     Case: 16-20322   Document: 00513702380   Page: 1   Date Filed: 10/03/2016




          IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT

                             ___________________
                                                               United States Court of Appeals

                                No. 16-20322
                                                                        Fifth Circuit

                                                                      FILED
                             ___________________                October 3, 2016

RICHARD A. HAASE; AUDREY L. HAASE,                               Lyle W. Cayce
                                                                      Clerk
            Plaintiffs - Appellants

v.

COUNTRYWIDE HOME LOANS, INCORPORATED; BANK OF AMERICA,
N.A.; DEUTSCHE BANK NATIONAL TRUST COMPANY AS TRUSTEE;
MORGAN STANLEY ABS CAPITAL I, INCORPORATED; BARRETT
DAFFIN FRAPPIER TURNER & ENGEL, L.L.P.; CERTIFICATE HOLDERS
FOR MORGAN STANLEY ABS CAPITAL I, INCORPORATED TRUST 2006-
HE6, MORTGAGE PASS THROUGH CERTIFICATES, SERIES 2006-HE6;
UNITED STATES OF AMERICA; FIFTH CIRCUIT COURT OF THE
UNITED STATES OF AMERICA; HONORABLE GARY MILLER;
HONORABLE E. GRADY JOLLY; HONORABLE ANTONIN SCALIA;
DEUTSCHE NATIONAL BANK AND TRUST COMPANY,

            Defendants - Appellees

                           _______________________

                Appeal from the United States District Court
                     for the Southern District of Texas
                          _______________________

Before SMITH, DENNIS, and SOUTHWICK, Circuit Judges.

PER CURIAM:

      Appellants Richard and Audrey Haase appeal the district court’s
dismissal of their suit against multiple defendants. The “Fifth Circuit Court
of the United States of America” is among the named defendants in that suit,
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                                  No. 16-20322

apparently due to this court’s role in a prior proceeding involving the
appellants. The appellants have not filed an opening brief on appeal; instead,
they move to transfer this appeal to another circuit, contending that because
they named the entire court in their lawsuit, all of this court’s judges are biased
and therefore may not adjudicate the case. Alternatively, the appellants move
for an extension of time to file their brief. Appellees Countrywide Home Loans,
Inc.; Bank of America, NA; and Deutsche Bank National Trust Company move
to dismiss the appeal for want of prosecution. We deny the appellants’ motion
to transfer and the alternative motion for an extension of time, and we grant
the appellees’ motion to dismiss.
      First, as to the motion to transfer the case, federal judges are generally
precluded from adjudicating a proceeding if they are a party to the proceeding
or if they have a personal bias or prejudice concerning a party. 28 U.S.C.
§ 455(b). However, under the Rule of Necessity, judges may decide a case even
if they have a personal interest in it if “the case cannot be heard otherwise.”
United States v. Will, 449 U.S. 200, 213 (1980); accord Ignacio v. Judges of the
United States Court of Appeals for Ninth Circuit, 453 F.3d 1160, 1163 (9th Cir.
2006). The appellants correctly suggest that disqualification of every judge
whom they accuse of bias would allow no judge on this court to adjudicate the
case. Accordingly, the Rule of Necessity qualifies the judges of this court to
both hear and decide this appeal. See Will, 449 U.S. at 213; see also In re City
of Houston, 745 F.2d 925, 930 n.9 (5th Cir. 1984) (under the Rule of Necessity,
“where all are disqualified, none are disqualified” (citation and internal
quotation marks omitted)).
      The existence of qualified judges in other circuits does not undercut the
applicability of the Rule of Necessity and does not require transferring the case
where an appellant indiscriminately names all judges on a court or, as here,


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                                   No. 16-20322

the court itself as defendants. E.g., Ignacio, 453 F.3d at 1164-65; Tapia-Ortiz
v. Winter, 185 F.3d 8, 10 (2d Cir. 1999); see also City of Houston, 745 F.2d at
930-31 n.9 (noting that an otherwise disqualified judge can invoke the rule of
necessity to hear a case if all judges in his district are disqualified even if there
are qualified judges in other districts).
      Second, as to the appellants’ alternative motion for an extension of time
to file their brief, the appellants’ brief on appeal was due on August 24, 2016.
Under our Fifth Circuit Rule 31.4.1(a), “the clerk must receive a request for
extension at least seven days before the due date, unless the movant
demonstrates, in detail, that the facts that form the basis of the motion either
did not exist earlier or were not and with due diligence could not have been
known earlier.”      Here, the clerk received the appellants’ motion for an
extension on August 26, two days after the due date, and the appellants do not
even attempt to make the required showing under Rule 31.4.1(a).
      Accordingly, the appellees’ motion to transfer is DENIED, their
alternative motion for an extension of time is likewise DENIED, and the
appellees’ motion to dismiss is GRANTED. The appeal is DISMISSED for
want of prosecution.
      IT IS SO ORDERED.




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