Burch v. Mullin ( 2022 )

Case: 22-10027 Document: 00516281242 Page: 1 Date Filed: 04/14/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
April 14, 2022
No. 22-10027 Lyle W. Cayce
Summary Calendar Clerk
In the Matter of: William Paul Burch
Debtor,
William Paul Burch,
Appellant,
versus
Mark X. Mullin,
Appellee.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:21-CV-141
Before Smith, Stewart, and Graves, Circuit Judges.
Per Curiam:*
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 22-10027 Document: 00516281242 Page: 2 Date Filed: 04/14/2022
No. 22-10027
Debtor-Appellant William Paul Burch petitioned for bankruptcy on
December 28, 2012. He has filed several frivolous appeals to this court arising
from that petition and an earlier bankruptcy proceeding, resulting in Burch
receiving multiple sanctions and admonishments from this court. See In re
Burch, No. 20-11171, 2022 WL 212836, at *1 (5th Cir. Jan. 24, 2022)
(unpublished); see also In re Burch, 835 F. App’x 741, 745 (5th Cir.), cert.
denied sub nom. Burch v. Freedom Mortg. Corp., 142 S. Ct. 253 (2021); In re
Burch, No. 20-11240, 2022 WL 901510, at *1 (5th Cir. Mar. 28, 2022)
(unpublished).
In this appeal, Burch maintains that the bankruptcy judge presiding
over his 2012 bankruptcy petition has demonstrated a pattern of bias against
him. Over several years, beginning in 2018, Burch filed at least three motions
asking the bankruptcy judge to recuse himself and transfer the proceedings
to another division, all of which were denied. On February 2, 2021, the
bankruptcy court denied Burch’s most recent motion to recuse and transfer
venue. Burch appealed to the district court, naming the bankruptcy judge as
the appellee. The district court summarily affirmed the bankruptcy court’s
decision and entered final judgment against Burch. Burch appealed to this
court and filed a competent pro se brief. The appellee has not appeared in
this appeal and its briefing deadline has been cancelled. On appeal, Burch
contends that the district court erroneously affirmed the bankruptcy court’s
denial of his motion to recuse and transfer venue.
We begin by examining, sua sponte, whether we have jurisdiction.
See Mejia v. Whitaker, 913 F.3d 482, 487 (5th Cir. 2019). Burch asserts that
this court has jurisdiction over his appeal as “an appeal from a final decision
of a district court of the United States” under 28 U.S.C. § 1295(a)(1).
However, we recently explained to Burch, in another appeal relating to his
2012 bankruptcy petition, that this contention is unavailing:
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With regard to appeals from bankruptcy matters, the limits of
this court’s jurisdiction “are described by the unique
jurisdictional relationship between the bankruptcy court and
the district court, and by 28 U.S.C. § 158(d), which provides
that ‘courts of appeal shall have jurisdiction of appeals from
all final decisions, judgments, orders, and decrees’ of district
courts or bankruptcy appellate panels.” Matter of First Fin.
Dev. Corp., 960 F.2d 23, 25 (5th Cir. 1992) (emphasis in
opinion). This court has jurisdiction “only if the underlying
bankruptcy court order was final.” Id. (internal quotation and
citation omitted). Thus, “interlocutory orders of the
bankruptcy court cannot appropriately be reviewed by courts
of appeals, notwithstanding the discretion afforded by the
Rules of Bankruptcy Procedure to the district court to entertain
review of non-final orders.” Id.Here, the bankruptcy court had not disposed of the claims
raised in Burch’s civil action against [the defendant].
Therefore, the bankruptcy court’s denial of the motion to
remand was an interlocutory order that this court lacks
jurisdiction to review. See id.; Matter of Burch, 835 F. App’x
741, 746-47 (5th Cir.), cert. denied sub nom. Burch v. Freedom
Mortg. Corp., 142 S. Ct. 253 (2021).
In re Burch, 2022 WL 901510, at *1. Likewise, in this case, Burch’s
bankruptcy proceeding remains pending in the bankruptcy court. We are thus
without jurisdiction to review the bankruptcy court’s interlocutory order
denying Burch’s motion to recuse and transfer venue. Moreover, this court
lacks jurisdiction to consider an appeal from the denial of a motion to recuse
because “[q]uestions concerning the disqualification of judges are not
immediately appealable.” Terrell v. City of El Paso, 176 F. App’x 621, 622 (5th
Cir. 2006) (citing In re Corrugated Container Antitrust Litig., 614 F.2d 958,
960–61 (5th Cir. 1980)). We therefore DISMISS this appeal for lack of
jurisdiction.
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No. 22-10027
Finally, we reiterate that Burch has previously received separate
sanctions from this court totaling $350 for pursuing frivolous appeals. In re
Burch, 2022 WL 901510, at *1. On March 28, 2022, this court again warned
Burch “that his continued pursuit of frivolous or abusive filings in this court,
the district court, or the bankruptcy court will result in the imposition of
further sanctions, including monetary sanctions, and he is admonished to
review his pending appeals and to withdraw any appeals that are frivolous.”
Id. Although this appeal fails for the same reasons that this court explained
when it issued that warning, see id., Burch did not withdraw the appeal.
Because Burch obviously ignored this court’s admonishment, an
additional sanction and warning is warranted. Burch is hereby ORDERED
to pay $100.00 to the clerk of this court. The clerk of this court and the clerks
of all courts subject to the jurisdiction of this court are directed to return to
Burch unfiled any submissions he should make until the sanction is paid in
full. Burch is once again WARNED that additional frivolous or abusive
filings in this court, the district court, or the bankruptcy court will result in
further sanctions. He is once again ADMONISHED to review any pending
appeals and to withdraw any appeals that are frivolous.
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