2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-7-2013

Assem Abulkhair v. President USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 12-3358

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Recommended Citation

"Assem Abulkhair v. President USA" (2013). 2013 Decisions. Paper 1420.

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ALD-059 NOT PRECEDENTIAL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 of the United States, individually; 

*ATTORNEY GENERAL UNITED STATES OF AMERICA, in his official capacity; 

MICHAEL MUKASEY, individually; *SECRETARY UNITED STATES 

DEPARTMENT OF HOMELAND SECURITY, 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 & Immigration 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 pursuant 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)
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_________

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 summarily 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 upon 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), the 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 

notice 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.)
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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 unquestionably 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 Abulkhair’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 appropriately denied the recusal motion without 

prejudice in the event that the dismissal of Abulkhair’s complaint was reversed on appeal.