2013 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

1-7-2013 

# As se m Abul k

h air v . P r eside n t U S A

P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al
D ock e t N o . 12-3358

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### ALD
- 059 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 12

- 3358

___________ ASSEM A. ABULKHAIR, Appellant

v. *PRESIDENT OF THE UNITED STATES OF AMERICA, in his official capacity; GEORGE W. BUSH, President o f the United States, individually; *ATTORNEY GENERAL UNITED STATES OF AMERICA, in his official capacity; MICHAEL MUKASEY, individually; *SECRETARY UNITED STATES DEPARTMENT OF HOMELAND SECU RITY, in his official capacity; MICHAEL CHERTOFF, individually; US CITIZENSHIP AND IMMIGRATION SERVICES; JOHN THOMPSON, individually and in his capacity as District Director, Newark Office, U.S. Citizenship & Immigration Services; EMILIO T. GONZALEZ, individually and in his capacity as Director U.S. Citizenship & Immigrat ion Services; ROBERT S. MUELLER, III, individually and in his capacity as Director, Federal Bureau of Investigation; MICHAEL HAYDEN, individually and in his capacity as Director, Central Intelligence Agency; THE UNITED STATES OF AMERICA *(Substituted purs uant to Fed. R. App. P. 43(c)(1))

____________________________________ On Appeal from the United States District Court for the District of New Jersey (D.C. Civil No. 2

- 11

- cv - 06616 ) District Judge: Honorable Jose L. Linares

_____________________________ _______ Submitted for Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 December 6, 2012 Before: SLOVITER, VANASKIE and WEIS , Circuit Judges

(Opinion filed : January 7, 2013 )2 

### ________ _ OPINION

_________ PER CURIAM

. Assem A. Abulkhair, proceeding pro se, appeals from the denial of his request for pro bono counsel due to lack of jurisdiction and the denial of his motion for recusal as moot. For the reasons that follow, we will summar ily affirm.
I. The facts being well

- known to the parties, we highlight only those that are pertinent to this appeal. Abulkhair initiated this civil action in November 2011. His complaint was dismissed by the District Court for failure to state a claim upo n which relief may be granted, pursuant to 28 U.S.C. § 1915(e)(2)(B). (Dkt. Nos. 2, 3.) On May 18, 2012, Abulkhair filed a notice of appeal, (Dkt. No. 4), a request for pro bono counsel, and a motion for recusal of the trial judge. 1 

### Relying on Venen v. Sweet , 758 F.2d 117, 120 (3d Cir. 1985), t he Magistrate Judge denied Abulkhair’s request for pro bono counsel. Abulkhair appealed to the District Court. (Dkt. No. 12.) The District Court agreed with the Magistrate Judge that the filing of Abulkhair’s

no tice of appeal divested it of jurisdiction over his case. The District Court affirmed the denial of the motion for pro bono counsel and deemed the motion for recusal moot, as no

1 

### We summarily affirmed the dismissal of Abulkhair’s complaint on August 30, 2012. (C.A. No. 12

- 2476). The primary basis of the recusal motion was that the presiding trial judge was appointed by President George W. Bush, a named defendant. (Dkt. No. 6.)3



### complaint was pending before the District Court. (Dkt. No. 15.) Now before us is Abulkhair’s appeal of the District Court’s decision.
II. Generally, the filing of a notice of appeal confers jurisdiction on this Court and divests the District Court of its control over those aspects of the case involved in the appeal. Griggs v. Provident Consumer Disc. Co. , 459 U.S. 56, 58 (1982) (per curiam). Some exceptions to this rule exist, such as when an appeal is taken from a non

- appealable order. Venen , 758 F.2d at 121. However, the order dismissing Abulkhair’s complaint was unquestio nably appealable, and it is well

- settled that Abulkhair’s appeal of the order dismissing his complaint divested the District Court of jurisdiction over his case. Id. As such, the District Court properly affirmed the Magistrate Judge’s decision denying A bulkhair’s request for pro bono counsel due to lack of jurisdiction, as that request was filed after the notice of appeal. We similarly agree with the District Court’s decision denying Abulkhair’s motion for recusal as moot, given that no active complaint was pending at the time it was filed. 2


### III. There being no substantial question presented on appeal, we will summarily affirm the July 11, 2012 order of the District Court. 3d Cir. LAR 27.4 and I.O.P. 10.6.

2 

### We note that the District Court ap propriately denied the recusal motion without prejudice in the event that the dismissal of Abulkhair’s complaint was reversed on appeal.