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ORDER DENYING RECONSIDERATION BY CA8 (Apr. 1, 2024)
Joanna Burke files for 3-panel review of ORDER granting extension to remove one sentence;
RECONSIDERATION AND/OR CORRECTION OF APPELLANT JOANNA BURKE’s SECOND MOTION FOR EXTENSION OF TIME
Appellant and non-prisoner, Joanna Burke, pro se, moves this court for reconsideration and/or correction of this court’s order granting of time which included the following;
“Appellant may have until June 14, 2024 to file a petition for rehearing. No further extensions will be granted.”
The Appellant respectfully requests the court remove or strike the second sentence from the order “No further extensions will be granted.” – an ante litem motam order.
As Joanna Burke discussed in her original motion, the Appellant has no control over the courts, judges and when they will decide her motion to remand in Texas federal court. If her motion to remand is not decided by June 14, 2024, this court’s ante litem motam order would prevent a further extension of time until that decision is reached. This would violate due process when a fundamental liberty interest is at stake.
LEGAL AUTHORITY
In re Krueger, 88 B.R. 238, 241 (B.A.P. 9th Cir. 1988);
“The due process clause of the Fifth Amendment requires that due process be provided before property can be taken.
“An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all of the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.”
Mullane v. Central Hanover Bank Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950).
An order is void if it is issued by a court in a manner inconsistent with the due process clause of the Fifth Amendment.
See, e.g., Blumer,66 B.R. at 113; In re Whitney-Forbes, Inc.,770 F.2d 692 (7th Cir. 1985) (citing 11 C. Wright and A. Miller, Federal Practice and Procedure, section 2862, page 200, (1973)).
Accordingly, in this case Judge Elliott properly vacated the dismissal order that had been issued in violation of the Debtor’s due process rights.”.
CONCLUSION
This court’s order issued ante litem motam anticipates a future event or court order in Texas, and makes provisions or rulings based on that future occurrence. However, that date is currently unknown. As such, it could impact Appellant’s due process and fundamental liberty interest negatively. Respectfully, and for the above reasons, Appellant prays the court will GRANT the correction to the current court order, by removing the wording which violates the Fifth Amendment, “No further extensions will be granted”, and issue a corrected order.
DATED: March 25, 2024
By JOANNA BURKE
The Extension of Time was GRANTED by the 8th Circuit extending time to file for rehearing en banc up to and including 20 March 2024.
APPELLANT’s MOTION FOR EXTENSION OF TIME
Appellant and non-prisoner, Joanna Burke, pro se, moves this court for an extension of 30 days to file for rehearing in this appeal.
This is not for the purposes of delay, but rather so Appellant can address the illegal and imminent foreclosure auction of her homestead as currently scheduled for March 5, 2024, and which requires her undivided attention.
CONCLUSION
Respectfully, and for the above reasons, Appellant prays the court will GRANT the extension of 30 days in order that she may file her rehearing in this appeal.
DATED: February 14, 2024
JUDGMENT (FEB 5, 2024: WITHOUT BRIEFING)
Before COLLOTON, GRUENDER, and KELLY, Circuit Judges.
This court has reviewed the original file of the United States District Court. It is ordered by the court that the judgment of the district court is summarily affirmed.
February 05, 2024
Order Entered at the Direction of the Court: Clerk, U.S. Court of Appeals, Eighth Circuit.
/s/ Michael E. Gans
Interpreting Rule 47, which basically says that if there isn’t a specific law that tells a Court of Appeals how to handle a certain situation, they can make their own rules about it.
However, these rules they make have to follow the overall federal laws, the rules set out in Rule 47 itself, and any local rules that the Court of Appeals has. It also says they can’t punish or disadvantage someone just because there isn’t a specific law on the matter.
St. Louis Office | Eighth Circuit | United States Court of Appeals (uscourts.gov)
ORDER
If the original file of the United States District Court is available for review in electronic format, the court will rely on the electronic version of the record in its review. The appendices required by Eighth Circuit Rule 30A shall not be required. In accordance with Eighth Circuit Local Rule 30A(a)(2), the Clerk of the United States District Court is requested to forward to this Court forthwith any portions of the original record which are not available in an electronic format through PACER, including any documents maintained in paper format or filed under seal, exhibits, CDs, videos, administrative records and state court files. These documents should be submitted within 10 days.
November 28, 2023
Order Entered Under Rule 27A(a):
Clerk, U.S. Court of Appeals, Eighth Circuit.
LEGAL RESEARCH
5th Circuit Splits Over Proper Venue for EPA’s Renewable Fuel Standard Waivers. 5th Circuit holds local venue is proper but dissenting Judge Patrick Higginbotham says an EPA regulation that applies nationally should be reviewed by the D.C. Circuit.