USCA11 Case: 21-12160 Date Filed: 03/01/2022 Page: 1 of 5
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12160
Non-Argument Calendar
____________________
JOHN BURKE,
JOANNA BURKE,
Interested Parties-Appellants,
CONSUMER FINANCIAL PROTECTION BUREAU,
Plaintiff-Appellee,
versus
OCWEN FINANCIAL CORPORATION,
a Florida corporation,
OCWEN LOAN SERVICING LLC,
a Delaware limited liability company,
OCWEN MORTGAGE SERVICING INC.,
a U. S. Virgin Islands corporation,
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2 Opinion of the Court 21-12160
PHH MORTGAGE CORPORATION,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 9:17-cv-80495-KAM
____________________
Before WILSON, NEWSOM, and ANDERSON, Circuit Judges.
PER CURIAM:
John and Joanna Burke, pro se, appeal the denial of their re-
newed motion to intervene and their motion for reconsideration
and for Judge Kenneth Marra’s recusal. The Burkes raise two issues
on appeal. First, they argue that the district court erred by finding
that it lacked jurisdiction to entertain their renewed motion to in-
tervene because it was brought after the Consumer Financial Pro-
tection Bureau filed its notice of appeal. Second, they argue that
the district court abused its discretion by denying their motion to
recuse. 1
1 We review de novo questions about the district court’s jurisdiction.
Zakrzewski v. McDonough,
490 F.3d 1264, 1267 (11th Cir. 2007) (per curiam).
Regarding our jurisdiction, the so-called “anomalous rule” gives us provisional
jurisdiction to determine whether the district court erroneously denied leave
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21-12160 Opinion of the Court 3
I
The district court held that it lacked jurisdiction to decide
the Burkes’ motion to intervene because the CFPB had filed a no-
tice of appeal in the underlying case. Filing a notice of appeal di-
vests the district court of jurisdiction “over those aspects of the case
involved in the appeal.” Griggs v. Provident Consumer Disc. Co.,
459 U.S. 56, 58 (1982) (per curiam). But the district court retains
jurisdiction over collateral matters that are separate and distinct
from the questions presented on appeal. Weaver v. Fla. Power &
Light Co.,
172 F.3d 771, 773 & n.4 (11th Cir. 1999) (explaining that
res judicata and waiver defenses were separate and distinct from
the merits of employment discrimination claims).
Here, the district court erred by concluding that the CFPB’s
notice of appeal divested it of jurisdiction over the Burkes’ renewed
motion to intervene. The CFPB’s appeal relates to whether its suit
against Ocwen was barred by an earlier consent judgment between
those two parties. By contrast, the Burkes’ motion sought to inter-
vene in the suit between the CFPB and Ocwen so that they could
acquire certain documents. The issues presented by the Burkes in
to intervene. Fed. Sav. & Loan Ins. Corp. v. Falls Chase Special Taxing Dist.,
983 F.2d 211, 214 (11th Cir. 1993). We review de novo the denial of a motion
to intervene as of right and for “clear abuse of discretion” the denial of permis-
sive intervention. Fox v. Tyson Foods, Inc.,
519 F.3d 1298, 1301 (11th Cir.
2008). We may affirm the judgment of the district court on any ground sup-
ported by the record, even if the district court did not consider or rely on that
ground in its ruling. Kernel Recs. Oy v. Mosley,
694 F.3d 1294, 1309 (11th Cir.
2012).
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4 Opinion of the Court 21-12160
their motion for intervention were collateral to those presented in
the CFPB’s appeal. Thus, the district court erred when it dismissed
for lack of jurisdiction.
It may turn out that the Burkes’ motion is barred under the
law-of-the-case doctrine. Schiavo ex rel. Schindler v. Schiavo,
403 F.3d 1289, 1291 (11th Cir. 2005) (per curiam). But that issue
implicates the merits of their motion, not the district court’s juris-
diction to consider that motion. We cannot address the merits be-
cause “[w]ere we to range beyond the jurisdictional issue here and
reject [the Burkes’] claim on the merits, we would, in effect, be di-
recting a dismissal with prejudice—and thereby altering the district
court’s judgment.” In re Breland,
989 F.3d 919, 923 (11th Cir. 2021)
(emphasis omitted). “That, we cannot do.”
Id. 2
II
Judge Marra did not abuse his discretion in declining to
recuse because the Burkes improperly requested recusal for the
first time in a motion for reconsideration.3 A party may not use a
motion to reconsider to “raise [an] argument or present evidence
that could have been raised prior to the entry of judgment.”
2 The Burkes abandoned their challenge to the denial of their motion to recon-
sider intervention by failing to present any argument about reconsideration in
their opening brief. Sapuppo v. Allstate Floridian Ins. Co.,
739 F.3d 678, 681
(11th Cir. 2014).
3 We review for abuse of discretion a judge’s decision not to recuse under
28
U.S.C. § 455. Murray v. Scott,
253 F.3d 1308, 1310 (11th Cir. 2001).
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21-12160 Opinion of the Court 5
Michael Linet, Inc. v. Vill. of Wellington,
408 F.3d 757, 763 (11th
Cir. 2005). Additionally, the Burkes’ argument for recusal was
based on Judge Marra’s adverse ruling on their motion to inter-
vene, and “[o]rdinarily, a judge’s rulings in the same or a related
case may not serve as the basis for a recusal motion.” McWhorter
v. City of Birmingham,
906 F.2d 674, 678 (11th Cir. 1990) (per cu-
riam); see also In re Walker,
532 F.3d 1304, 1311 (11th Cir. 2008)
(per curiam) (“Adverse rulings are grounds for appeal but rarely are
grounds for recusal.”); In re Evergreen Sec., Ltd.,
570 F.3d 1257,
1274 (11th Cir. 2009) (“Challenges to adverse rulings are generally
grounds for appeal, not recusal.”).
The district court’s dismissal of the Burkes’ renewed motion
for intervention is VACATED.
The district court’s denial of the Burkes’ motion for recusal
is AFFIRMED.
