policy manual (Count 8). Finally, it seeks summary judgment on the claims against OFC and OMS on the ground these entities did not engage in “servicing” activities on which to predicate the alleged statutory violations.

Motion for En Banc Rehearing Submitted to 11th Cir., 22 Nov. 2020. It questions why all but one rookie active judge is now eligible for a quorum.

Also before the Court is the Bureau’s motion for partial summary judgment on the issue of liability [DE 728]. Ocwen defends against this motion, in part, with the assertion of its res judicata and related preclusion defenses. For the reasons discussed below, the Court concludes, as a matter of law, that the Bureau’s claims, as set forth in Counts 1-9 of its Amended Complaint, are barred by res judicata to the extent these claims are premised on servicing activity which occurred prior to February 26, 2017, and that partial summary judgment is appropriately entered on this basis as to this discrete category of claims. As to Count 10, the Court concludes that the summary judgment record reveals a genuine issue of material fact on whether all prequalifying conditions for cancellation of PMI existed for all loans underlying the alleged HPA violations, and accordingly shall deny the motion for summary judgment.

Ruling on the remainder of issues raised in the parties’ summary judgment motions shall be reserved pending the submission of a supplemental statement from the Bureau indicating whether, as to Counts 1-9, it intends to pursue claims for alleged loan servicing misconduct occurring after February 26, 2017. In this event, it shall provide a list of the relevant Counts it contends remain viable under this timeline, along with a corresponding index of specific citations to the summary judgment record where supporting evidence may be located. Pending submission of this statement, the Court will reserve ruling on Ocwen’s various alternative arguments advanced in support of summary judgment as they potentially may be mooted, in whole or in part, by the Bureau’s supplemental statement.

A completely new 3-panel of Newsom, Lagoa and Grant dropped this ‘whiteout’ opinion on Monday, 2 Nov. 2020. It’s perversion, pure and simple.

I.         BACKGROUND 3

Defendant Ocwen Financial Corporation (“Ocwen Financial” or “OFC”) is a publicly traded corporation headquartered in West Palm Beach, Florida engaged in the business of servicing mortgage loans since 1988. It is one of the largest mortgage servicers in the United States and specializes in servicing the loans of distressed borrowers. Ocwen Financial is the parent corporation of Ocwen Mortgage Servicing, Inc. (“OMS”), which, in turn, is the parent corporation of Ocwen Loan Servicing, LLC (“OLS”). PHH Mortgage Corporation is a successor-by-merger to OLS. All Defendants are cumulatively referenced as “Ocwen.”

A.          The 2013 District of Columbia Action

On December 19, 2013, the Bureau, the State of Florida, and 48 other States sued Ocwen Financial and OMS alleging that the Ocwen companies violated federal and state laws by engaging in unlawful and deceptive consumer practices with respect to loan servicing and foreclosure processing. By way of example, the Plaintiffs in the District of Columbia action alleged that the Ocwen companies failed to apply payments timely and accurately; failed to maintain accurate account statements; charged unauthorized fees for default-related services; imposed forced-placed insurance on borrowers who already had sufficient coverage; provided false or misleading account information in response to borrowers’ complaints; provided false or misleading information to borrowers regarding loans transferred from other servicers; failed to provide accurate and timely information to borrowers seeking information about loss mitigation services and loan modifications; provided false or misleading

3 The recited facts are drawn from the pleadings, the parties’ Local Civil Rule 56.1 Statements, the declarations submitted in support or in opposition to the motions, and the exhibits filed in support or in opposition to the motions for summary judgment, including the contents of the D.C. Consent Judgment and all of its incorporated exhibits. These facts are undisputed unless otherwise noted. Where disputed, the facts are viewed in the light most favorable to the non-moving party. See Beard v. Banks, 548 U.S. 521, 529-30, 126 S. Ct. 2572, 165 L.Ed.2d 697 (2006).

 Submitted to 11th Cir., 2 Sept. 2020. A Motion for extraordinary relief, respectfully asking for answers to the pending motions before this honorable court.

information to borrowers about the status of foreclosure proceedings in cases where the borrowers in good faith were actively pursuing loss mitigation alternatives; failed to calculate eligibility for loan modification programs properly and failed to process applications for loan modifications properly; and gave false or misleading reasons for the denial of loan modifications and they used false or misleading documents as part of the foreclosure process, including the use of “robo-signed” affidavits in foreclosure proceedings. CFPB v. Ocwen Financial Corp., Case No. 13-2025-RMC (Complaint, DE 1) (D.D.C. Dec. 19, 2013) (“D.C. Complaint”) (DE 731-2).

The D.C. Complaint was divided into four counts: The States alleged violation of state laws prohibiting unfair and deceptive consumer practices with respect to loan servicing and foreclosure processing (Counts 1 and 2, respectively). The Bureau alleged parallel violations of the CFPA with respect to loan servicing generally (alleging unfair and deceptive acts or practices employed in loan servicing conduct) (Count 3) and with respect to foreclosure processing specifically (alleging unfair and deceptive acts or practices employed in foreclosure processing) (Count 4) [DE 731-2, pp. 15-17]. The D.C. Complaint sought monetary relief for past servicing misconduct and injunctive relief to transform Ocwen’s servicing practices going forward. When the Plaintiffs filed the D.C. Complaint, they also entered into a settlement agreement, entitled the National Mortgage Settlement (“NMS”), and filed a proposed consent judgment which incorporated the agreement and its dispute resolution requirements.

On February 26, 2014, the District Court for the District of Columbia entered the Consent Judgment (“NMS C.J.”) [DE 731-3] [Case No. 13-2025-RMC, DE 12], which required Ocwen to

(1) pay $2 billion in relief in the form of principal reduction loan modifications to consumers who met set eligibility criteria over a three-year period; (2) pay $127.3 million in monetary relief to consumers

Letter submitted to 11th Cir. and Ranking Member of the Senate Judiciary Committee on Aug. 6, 2020. The delays acknowledging and processing the Judicial Complaint is obvious. Judge Marra is primed to dismiss the lower court action and resign. Signed, We the People.

who were foreclosed upon by Ocwen (or its predecessors) between January 1, 2009 and December 31, 2012; (3) abide by comprehensive “Servicing Standards” [NMS C.J. ¶ 3 and Ex A] [DE 731-4] and corresponding Metrics [NMS C.J.,¶3 and Ex. D-1 through D-21] [DE 731-7] in its servicing practices going forward over the three-year term of the Judgment (February 26, 2014 to February 26, 2017); (4) pay for ongoing compliance monitoring by an independent monitor (Joseph A. Smith, Jr.) during the three-year term of the Judgment, and (5) submit to specific dispute resolution procedures and enforcement terms to redress compliance failures reported by the Monitor during that term [NMS C.J.

¶¶ 3-5 and Ex. D][DE 731-7]. Ocwen also agreed to maintain accurate records and timely update borrowers’ account information to ensure accuracy and completeness as required by the Servicing Standards.4

In exchange, the Bureau and States agreed to release Ocwen for all claims for past misconduct, and agreed that Ocwen would not be subject to future administrative or judicial enforcement actions for conduct covered by the NMS Servicing Standards and occurring during the term of the Judgment, unless its loan service performance exceeded certain “Threshold Error Rates” and Metrics set by the NMS, and Ocwen failed to bring itself within the threshold after being afforded an opportunity to cure.

The Release executed by the Bureau pursuant to the NMS Consent Judgment provided in

4 The Servicing Standards established by the NMS [DE 731-4] required routine independent third-party testing of Ocwen’s system of record data (“SOR”) for accuracy and completeness. See NMS C.J. Ex. A, Section I.B. 1 [“Servicer shall maintain procedures to ensure accuracy and timely updating of borrowers’ account information, including posting of payments and imposition of fees. Servicer shall also maintain adequate documentation of borrower account information which may be in either electronic or paper format.”] and Section I.B. 9 [“Servicer’s system to (sic) record account information shall be periodically and independently reviewed for accuracy and completeness by an independent reviewer.”].

The Servicing Standards also required Ocwen to provide accurate information to borrowers on monthly billing and other account statements which clearly and conspicuously showed the total amount due; allocation of payments; unpaid principal; fees and charges; current escrow balance and reasons for any payment changes (including interest rate or escrow account adjustments). NMS C.J. Ex A. at I.B.5. [DE 731-4, A-4 through A-5].

A 2-panel ruling on reconsideration of a single order? Issued by Branch and Jordan, 22 July, 2020. A ruling on a motion, whether entered by a single judge or a panel, is not binding upon the panel to which the appeal is assigned on the merits. FRAP 27.

pertinent part:

2013

Subject to the exceptions in Paragraph C (concerning excluded claims) below, the CFPB fully and finally releases the Released Parties from all potential liability that has been or might have been asserted by the CFPB relating to mortgage servicing practices described in the complaint (the “Mortgage Servicing Practices”) that have taken place as of 11:59 m., Eastern Standard Time, on December 18, 2013.

2014

Notwithstanding any other term of this Release, the CFPB specifically reserves and does not release any liability for conduct other than conduct related to the Mortgage Servicing Practices asserted or that might have been asserted in the Furthermore the CFPB specially reserves and does not release any liability arising under any provision of the Equal Credit Opportunity Act, the Home Mortgage Disclosure Act, or any other statute or law that prohibits discrimination of persons based on race, color, national origin, gender, disability or any other protected status.

….

1. Nothing in this Release shall limit the CFPB’s authority with respect to the Released Parties, except to the extent the CFPB has herein expressly released claims.

[NMS C.J. at Ex. E.] [DE 731-8, p. 5]

The Consent Judgment recited Ocwen’s general ongoing obligation to adhere to the requirements of all applicable state and federal laws,5 making it clear that the NMS and its incorporated Service Standards operated to supplement, not supplant, Owen’s obligations under the law going forward.

As a party to the NMS, the Bureau agreed to abide by its dispute resolution procedures for addressing noncompliance issues reported by the Monitor and agreed to the substantive and procedural limitations on enforcement which it prescribed. Under the NMS, the Monitor had sole discretion to determine whether Ocwen followed the Servicing Standards6 and Consumer Relief Requirements imposed by the Consent Judgment. If the Monitor found a potential violation involving a failure rate

5 The NMS C.J., at ¶17 recites, “Nothing in this Consent Judgment shall relieve Defendant of its obligation to comply with applicable state and federal law.”

6The Servicing Standards, described at Ex. A to the NMS Consent Judgment [DE 731-4], consisted of over 300 detailed standards, with corresponding Metrics listed at Schedule D-1 et seq. for assessing Ocwen’s compliance with those Standards.

that exceeded the prescribed threshold, Ocwen had the right to attempt a cure by proposing and successfully implementing a remedial plan approved by the Monitor. If the potential violation was self-cured in this fashion, the NMS authorized no further remedy. If Ocwen experienced a second error rate above the threshold during the cure, or was unable to cure the initial violation, the NMS allowed the Bureau or States to then pursue an “enforcement action” in the District Court of the District of Colombia seeking equitable relief and a civil penalty of up to $1 million for a first violation [NMS C.J. Ex. D-1, 2 ,3].

The Consent Judgment authorized the Servicer, Monitor or Monitoring Committee to petition the District Court for the District of Columbia for resolution of “any dispute concerning any issue arising under the Consent Judgment, including any dispute or disagreement related to … the exercise of discretion …..,” 7 thus allowing for judicial review of any perceived deficiencies in the exercise of discretion by the Monitor, or compliance by the Servicer, among other matters controlled by the Judgment. The Judgment also authorized the parties to seek modification of its terms – without reference to Rule 60 standards – by joint motion.8

The Consent Judgment mandated that its incorporated Servicing Standards (Ex. A) and Consumer Relief Requirements (Ex. C) “shall be enforced in accordance with the authorities provided in the Enforcement Terms (Ex. D).” [NMS C.J., V. ¶ 6 and Ex. D]. [DE 731-3 p. 11].

7 See NMS C.J. at V., ¶6 [DE 731-3] and Ex. D [DE 731-7], Section G., “Dispute Resolutions Procedures.”

8 See NMS C.J. at VII., ¶12 [DE 731-3, p. 12]:

This Court retains jurisdiction for the duration of this Consent Judgment to enforce its terms. The parties may jointly seek to modify the terms of this Consent Judgment subject to the approval of this Court. This Consent Judgment may be modified only by order of this Court.

Failing an agreed upon modification as basis for a joint motion under this provision, any party to the NMS Judgment presumably remained free to seek modification unilaterally under any of the grounds provided under Rule 60.

The “Enforcement Terms” provided in pertinent part:

Dispute Resolution Procedures. Servicer, the Monitor and the Monitoring Committee will engage in good faith efforts to reach agreement on the proper resolution of any dispute concerning any issue arising under the Consent Judgment, including any dispute or disagreement related to the withholding of consent, the exercise of discretion, or the denial of any application. Subject to Section I, below, in the event that a dispute cannot be resolved, Servicer, the Monitor or the Monitoring Committee may petition the Court for resolution of the dispute. Where a provision of this agreement requires agreement, consent of or approval of any application or action by a Party or the Monitor, such agreement, consent or approval shall not be unreasonably withheld.

I.        Enforcement

Consent Judgment. This Consent Judgment shall be filed in the U.S. District Court for the District of Columbia and shall be enforceable therein. Servicer and the Releasing Parties shall waive their rights to seek judicial review or otherwise challenge or contest in any court the validity or effectiveness of this Consent Judgment. Notwithstanding such waiver any State party may bring an action in that Party’s state court to enforce the Servicer and the Releasing Parties agree not to contest any jurisdictional facts, including the Court’s authority to enter the Consent Judgment

Enforcing Authorities. Servicer’s obligations under this Consent Judgment shall be enforceable in the S. District Court for the District of Columbia or in the state court of any State Party that brings an action to enforce the Judgment. An enforcement action under this Consent Judgment may be brought by any Party to this Consent Judgment or the Monitoring Committee. The Monitor Report(s) and Quarterly Report(s) shall not be admissible into evidence by a Party to this Consent Judgment, except in an action in the court or state court to enforce this Consent Judgment. ….

Enforcement Action. In the event of an action to enforce the obligations of Servicer and to seek remedies for an uncured Potential Violation for which Servicer’s time to cure has expired, the sole relief available in such an action will be:

Equitable Relief. An order directing non-monetary equitable relief, including injunctive relief, directing specific performance under the terms of this Consent Judgment, or other non-monetary corrective

Civil Penalties. The Court or state court may award as civil penalties an amount not more than $1 million per uncured Potential Violation, or in the event of a second uncured Potential Violation of Metrics a., 1.b. or 2.a. (i.e. a Servicer fails the specific Metric in a Quarter, then fails to cure that Potential Violation, and then in subsequent Quarters fails the same Metric again in a Quarter and fails to cure that Potential Violation again in a subsequent Quarter), where the final uncured Potential Violation involves widespread noncompliance with that Metric, the Court or state court may award as civil penalties an amount not more than $5

[DE 731-7].

million for the second uncured Potential Violation.

Nothing in this Section shall limit the availability of remedial compensation to harmed borrowers as provided in Section E. 5.

The Consent Judgment became effective February 26, 2014 and remained in effect until February 26, 2017. The District Court for the District of Columbia retained exclusive jurisdiction over enforcement actions brought by non-State parties [NMS C.J. V., Ex. D at Section I. 2] and retained jurisdiction to enforce any outstanding violations identified in the Monitor’s final Monitor Report that occurred but were not cured during the term of Judgment. [NMS C.J. ¶ 15].

The Bureau was familiar with and actively participated in monitoring Ocwen’s servicing performance under the NMS Consent Judgment. As a member of the “Monitoring Committee” designated by the Judgment, the Bureau was also charged with an obligation to monitor Ocwen’s compliance with its terms. [NMS C.J. V. ¶ 8] [“The Monitoring Committee shall serve as the representative of the Plaintiffs in the administration of all aspects of this Consent Judgment and the monitoring of compliance with it by the Defendant.”]. And, since the Monitor was charged with an obligation to confer with the Monitoring Committee and Servicer before issuance of his quarterly compliance reports, the Bureau was consistently afforded an opportunity to participate actively in ongoing compliance issue discussions with fellow committee members and the Monitor. [NMS C.J. at Ex. D.4]

The Monitor reported that Ocwen almost always met the Servicing Standards during the three- year term of the Consent Judgment. In instances where it did not, Ocwen was generally able to cure the identified issue and come into compliance with the Servicing Standards established by the NMS. [Jenna Evans Affidavit, DE 731-12 at ¶¶ 10-11]. In the one instance where it was it unable to accomplish a cure, involving a single metric in a single quarter, the Monitoring Committee filed an unopposed motion to enforce the NMS Consent Judgment for a first violation in the District Court for the District of Columbia, triggering recovery of a $1 million civil penalty and non-monetary equitable relief as prescribed by the Judgment. Id. [Case 13-2025, DE 45, 46 (D.D.C. Sept 6, 2017)].

B. The 2017 Florida Action

Two months after expiration of the term of the Consent Judgment, on April 20, 2017, the Bureau filed the instant lawsuit alleging that Ocwen violated the CFPA and other federal consumer financial laws9 “in numerous instances since January 2014” as the result of alleged loan servicing failures impacting over two million loans. In its now operative Amended Complaint, filed October 4, 2019 [DE 481], the Bureau claims Ocwen used inaccurate and incomplete loan data in the servicing of loans, the product of its inputting of inaccurate and incomplete account information obtained from other servicers without review and substantiation along with other deficiencies in the operation of its proprietary “system of record” (“SOR” ), all constituting “unfair deceptive acts and practices” in violation of the CFPA (Count 1); made material misrepresentations to borrowers regarding loan terms and status (again allegedly due to its reliance on inaccurate loan data placed into its system of record without substantiation), constituting “unfair deceptive acts and practices” in violation of the CFPA (Count 2); made material misrepresentations to borrowers regarding foreclosures and committed other foreclosure-related misconduct, constituting unfair and deceptive acts and practices in violation of the CFPA (Count 3); failed to provide accurate periodic billing statements to borrowers, constituting unfair

9 Unlike the 2013 D.C. Complaint, where the Bureau asserted violations of Consumer Financial Protection Act of 2010 only (Counts 3, 4), in the 2017 Florida Complaint the Bureau alleged that the loan servicing misconduct giving rise to the CFPA violations also violated the Fair Debt Collection Practices Act, the Truth in Lending Act and Regulation Z, the Real Estate Settlement Procedures Act and Regulation X, and the Homeowners Protection Act of 1998.

deceptive acts and practices in violation of the CFPA, as well as violations of the Truth in Lending Act (TILA) and Regulation Z (Count 4); used inaccurate and incomplete loan data in servicing of loans, constituting violations of both the CFPA and the Fair Debt Collection Practices Act (“FDCPA”) (Count 5); engaged in deceptive debt collection practices, through material misrepresentations made to borrowers, constituting violations of both the FDCPA and the CFPA (Count 6); failed to pay hazard insurance premiums in a timely manner on behalf of escrowed borrowers and other escrow-related misconduct in violation of the Real Estate Settlement Procedures Act (“RESPA”) and Regulation X (Count 7); failed to maintain adequate servicing policies and procedures reasonably designed to ensure that it provided its personnel with access to the accurate loan information needed to service borrower accounts and respond to consumer complaints properly, constituting violations of the RESPA and Regulation X as well as the CFPA (Count 8); improperly initiated foreclosures when the borrower was on track towards a loan modification and other foreclosure-related misconduct in violation of the RESPA and Regulation X and the CFPA (Count 9); and failed to terminate private mortgage insurance (PMI) automatically in connection with residential mortgage transactions when required to do so (i.e. on the “termination date,” the date on which the principal balance is scheduled to reach 78% of property’s original value), constituting violations of the Homeowner Protection Act (“HPA”) as well as the CFPA (Count 10).

III.              STANDARD OF REVIEW

Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354 (11th Cir. 1999). Under this standard, “only disputes over facts that might affect the outcome of the suit under the governing [substantive law] will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is “genuine” in this sense only “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.

In evaluating a motion for summary judgment, the Court considers the evidence in the record, “including depositions, documents, electronically stored information, affidavits or declarations, stipulations… admissions, interrogatory answers, or other materials…” Fed. R. Civ. P. 56(c)(1)(A). The Court “must view all the evidence and all factual inferences reasonably drawn from the evidence in the light most favorable to the moving party and must resolve all reasonable doubts about the facts in favor of the non-movant.” Rioux v. City of Atlanta, Ga., 520 F.3d 1269, 1274 (11th Cir. 2008).

A party may seek summary judgment under Rule 56 on res judicata grounds by introducing sufficient information into the record for the court to judge the validity of the defense, including sufficient evidence of the precluding decision and other trial court records from the prior case. North Georgia Electric Membership Corp. v. City of Calhoun, Ga., 989 F.2d 429 (11th Cir. 1993); Jones v. Gann, 703 F. 2d 513, 515 (11th Cir. 1983). The question of the application of res judicata to the facts, viewed in the light most favorable to the nonmoving party, is ultimately a pure question of law properly decided by the Court on a motion for summary judgment. See Kizzire v. Baptist Health System, Inc., 441 F.3d 1306, 1308 (11th Cir. 2006); Plotner v. AT & T Corp., 224 F.3d 1161 (10th Cir. 2000); Israel Discount Bank, Ltd. v. Entin, 951 F.2d 311, 314 (11th Cir. 1992).

IV.              DISCUSSION

 Res Judicata

The primary thrust of Ocwen’s summary judgment motion poses a pure question of law, i.e. whether the bulk of the Bureau’s current claims are barred by the res judicata effect of the D.C. Consent Judgment.10 Under res judicata, also known as “claim preclusion,” a final judgment on the merits bars the parties to a prior action from re-litigating claims that were raised, or could have been raised, in the prior action. Davila v. Delta Air Lines, Inc., 326 F.3d 1183 1187 (11th Cir. 2003); In re Piper Aircraft Corp., 244 F.3d 1289, 1296 (11th Cir. 2001); Richardson v. Ala. State Bd. of Education, 935 F.2d 1240, 1244 (1991). The doctrine is designed to relieve parties of the cost of multiple lawsuits, conserve judicial resources, promote comity between state and federal courts, and, by preventing inconsistent decisions, encourage reliance on adjudications. See Kremer v. Chemical Construction Co., 456 U.S. 461, 466 n. 6 (1982); Nwosun v. General Mills Restaurants, Inc., 124 F.3d 1255, 1258 (10th Cir. 1997).

In the Eleventh Circuit,11 a defendant asserting res judicata must establish four  elements: (1)

10 In separate preclusion arguments, Ocwen contends that the Bureau’s current claims are barred “as a matter of contract law” by the 2014 NMS Consent Judgment. In this vein, it asserts that it would be inequitable to allow the Bureau to enjoy the benefits of the NMS agreement, under which Ocwen has fully performed, while side-stepping the substantive and procedural limitations on compliance monitoring and enforcement actions imposed by the NMS Consent Judgment.

It contends that the Bureau’s current claims at Counts 1-9 are all grounded on servicing activity controlled by the Servicing Standards of the NMS; that these claims therefore could and should have been raised in the context of the dispute resolution procedures established in the first action by agreement of the parties; and that it would be unfair for the Bureau to now circumvent those procedures by bringing a direct judicial enforcement action in contravention of the limitations imposed under the NMS.

Alternatively, as to the prospective injunctive relief and monitoring period established under the Consent Judgment, Ocwen argues that the Bureau waived its right to pursue judicial enforcement actions seeking redress for alleged misconduct controlled by the alternative dispute resolution procedures of the NMS. Ocwen contends those dispute resolution procedures controlled all compliance issues attending the Servicing Standards imposed by the NMS, and that the Bureau, by agreeing to those procedures, waived the right to pursue an independent judicial enforcement action seeking redress for alleged misconduct covered by the NMS Servicing Standards.

The Court views both of these arguments as variations on the theme that an identity of causes of action exists between the Bureau’s current claims and those which were asserted or could have been asserted in the first action under the mandatory dispute resolution procedures governing NMS compliance monitoring. As such, these arguments will be considered in the context of Ocwen’s res judicata defense — where the identity of claims factor conceptually rests – and not as separate preclusion defenses.

11 The preclusive effect of a federal-court judgment is determined by federal common law. Taylor v. Sturgell, 553 U.S. 880, 891, 128 S. Ct. 2161, 171 L.Ed.2d 155 (2008); CSX Transp., Inc. v. Brotherhood of Maintenance of Way Employees, 327
F.3d 1309, 1316 (11th Cir. 2003); J.Z.G. Resources, Inc. v. Shelby Ins. Co., 84 F.3d 211, 213-14 (6th Cir. 1996).

Letter submitted to Congress on June 26, 2020 asking them to intervene regarding the 11th Circuits deliberate stalling and refusal to accept Marra’s complaint. They too, were and remain silent.

a prior decision rendered by a court of competent jurisdiction; (2) constituting a final judgment on the merits; (3) an identity of parties or their privies; and (4) an identity of causes of action. In re Piper Aircraft, 244 F.3d at 1296; Davila, 326 F.3d at 1187; Richardson, 935 F.2d at 1316. It is the defendant’s burden to show that the later-filed suit is barred. In re Piper Aircraft, 244 F.3d at 1296.

Res judicata traditionally precludes not only the specific claims and legal theories brought in a prior complaint, but any other claims that stem “out of the same nucleus of operative fact, or [are] based upon the same factual predicate.” Ragsdale v. Rubbermaid, Inc., 193 F.3d 1235, 1239 (11th Cir. 1999); Pleming v. Universal-Rundle Corp., 142 F.3d 1354, 1356-57 (11th Cir. 1998). Thus, in assessing whether an identity of claims exists, the Court appropriately considers a variety of factors, including whether the later claims involve the same statutes, evidence, events or occurrences, parties and witnesses. Ragsdale v. Rubbermaid, Inc., 193 F.3d 1235, 1238 (11th Cir. 1999).12

As a basic tenet, “if a case arises out of the same nucleus of operative fact, 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.” Id. After comparing the relevant occurrences giving rise to each action, the Court must determine whether the plaintiff “could, or rather should, have brought the second claim with the first lawsuit.” Trustmark Insurance Co. v. ESLU, Inc., 299 F.3d 1265, 1270 (11th Cir. 2002). If the answer is yes, res judicata bars the second action.

Conversely, res judicata does not operate as a bar to a second action between the same parties or their privies when the second action is brought on a different cause of action for a new wrong.

12 Other circuits employ similar tests for determining an identity of claims under traditional res judicata applications, focusing on whether substantially the same evidence is presented in the two actions; whether the two suits involve infringement of the same right; whether the two suits arise out of the same transactional nucleus of facts; whether the rights or interests established in the prior judgment would be destroyed or impaired by the prosecution of the second action. See e.g. Nordhorn v. Ladish Co., 9 F.3d 1402, 1405 (9th Cir. 1993).

A new judge and a single order.  Did this mean Judge Jill Pryor has recused but just not answered the Burkes’ renewed motion to disqualify her? This unlawful and rules erroneous order was issued by Branch on 25 June, 2020.

Motion to Clarify submitted 28th May, 2020, regarding a lawyer who is representing both sides of the case per the Certificate of Interested Persons (CIP), namely Tony Alexis. The Burkes request clarification if Mr. Anthony ‘Tony’ Alexis has represented CFPB in this case or the lower court proceedings, is currently skipping between both Goodwin and CFPB as “of counsel” or what the legal standing is for this gentleman.

Herendeen v. Champion Intern. Corp., 525 F.2d 130, 133 (2nd Cir. 1975). However, new evidence of injury does not necessarily establish a new wrong, and allegations of a “continuing violation” arising out of the same occurrence or course of conduct do not necessarily avoid a res judicata bar. Supporters to Oppose Pollution, Inc. v. Heritage Group, 973 F.2d 1320, 1326 (7th Cir. 1992) (environmental claims for ongoing pollution from closed waste dump held precluded because existence of ongoing releases was known at time of initial suit); Friends of Milwaukee’s Rivers v. Milwaukee Metropolitan Sewerage District, 382 F.3d 743, 758 (7th Cir. 2000) (post-settlement claims of harm shared identity with those covered by settlement because settlement “was intended to address the underlying cause of the continuing violations”).

There is no dispute as to the existence of first three elements in this case. The District Court which entered the D.C. Consent Judgment had proper jurisdiction based on federal subject matter jurisdiction, and the Consent Judgment which it entered constituted a final judgment on the merits: The parties reached a settlement agreement (NMS), and the District Court entered a Consent Judgment which incorporated that agreement into a final judgment. Even though premised on an agreement of the parties, a consent decree is considered a former adjudication on the merits which is entitled to res judicata effect. Paradise v. Prescott, 767 F.2d 1514, 1525 (11th Cir. 1985), aff’d, 40 U.S. 149 (1987); Ragsdale v. Rubbermaid, Inc., 193 F.3d 1235, 1238 (11th Cir 1999); Citibank, N.A. v. Data Lease Financial Corp., 904 F.2d 1498, 1501-02 (11th Cir. 1990); Arrieta-Gimenez v. Arrieta-Negron, 551 So.2d 1184 (Fla. 1989); Evans v. Deutsche Bank Nat’l Trust Co., 2015 WL 12746108, at *1 (S.D. Fla. 2015). The Bureau does not contend otherwise. There is also an identity of parties: The Bureau was a party to the D.C. Action, and the current Ocwen Defendants or their privies were parties to the D.C. Action.

Thus, the only disputed question is whether the two suits involve the same causes of action.

On this issue, the Bureau recognizes that Ocwen has shown “facial overlap” between the text of the Bureau’s current claims and the Servicing Standards imposed under the NMS Consent Judgment over Ocwen’s servicing performance during the three-year term of the Consent Judgment (February 26, 2014 through February 26, 2017) [DE 740 at p. 6]. However, the Bureau argues that the first and the second actions are different in two primary respects: First, it contends that its current action is different because it focuses primarily on defects in Ocwen’s “system of record,” including its collection and input of inaccurate and incomplete loan data from prior loan servicers into its record without proper review and verification, as well as other systemic failures impairing the reliability of the information generated by that system, while the first action did not test or challenge the accuracy of the underlying loan data but instead focused on Ocwen’s alleged misuse of that data.

Second, the Bureau argues that the “Metrics” used by the Monitor to test Ocwen’s compliance with the NMS Servicing Standards during the term of the Consent Judgment do not precisely cover the claims which it asserts in the second action. As evidence of this incongruity, it notes that the Monitor never identified the servicing misconduct alleged in its current complaint in his quarterly monitor reports. In other words, the Bureau contends that its current claims require assessment under different metrics than those prescribed by the NMS, and for that reason could not have been resolved under the dispute resolution procedures prescribed by NMS.

1.             System of Record (SOR) Failures

As to alleged deficiencies in Ocwen’s System of Record (SOR), the purported “new wrongs” underpinning the Bureau’s Florida action, the Bureau notes that the Monitor acknowledged that the NMS Metrics which he used to gauge Ocwen’s performance under the NMS Servicing Standards assumed that the underlying SOR data was correct. It also notes that the Monitor disclaimed any duty on his part to review that data for accuracy.

However, the Monitor also recognized that “[t]he [NMS] Settlement requires that an independent third party periodically review those parts of the SOR that pertain to account information for accuracy and completeness.” [Monitor’s Report for Periods Ending September 30, 2016, December 31, 2016 and March 31, 2017] [DE 731-24, p. 7]. See also NMS C.J. and Ex A, ¶I. B. 9. He also reported in December 2014 that “Servicer [Ocwen] has provided for my review its two most recent independent service auditor’s reports of its system of record and will provide future independent service auditor’s reports of its system of record until the Judgment sunsets.” [DE 754-2, p. 20] [Monitor’s Interim Report Regarding Compliance by Ocwen Loan Servicing LLC, filed in United States v. Bank of America, Case No. 12-0361 (RMC) (D. D. C. Dec 16, 2014), and that he “also charged McGladrey (independent auditor) with additional supplemental work … to assess the reliability of [Ocwen’s] systems of record.” [DE 754-4, p. 17].

Thus, the Bureau’s current allegations regarding SOR deficiencies plainly derive from the same nucleus of operative fact underpinning the D.C. Action, and it is apparent that SOR accuracy issues were specifically addressed in the NMS Servicing Standards and were part of the servicing activity routinely reviewed by the NMS Monitor. Given this overlap, the Bureau’s newly asserted statutory violations based on alleged SOR defects do not establish a “new wrong,” and are barred by traditional res judicata applications. See e.g. Friends of Milwaukee’s Rivers v. Milwaukee Metropolitan Sewerage Dist., 382 F.3d 743 (7th Cir. 2004) (ongoing or continuing violations of Clean Water Act did not constitute separate and distinct cause of action, for res judicata purposes, since violations were related in origin and had same factual basis as pre-stipulation violations and stipulation was intended to address underlying causes of continuing violations by implementing remedial measures over time); Jet, Inc. v. Sewage Aeration Systems, 223 F.3d 1360, 1362 (Fed. Cir. 2000).

2.             Gap in NMS Metrics

While the Bureau would not be precluded from alleging a new set of statutory violations based on loan servicing activities separate and apart from the services monitored under the terms of the Consent Judgment, the claims asserted here do not fall in that category. Instead, the new set of alleged statutory violations are based on the same loan servicing activities as those which gave rise to DC Action and which were monitored under the NMS Consent Judgment. Indeed, the Bureau does not dispute that the subject matter of the NMS Servicing Standards overlaps with the loan servicing activity and misconduct alleged in its Florida Complaint.

The Bureau nevertheless contends that its current claims of loan servicing misconduct implicate new wrongs which were not the subject of compliance monitoring under the NMS Consent Judgment, and which could not have been brought under the NMS dispute resolution procedures. It thus maintains that its current claims are distinct from those brought in the first action, and do not impair any rights or interests create by the Consent Judgment. As support for its contention that there is no identity of claims, the Bureau points out that the loan servicing misconduct alleged in its current action was never reported by Monitor in the quarterly reports generated during the term of the Consent Judgment. It also takes the position that the NMS Metrics were not adequate to test for the categories of servicing misconduct alleged in its current action, suggesting that this gap further evinces the existence of a new wrongs arising from a new factual predicate.

In response, Ocwen argues that the existing NMS Metrics are adequate to test the categories of servicing misconduct alleged in the Bureau’s current complaint for compliance with Servicing Standards. Alternatively, it argues that to the extent new metrics are needed for this purpose, the NMS authorized the Monitor to develop and implement additional metrics as needed when presented with evidence of any material departure from the Servicing Standards. The Court finds the latter proposition to be unsupported by the record.13 It finds it unnecessary to address the former because, regardless of the extent of Metric overlap, the first and second actions derive from the same set of transactional facts which, under traditional res judicata applications, triggers claim preclusion.

That the NMS Metrics originally agreed upon as a tool for testing Ocwen’s compliance with the Servicing Standards may have proven insufficient to accomplish that task, as to the statutory violations alleged in the second suit, does not defeat an overlap of claims or causes of action – as seemingly advanced by the Bureau. It simply points to a limitation in the negotiated settlement between

13 In support of this argument, Ocwen cites to Section C. ¶¶ 22-23 of the “Enforcement Terms” of the Consent Judgment [NMS C.J. at Ex. D], contending this provision allowed the Monitor to add an additional Metric and associated Threshold Error Rate upon receipt of any information suggesting Owen’s violation of any “material term of the Servicing Standards.” DE 753-pp. 10-11

This contention finds no support, however, in the text of the Enforcement Terms from which it is extrapolated. The provision relating to the addition of new metrics, found under “Monitors’ Powers” of the Enforcement Terms, refers to noncompliance with Servicing Standards in the specific context of foreclosure-related properties, as the first sentence of the cited paragraph makes clear:

If the Monitor becomes aware of facts or information that lead the Monitor to reasonably conclude that Servicer may be engaged in a pattern of noncompliance of a material term of the Servicing Standard that is reasonably likely to cause harm to borrowers or tenants residing in foreclosure properties, the Monitor shall engage Servicer in a review of determine if the facts are accurate or the information is correct. If after that review, the Monitor reasonably concludes that such a pattern exists and is reasonably likely to cause material harm to borrowers or tenants residing in foreclosure properties, the Monitor may propose an additional Metric and associated threshold Error Rate relating to Servicer’s compliance with the associated term or requirement.

[NMS C.J. at Ex. D, D-7, C.22] [DE 731-7, pp. 9-10] (emphasis supplied). Section C.23, in turn, provides for judicial review of any additional metrics proposed by the Monitor under C.22 in the event the Servicer does not agree with additional metrics so proposed. In short, the NMS Consent Judgment did not create an open-ended authority for the Monitor to develop new Metrics to assess Ocwen’s violation of any material term of the Servicing Standards, contrary to the position here advanced by Ocwen.

 The CFPB’s absurd argument re CIP. And look when it was answered. Way, way out of the time allowed. This was submitted by CFPB’s counsel, Jack, a man of many names and many emails on June 22, 2020.

the parties. Having agreed to test compliance with the Servicing Standards under Metrics agreed upon under the Consent Judgment, the Bureau cannot now claim that testing Ocwen’s compliance with those standards under any other set of metrics somehow implicates the existence of a new wrong not covered by the NMS. Furthermore, to the extent the Bureau perceived that the NMS Metrics had proven inadequate to test compliance with the Servicing Standards, it could and should have petitioned the District Court in the District of Columbia for review of the matter, pursuant to its reserved jurisdiction to resolve “any disputes concerning any issue arising under the Consent Judgment” that the parties were unable, in good faith, to resolve by agreement amongst themselves.

1.             Identity of Causes of Action

After a careful review of the record in this case, the Court concludes that the Bureau’s attempts to distinguish this case from the D.C. action are artificial and do not avoid the preclusive effect of the Consent Judgment entered in the D.C. action. The Bureau’s claims at Counts 1-9 are the substantially the same as those covered by the NMS Consent Judgment. They stem from the same wrong — Ocwen’s use of incomplete and inaccurate loan account data in the servicing of residential mortgage loans which it acquired from other servicers. While the Consent Judgment was signed in December 2013 and provided monetary compensation to borrowers for servicing violations occurring prior to that time, it also required prospective monitoring of Ocwen’s servicing performance from February 26, 2014 to February 26, 2017 under detailed Servicing Standards designed to prevent the same genre of loan servicing misconduct as that charged by the Bureau in its current suit.

In its Florida Complaint, the Bureau alleges that “in numerous instances” since January 2014, Ocwen violated the CFPA and other consumer financial laws as a result of its reliance on inaccurate and incomplete loan data, collected from prior servicers without proper review and substantiation, in its account servicing and in its communications with borrowers.

At Counts 1 through 9, the Bureau essentially realleges the same misconduct as that alleged in the D.C. Action,

only this time it asserts that the misconduct gave rise not only to CFPA violations (Counts 1-6, 8, 9) but also to violations of the TILA and Regulation Z (Count 4), the FDCPA (Counts 5, 6 ), and the RESPA and Regulation X (Counts 7-9).

As to alleged loan servicing misconduct occurring before February 26, 2017 (the expiration of the three-year term of Consent Judgment), the Bureau does not identify new matters that were not or could not have been subjected to the dispute resolution procedures and enforcement mechanism prescribed by the Judgment, or to judicial review procedures governing enforcement of the terms of the Judgment. The 2014 NMS Consent Judgment included a three-year term of monitoring compliance going forward, as part of the injunctive relief awarded, and tested Ocwen’s compliance with NMS Servicing Standards over that term, subject to the exclusive dispute resolution procedures and enforcement mechanisms prescribed by the Judgment. That the NMS Metrics may have proven inadequate to test compliance with overlapping consumer protections imposed under the TILA, RESPA, and FDCPA, does not defeat an identity of causes of action under traditional res judicata applications.

As to Bureau’s further argument it could not have pursued redress in the first action for violations of regulations which did not take effect until January 2014, the Court is not persuaded that the overlapping consumer protections relayed under these regulations support a showing of a “new wrong” arising from servicing conduct separate and apart from that monitored by the NMS Consent Judgment.

2.             Contract Defense

As an alternative and independent basis for avoiding the asserted res judicata bar, the Bureau raises a contractual defense – arguing simply that the language of the NMS Consent Judgment allows it to bring this suit. On this point, it correctly notes that the Release it executed pursuant to the Consent Judgment released liability only for violations up through the date of execution of the NMS (i.e. December 2013), and at the same time specifically reserved the Bureau’s enforcement authority against Ocwen going forward.

However, this contractual reservation does not operate as an exception to the principle of res judicata. There is no language in the Release supporting the ability of the Bureau to bring suit for wrongs covered by the Consent Judgment – which includes wrongs arising during the three-year term of Judgment which are covered by the NMS Servicing Standards and therefore necessarily subject to the Enforcement Terms of the Judgment. The preclusive effect of the 2014 NMS Consent Judgment, as to any such wrong, does not negate the Bureau’s enforcement authority, it simply limits it to the boundaries to which the Bureau itself agreed in the prior action.

3.             Prospective Injunctive Relief

Finally, the Bureau contends as a general proposition that res judicata does not operate to preclude claims for new wrongs arising out of activity covered by prospective injunctive relief granted in a prior lawsuit. As support for this premise, it cites Lawlor v. Nat’l Screen Services, 349 U.S. 322, 75 S. Ct. 875, 99 L.Ed. 1122 (1955) and Norfolk Southern Corp. v. Chevron, 371 F.3d 1285 (11th Cir. 2004).

Both Lawlor and Norfolk are distinguishable from the present case. As a threshold matter, neither case involved the imposition of alternative dispute resolution procedures as part of the prospective injunctive relief awarded in the first action (placing both substantive and procedural limitations on any future enforcement activity), as is present in the current case.

In Lawlor, the Supreme Court examined the asserted res judicata impact of a prior judgment of dismissal with prejudice, based on a settlement, in a civil suit involving violations of federal anti- trust laws. The Court noted that the injunctive relief requested in the first suit – if granted – would have prevented the violations complained of in the second suit. However, injunctive relief was not granted in the first suit. Under those facts, the Court found no res judicata bar to the plaintiffs’ pursuit of a second suit based on the same course of wrongful conduct, but alleging new antitrust violations occurring after the entry of the first judgment. In reaching this result, it rejected the defendants’ contention that the plaintiffs’ failure in the first suit to press their demand for injunctive relief should preclude the new claims, commenting that such a result “would in effect confer on [defendants] a partial immunity from civil liability for future violations.” Lawlor, 349 U.S. at 329.

Unlike in Lawlor, in this case the Bureau did successfully press its demand for injunctive relief in the first action, resulting in entry of a Consent Judgment which imposed a detailed schematic of injunctive relief, inclusive of narrowly tailored substantive and procedural limitations on enforcement terms governing future violations of the granted injunctive relief. The preclusion of these newly alleged claims, arising from alleged misconduct falling within that schematic, would not result in a grant of immunity to Ocwen for future violations of consumer protection laws. It simply results in imposition of agreed-upon substantive and procedural limitations on the extent of Ocwen’s liability for future violations.

In Norfolk Southern, the Eleventh Circuit held, in the context of a stipulated voluntary dismissal with prejudice under Fed. R Civ. P. 41, that “a somewhat modified form of res judicata applies to the written settlement agreement upon which such dismissal is predicated, if one exists.” 371 F.3d at 1291. Under this modified res judicata approach, whether a claim is precluded from future litigation is determined by looking at the terms of the settlement agreement itself (as interpreted under traditional principles of contract law), instead of by reference to the claims pled in the original complaint. Id. at 1289. Thus, in Norfolk Southern, the Eleventh Circuit held that the focus, in determining the res judicata effect of a prior order of dismissal based on stipulated settlement, is on parties’ intent as it is reflected in the terms of the settlement agreement itself. Id.

Unlike in Norfolk, this Court is not tasked with interpreting the res judicata effect of a prior Rule 41 dismissal based on a stipulated settlement. Rather, the Court’s res judicata ruling here is based on the preclusive impact of a prior final consent judgment, incorporating a stipulated settlement agreement, which was entered by a sister federal district court. Further, the prior judgment at issue here included, per the parties’ agreement, the mandatory imposition of alternative dispute resolution procedures and an enforcement schematic governing any future instances of noncompliance with the prospective injunctive relief. For these reasons, Norfolk Southern is inapposite.

Moreover, even assuming a modified res judicata analysis similar to that outlined in Norfolk Southern is appropriate here, the Bureau’s current claims (to extent they are based on servicing conduct occurring prior to February 26, 2017) would still be precluded. Based on the express terms of the NMS, the parties intended and agreed that only departures from the Servicing Standards which exceeded the minimal Threshold Error Rates prescribed by the NMS would be actionable, and even then, would be actionable only within the narrow confines of the Enforcement Terms prescribed by the NMS Consent Judgment. This intent is plainly discernible from the face of the NMS.

Contrary to that intent, the Bureau now seeks redress for departures from the Servicing Standards occurring during the term of the Consent Judgment, without regard to the Threshold Error Rates, contending that these departures violated multiple consumer financial laws beyond those which it alleged in the first action.

Because the NMS already established the means by which Ocwen’s noncompliance with federal law would be measured and redressed during the term of Consent Judgment, as to matters controlled by the Servicing Standards, and because the Bureau’s current claims at Counts 1-9 are concededly matters covered by the Servicing Standards, the Bureau’s new claims are precluded, even under the application of the Norfolk Southern modified version of res judicata.

The Bureau’s claims against Ocwen in this case also include the assertion of statutory rights under the CFPA that could have been and were originally brought in the first lawsuit.14 Its attempt to assert new statutory violations (TILA, FDCPA and RESPA) arising out of alleged servicing misconduct occurring during the term of the Judgment which is also covered by the Servicing Standards is barred by res judicata.

4.             Conclusion

Claims Based on Conduct Pre-Dating February 26, 2017

Traditional principles of res judicata preclusion do allow additional litigation if some new wrong occurs after the first action is filed, see Supporters to Oppose Pollution, Inc. v. Heritage Group,

14 To extent the Bureau claims it also seeks to enforce regulations taking effect after the NMS was executed, pursuant to its general enforcement authority, as to conduct controlled by the Servicing Standards, and felt the NMS was an inadequate vehicle by which to exercise that authority, it had the option of seeking a joint modification of the terms of Consent Judgment, to expand the Metrics needed to gauge compliance with new regulations, or of petitioning the D.C. Court for resolution of any dispute arising between the parties respecting Ocwen’s general obligation to comply with all applicable federal and state laws going forward, an obligation recognized under the Consent Judgment and enforceable by its terms.

Judicial complaint filed June 9, 2020. The Burkes hold Judge Marra’s assertions to be false, untruthful and for the purposes of this judicial complaint, personal and pervasive bias against these pro se elderly citizens from Texas.

973 F.3d 1320, 1326 (7th Cir. 1992); Pleming, 142 F.3d at 1357, but the Bureau has not alleged new wrongs here. The claims it asserts at Counts 1-9 of its Amended Complaint are based on the same underlying conduct as that giving rise to the first action and are asserted in the nature of continuing violations or wrongs.

Because its current claims at Counts 1-9 are based on activity covered by the Servicing Standards used to monitor Ocwen’s performance during the three-year term of the Judgment, these claims are barred by res judicata. That the Bureau now better understands the cause and ramifications of the servicing misconduct alleged in the D. C. Action and wishes to cast a wider statutory net over it does not avoid a res judicata bar. See e.g. Northern California River Watch v. Humboldt Petroleum, Inc., 162 Fed. Appx 760 (9th Cir. 2006) (unpub) (citing Friends of Milwaukee’s Rivers, 382 F.3d at 758 (continuing violations from same underlying problem did not constitute separate and distinct causes of action from those identified in previous settlement that attempted to remedy underlying problem); Sierra Club v. Two Elk Generation Partners, Ltd., 646 F.3d 1258, 1270 (10th Cir. 2011); Deville v. Specialized Loan Servicing LLC, 2020 WL 7861974 (C.D. Cal. 2020); Levin v. County of Westchester, 2017 WL 3309757 (S.D.N.Y. 2017) (consent decree providing means to seek court intervention in event of continuing violation or failure to comply with consent decree precluded subsequent putative class action alleging violations of Safe Drinking Water Act ). See also Anderson v. Vanguard Car Rental USA Inc., 427 Fed. Appx. 861, 2011 WL 2149486, at *2 (11th Cir. 2011) (citation of two different statutes as the bases for two suits did not prelude operation of res judicata bar on second suit arising from the same “nucleus of operative facts”).

a.             Claims Based on Conduct Post-Dating February 26, 2017

To the extent the Bureau’s new claims are based on service activity occurring after the expiration of the term of the 2014 Consent Judgment (Feb 26, 2017), res judicata is not a bar.

In its Amended Complaint, the Bureau simply asserts that each set of new statutory violations alleged is premised on loan servicing activity performed by Ocwen “in numerous instances since January 2014.” It has since maintained that the relevant time period for its current claims is “January 1, 2014 to the present.” [DE 728 p. 3, n. 7]. Whether the Bureau intends to include activity post-dating the expiration of term of Consent Judgment in its current claims is not clear. Ocwen does not address this temporal dichotomy in the presentation of its res judicata defense, and it is not possible to resolve it on the face of the Bureau’s pleadings or current summary judgment record.

For this reason, the Court will reserve ruling on the alternative grounds advanced by Owen in support of motion for summary judgment, as to claims arising from servicing activity conducted after February 26, 2017, pending submission of a supplemental position statement from the Bureau on this point as herein directed by the Court.

A.     Count 10: PMI Irregularities

Ocwen has not asserted a res judicata defense as to Count 10.

As to this Count, it contends the Bureau’s failure to adduce evidence establishing each element of the claimed PMI violations warrants the entry of summary judgment in its favor.

The Bureau, in turn, has moved for summary judgment on liability on this Count.

The Bureau relies upon the deposition testimony of Ocwen’s Rule 30(b)(6) witness, Andrew Scott Combs, Vice-President of Servicing Operations for Ocwen Financial [DE 729-38, pp. 197-199], which explained the contents of a spreadsheet of loans produced by Ocwen involving the cancellation of PMI [DE 729-127]. The Bureau contends this testimony establishes that subsequent to January 2014, with regard to 7,771 residential mortgage loans, the PMI was not cancelled timely on the scheduled termination dates.

At Count 10, the Bureau alleges that Ocwen violated Homeowners Protection Act, 12 U.S.C. 4902(b) in each of these cases based on its failure to terminate timely PMI for borrowers who were current on their mortgages in “residential mortgage transactions,” i.e. mortgages involving single family homes operating as the principal residence of the borrower. See 12 U.S.C. §§ 4902(b)(1) and (15).

The parties dispute whether the spreadsheet produced in discovery, in conjunction with the deposition testimony of Mr. Combs, forecloses any dispute on whether the statutory prequalifying conditions for PMI cancellation were met as to each loan.

Ocwen contends that Combs testimony made clear that the “effective cancellation date” noted on the chart meant simply the date on which the transaction was recorded in Ocwen’s records as cancelled, and did not necessarily correspond to the date on which cancellation actually occurred.

Further, Ocwen adduces proof of at least one delinquent loan appearing on this list. The Bureau contends that Combs’ testimony regarding “effective cancellation” dates is speculative, and that one instance of a disqualifying loan cannot be extrapolated to infer the existence of other loans in default.

Following careful review of the Bureau’s evidence on this Claim [DE 729-55, 729-127, 729- 38 and 729-52], the Court finds that the summary judgment record raises a genuine issue of fact on whether the prequalifying conditions for PMI cancellation were met for each loan identified on the PMI cancellation spreadsheet [DE 729-127].

Therefore, as to this Count, the Bureau’s motion for summary judgment, and Ocwen’s motion for summary judgment are both denied.

IV.              CONCLUSION

Based on the foregoing, it is ORDERED AND ADJUDGED:

The Ocwen Defendants’ motion for summary judgment, as to the claims asserted in Counts 1-9 of the Bureau’s Amended Complaint [DE 730] is GRANTED IN PART AND DENIED IN PART as follows:

To the extent the Bureau’s claims are based on alleged servicing misconduct which occurred before expiration of the NMS Consent Judgment (2/26/17), Ocwen’s motion is GRANTED based on res judicata.

To the extent the Bureau’s claims are based on alleged servicing misconduct which occurred after expiration of the NMS Consent Judgment (2/26/17), ruling on the remaining grounds advanced in support of Ocwen’s motion for summary judgment is RESERVED pending the Bureau’s submission of a supplemental position Ruling on the Bureau’s motion for partial summary judgment, as to this category of conduct, is also reserved pending submission of its supplemental position statement.

As to Counts 1-9, the Bureau is directed to submit, within FIFTEEN DAYS from entry of this Order, a supplemental position statement indicating whether it intends to pursue claims for any alleged statutory violations arising out of loan servicing activity occurring after February 26, 2017.

To the extent the Bureau does intend to press any claims falling into this category, it shall provide a list of the relevant Counts it intends to pursue, under this timeline, with a corresponding index of specific citations to the summary judgment record where supporting evidentiary matter on each Count may be located. [Note: In this regard, evidentiary citations shall be made to specific locations in the summary judgment record where the supporting material may be found with a brief description of the subject matter of the material. Citations shall not be made to evidentiary synapses or summaries contained in either parties’ statement of facts]. No additional submissions shall be permitted unless specifically directed by the Court.

Ocwen’s motion for summary judgment as to Count 10 of the Amended Complaint, and the Bureau’s motion for partial summary judgment as to Count 10 of the Amended Complaint [DE 728] are DENIED.

A partial final summary judgment in favor of Ocwen shall be entered accordingly by separate order of the Court pursuant to Rule 58.

DONE and SIGNED in Chambers at West Palm Beach, Florida this 4th day of March, 2021.

KENNETH A. MARRA
United States District Judge

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Appellate Circuit

Judge Jill Pryor on a Panel about Judicial Recusals? That’s a Contradiction, Right There.

Judge Cooke has a conflict of interest based on her financial statements, which revealed interests in companies doing business with one of the defendants.

Published

on

In the
United States Court of Appeals
For the Eleventh Circuit

No. 20-13674
Non-Argument Calendar

JAMES BUCKMAN, MAURICE SYMONETTE,

versus
LANCASTER MORTGAGE CO.,

Plaintiffs-Appellants,

DEUTSCHE BANK NATIONAL TRUST CO.,
as Trustee under the pooling and servicing agreement series rast 2006-A8,

SECURITY AND EXCHANGE COMMISSION,

U.S. TREASURY,

Defendants-Appellees,

ONE WEST BANK, et al.,

Defendants.

OCT 7, 2021 | REPUBLISHED BY LIT: OCT 7, 2021

Appeal from the United States District Court for the Southern District of Florida
D.C. Docket No. 1:19-cv-24184-MGC

Before JILL PRYOR, BRANCH, and LUCK, Circuit Judges. PER CURIAM:

James Buckman and Maurice Symonette (“Buckman and Symonette”) appeal from the district court’s dismissal with prejudice of their second amended complaint as an impermissible shotgun pleading.

They argue that the district court erred and demonstrated bias by dismissing their case because they had filed a motion for an additional three-day extension of time and the district court provided a window for responses to the motion by the defendants, but then dismissed the case before the responses were due.1

After review, we affirm.

1 Over four months after filing their notice of appeal from the dismissal of their complaint, Buckman and Symonette filed two motions for recusal of the district court judge, arguing that she had a conflict of interest based on her financial statements, which revealed interests in companies doing business with one of the defendants. (LIF: THAT DEFENDANT WOULD BE DEUTSCHE BANK)

The district court denied the motions.

Buckman and Symonette did not file an amended or new notice of appeal following entry of that order.

Therefore, we lack jurisdiction to review the district court’s denial of the motion for recusal.

See McDougald v. Jenson, 786 F.2d 1465, 1474 (11th Cir. 1986) (holding that, although we liberally construe notices of appeal under Federal Rule of Appellate Procedure 3 to include orders not expressly designated, that allowance does not extend to an order that was not entered when the notice of appeal was filed);

see also LaChance v. Duffy’s Draft House, Inc., 146 F.3d 832, 837–38 (11th Cir. 1998) (holding that we lacked jurisdiction over a post-judgment order awarding attorney’s fees where the motion for attorney’s fees was not filed until after the notice of appeal and the plaintiff failed to file an amended notice of appeal from the order awarding fees).

I. Background

In October 2019, Buckman and Symonette filed a pro se 45-page complaint against eight defendants including numerous banks, a mortgage company, the Security and Exchange Commission, the U.S. Treasury, and other entities, raising numerous claims including:

(1) quiet title;
(2) slander of title;
(3) unjust enrichment;
(4) violations of the Real Estate Settlement Procedures Act;
(5) fraud and concealment;
(6) violation of timely assignment and lack of consideration;
and
(7) various violations of several Florida statutes.

Thereafter, in December 2019, Buckman and Symonette filed a 51-page amended complaint asserting a total of 11 causes of action.

On July 24, 2020, the district court, sua sponte, struck the amended complaint as an impermissible shotgun pleading.

The district court set forth the pleading rules in its order, and provided that the plaintiffs had until July 31, 2020 to file a second amended complaint.

The district court emphasized that, in the second amended complaint, Plaintiffs are required to make a “short and plain statement of the claim showing that the pleader is entitled to relief . . .”

Fed. R. Civ. P. 8(a).

Plaintiffs must also state each theory of liability separately “in numbered paragraphs, each limited as far as practicable to a single set of circumstances.”

Fed. R. Civ. P. 10(b).

The newly amended complaint should clearly delineate which factual allegations and cited laws are relevant to the asserted cause of action.

This includes specifying which Defendant is liable under each cause of action and which Defendant is implicated in each factual allegation.

Failure to comply with this Order may result in the dismissal of this case with prejudice or other appropriate sanctions.

On July 31, 2020, the plaintiffs filed a motion for an extension of time to file their second amended complaint. The district court granted the motion and ordered that the second amended com- plaint be filed on or before August 6, 2020.

On August 6, 2020, the plaintiffs filed a motion seeking three more days to file their second amended complaint. On the same date, after filing their extension motion, they filed their second amended complaint.

The 92-page second amended complaint added 4 new causes of action and suffered from many of the same issues as the first amended complaint.

On August 17, 2020, the district court dismissed with prejudice the second amended complaint explaining that the second amended complaint “does not cure the defects that required striking of the initial Complaint.”

This appeal followed.2

2 Following the dismissal of their complaint, Buckman and Symonette filed a motion for reconsideration in the district court, which was denied. However, they do not raise any arguments related to the denial of their motion for re- consideration in their brief. Accordingly, the district court’s resolution of the motion for reconsideration is not before us.

II. Discussion

Buckman and Symonette argue that the district court erred and demonstrated bias when it dismissed their case with prejudice while their motion for extension of time was pending.

Specifically, they argue that the district court docketed their motion for a three- day extension of time to file the second amended complaint and set “responses due by 8/20/2020,” but then dismissed the case before that date.

They also raise arguments related to the merits of their underlying claims.

The district court did not err in dismissing the case. On the day the second amended complaint was due, Buckman and Symonette filed the request for a three-day extension of time, but they then filed a second amended complaint the same day.

The filing of the second amended complaint on the day it was due mooted the motion for an extension of time and the related re- sponse period.

Once the second amended complaint was filed, there was nothing left for the district court to do except review the complaint to determine whether the plaintiffs corrected the previously identified pleading issues.

To the extent that Buckman and Symonette’s brief could be liberally construed as challenging the district court’s dismissal of the second-amended complaint as an impermissible shotgun pleading, we review the district court’s decision for abuse of discretion.

Barmapov v. Amuial, 986 F.3d 1321, 1324 (11th Cir. 2021); see also Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998)

(“Pro se pleadings are held to a less stringent standard than pleadings drafted by attorneys and will, therefore, be liberally construed.”).

“A shotgun pleading is a complaint that violates either Federal Rule of Civil Procedure 8(a)(2) or Rule 10(b), or both.”

Barmapov, 986 F.3d at 1324.

Rule 8 requires that the complaint set forth “a short and plain statement of the claim” demonstrating an entitlement to relief, and Rule 10 requires that a plaintiff “state [his] claims in numbered paragraphs, each limited as far as practicable to a single set of circumstances.”

Fed. R. Civ. P. 8(a)(2) and 10(b).

Rule 10 further provides that each claim be stated in separate counts “[i]f doing so would promote clarity.” Id. R. 10(b).

We have repeatedly condemned the use of shotgun pleadings.

See Barmapov, 986 F.3d at 1324; Magluta v. Samples, 256 F.3d 1282, 1284 (11th Cir. 2001).

When a plaintiff files a shotgun pleading, a district court must give him one chance to replead before dismissing his case with prejudice on shotgun pleading grounds.
Vibe Micro, Inc. v. Shabanets, 878 F.3d 1291, 1295–96 (11th Cir. 2018).

The district court should explain how the pleading violated the shotgun rule so that the plaintiff can remedy his next pleading.

Id.

Where, as here, the plaintiff is provided fair notice of the specific defects in his complaint and a meaningful chance to fix it but fails to correct the defects, the district court does not abuse its discretion by dismissing with prejudice on shotgun pleading grounds.

Jackson v. Bank of Am., N.A., 898 F.3d 1348, 1358–59 (11th Cir. 2018).

Accordingly, the district court did not abuse its discretion in dismissing the second amended complaint with prejudice because Buckman and Symonette failed to correct the pleading defects.

Id.

Consequently, we affirm.

AFFIRMED.

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Appellate Circuit

A Chiefly Notorious 3-Panel Doubles Up On the Award of Sanctions Against a Pro Se Litigant

We order Watkins to pay double the costs, reasonable attorneys’ fees and to assess those fees and double costs against Watkins.

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The Triple Panel Doubles Up On the Pro Se

 REPUBLISHED BY LIT: SEP 18, 2021

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 20-11573

Non-Argument Calendar

D.C. Docket No. 1:19-cv-04345-ELR

ROBERT L. WATKINS, PRO SE

Plaintiff – Appellant,

versus

CAPITAL CITY BANK & GUARANTY,

As a defendant as it had merged with FMB, EDWARD J. TARVER,

successor in interest to Farmers and Merchants Bank,

GOODMAN, MCGUFFEY, LLP, ROBERT LUSKIN,

KEVIN C. PATRICK,

Defendants – Appellees.

Appeal from the United States District Court for the Northern District of Georgia

(September 15, 2021)

Before WILLIAM ‘SO MANY LIES’ PRYOR, Chief Judge, BERT ‘REPUTATION IS EVERYTHING’ JORDAN and BRITT ‘NO JUDICIAL OATH’ GRANT, Circuit Judges. PER CURIAM:

Robert Watkins appeals pro se the dismissal with prejudice of his complaint against and the award of attorneys’ fees and costs to his former attorney, Edward J. Tarver, Capital City Bank & Guaranty, and its counsel, Goodman McGuffey, LLP, Robert Luskin, and Kevin C. Patrick. We affirm.

Watkins abandoned any challenge he could have made to the dismissal of his complaint and to the order awarding the defendants their attorneys’ fees and costs. Despite obtaining four extensions of time from this Court and an opportunity to correct his deficient brief, Watkins chose to relabel his complaint as his initial brief.

Watkins does not dispute that his claims against all the defendants were untimely, see O.C.G.A. § 9-3-33, and barred by res judicata.

He also does not dispute that the defendants were entitled to the expenses they incurred to defend against a complaint he filed after two federal judges warned him that “continuing the pursuit of frivolous litigation may result in sanctions, injunction, and/or other appropriate relief.”

“We read briefs filed by pro se litigants liberally,” but Watkins has abandoned his opportunity to contest the dismissal of his complaint or the award of sanctions against him. See Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008).

The defendants jointly request that we sanction Watkins for pursuing a frivolous appeal. See Fed. R. App. P. 38.

Rule 38 states, “If a court of appeals determines that an appeal is frivolous, it may, after a separately filed motion or notice from the court and reasonable opportunity to respond, award just damages and single or double costs to the appellee.” Id.

The defendants argue that Watkins has badgered them for almost two decades, this appeal constitutes the sixth time he has forced them to respond to “the same claims” in this Court, and this appeal “is without legal merit and presented to further harass [them] and needlessly increase the costs of litigation.”

Watkins has not responded to the motion.

Rule 38 exists “to assess just damages in order to penalize an appellant who takes a frivolous appeal and to compensate the injured appellee for the delay and added expense of defending the district court’s judgment.” Burlington N. R. Co. v. Woods, 480 U.S. 1, 7 (1987).

Watkins’s serial litigation warrants an award to the defendants for their expenses in defending this appeal. See United States v. Morse, 532 F.3d 1130, 1133 (11th Cir. 2008) (sanctioning pro se litigant).

We order Watkins to pay double the costs the defendants have incurred in this appeal and remand with instructions for the district court to calculate reasonable attorneys’ fees and to assess those fees and double costs against Watkins.

We AFFIRM the dismissal of Watkins’s complaint and the award for the defendants’ expenses in the district court, we AWARD SANCTIONS of double costs and attorneys’ fees to the defendants under Rule 38 for this appeal, and we REMAND for the district court to assess reasonable attorneys’ fees and double costs for the defense of this appeal.

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Appellate Judges

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

[[Page S8344]]

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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