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Case 1:10-cv-00151-RCL Document 9 Filed 02/26/10 Page 1 of 2

UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF COLUMBIA

)
ORLY TAITZ, )
29839 Santa Margarita Parkway, Suite 100 )
Rancho Santa Margarita, CA 92688, )
)
Plaintiff, ) Civil Action No.: 10-0151 (RCL)
)
v. )
)
BARACK HUSSEIN OBAMA, )
c/o The White House, )
1600 Pennsylvania Ave., NW, )
Washington, DC 20500, )
)
Defendant. )
)

NOTICE OF APPEARANCE

The Clerk of the Court will please enter the appearance of Assistant United States

Attorney Alan Burch as counsel for Defendant in the above-captioned case.

/s/
ALAN BURCH, D.C. Bar # 470655
Assistant United States Attorney
555 4th St., N.W.
Washington, D.C. 20530
(202) 514-7204
alan.burch@usdoj.gov
Case 1:10-cv-00151-RCL Document 9 Filed 02/26/10 Page 2 of 2

Certificate of Service

I hereby certify that I caused a copy of the foregoing Notice of Appearance to be served upon pro
se Plaintiff by first class mail addressed to:

Orly Taitz
29839 Santa Margarita Parkway, Suite 100
Rancho Santa Margarita, CA 92688

and on

Christopher-Earl Strunk
593 Vanderbilt Ave., #281
Brooklyn, NY 11238

on this 26th day of February 2010.

ALAN BURCH, D.C. Bar # 470655


Assistant United States Attorney

2
Case 1:10-cv-00151-RCL Document 10 Filed 02/26/10 Page 1 of 20

UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF COLUMBIA

)
ORLY TAITZ, )
)
Plaintiff, ) Civil Action No.: 10-0151 (RCL)
)
v. )
)
BARACK HUSSEIN OBAMA, )
)
Defendant. )
)

DEFENDANT’S MOTION TO DISMISS

Defendant, Barack H. Obama, respectfully moves to dismiss this action for lack of

jurisdiction. As explained in the attached memorandum, Plaintiff seeks to challenge the

qualifications of President Obama for office. Her complaint, like the others she has litigated as

counsel for various clients, fails to present a justiciable claim for several reasons, primarily her

lack of standing and the inherently political nature of her claims. Plaintiff also seeks a

preliminary injunction and the attached memorandum also serves as Defendant’s opposition

thereto. Because this motion seeks to dispose of the entire case, counsel for Defendant did not

attempt to obtain pro se Plaintiff’s position on this motion.

February 26, 2010 Respectfully submitted,

RONALD C. MACHEN JR., D.C. Bar #447889


United States Attorney

/s/
RUDOLPH CONTRERAS, D.C. Bar # 434122
Assistant United States Attorney
Case 1:10-cv-00151-RCL Document 10 Filed 02/26/10 Page 2 of 20

/s/
ALAN BURCH, D.C. Bar # 470655
Assistant United States Attorney
555 4th St., N.W.
Washington, D.C. 20530
(202) 514-7204, alan.burch@usdoj.gov

2
Case 1:10-cv-00151-RCL Document 10 Filed 02/26/10 Page 3 of 20

UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF COLUMBIA

)
ORLY TAITZ, )
)
Plaintiff, ) Civil Action No.: 10-0151 (RCL)
)
v. )
)
BARACK HUSSEIN OBAMA, )
)
Defendant. )
)

DEFENDANT’S COMBINED MEMORANDUM


IN SUPPORT OF MOTION TO DISMISS AND IN
OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION

Defendant, Barack H. Obama, respectfully provides this combined memorandum of

points and authorities in (1) support of his motion to dismiss this case, and (2) opposition to

Plaintiff’s motion for a preliminary injunction (R.8). Plaintiff lacks standing to bring her claims,

as has been thoroughly established by the several other federal courts in which she has litigated

substantially similar claims. For this reason alone, her case should be dismissed and her request

for preliminary injunction denied. As to her motion for a preliminary injunction, she seeks the

recusal of the United States Attorney's Office for the District of Columbia from representing the

President in this civil lawsuit as well as the release of a number of documents purportedly related

to a vague series of allegations associated with her representations about the President’s

eligibility for office. None of these requests have any merit.

Background

Although, to Defendant's knowledge, this is Dr. Taitz’s first case in which she serves as

Plaintiff, this is not her first bite at the apple, or even her second: she has unsuccessfully
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represented plaintiffs in at least three judicial districts seeking to raise similar claims. In each of

these cases, the United States district courts have declined to find jurisdiction and have denied

relief similar to the ultimate relief sought here.

Dr. Taitz’s Complaint suffers from exactly the same defects that doomed many of her

previous litigation efforts. Simply put, her allegations about the President’s citizenship are not a

concrete and particularized injury, as required to establish standing under the “case or

controversy” requirement of Article III, and the harms that she has suffered from judicial and/or

bar sanctions for her conduct in litigation are the consequences of her own actions and not in any

way traceable to any legal claim cognizable against Defendant.

Even if plaintiff had standing, however, her request for a preliminary injunction should

nonetheless be denied. A preliminary injunction entered with respect the underlying issue would

carry with it the potential of irreparable harm to the public interest, whereas Plaintiff has not

provided any credible showing that she will be irreparably harmed if her application is denied.

Plaintiff’s prior cases:

1. Cook v. Good, --- F. Supp. 2d ---, No. 09-cv-82, 2009 WL 2163535 (M.D. Ga.

July 16, 2009), attached hereto as Exhibit 1.

On July 9, 2009, United States Army Major Stefan Frederick Cook sought a temporary

restraining order in the Middle District of Georgia to enjoin his pending overseas deployment to

Afghanistan. See Civil Docket sheet, Cook v. Good, No. 09-cv-82, attached hereto as Exhibit 2.

Represented by Dr. Taitz, Major Cook alleged that his orders were not valid and that his doubts

about the President's citizenship would cause him to violate his oath to the United States

Constitution if he were forced to deploy. See generally 2009 WL 2163535. After a hearing on

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July 16, 2009, Judge Clay Land dismissed Major Cook’s claims, finding that “Major Cook

cannot satisfy” the standing prerequisite of Article III. Id. at *1. The district court also noted

that Dr. Taitz had sought to salvage the action by “seek[ing] to amend the complaint to add two

additional parties, Maj. Gen. Carol Dean Childers (Retired) and Lt. Col. David Earl Graef.” Id.

at *2. Judge Land rejected this proposed amendment, noting that the two officers had “alleged

no concrete particularized injury,” and that “[t]heir political claim does not give rise to a case or

controversy to be heard in federal court.” Id.

Still represented by Dr. Taitz, Major Cook appealed the dismissal to the Eleventh Circuit

Court of Appeals, which dismissed the appeal “for want of prosecution” on November 24, 2009.

See 11th Circuit Docket sheet, No. 09-14698-CC (noting pending motion to reinstate appeal),

attached hereto as Exhibit 3.

2. Rhodes v. Gates, 5:09-CV-00703-XR (W.D. Tex. 2009); and Rhodes v.

MacDonald, 09-cv-106 (M.D. Ga. 2009).

Dr. Taitz returned to court in late August, 2009, representing a new plaintiff, Dr. Connie

Rhodes, a United States Army Captain slated to deploy to Iraq in support of Operation Iraqi

Freedom. Plaintiff and her client initially sought a temporary restraining order in the Western

District of Texas, but the case was summarily dismissed as the district court quickly found their

claims had “no substantial likelihood of success on the merits.” Rhodes v. Gates, No.

09-00703-XR, Order Denying Mot. for TRO (W.D. Tex. Aug. 28, 2009). A copy of this order

attached hereto as Exhibit 4.

Plaintiff then re-filed the same action in the Middle District of Georgia, the same court

which had previously dismissed Cook v. Good. See Rhodes v. MacDonald, 2009 WL 2997605

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at *1 (M.D. Ga. 2009), copies of the three Rhodes decisions are attached as Exhibit 5. Plaintiff

again sought a temporary restraining order to enjoin her client's overseas deployment. Id.

Finding that there was “no credible evidence” and ‘no reliable factual allegations to support [the]

unsubstantiated, conclusory allegations and conjecture that President Obama is ineligible to serve

as President of the United States,” the Georgia district court again dismissed the complaint,

deeming the claims “frivolous” and the “threatened injury . . . not substantial.” Id. at *3, *5.

In addition, the Georgia district court issued a stark warning to Dr. Taitz: “Plaintiff's

counsel is hereby notified that the filing of any future actions in this Court, which are similarly

frivolous, shall subject counsel to sanctions.” Id. at *1.

Responding with what the Georgia district court characterized as a “tirade,” Plaintiff then

moved for reconsideration of the district court’s dismissal. See Rhodes v. MacDonald, 2009 WL

3111834 at *1. The district court noted that Plaintiff had “contemptuously ignore[d] the Court’s

previous admonition that Plaintiff's counsel discontinue her illegitimate use of the federal

judiciary to further her political agenda.” Id. Accordingly, in conjunction with its previous

warning, the district court denied the reconsideration motion as “frivolous” and found that Dr.

Taitz’s conduct violated Rule 11 of the Federal Rules of Civil Procedure. The district court

ordered her to “show cause why the Court should not impose a monetary penalty of $10,000.00

upon Plaintiff's counsel for her misconduct.” Id. at *1, *3.

After Dr. Taitz withdrew as counsel for Major Rhodes, she continued to litigate the award

of sanctions. As the district court noted in its next order, however, "[i]nstead of responding to

the Court’s specific concerns or addressing the contemplated amount of the monetary sanction,

Ms. Taitz continued her attacks on the Court,” floating a number of implausible theories and

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alleging bias on the part of the district court. Rhodes v. MacDonald, --- F. Supp. 2d ----, 2009

WL 3299817 (M.D. Ga. 2009) at *4. In response, the district court issued a detailed opinion

documenting Dr. Taitz's misconduct, the frivolousness of her actions, and increasing the dollar

amount of the contempt sanction to $20,000. Id.

Dr. Taitz has appealed these sanctions to the Eleventh Circuit Court of Appeals. See 11th

Cir. Docket sheet, in Rhodes v. MacDonald, No. 09-15418BB, attached hereto as Exhibit 6. Her

appeal has not yet been resolved.

3. Barnett v. Obama, No. 09-0082, 2009 WL 3861788 (C.D. Cal. Oct. 29, 2009).

Meanwhile, throughout the pendency of the above cases, Dr. Taitz maintained yet another

action purportedly challenging the President’s eligibility for office. In this case, a group of 44

plaintiffs comprising “third party candidates from the American Independent Party for president

and vice president in the 2008 presidential election, inactive and active military personnel, and

state representatives” brought an action in the Central District of California on January 20, 2009,

shortly after the President's inauguration. See Barnett v. Obama, 2009 WL 3861788 at *1, *3.

Similar to the instant case, the amended complaint in California “set[] forth ten questions for

which they request[ed] declaratory judgment pursuant to 28 U.S.C. §§ 2201-2202, . . . all

relat[ing] to the meaning of the Constitution’s natural born citizen clause and the appropriate

recourse should a sitting president not meet the ‘natural born citizen’ requirement.” Id. The

plaintiffs in Barnett also “request[ed] that the Court order the production of documents pursuant

to FOIA.” Id. As with Dr. Taitz’s other cases, the district court dismissed plaintiffs’ claims for

lack of subject-matter jurisdiction. See Barnett at *3-8. Although the Barnett court identified

one category of plaintiffs -- presidential candidates defeated by the President in the 2008 election

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-- who might satisfy Article III's injury requirement, see Barnett at *8 (discussing the potential

injury to failed presidential candidates), Dr. Taitz is not representing those plaintiffs in this action

in the District of Columbia.

In its opinion, the California district court also discussed Dr. Taitz’s litigation conduct,

observing that she “has favored rhetoric . . . rather than the language of a lawyer seeking to

present arguments through cogent legal reasoning,” and that she took the “improper and

unethical” step of “encourag[ing] her supporters to attempt to influence this Court’s decision.”

See id. at *19. In addition, the district court expressed its “deep[] concern[] that Taitz may have

suborned perjury through witnesses she intended to bring.” Id. In contrast to the district court’s

characterization of Dr. Taitz’s conduct, the same court noted that Gary Kreep, who served as

separate counsel for two of the Barnett plaintiffs, had attempted “to bring serious issues before

the Court.” Id.

Following dismissal, the Barnett plaintiffs appealed to the Ninth Circuit Court of

Appeals, which has not yet decided the appeal. See 9th Cir. Docket sheet in Barnett v. Obama,

No.10-55084, attached hereto as Exhibit 7.

Argument

I. Plaintiff Lacks Standing.

To the extent Plaintiff seeks to challenge the President's qualifications for office, she

lacks standing to raise the issue. The question of standing is a threshold determination

concerning “whether the litigant is entitled to have the court decide the merits of the dispute or of

particular issues.” Warth v. Seldin, 422 U.S. 490, 498 (1975). A plaintiff bears the burden of

establishing proper standing “at the outset of its case.” Sierra Club v. Environmental Protection

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Agency, 292 F.3d 895, 901 (D.C. Cir. 2002). In so doing, the plaintiff must allege facts

sufficient to satisfy the “irreducible Constitutional minimum” of Article III standing. Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560 (1992). Accordingly, to have standing here, Plaintiff

must first allege that she “suffered an ‘injury in fact’ -- an invasion of a legally protected interest

which is (a) concrete and particularized . . . and (b) actual or imminent, not ‘conjectural’ or

‘hypothetical[.]’” Id. at 560 (citations omitted). “Second, there must be a causal connection

between the injury and the conduct complained of.” Id. (quotations omitted). “Third, it must be

likely, as opposed to merely speculative, that the injury will be redressed by a favorable

decision.” Id. (quotations omitted). In her Complaint, plaintiff has entirely failed to establish

her standing to sue.

By now, it is well-established that the purported injury suffered by citizens who doubt the

qualifications of the President is an injury to “the generalized interest of all citizens in

Constitutional governance” which is too abstract to satisfy standing requirements. See

Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 217, 220 (1974); Berg v.

Obama, 574 F. Supp. 2d 509, 518-21 (E.D. Pa. 2008), and cases cited therein; see also Barnett;

Rhodes, 2009 WL 2997605; Rhodes, 2009 WL 3299817. Having served as counsel in many of

the prior cases establishing this principle, Plaintiff is well aware that an allegation of such injury

is inadequate. In this case, she now alleges that she herself has suffered a unique injury through

having her theories of standing and subject matter jurisdiction rejected in those prior cases. Even

if this could constitute a tangible injury, it is neither causally related to the President's citizenship

nor redressable by a favorable decision by this Court. Therefore, the instant complaint must also

be dismissed for lack of standing.

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Plaintiff presents a rambling set of unsubstantiated conspiratorial allegations to support

her claim that she has somehow been “injured” through her prior efforts to litigate the President's

eligibility for office including, inter alia, that she suffered “vicious attacks coming from the

media,” that an “emissions hose” in her car “was disconnected,” that certain private individuals

“submitted [sic] perjured affidavits . . . and forged her signature,” and that “her paypal account

was tampered with.” Complaint at 2-3. Of these, the only harm that conceivably stems from

official action on the part of any governmental entity is her claim that “[w]hen she brought two

legal actions in the Middle District of Georgia . . . she was sanctioned $20,000.” Complaint at 3.

This injury is not traceable to any action of Defendant, but stems instead from her

decisions to file, repeatedly, frivolous motions in district court in the Middle District of Georgia,

even after being warned by that court.

This injury would not be redressed by the relief she seeks, because this Court cannot

affect, through relief affecting Defendant, the sanctions issued by the Georgia court, nor the

actions of the third parties allegedly responsible for her other injuries. Where injuries result only

indirectly, “from the independent action of some third party not before the court,” then “the

presence of intervening factors interrupts the chain of traceability” and there is no standing.

International Labor Rights Educ. & Research Fund v. Bush, 954 F.2d 745, 751 (D.C. Cir. 1992).

In her application for a preliminary injunction, Plaintiff raises the prospect of another type

of harm: that her “law license” will be “undermine[d]” or “endanger[ed].” (Taitz Affidavit at

18-22.) She intimates that this threat is a collateral consequence of the decisions in Rhodes,

claiming that the order from the Middle District of Georgia “was forwarded to the CA Bar.” (Id.

at 17.) Like the sanction from the Georgia district court, however, this injury is neither traceable

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to Defendant’s conduct nor redressable by an action of this Court.

Plaintiff cannot circumvent the requirement that she have standing merely by recasting

her claims under the quo warranto statute, 16 D.C. Official Code § 3501, et seq. It is well-

established that statutes conferring a right-to-sue may not extend that right to individuals who

otherwise lack standing under Article III. See, e.g., McClure v. Reagan, 454 U.S. 1025 (1981)

(affirming McClure v. Carter, 513 F. Supp. 265, 271 (D. Idaho 1981) (finding inadequate

statutory authorization for Members of Congress to challenge the constitutionality of the

appointment of another Member as an Article III judge). In certain circumstances, that provision

permits an “interested person [to] apply to the court by certified petition for leave to have the writ

issued. Without Article III standing, however, Dr. Taitz cannot maintain such a claim.1

Plaintiff cannot establish constitutional standing and her case should be dismissed in its

entirety.

II. This Case Presents Only Non-Justiciable Political Questions.

It is well settled that when the United States Constitution makes a “textually

demonstrable commitment” of an issue to another branch of the government, other than the

judiciary, that issue presents a non-justiciable political question. See Baker v. Carr, 369 U.S.

186, 217 (1962). “The principle that the courts lack jurisdiction over political decisions that are

by their nature committed to the political branches to the exclusion of the judiciary is as old as

the fundamental principle of judicial review.” Schneider v. Kissinger, 412 F.3d 190, 193 (D.C.

1
There is ample reason to believe that the D.C. statute is entirely consistent with Article III
because the definition of an “interested person” likely excludes those who have not suffered a
cognizable injury-in-fact. See Columbian Cat Fanciers, Inc. v. Koehne, 96 F.2d 529, 532 (D.C.
Cir. 1938) (“an action in quo warranto . . . must be brought by a person claiming title to the
office in question and out of possession thereof.”).

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Cir. 2005). The political question doctrine serves to “restrain the Judiciary from inappropriate

interference in the business of the other branches of Government” by prohibiting the courts from

deciding issues that properly rest within the province of the political branches. United States v.

Munoz-Flores, 495 U.S. 385, 394 (1990). Accordingly, claims “involving political questions

outside of the Article III jurisdiction of federal courts are “consistently dismissed for want of

subject matter jurisdiction.” Zivotofsky v. Sec’y of State, 571 F.3d 1227, 1233 n.3 (D.C. Cir.

2009).

According to the text of the Constitution, the issues Plaintiff seeks to raise in this case

regarding both whether President Obama is a “natural born citizen of the United States,” and

therefore qualified to be President, are to be judged (if at all), by other parts of the government

than the judiciary.

At the outset, the Constitution indicates that issues related to a candidate’s eligibility for

the Office of President rest, in the first instance, with the voters and the Electoral College, the

Constitutionally created body responsible for selecting the President of the United States. See

U.S. Constitution, Article II, section 1, cl. 2 (“Each State shall appoint, in such Manner as the

Legislature thereof may direct,” electors for the President and Vice President); Amend. XXIII

section 1; Williams v. Rhodes, 393 U.S. 23, 43 (1968) (Harlan, J., concurring) (“The [Electoral]

College was created to permit the most knowledgeable members of the community to choose the

executive of a nation.”). The Constitution’s commitment to the Electoral College of the

responsibility to select the President necessarily includes the authority to decide whether a

presidential candidate is qualified for office because the examination of a candidate’s

qualifications is an integral component of the electors’ decision-making process.

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The Constitution also provides that, after the Electoral College has voted, further review

of a presidential candidate’s eligibility for office, to the extent such review would ever be

required, rests with Congress. Where no candidate receives a majority of the electoral votes, the

Constitution commits to the House of Representatives the authority to select the President and, in

so doing, to evaluate the candidates’ qualifications. See U.S. Constitution Amendment XII.

Similarly, the Twentieth Amendment exclusively grants Congress the responsibility for selecting

a President when a candidate elected by the Electoral College does not satisfy the Constitution’s

eligibility requirements. See id. Amendment XX, § 3 (“the Congress may by law provide for the

case wherein neither a President-elect nor a Vice President-elect shall have qualified, declaring

who shall then act as President, or the manner in which one who is to act shall be selected, and

such person shall act accordingly until a President or Vice President shall have qualified.”). Thus,

review of Presidential qualifications after the Electoral College has acted rests in Congress,

pursuant to the Constitution.

Federal legislation further details the process for counting electoral votes in the Congress.

Under 3 U.S.C. § 15, Congress is directed to be in session on the appropriate date to count the

electoral votes for President, with the President of the Senate presiding. The statute further

directs that the electoral votes be counted, and then the results be presented to the President of

the Senate, who shall then “announce the state of the vote.” The statute then provides a

mechanism for objections to be registered and resolved in the following language:

Every objection shall be made in writing, and shall state clearly and concisely, and
without argument, the ground thereof, and shall be signed by at least one Senator
and one Member of the House of Representatives before the same shall be
received. When all objections so made . . . shall have been received and read, the
Senate shall thereupon withdraw, and such objections shall be submitted to the

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Senate for its decision; and the Speaker of the House of Representatives shall, in
like manner, submit such objections to the House of Representatives for its
decision.

3 U.S.C. § 15. The statute is clear that Congress adjudicates all challenges to the counting of

Electoral votes for President.

In summary, the text of the Constitution and the relevant statutory law make plain that

challenges to the qualifications of a candidate for President can, in the first instance, be presented

to the voting public before the election, and, once the election is over, can be raised as objections

as the Electoral votes are counted in the Congress. Therefore, challenges such as those

purportedly raised in this case are committed to the electors, and to the Legislative branch.

Barack Obama has been President of the United States for over a year now. The issues

which Plaintiff seeks to litigate in this case, and the allegations which she makes in her

Complaint all relate to the fitness, competence, and qualification of President Obama to continue

to serve in office. As the D.C. Circuit observed, under different circumstances, these issues are

political questions for a very good reason:

Although the primary reason for invoking the political question doctrine in our
case is the textual commitment . . . to the Senate, the need for finality also
demands it. See Baker v. Carr, 369 U.S. at 210, 82 S. Ct. at 706 . . . . [T]he
intrusion of the courts would expose the political life of the country to months, or
perhaps years, of chaos. Even if the courts qualified a finding of justiciability
with a rule against stays or specific relief of any kind, their review would
undermine the new President’s legitimacy . . . for at least as long as the process
took. And a declaratory action without final relief awarding the Office to one
person or the other could confound matters indefinitely.

Nixon v. United States, 938 F.2d 239, 243 (D.C. Cir. 1991) (emphasis added), aff’d, 506 U.S.

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224 (1992).2

Litigation of these issues in this Court would be an equal intrusion of the judiciary into

the political life of the other branches of government. The intrusion would do violence to the

principle of separation of powers, an equally-important basis to recognize that this political

question is outside the jurisdiction of the Court. See Baker, 369 U.S. at 210 (“The non-

justiciability of a political question is primarily a function of the separation of powers.”); id. at

217 (setting forth the elements typically describing a political question).

In summary, the issues which Plaintiff seeks to litigate in this case are constitutionally

and statutorily within the sole and exclusive jurisdiction of the Congress. Litigation of these

issues in this Court at all, and certainly the granting of any of the relief sought by Plaintiff herein,

would violate separation of powers. Accordingly, this case must be dismissed.

III. Plaintiff Cannot Justify Mandamus Relief.

Plaintiff seeks a writ of mandamus to compel the Secretary of State, Hillary Clinton, to

produce the birth certificate supporting the President’s application for a U.S. passport. Plaintiff

cannot meet the high standards for mandamus relief. See, e.g., In re DRC, Inc., No. 09-5083,

2009 WL 5125602 (Dec. 8, 2009). In addition to failing to state a claim for any cause of action

supporting production of records, Plaintiff cannot identify a non-discretionary duty violated by

Defendant here that could possibly support mandamus.

2
The same interest in finality has also long been recognized to limit the scope of actions in quo
warranto. See Newman v. U.S. ex rel., Frizzell, 238 U.S. 537, 548 (1915) (“[G]eneral public
interest is not sufficient to authorize a private citizen to institute such [Quo Warranto]
proceedings, for if it was, then every citizen and every taxpayer would have the same interest and
the same right to institute such proceedings, and a public officer might, from the beginning to the
end of his term, be harassed with proceedings to try his title.”).

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IV. Plaintiff Has No Entitlement to Defendant’s Records.

Plaintiff seeks the production of Defendant’s birth certificate and various other records,

but the simple problem with her claim is that she has no legal entitlement to them. For example,

she has no basis to pursue a claim under the Freedom of Information Act, 5 U.S.C. § 552,

because she has neither sued a federal agency nor produced any evidence of a request she made

to a federal agency for such records (still less exhausting her administrative remedies). Other

than her groundless claim for quo warranto relief, she has cited no other statute or common law

right that would entitle her to production of any such records from Defendant. Her complaint

therefore fails to state a claim upon which relief may be granted. See Ashcroft v. Iqbal, 556 U.S.

---, 129 S. Ct. 1937 (2009).

V. Plaintiff is Not Entitled to a Preliminary Injunction.

Even if the Court were to find that Plaintiff had standing, she would still not be entitled to

injunctive relief. A grant of preliminary injunctive relief under Rule 65(a) “is considered an

extraordinary remedy in this circuit.” Sociedad Anonima Vina Santa Rita v. U.S. Dep’t of

Treasury, 193 F. Supp. 2d 6, 13 (D.D.C. 2001) (citations omitted). Because preliminary

injunctive relief is such “a drastic and unusual judicial measure,” see Marine Transp. Lines v.

Lehman, 623 F. Supp. 330, 334 (D.D.C. 1985), the power to issue such an injunction must be

“sparingly exercised,” see Dorfmann v. Boozer, 414 F.2d 1168, 1173 (D.C. Cir. 1969).

To prevail in her request for a preliminary injunction, Plaintiff bears the burden of

demonstrating that: (1) there is a substantial likelihood of success on the merits; (2) failure to

grant the injunction would result in irreparable injury; (3) the requested injunction would not

substantially injure other interested parties; and (4) the public interest would be furthered by the

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injunction. See Katz v. Georgetown Univ., 246 F.3d 685, 687-88 (D.C. Cir. 2001); Nat’l Head

Start Ass’n v. Dep’t of Health & Human Servs., 297 F. Supp. 2d 242, 246-47 (D.D.C. 2004). In a

case such as this, where “the injunction sought would alter, rather than preserve, the status quo,”

Plaintiff must meet an even higher standard: she must demonstrate “a clear entitlement to relief”

or that “extreme or very serious damage will result if the injunction does not issue.” Qualls v.

Rumsfeld, 357 F. Supp. 2d 274, 279 (D.D.C. 2005).

Here, Plaintiff seeks a preliminary injunction to (1) recuse the U.S. Attorney’s Office

from defending this suit, and (2) compel production of various “vital records” of Defendant. As

explained above, she has no prospect of prevailing on the merits on her latter request. As for

recusal of the U.S. Attorney’s Office, her theory is pure speculation that the Office may bring a

criminal prosecution against her and that if that happened, it would suffer a conflict of interest in

defending this suit. Cf. Younger v. Harris, 401 U.S. 37, 42 (1971) (plaintiffs lacked standing

where they did not claim they had ever been threatened with prosecution, that a prosecution was

likely, or even that a prosecution was remotely possible). Plaintiff offers no plausible support for

her conspiracy theory or that it, if true, it would justify recusal of the Office, much less on an

expedited basis on the current record.

More generally, because Plaintiff cannot show an injury to satisfy Article III standing, she

cannot show irreparable harm for purposes of receiving an injunction. See, e.g., In re Navy

Chaplaincy, 534 F.3d 756, 762-63 (D.C. Cir. 2008).

Moreover, her allegation of immediate injury falls well short of constituting a serious or

irreversible harm. In her affidavit, Plaintiff claims: “I have a serious concern that a CA bar [sic]

will be used as yet another tool in the same effort to destroy me,” and that she is “supposed to

15
Case 1:10-cv-00151-RCL Document 10 Filed 02/26/10 Page 18 of 20

provide an answer to the CA bar by 02.26.10.” (Taitz Affidavit R.8 ¶¶ 21-22.) Even if this were

taken at face value, Plaintiff provides no specifics as to what her “answer” to the bar is required

to include, what sort of inquiry is being performed by the Bar, or what additional stages of any

bar inquiry may include.

The finality associated with Plaintiff's suggested date of February 26, 2010, is further

undercut by the pendency of her appeals in Barnett and Rhodes. Those appeals are far more

directly relevant to the (extremely tenuous) claims of harm she makes regarding her law license

than anything likely to be resolved in this case. She has fallen far short of justifying preliminary

relief, much less preliminary relief that would so significantly alter, rather than preserve, the

status quo.

Finally, the request for preliminary injunction should be denied based on its adverse

impact to the public interest. “[C]ourts of equity should pay particular regard for the public

consequences in employing the extraordinary remedy of injunction.” Weinberger v.

Romero-Barcelo, 456 U.S. 305, 312 (1982). Plaintiff cannot meet her burden of establishing that

an injunction will serve the public interest in this case. The public has an interest in the finality

of elections and avoiding disruption in the country’s leadership. The storm of innuendo she

seeks to create, if indulged, cannot but open the door to innumerable, equally frivolous claims.

The Court should deny the preliminary injunction.

16
Case 1:10-cv-00151-RCL Document 10 Filed 02/26/10 Page 19 of 20

Conclusion

For the foregoing reasons, Defendant asks the Court to dismiss this case for lack of

standing and deny Plaintiff’s motion for a preliminary injunction.

February 26, 2010 Respectfully submitted,

RONALD C. MACHEN JR., D.C. Bar #447889


United States Attorney

/s/
RUDOLPH CONTRERAS, D.C. Bar # 434122
Assistant United States Attorney

/s/
ALAN BURCH, D.C. Bar # 470655
Assistant United States Attorney
555 4th St., N.W.
Washington, D.C. 20530
(202) 514-7204, alan.burch@usdoj.gov

17
Case 1:10-cv-00151-RCL Document 10 Filed 02/26/10 Page 20 of 20

Certificate of Service

I hereby certify that I caused copies of the foregoing Motion to Dismiss and supporting
Memorandum to be served by first class mail addressed to pro se Plaintiff at:

Orly Taitz
29839 Santa Margarita Parkway, Suite 100
Rancho Santa Margarita, CA 92688

and on

Christopher-Earl Strunk
593 Vanderbilt Ave., #281
Brooklyn, NY 11238

on this 26th day of February 2010.

ALAN BURCH, D.C. Bar # 470655


Assistant United States Attorney

18
Case 1:10-cv-00151-RCL Document 10-1 Filed 02/26/10 Page 1 of 2
Gov't Ex. 1, 10-0151 (RCL)

Page 1
Slip Copy, 2009 WL 2163535 (M.D.Ga.)
(Cite as: 2009 WL 2163535 (M.D.Ga.))

Branch, the unelected branch, should not inject it-


Only the Westlaw citation is currently available. self into purely “political disputes,” and that it
should not entangle itself in hypothetical debates
This decision was reviewed by West editorial which had not ripened to an actual legal dispute.
staff and not assigned editorial enhancements.
The Courts have therefore consistently held that in
United States District Court, order to have legal “standing” to pursue a claim in
M.D. Georgia, federal court, a party seeking federal jurisdiction
Columbus Division. must establish the following three elements: 1) that
Major Stefan Frederick COOK, Plaintiff he has experienced an “injury in fact” that is con-
v. crete and particularized and actual or imminent, as
Colonel Wanda L. GOOD, et al., Defendants. opposed to merely conjectural or hypothetical; 2)
No. 4:09-cv-82 (CDL). that there is a causal connection between the injury
and the defendant's conduct that is traceable to the
July 16, 2009.
challenged action of the defendant; and 3) that a fa-
Orly Taitz, Law Offices of Orly Taitz Esq, Mission vorable decision will likely redress the complained
Viego, CA, for Plaintiff. of injury.

Hugh Randolph Aderhold, Jr., Macon, GA, for De- In this case, Major Cook cannot satisfy these ele-
fendants. ments. His orders have been revoked. He is not be-
ing deployed to Afghanistan or Iraq. He is under no
present order to report anywhere. There is no evid-
ence that he is subject to future deployment. Any
ORDER
such contention is sheer speculation and entirely
CLAY D. LAND, District Judge. hypothetical. Thus, he has suffered no particular-
ized or concrete injury. There is no causal connec-
*1 To make the record complete and easily access- tion between any conduct by the defendant and any
ible to the parties and other persons interested in alleged injury. And the only remedy he sought from
the Court's oral ruling today, the Court files this this court, avoiding deployment, has already been
written order that puts in writing the oral order that provided, and thus there is no remedy that this court
the Court issued from the bench at the conclusion may provide that will redress his alleged injury.
of the hearing today on the Defendants' motion to
dismiss. Based on all of these reasons, Major Cook does not
have standing to pursue this action. Thus, no case
The same Constitution upon which Major Cook re- or controversy exists under the United States Con-
lies in support of his contention that President stitution, and this Court consequently has no sub-
Barack Obama is not eligible to serve as President ject matter jurisdiction over this action. Accord-
of the United States very clearly provides that fed- ingly, Defendants' motion to dismiss must be gran-
eral courts shall only have the authority to hear ac- ted.
tual “cases and controversies.” By restricting the
Judiciary's power to actual “cases and controver- Recognizing that his opportunity to air his griev-
sies,” our founders wisely established a separation ance over the President's eligibility to serve as Pres-
of powers that would ensure the freedom of their ident of the United States was slipping by,
fellow citizens. They concluded that the Judicial Plaintiff's attorney seeks to rescue the claims with

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


Case 1:10-cv-00151-RCL Document 10-1 Filed 02/26/10 Page 2 of 2 Page 2
Gov't Ex. 1, 10-0151 (RCL)
Slip Copy, 2009 WL 2163535 (M.D.Ga.)
(Cite as: 2009 WL 2163535 (M.D.Ga.))

two arguments: First, she argues that the Court M.D.Ga.,2009.


should exercise jurisdiction because the complained Cook v. Good
of conduct is “capable of repetition, yet evading ju- Slip Copy, 2009 WL 2163535 (M.D.Ga.)
dicial review.” Second, she seeks to amend the
complaint to add two additional parties, Maj. Gen. END OF DOCUMENT
Carol Dean Childers (Retired) and Lt. Col. David
Earl Graef. Plaintiff's efforts to maintain this polit-
ical controversy in federal court must fail.

*2 First, there is no evidence that Major Cook is


likely subject to future deployment orders. In fact,
the evidence is to the contrary. He is not likely to
be deployed in the future. Therefore, it is specula-
tion that he will be under the command of President
Obama as a member of the United States Military.
Second, there is no evidence that he would not have
an opportunity to have any future claim reviewed.
There is simply no evidence that this claim falls
within the narrow “capable of repetition, yet evad-
ing review” principle of federal jurisdiction.

Second, the Court finds that Major General


Childers and Lt. Col Graef do not have standing to
pursue their claims. They have alleged no concrete
particularized injury. They simply maintain that
they do not believe President Obama is eligible to
serve as President of the United States, and that hy-
pothetically they “may” one day be subject to or-
ders while he is Commander in Chief. They have no
standing orders to report to duty. They are under no
order for future deployment. They have made no
showing that they will not have a process available
to them to protest any orders should they be issued.
Their political claim does not give rise to a case or
controversy to be heard in federal court.

This Court has a duty to follow the United States


Constitution. That Constitution limits jurisdiction to
actual cases and controversies. To extend jurisdic-
tion beyond its limits would be a violation of that
very Constitution upon which Plaintiff relies in
support of his claims. This the Court refuses to do.

This entire action is dismissed for lack of subject


matter jurisdiction. The parties shall bear their own
costs.

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


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U.S. District Court [LIVE AREA]


Georgia Middle District (Columbus)
CIVIL DOCKET FOR CASE #: 4:09-cv-00082-CDL

Cook v. Good et al Date Filed: 07/09/2009


Assigned to: Judge Clay D. Land Date Terminated: 07/16/2009
Case in other court: 11th Circuit, 09-14698C Jury Demand: Plaintiff
Cause: 15:53(b) - Prelim & Perm Inj Relief & other Equita Nature of Suit: 440 Civil Rights: Other
Jurisdiction: U.S. Government
Defendant
Plaintiff
Stefan Frederick Cook represented by Orly Taitz
Major Law Offices Of Orly Taitz Esq
26302 La Paz Ste 211
Mission Viego , CA 92691
949-683-5411
Email: dr_taitz@yahoo.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Plaintiff
Carol Dean Childers represented by Orly Taitz
Major General (See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Plaintiff
David Earl Graef represented by Orly Taitz
Lieutenant Colonel (See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

V.
Defendant
Wanda L Good represented by Rebecca Elaine Ausprung
Colonel U.S. Army Litigation Division
901 N STUART ST STE 400
ARLINGTON , VA 22203
703-696-1614
Fax: 703-696-8126
Email: rebecca.ausprung@us.army.mil
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

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Hugh Randolph Aderhold , Jr.


PO Box 1702
Macon , GA 31202-1702
478-621-2728
Email: Randy.Aderhold@usdoj.gov
Defendant
Thomas D MacDonald represented by Rebecca Elaine Ausprung
Colonel (See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

Hugh Randolph Aderhold , Jr.


(See above for address)
Defendant
Dr. Robert M. Gates represented by Rebecca Elaine Ausprung
United States Secretary of Defense (See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

Hugh Randolph Aderhold , Jr.


(See above for address)
Defendant
Barack Hussein Obama represented by Rebecca Elaine Ausprung
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

Hugh Randolph Aderhold , Jr.


(See above for address)
ATTORNEY TO BE NOTICED
Defendant
Louis B Wingate represented by Hugh Randolph Aderhold , Jr.
Colonel (See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

Rebecca Elaine Ausprung


(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

Date Filed # Docket Text


07/09/2009 1 MOTION for Temporary Restraining Order by Stefan Frederick Cook filed by
Orly Taitz. (Attachments: # 1 Signature Page - Motion, # 2 Signature Page 2 -

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Motion, # 3 Certificate of Service - Signed, # 4 Civil Cover Sheet, # 5 Affidavit


of Sankey, # 6 Exhibits to Sankey Affidavit - Part 1, # 7 Exhibits to Sankey
Affidavit - Part 2, # 8 Declaration of Ramsey, # 9 Order to Active Duty)(tls)
(Entered: 07/10/2009)
07/10/2009 2 Letter dated July 10, 2009, to Attorney Taitz concerning non-payment of filing
fee. (tls) (Entered: 07/10/2009)
07/10/2009 This is a text only entry; no document issued.ORDER. The Court shall hold a
hearing on Plaintiff's motion for a temporary restraining order on July 16, 2009
beginning at 9:30 A.M. at the Federal Courthouse in Columbus, Georgia. The
Clerk shall email this notice of hearing to Plaintiff's counsel and to the U.S.
Attorney for the Middle District of Georgia. Ordered by Judge Clay D. Land on
July 10, 2009. (CDL) (Entered: 07/10/2009)
07/10/2009 Set Deadlines as to 1 MOTION for Temporary Restraining Order. Motion
Hearing set for 7/16/2009 at 09:30 AM in Columbus before Judge Clay D.
Land. (tls) (Entered: 07/10/2009)
07/10/2009 NOTICE of Hearing on Motion 1 MOTION for Temporary Restraining Order :
Motion Hearing set for 7/16/2009 at 09:30 AM in Columbus, Georgia, before
Judge Clay D. Land. (tls) (Entered: 07/10/2009)
07/10/2009 3 Summons Issued as to Thomas D MacDonald. (tls) (Entered: 07/10/2009)
07/10/2009 4 Summons Issued as to Wanda L Good. (tls) (Entered: 07/10/2009)
07/13/2009 Filing fee: $ 350.00, receipt number 404544. (tls) (Entered: 07/13/2009)
07/13/2009 PRO HAC VICE FEE Paid by Orly Taitz $ 100, receipt # 404544 (tls)
(Entered: 07/13/2009)
07/15/2009 5 MOTION to Dismiss Plaintiff's Application for a Temporary Restraining Order
by Wanda L Good, Thomas D MacDonald, Robert M. Gates, Barack Hussein
Obama filed by Hugh Randolph Aderhold, Jr. (Attachments: # 1 Memorandum
in Support, # 2 Exhibit A: Revocation Orders)(Aderhold, Hugh) (Entered:
07/15/2009)
07/15/2009 This is a text only entry; no document issued.ORDER. The Court will decide
Defendant's presently pending motion to dismiss after hearing argument from
the attorneys at the hearing scheduled for 9:30 A.M. on July 16, 2009. Ordered
by Judge Clay D. Land on July 15, 2009. (CDL) (Entered: 07/15/2009)
07/15/2009 6 MOTION for Preliminary Injunction by Stefan Frederick Cook filed by Orly
Taitz.(Taitz, Orly) (Entered: 07/15/2009)
07/15/2009 7 Notice of Error in Filing (related document(s): 6 Motion for Preliminary
Injunction filed by Stefan Frederick Cook) (tlf). (Entered: 07/15/2009)
07/16/2009 8 Motion Hearing held on 7/16/2009 before Judge Clay D. Land, Columbus,
Georgia. Minute Order dismissing 1 Motion for TRO, granting 5 Motion to
Dismiss, and dismissing 6 Motion for Preliminary Injunction. (Court Reporter
Betsy Peterson.) (tls) (Entered: 07/16/2009)
07/16/2009 9 Government's Exhibit 1 admitted at Motion Hearing held on 7/16/2009. (tls)

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(Entered: 07/16/2009)
07/16/2009 10 ORDER dismissing case for lack of subject matter jurisdiction. Ordered by
Judge Clay D. Land on 7/16/09 (tls) (Entered: 07/16/2009)
09/15/2009 11 NOTICE OF APPEAL as to 10 Order on Motion to Dismiss, Order on Motion
for Preliminary Injunction, Order on Motion for TRO, 8 Order on Motion to
Dismiss,, Order on Motion for Preliminary Injunction,, Order on Motion for
TRO,, Motion Hearing, by Stefan Frederick Cook. Filing fee $ 455, Receipt
No.: 113G0000000000816523. (Taitz, Orly) (Entered: 09/15/2009)
09/17/2009 12 Notice of Error in Filing (related document(s): 11 Notice of Appeal, filed by
Stefan Frederick Cook ). (tls) (Entered: 09/17/2009)
09/17/2009 13 Letter of Transmittal re 11 Notice of Appeal. Certified Copy of Notice of
Appeal, Docket Sheet, and Order mailed to USCA. NOTICE: A Civil Appeal
Statement must be filed with the Court of Appeals. A copy of this form may be
obtained from the District Clerk's Office or the district court internet site
(www.gamd.uscourts.gov). (tls) (Entered: 09/17/2009)
09/17/2009 14 Letter/Memorandum dated September 17, 2009, to Plaintiff's Counsel
concerning transcript orders. (Attachments: # 1 List of Hearings)(tls)
(Additional attachment(s) added on 9/17/2009: # 2 Address Label) (tls).
(Entered: 09/17/2009)
10/06/2009 15 USCA Case Number 09-14698C re 11 Notice of Appeal, filed by Stefan
Frederick Cook. (tls) (Entered: 10/06/2009)
10/07/2009 16 TRANSCRIPT of Proceedings held on 07/16/2009, before Judge Clay D. Land.
Court Reporter/Transcriber Betsy Peterson. Transcript may be viewed at the
court public terminal or purchased through the Court Reporter/Transcriber
before the deadline for Release of Transcript Restriction. After that date it may
be obtained through PACER. IMPORTANT NOTICE - REDACTION OF
TRANSCRIPTS: In order to remove personal identifier data from the
transcript, a party must electronically file a Transcript Redaction Request with
the Clerk's Office within 21 calendar days of this date. The Policy governing
the redaction of personal information is located on the court website at
www.gamd.uscourts.gov. Read this policy carefully. If no Transcript Redaction
Request is filed within 21 calendar days of this date, the court will assume
redaction of personal identifiers is not necessary and the transcript will be made
available via PACER 90 days from today's date. (Peterson, Betsy) (tls).
(Entered: 10/07/2009)
11/30/2009 17 USCA Order dismissing 11 Notice of Appeal filed by Stefan Frederick Cook.
(Attachments: # 1 USCA Cover Letter - 11/24/09)(tls) (Entered: 11/30/2009)

PACER Service Center


Transaction Receipt
02/26/2010 14:04:04
PACER Login: ux0412 Client Code: doj

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Description: Docket Report Search Criteria: 4:09-cv-00082-CDL


Billable Pages: 3 Cost: 0.24

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Gov't Ex. 3, 10-0151 (RCL)

United States Court of Appeals


for the Eleventh Circuit
56 Forsyth Street, N.W.
Atlanta, GA 30303-2289
(404) 335-6100

09-14698-CC
Stefan Frederick Cook v. Wanda L. Good
Closed
Docket #: 09-14698-CC
Short Style: Stefan Frederick Cook v. Wanda L. Good
Docket Date: 09/18/2009
Lead Case:
Agency:
Nature of Suit: Civil Rights: Other
Misc. Type:
Clerk: Dixon, Eleanor
Clerk Phone: (404) 335-6172

District Information

Docket #: 09-00082-CV-CDL-4 Judge: Clay D. Land


Dkt Date: 07/09/2009 District: Georgia-Middle
NOA Date: 09/15/2009 Office: MGA-Columbus

Secondary Case Information

Docket #: Judge:
Dkt Date: / /

Case Relationships

Docket # Short Style Relation Status

Pending Motions

Date Motion Party Emergency


Motion to Reinstate Appeal w/compliant brief and record excerpts (Atty: Stefan Frederick
01/21/2010 No
Orly Taitz) Cook

United States Court of Appeals


for the Eleventh Circuit
56 Forsyth Street, N.W.

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Atlanta, GA 30303-2289
(404) 335-6100

09-14698-CC
Stefan Frederick Cook v. Wanda L. Good
STEFAN FREDERICK COOK,

Major,

Plaintiff-Appellant,

CAROL DEAN CHILDERS,

Major General,

DAVID EARL GRAEF,

Lieutenant Colonel,

Plaintiffs,

versus

WANDA L. GOOD,

Colonel,

THOMAS D. MACDONALD,

Colonel,

DR. ROBERT M. GATES,

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Gov't Ex. 3, 10-0151 (RCL)

United States Secretary of Defense,

BARACK HUSSEIN OBAMA,

LOUIS B. WINGATE,

Colonel,

Defendants-Appellees.

United States Court OF Appeals


FOR the Eleventh Circuit
56 Forsyth Street, N.W.
Atlanta, GA 30303-2289
(404) 335-6100

09-14698-CC
Stefan Frederick Cook v. Wanda L. Good
Appellant Appellant Attorney
Stefan Frederick Cook Orly Taitz
Address Not On File 29839 SANTA MARGARITA PKWY, Ste 100
E-Brief Tendered: Appellant filed on 12/08/2009 RCHO STA MARG, CA 92688-3616
Fees: Paid on 09/15/2009 (949) 683-5411
Fax: (949) 766-7603
drtaitz@yahoo.com
No Briefing Information Found.
Appellee Appellee Attorney
Wanda L. Good Eric Fleisig-Greene
Address Not On File 950 PENNSYLVANIA AVE NW RM 7214
WASHINGTON, DC 20530-0009
(202) 514-4815
Fax: (202) 514-9405
eric.fleisig-greene@usdoj.gov
No Briefing Information Found.
Thomas D. MacDonald Eric Fleisig-Greene
Address Not On File 950 PENNSYLVANIA AVE NW RM 7214
WASHINGTON, DC 20530-0009
(202) 514-4815
Fax: (202) 514-9405
eric.fleisig-greene@usdoj.gov
No Briefing Information Found.
Robert M. Gates Eric Fleisig-Greene
Address Not On File 950 PENNSYLVANIA AVE NW RM 7214
WASHINGTON, DC 20530-0009
(202) 514-4815
Fax: (202) 514-9405

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eric.fleisig-greene@usdoj.gov
No Briefing Information Found.
Barack H. Obama Eric Fleisig-Greene
Address Not On File 950 PENNSYLVANIA AVE NW RM 7214
WASHINGTON, DC 20530-0009
(202) 514-4815
Fax: (202) 514-9405
eric.fleisig-greene@usdoj.gov
No Briefing Information Found.
Louis B. Wingate Eric Fleisig-Greene
Address Not On File 950 PENNSYLVANIA AVE NW RM 7214
WASHINGTON, DC 20530-0009
(202) 514-4815
Fax: (202) 514-9405
eric.fleisig-greene@usdoj.gov
No Briefing Information Found.
Mark B. Stern
950 PENNSYLVANIA AVE NW RM 7531
WASHINGTON, DC 20530-0009
(202) 514-5089
Fax: (202) 514-8151
Mark.Stern@usdoj.gov
No Briefing Information Found.

Initial Service
Rebecca E. Ausprung, Major
901 N STUART ST STE 400
ARLINGTON, VA 22203-1821
(703) 696-1627
Hugh Randolph Aderhold, Jr.
U.S. Attorney's Office
PO BOX 1702
MACON, GA 31202-1702
(478) 621-2728
Fax: (478) 621-2710
randy.aderhold@usdoj.gov
George F. Peterman, III
U.S. Attorney's Office - Middle Dis. Of Ga.
300 MULBERRY ST STE 400
MACON, GA 31201-7999
(478) 752-3511
Fax: (478) 621-2710
pete.peterman@usdoj.gov
United States Court of Appeals
for the Eleventh Circuit
56 Forsyth Street, N.W.
Atlanta, GA 30303-2289
(404) 335-6100

09-14698-CC
Stefan Frederick Cook v. Wanda L. Good

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File Date Entry Party Pending


Stefan
09/15/2009 Fee Status: Paid (09/15/09) for Stefan Frederick Cook Frederick No
Cook
DKT2 (Docketing Notice) issued. To:Orly Taitz; c:George F. Peterman, III;
09/21/2009 c:Gregory J. Leonard; c:Hugh Randolph Aderhold, Jr.; c:Rebecca E. No
Ausprung, Major
Stefan
09/22/2009 Probable Jurisdiction Noted: Frederick No
Cook
Eric Fleisig-
10/01/2009 Appearance Form Submitted. No
Greene
Mark B.
10/01/2009 Appearance Form Submitted. No
Stern
Betsy
10/07/2009 Transcript Filed in D.C.: 7/16/09 Hearing No
Peterson
10/16/2009 Briefing Notice Issued No
BR1CIV (Letter confirming brief due date) issued. To:Orly Taitz; c:Eric
10/16/2009 Fleisig-Greene; c:George F. Peterman, III; c:Hugh Randolph Aderhold, Jr.; No
c:Mark B. Stern; c:Rebecca E. Ausprung, Major
10/30/2009 MP-1 (Multi-Purpose letter) issued. To:Orly Taitz No
11/09/2009 Appearance Form Submitted. Orly Taitz No
Stefan
11/09/2009 SIGNED Notice of Appeal: (Atty: Orly Taitz) Frederick No
Cook
11/24/2009 Case Closed. Dismissed - No Prosecution No
DIS-2CIV (Letter to district court enclosing dismissal order) issued.
11/24/2009 No
To:Gregory J. Leonard; c:Eric Fleisig-Greene; c:Mark B. Stern; c:Orly Taitz
Pursuant to the 11th Cir.R.42-2(c), this appeal is dismissed for want of
11/24/2009 prosecution because the appellant failed to file brief and record excerpts No
within the time fixed by the rules.
Attorney Orly Taitz' Application to Appear Pro Hac Vice is GRANTED by
12/01/2009 No
AGyarfas
12/01/2009 Application to Appear Pro Hac Vice: (Atty: Orly Taitz) No
MOT2 (Notice of court action) issued. c:Eric Fleisig-Greene; c:Mark B.
12/02/2009 No
Stern; c:Orly Taitz
Stefan
12/08/2009 E-Brief Tendered: Appellant by Orly Taitz Frederick No
21pages Cook
MP-1 (Multi-Purpose letter) issued. To:Orly Taitz; c:Eric Fleisig-Greene;
12/16/2009 No
c:Mark B. Stern
MP-1 (Multi-Purpose letter) issued. To:Orly Taitz "Aplt's unfiled brf is being
01/13/2010 rtnd because brf is incorrectly printed on both sides of the paper. [See No
enclosed FRAP 32 (a)(1)(A)]"
Stefan
Motion to Reinstate Appeal w/compliant brief and record excerpts (Atty:
01/21/2010 Frederick Yes
Orly Taitz)
Cook

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APPEAL

U.S. District Court [LIVE AREA]


Georgia Middle District (Columbus)
CIVIL DOCKET FOR CASE #: 4:09-cv-00106-CDL

Rhodes v. MacDonald et al Date Filed: 09/04/2009


Assigned to: Judge Clay D. Land Date Terminated: 09/16/2009
Case in other court: Eleventh Circuit Court of Appeals, 09-15418BB Jury Demand: Plaintiff
Cause: 15:5 Nature of Suit: 440 Civil Rights: Other
Jurisdiction: U.S. Government Defendant

Plaintiff
Connie Rhodes represented by Connie Rhodes
Captain, M.D., F.S, PRO SE

Orly Taitz
Law Offices Of Orly Taitz Esq
26302 La Paz Ste 211
Mission Viego , CA 92691
949-683-5411
Email: dr_taitz@yahoo.com
TERMINATED: 09/28/2009
LEAD ATTORNEY
PRO HAC VICE
ATTORNEY TO BE NOTICED

V.
Defendant
Thomas D MacDonald represented by Rebecca Elaine Ausprung
Colonel, Garrison Commander, Fort Benning U.S. Army Litigation Division
901 N STUART ST STE 400
ARLINGTON , VA 22203
703-696-1614
Fax: 703-696-8126
Email: rebecca.ausprung@us.army.mil
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

Sheetul S. Wall
U.S. Attorney's Office
P.O. Box 2568
Columbus , GA 31902-2568
706-649-7700
Fax: 706-649-7667
Email: Sheetul.S.Wall@usdoj.gov

Defendant
George Steuber represented by Rebecca Elaine Ausprung
Deputy Commander, Fort Benning (See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

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Sheetul S. Wall
(See above for address)

Defendant
Robert M. Gates represented by Rebecca Elaine Ausprung
Secretary of Defense (See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

Sheetul S. Wall
(See above for address)

Defendant
Barack Hussein Obama represented by Rebecca Elaine Ausprung
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

Sheetul S. Wall
(See above for address)
ATTORNEY TO BE NOTICED

Movant
Orly Taitz represented by Orly Taitz
Law Offices Of Orly Taitz Esq
26302 La Paz Ste 211
Mission Viego, CA 92691
949-683-5411
Email: dr_taitz@yahoo.com
PRO SE

Movant
Victor M Serby represented by Victor M Serby
255 Hewlett Neck Road
Woodmere, NY 11598-1452
516-374-2455
PRO SE

Date Filed # Docket Text


09/04/2009 1 COMPLAINT filed by Connie Rhodes against all defendants; Filing Fee $ 350, Receipt Number
812572 (Attachments: # 1 Exhibits)(tlf). (Entered: 09/04/2009)

09/04/2009 2 Notice of Error in Filing (related document(s): 1 Complaint filed by Connie Rhodes) (tlf).
(Entered: 09/04/2009)

09/04/2009 Notification emailed to Orly Taitz regarding submitting a pro hac vice petition, paying the
$100.00 pro hac vice fee and associating local counsel. (nop) (Entered: 09/04/2009)

09/04/2009 3 MOTION for Temporary Restraining Order by Connie Rhodes filed by Orly Taitz.
(Attachments: # 1 Supplement, # 2 Affidavit Affidavit of a Licensed investigator re 39 social
security numbers and 140 addresses for Barack Obama, # 3 Exhibit list of 140 addresses and 39
social security numbers for Barack Obama)(Taitz, Orly) (Entered: 09/04/2009)

09/04/2009 4 MOTION request for emergency hearing September 9-10 due to scheduled deployment
September 12 by Connie Rhodes filed by Orly Taitz.(Taitz, Orly) (Entered: 09/04/2009)

09/08/2009 5 Notice of Error in Filing (related document(s): 3 Motion for TRO, filed by Connie Rhodes, 4
Motion for Miscellaneous Relief filed by Connie Rhodes) (tlf). (Entered: 09/08/2009)

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09/09/2009 6 Summons Issued as to Thomas D MacDonald on 9/9/2009; George Steuber on 9/9/2009; Robert
M. Gates on 9/9/2009; Barack Hussein Obama on 9/9/2009, U.S. Attorney (G.F. Peterson, III)
Summons Issued 9/9/2009. (esl) (Entered: 09/09/2009)

09/10/2009 7 SUMMONS Returned Executed by Connie Rhodes as to Thomas D MacDonald; George


Steuber; Robert M. Gates; Barack Hussein Obama; and G.F. Peterson III (U.S. Atorney) on
9/9/2009. (esl) (Entered: 09/10/2009)

09/10/2009 NOTICE of Hearing on Motion 3 MOTION for Temporary Restraining Order, 4 MOTION
request for emergency hearing; Motion Hearing set for 9/11/2009 02:00 PM in Columbus before
Judge Clay D. Land. (pgs) (Entered: 09/10/2009)

09/11/2009 8 MOTION to Dismiss Plaintiff's Complaint for Damages, Declaratory Judgment, and Injunctive
Relief and Application for TRO by Thomas D MacDonald, George Steuber, Robert M. Gates,
Barack Hussein Obama filed by Sheetul S. Wall. (Attachments: # 1 Exhibit A Deployment
Orders)(Wall, Sheetul) (Entered: 09/11/2009)

09/11/2009 9 DEMAND for Trial by Jury by Connie Rhodes (tlf). (Entered: 09/11/2009)

09/11/2009 10 Request for judicial notice by Connie Rhodes (tlf). (Entered: 09/11/2009)

09/11/2009 Hearing set for 9/14/2009 12:00 PM in Columbus before Judge Clay D. Land (tlf). (Entered:
09/11/2009)

09/11/2009 30 Minute Entry for proceedings held before Judge Clay D. Land, Columbus, GA: Motion Hearing
held on 9/11/2009 re 3 MOTION for Temporary Restraining Order, filed by Connie Rhodes.
[Hearing continued] (tls) (Entered: 10/21/2009)

09/14/2009 11 EXHIBIT(S) A Deployment Orders (redacted) by Thomas D MacDonald, George Steuber,


Robert M. Gates, Barack Hussein Obama re 8 MOTION to Dismiss Plaintiff's Complaint for
Damages, Declaratory Judgment, and Injunctive Relief and Application for TRO (Wall, Sheetul)
(Entered: 09/14/2009)

09/14/2009 12 Minute Entry for proceedings held before Judge Clay D. Land: Motion Hearing held on
9/14/2009. Written Order to follow (Attachments: # 1 Exhibits) (tlf). (Entered: 09/15/2009)

09/16/2009 13 ORDER denying 3 Motion for TRO; granting 8 Motion to Dismiss. Ordered by Judge Clay D.
Land on 09/16/2009. (CGC) (Entered: 09/16/2009)

09/16/2009 14 JUDGMENT in favor of Defendants. (esl) (Entered: 09/16/2009)

09/17/2009 15 BRIEF Request for stay of deployment pending motion for reconsideration of judgment filed by
Connie Rhodes re 13 Order on Motion for TRO, Order on Motion to Dismiss, 14 Judgment
(Taitz, Orly) (Entered: 09/17/2009)

09/17/2009 Attorney Orly Taitz admitted pro hac vice as of 9/14/09 for Cpt. Connie Rhodes. Pro hac vice
fee paid 9/14/09 $100.00 Recept #404677. (nop) (Entered: 09/17/2009)

09/18/2009 16 Notice of Error in Filing (related document(s): 15 Brief filed by Connie Rhodes) (tlf). (Entered:
09/18/2009)

09/18/2009 17 ORDER denying 15 Motion for Stay of Deployment filed by Connie Rhodes. Ordered by Judge
Clay D. Land on 09/18/2009. (CGC) (Entered: 09/18/2009)

09/18/2009 18 Letter from plaintiff regarding withdrawal of motion to stay (tlf). (Entered: 09/18/2009)

09/26/2009 19 MOTION to Withdraw as Attorney by Connie Rhodes filed by Orly Taitz.(Taitz, Orly)
(Entered: 09/26/2009)

09/28/2009 Notice of Error in Filing (related document: 19 Motion to Withdraw as Attorney filed by Connie
Rhodes ). DOCUMENT IS NOT SIGNED AND MUST BE RE-FILED ONCE
EXECUTED WITH AN "S/signature". (esl) (Entered: 09/28/2009)
09/28/2009 20 MOTION to Withdraw as Attorney by Connie Rhodes filed by Orly Taitz.(Taitz, Orly)

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(Entered: 09/28/2009)

09/28/2009 TEXT ONLY Notice of Error in Filing (related document: 20 Motion to Withdraw as Attorney
filed by Connie Rhodes ). SIGNED CERTIFICATE OF SERVICE IS MISSING FROM
DOCUMENT. PLEASE E-FILE AN EXECUTED CERTIFICATE OF SERVICE AND
LINK IT BACK TO DOCUMENT 20 . Failure to include service on Plaintiff will result in
another Notice of Error in Filing. (esl) (Entered: 09/28/2009)

09/28/2009 21 ORDER granting 20 Motion to Withdraw as Attorney with conditions (see order for
explanation). Attorney Orly Taitz terminated. Ordered by Judge Clay D. Land on 09/28/2009
(esl) (Entered: 09/28/2009)

09/29/2009 22 MOTION to Withdraw as Attorney by Connie Rhodes filed by Orly Taitz.(Taitz, Orly)
(Entered: 09/29/2009)

10/02/2009 23 TRANSCRIPT of Proceedings held on 9/14/2009, before Judge Clay D. Land. Court
Reporter/Transcriber Betsy Peterson. Transcript may be viewed at the court public terminal or
purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript
Restriction. After that date it may be obtained through PACER. IMPORTANT NOTICE -
REDACTION OF TRANSCRIPTS: In order to remove personal identifier data from the
transcript, a party must electronically file a Transcript Redaction Request with the Clerk's Office
within 21 calendar days of this date. The Policy governing the redaction of personal information
is located on the court website at www.gamd.uscourts.gov. Read this policy carefully. If no
Transcript Redaction Request is filed within 21 calendar days of this date, the court will assume
redaction of personal identifiers is not necessary and the transcript will be made available via
PACER 90 days from today's date. (Peterson, Betsy) (Entered: 10/02/2009)

10/02/2009 24 MOTION for Recusal by Connie Rhodes filed by Orly Taitz.(Taitz, Orly) (Entered: 10/02/2009)

10/02/2009 25 MOTION for Extension of Time to File response. by Connie Rhodes filed by Orly Taitz.(Taitz,
Orly) (Entered: 10/02/2009)

10/04/2009 26 EXHIBIT(S) by Connie Rhodes re 24 MOTION for Recusal (Attachments: # 1 Affidavit


Affidavit of Robert Douglas, # 2 Affidavit Affidavit of Robert Douglas 2)(Taitz, Orly) (Entered:
10/04/2009)

10/07/2009 27 TRANSCRIPT of Proceedings held on 9/11/2009, before Judge Clay D. Land. Court
Reporter/Transcriber Betsy Peterson. Transcript may be viewed at the court public terminal or
purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript
Restriction. After that date it may be obtained through PACER. IMPORTANT NOTICE -
REDACTION OF TRANSCRIPTS: In order to remove personal identifier data from the
transcript, a party must electronically file a Transcript Redaction Request with the Clerk's Office
within 21 calendar days of this date. The Policy governing the redaction of personal information
is located on the court website at www.gamd.uscourts.gov. Read this policy carefully. If no
Transcript Redaction Request is filed within 21 calendar days of this date, the court will assume
redaction of personal identifiers is not necessary and the transcript will be made available via
PACER 90 days from today's date. (Peterson, Betsy) (Additional attachment(s) added on
10/8/2009: # 1 Corrected signature page) (esl). (Entered: 10/07/2009)

10/13/2009 28 ORDER denying 24 Motion for Recusal; denying 25 Motion for Extension of Time. Ordered by
Judge Clay D. Land on 10/13/2009. (lra) (Entered: 10/13/2009)

10/20/2009 29 NOTICE OF APPEAL as to 21 Order on Motion to Withdraw as Attorney, 13 Order on Motion


for TRO, Order on Motion to Dismiss, 14 Judgment, 17 Order, 28 Order on Motion for Recusal,
Order on Motion for Extension of Time (Misc) by Connie Rhodes. Filing fee $ 455, Receipt
No.: 113G0000000000831915. (Taitz, Orly) (Entered: 10/20/2009)

10/23/2009 31 Letter of Transmittal re 29 Notice of Appeal,. Certified Copy of Notice of Appeal, Docket
Sheet, Order appealed from. NOTICE: A Civil Appeal Statement must be filed with the Court of
Appeals. A copy of this form may be obtained from the District Clerk's Office or the district
court internet site (www.gamd.uscourts.gov). (tls) (Entered: 10/23/2009)

10/23/2009 32 Letter to Dr. Orly Taitz regarding transcript order form as to 29 Notice of Appeal. (tls) (Entered:

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10/23/2009)

10/23/2009 33 MOTION for Leave to File an amicus curiae brief filed by Victor M Serby (Attachments: # 1
Amicus Brief, # 2 Envelope)(tlf). (Entered: 10/23/2009)

10/29/2009 34 USCA Case Number re 29 Notice of Appeal (tlf). (Additional attachment(s) added on 1/8/2010:
# 1 USCA Letter to Orly Taitz - 10/27/09) (tls). (Entered: 10/29/2009)

11/10/2009 35 BRIEF by Defendant in Response to the Court's Order dated October 13, 2009 filed by Thomas
D MacDonald, George Steuber, Robert M. Gates, Barack Hussein Obama re 28 Order on
Motion for Recusal, Order on Motion for Extension of Time (Misc) (Wall, Sheetul) (Entered:
11/10/2009)

11/13/2009 36 ORDER for final judgment against Orly Taitz. Ordered by Judge Clay D. Land on 11/13/09.
(tls) (Entered: 11/13/2009)

11/13/2009 37 JUDGMENT against Orly Taitz. (tls) (Entered: 11/13/2009)

01/13/2010 38 Certificate of Readiness of Record on Appeal forwarded to USCA re 29 Notice of Appeal


(Attachments: # 1 Appeal Docket Sheet)(nop) (Entered: 01/13/2010)

01/13/2010 39 Certified and Transmitted Record on Appeal to US Court of Appeals re 29 Notice of Appeal
(nop) (Entered: 01/13/2010)

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Page 1

Slip Copy, 2009 W L 2997605 (M .D.Ga.)


(Cite as: 2009 W L 2997605 (M.D.Ga.))

ORDER
Only the W estlaw citation is currently available.

CLAY D. LAND, District Judge.


United States District Court,
M.D. Georgia,
Columbus Division. *1 Plaintiff, a Captain in the United States Army, seeks a
Connie RHODES, Plaintiff, temporary restraining order to prevent the Army from
v. deploying her to Iraq in support of Operation Iraqi
Thomas D. MacDONALD, Colonel, Garrison Freedom. Plaintiff alleges that her deployment orders are
Commander, Fort Benning; et al., Defendants. unconstitutional and unenforceable because President
No. 4:09-CV-106 (CDL). Barack Obama is not constitutionally eligible to act as
Commander in Chief of the United States armed forces.
After conducting a hearing on Plaintiff's motion, the Court
Sept. 16, 2009. finds that Plaintiff's claims are frivolous. Accordingly, her
application for a temporary restraining order (Doc. 3) is
denied, and her Complaint is dismissed in its entirety.
W est KeySummary Furthermore, Plaintiff's counsel is hereby notified that the
Injunction 212 150 filing of any future actions in this Court, which are
similarly frivolous, shall subject counsel to sanctions.
SeeFed.R.Civ.P. 11(c).
212 Injunction
212IV Preliminary and Interlocutory Injunctions
212IV(A) Grounds and Proceedings to Procure BACKGROUND
212IV(A)4 Proceedings
212k150 k. Restraining Order Pending
Hearing of Application. Most Cited Cases Plaintiff's counsel is a self-proclaimed leader in what has
An army officer was not entitled to a temporary restraining become known as “the birther movement.” She maintains
order to prevent her deployment to Iraq. The restraining that President B arack Obama was not born in the United
order was not warranted because the officer demonstrated States, and, therefore, he is not eligible to be President of
no likelihood of success on the merits of her claim. The the United States. FN1See Dr. Orly Taitz, Esquire, http://
officer alleged that her deployment orders were www.orlytaitzesq.com (last visited Sept. 15, 2009).
unconstitutional and unenforceable because the President Counsel has filed numerous lawsuits in various parts of the
of the United States was not constitutionally eligible to act country seeking a judicial determination as to the
as Commander in Chief of the United States armed forces President's legitimacy to hold the office of President. The
because he was allegedly not born in the United States. present action is the second such action filed in this Court
in which counsel pursues her “birther claim.” Her modus
operandi is to use military officers as parties and have
Orly Taitz, Law Offices of Orly Taitz Esq., Mission them allege that they should not be required to follow
Viego, CA, for Plaintiff. deployment orders because President Obama is not
constitutionally qualified to be President. Although
counsel has managed to fuel this “birther movement” with
Rebecca Elaine Ausprung, Arlington, VA, Sheetul S. her litigation and press conferences, she does not appear
W all, U.S. Attorney's Office, Columbus, GA, for to have prevailed on a single claim.FN2 In fact, Plaintiff
Defendants. previously filed the present action in the United States
District Court for the W estern District of Texas. That
Court summarily dismissed her complaint upon finding

© 2010 Thomson Reuters. No Claim to Orig. US Gov.


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Page 2

Slip Copy, 2009 W L 2997605 (M .D.Ga.)


(Cite as: 2009 W L 2997605 (M.D.Ga.))

that Plaintiff “has no substantial likelihood of success on www.fec.gov/press/press2009/20090608PresSt


the merits.” Rhodes v. Gates, 5:09-CV-00703-XR, Order at.shtml. It would appear that ample opportunity
Den. Mot. for TRO 3 (W .D.Tex. Aug. 28, 2009). Counsel existed for discovery of evidence that would
then re-filed the same action in this Court. support any contention that the President was not
eligible for the office he sought.

FN1.Article II, Section 1, Clause 4 of the United


States Constitution provides in relevant part that Furthermore, Congress is apparently satisfied
“No Person except a natural born Citizen ... shall that the President is qualified to serve.
be eligible to the Office of President.” Congress has not instituted impeachment
proceedings, and in fact, the House of
Representatives in a broad bipartisan manner
FN2. This Court dismissed an earlier action filed has rejected the suggestion that the President is
by Plaintiff's counsel on behalf of a military not eligible for office. See H.R. Res. 593,
reservist based upon that plaintiff's lack of 111th Cong. (2009) (commemorating, by vote
standing. See Cook v. Good, No. 4:09-CV-82 of 378-0, the 50th anniversary of Hawaii's
(CDL), 2009 W L 2163535 (M .D.Ga. Jul.16, statehood and stating, “the 44th President of
2009). the United States, Barack Obama, was born in
Hawaii on August 4, 1961”).

Plaintiff's counsel speculates that President Obama was


not born in the United States based upon the President's To press her “birther agenda,” Plaintiff's counsel has filed
alleged refusal to disclose publicly an “official birth the present action on behalf of Captain Rhodes. Captain
certificate” that is satisfactory to Plaintiff's counsel and her Rhodes entered the Army in March of 2005 and presently
followers. She therefore seeks to have the judiciary serves as a medical doctor. The American taxpayers paid
compel the President to produce “satisfactory” proof that for her third and fourth years of medical school and
he was born in the United States. Counsel makes these financially supported her during her subsequent medical
allegations although a “short-form” birth certificate has internship and residency program. In exchange for this
been made publicly available which indicates that the valuable free medical education, Captain Rhodes agreed
President was born in Honolulu, Hawaii on August 4, to serve two years in active service in the Army. She
1961.FN3 began that term of active service in July of 2008 and had
no concerns about fulfilling her military obligation until
she received orders notifying her that she would be
FN3. The Court observes that the President deployed to Iraq in September of 2009.
defeated seven opponents in a grueling campaign
for his party's nomination that lasted more than
eighteen months and cost those opponents well *2 Captain Rhodes does not seek a discharge from the
over $300 million. See Federal Election Army; nor does she wish to be relieved entirely from her
Commission, Presidential Pre-N omination two year active service obligation. She has not previously
Campaign Disbursements Dec. 31, 2008, made any official complaints regarding any orders or
http://www.fec.gov/press/press2009/ assignments that she has received, including orders that
20090608Pres/3-2008PresPrimaryCmpgnDis.pdf have been issued since President O bama became
(last visited Sept. 15, 2009). Then the President Commander in Chief. But she does not want to go to Iraq
faced a formidable opponent in the general (or to any other destination where she may be in harm's
election who received $84 million to conduct his way, for that matter). Her “conscientious objections” to
general election campaign against the President. serving under the current Commander in Chief apparently
Press Release, Federal Election Commission, can be accommodated as long as she is permitted to
2008 Presidential Campaign Financial Activity remain on American soil.
Summarized (June 8, 2009), available at http://

© 2010 Thomson Reuters. No Claim to Orig. US Gov.


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Page 3

Slip Copy, 2009 W L 2997605 (M .D.Ga.)


(Cite as: 2009 W L 2997605 (M.D.Ga.))

Captain Rhodes is presently stationed at Ft. Benning, decision-making process and chain of command. As
Georgia awaiting deployment to Iraq. This deployment is explained below, the Court must balance several factors to
imminent and will likely occur absent an order from this determine whether judicial review of a military decision is
Court granting Plaintiff's motion for a temporary authorized.
restraining order.

Typically, the first issue to be resolved in cases seeking


DISCUSSION judicial review of a military decision is whether the soldier
has exhausted all intraservice administrative remedies. See
Winck, 327 F.3d at 1304. In the present case, Defendants
I. Jurisdiction and Abstention do not contend that Plaintiff was required to exhaust her
intraservice administrative remedies, presumably because
no procedure is in place for a soldier to contest the
Plaintiff seeks to have this Court declare a deployment qualifications of the Commander in Chief. Defendants do
order issued by the United States Army void and argue, however, that the dispute presented by Plaintiff's
unenforceable. It is well settled that judicial interference complaint is not justiciable in the courts.
in internal military affairs is disfavored. As the Supreme
Court has explained:
*3 Even if a soldier has exhausted her intraservice
administrative remedies, the Court must decline to review
[J]udges are not given the task of running the Army. The the military decision if the review would constitute an
responsibility for setting up channels through which inappropriate intrusion into military matters. Id. at 1303 &
such grievances can be considered and fairly settled n. 4 (citing Mindes, 453 F.2d at 201). It has long been the
rests upon the Congress and upon the President of the law in this Circuit that in determining whether judicial
United States and his subordinates. The military review of a military decision should be undertaken, the
constitutes a specialized community governed by a reviewing court
separate discipline from that of the civilian. Orderly
government requires that the judiciary be as scrupulous
not to interfere with legitimate Army matters as the ‘must examine the substance of that allegation in light of
Army must be scrupulous not to intervene in judicial the policy reasons behind nonreview of military
matters. matters,’ balancing four factors: (1) ‘The nature and
strength of the plaintiff's challenge to the military
determination’; (2) ‘The potential injury to the plaintiff
Orloff v. Willoughby, 345 U.S. 83, 93-94, 73 S.Ct. 534, 97 if review is refused’; (3) ‘The type and degree of
L.Ed. 842 (1953), quoted with approval in Winck v. anticipated interference with the military function’; and
England, 327 F.3d 1296, 1302-03 (11th Cir.2003). The (4) ‘The extent to which the exercise of military
limitation on the judiciary's involvement in military affairs expertise or discretion is involved.’
does not mean that such interference is never appropriate.
However, “ ‘a court should not review internal military
affairs in the absence of (a) an allegation of the Winck, 327 F.3d at 1303 n. 4 (quoting Mindes, 453 F.2d
deprivation of a constitutional right, or an allegation that at 201). Although certain aspects of the Mindes decision
the military has acted in violation of applicable statutes or have been eroded through the years, the Eleventh Circuit
its own regulations, and (b) exhaustion of available has relatively recently reaffirmed the “unflagging strength
intraservice corrective measures.’ ” Winck, 327 F.3d at of the principles of comity and judicial noninterference
1303 (quoting Mindes v. Seaman, 453 F.2d 197, 201 (5th with, and respect for, military operations that informed”
Cir.1971)). Moreover, mere allegations of a constitutional the analysis in Mindes. Winck, 327 F.3d at 1304.FN4
violation unsupported by a reasonable factual foundation
are insufficient to warrant judicial review. To hold
otherwise would be to create chaos within the military FN4. It is not always clear whether the analysis

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of the appropriateness of judicial review of who champions herself as a defender of liberty and
military decisions involves subject matter freedom, seeks to use the power of the judiciary to compel
jurisdiction or abstention principles based on a citizen, albeit the President of the United States, to
comity and respect for the unique military “prove his innocence” to “charges” that are based upon
decision-making process. The Court finds that conjecture and speculation. Any middle school civics
the proper analysis in this case requires an student would readily recognize the irony of abandoning
evaluation of the deployment order using fundamental principles upon which our Country was
principles of abstention. See Winck, 327 F.3d at founded in order to purportedly “protect and preserve”
1299-1300 (distinguishing subject matter those very principles.
jurisdiction from abstention principles).

*4 Although the Court has determined that the appropriate


Using the Mindes factors as an analytical framework, the analysis here involves principles of abstention and not an
Court finds that it is not authorized to interfere with examination of whether Plaintiff's complaint fails to state
Plaintiff's deployment orders. First, Plaintiff's challenge to a claim under Federal Rule of Civil Procedure 12(b)(6),
her deployment order is frivolous. She has presented no the Court does find the Rule 12(b)(6) analysis helpful in
credible evidence and has made no reliable factual confirming the Court's conclusion that Plaintiff's claim has
allegations to support her unsubstantiated, conclusory no merit. To state a claim upon which relief may be
allegations and conjecture that President Obama is granted, Plaintiff must allege sufficient facts to state a
ineligible to serve as President of the United States. claim to relief that is “plausible on its face.” Ashcroft v.
Instead, she uses her Complaint as a platform for spouting Iqbal, --- U.S. ----, ----, 129 S.Ct. 1937, 1949, 173
political rhetoric, such as her claims that the President is L.Ed.2d 868 (2009) (internal quotation marks omitted).
“an illegal usurper, an unlawful pretender, [and] an For a complaint to be facially plausible, the Court must be
unqualified imposter.” (Compl.¶ 21.) She continues with able “to draw the reasonable inference that the defendant
bare, conclusory allegations that the President is “an alien, is liable for the misconduct alleged” based upon a review
possibly even an unnaturalized or even an unadmitted of the factual content pled by the Plaintiff. Id. The factual
illegal alien ... without so much as lawful residency in the allegations must be sufficient “to raise a right to relief
United States.” (Id. ¶ 26.) Then, implying that the above the speculative level.” Bell Atl. Corp. v. Twombly,
President is either a wandering nomad or a prolific identity 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929
fraud crook, she alleges that the President “might have (2007). Plaintiff's complaint is not plausible on its face. To
used as many as 149 addresses and 39 social security the extent that it alleges any “facts,” the Complaint does
numbers prior to assuming the office of President.” (Id. ¶ not connect those facts to any actual violation of Plaintiff's
110 (emphasis added).) Acknowledging the existence of individual constitutional rights. U nlike in Alice in
a document that shows the President was born in Hawaii, Wonderland, simply saying something is so does not make
Plaintiff alleges that the document “cannot be verified as it so. The weakness of Plaintiff's claim certainly weighs
genuine, and should be presumed fraudulent.” (Id . ¶ 113 heavily against judicial review of the deployment order,
(emphasis added).) In further support of her claim, and in fact, would authorize dismissal of Plaintiff's
Plaintiff relies upon “the general opinion in the rest of the complaint for failure to state a claim.FN5
world” that “Barack H ussein Obama has, in essence,
slipped through the guardrails to become President.” (Id.
¶ 128.) Moreover, as though the “general opinion in the FN5. One piece of “evidence” Plaintiff's counsel
rest of the world” were not enough, Plaintiff alleges in her relies upon deserves further discussion. Counsel
Complaint that according to an “AOL poll 85% of has produced a document that she claims shows
Americans believe that Obama was not vetted, needs to be the President was born in Kenya, yet she has not
vetted and his vital records need to be produced.” (Id. ¶ authenticated that document. She has produced
154.) Finally, in a remarkable shifting of the traditional an affidavit from someone who allegedly
legal burden of proof, Plaintiff unashamedly alleges that obtained the document from a hospital in
Defendant has the burden to prove his “natural born” M ombasa, K enya b y paying “a cash
status. (Id. ¶¶ 136-138, 148.) Thus, Plaintiff's counsel, ‘consideration’ to a Kenyan military officer on

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duty to look the other way, while [he] obtained U.S. at 94-95.
the copy” of the document. (Smith Decl. ¶ 7,
Sept. 3, 2009.) Counsel has not, however,
produced an original certificate of authentication *5 Based on an evaluation of all of these factors, the Court
from the government agency that supposedly has concludes that it must abstain from interfering with the
official custody of the document. Therefore, the Army's deployment orders. Accordingly, Plaintiff's motion
Court finds that the alleged document is for a temporary restraining order is denied, and her
unreliable due to counsel's failure to properly complaint is dismissed in its entirety.
authenticate the document. SeeFed.R.Evid. 901.

II. Failure to Satisfy Elements for Temporary Restraining


Examining the second Mindes factor, the Court further Order
finds that the risk of potential irreparable injury to Plaintiff
as a result of the Court's refusal to review the deployment
order is minimal. Plaintiff has not sought to be excused Even if the Court did not abstain from deciding the merits
from all military service. She does not seek a discharge of Plaintiff's claim, the Court finds that Plaintiff has failed
from the Army. She does not even seek to avoid taking to establish her entitlement to a temporary restraining
military orders under President Obama's watch. She order. Plaintiff must establish the following to obtain a
simply seeks to avoid being deployed to Iraq. As observed temporary restraining order:
by the Eleventh Circuit, one “cannot say that military
deployment, in and of itself, necessarily entails
[irreparable harm], even if to volatile regions.” Winck, 327 (1) [Plaintiff] has a substantial likelihood of success on the
F.3d at 1305 n .9. “Holding otherwise could unduly merits;
hamper urgent military operations during times of crisis.”
Id. Thus, the lack of potential irreparable harm to Plaintiff
weighs against judicial review. (2) irreparable injury will be suffered unless the injunction
issues;

Finally, the “type and degree of anticipated interference


with the military function” that judicial review would (3) the threatened injury to [Plaintiff] outweighs whatever
cause is significantly burdensome. Any interference with damage the proposed injunction may cause the opposing
a deployment order injects the Court directly into the party; and
internal affairs of the military. This type of interference
has serious implications. For example, it would encourage
other soldiers who are not satisfied with their deployment (4) if issued, the injunction would not be adverse to the
destination to seek review in the courts. It also will have public interest.
an adverse effect on other soldiers who honorably perform
their duties. Presumably, some other military doctor, who
does not resort to frivolous litigation to question the Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1223, 1231
President's legitimacy as Commander in Chief, would be (11th Cir.2005).
required to go to Iraq in Plaintiff's place. Similarly, the
doctor who Plaintiff is being sent to relieve and who has
likely been there for months would be delayed in receiving As explained previously, Plaintiff has demonstrated no
his well deserved leave because his replacement seeks likelihood of success on the merits. Her claims are based
special treatment due to her political views or reservations on sheer conjecture and speculation. She alleges no factual
about being placed in harm's way. “It is not difficult to see basis for her “hunch” or “feeling” or subjective belief that
that the exercise of such jurisdiction as is here urged the President was not born in the United States. Moreover,
would be a disruptive force as to affairs peculiarly within she cites no legal authority supporting her bold contention
the jurisdiction of the military authorities.” Orloff, 345 that the alleged “cloud” over the President's birthplace

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amounts to a violation of her individual constitutional


rights. Thus, for these reasons alone, she is not entitled to
a temporary restraining order. For the reasons previously stated, Plaintiff's motion for a
temporary restraining order is denied and Plaintiff's
complaint is dismissed in its entirety. Defendants shall
Second, as previously noted, the Court's refusal to recover their costs from Plaintiff. SeeFed.R.Civ.P. 54(d).
interfere with Plaintiff's deployment orders does not pose
a substantial threat of irreparable injury to her. Plaintiff
does not seek to be discharged and apparently is willing to IT IS SO ORDERED.
follow all orders from her military command except for
any order that deploys her to Iraq. Although close
proximity to any combat zone certainly involves personal M.D.Ga.,2009.
danger, Plaintiff, somewhat disingenuously, claims that Rhodes v. MacDonald
fear is not her motivation for avoiding her military duty. Slip Copy, 2009 W L 2997605 (M .D.Ga.)
She insists that she would have no qualms about fulfilling
her duties if President George W . Bush was still in office.
The Court cannot find from the present record that END OF DOCUMENT
deployment to Iraq under the current administration will
subject Plaintiff to any threat of harm that is different than
the harm to which she would be exposed if another
candidate had won the election. A substantial threat of
irreparable harm related to her desire not to serve in Iraq
under the current President simply does not exist.

Third, any potential threatened injury that may be caused


to Plaintiff by the denial of the temporary restraining order
certainly does not outweigh the harm that will result if the
injunction is granted. As mentioned previously, the
threatened injury to Plaintiff is not substantial; yet if the
temporary restraining order was granted, the harmful
interference with military operations would be significant.

*6 Finally, Plaintiff has failed to establish that the granting


of the temporary restraining order will not be adverse to
the public interest. A spurious claim questioning the
President's constitutional legitimacy may be protected by
the First Amendment, but a Court's placement of its
imprimatur upon a claim that is so lacking in factual
support that it is frivolous would undoubtedly disserve the
public interest.

For all of these reasons, the Court finds that Plaintiff's


motion for a temporary restraining order should be denied.

CONCLUSION

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U.S.C.A. Const. Amend. 5.; Fed.Rules Civ.Proc.Rule 11,


Only the W estlaw citation is currently available. 28 U.S.C.A.

United States District Court, Connie Rhodes, pro se.


M.D. Georgia,
Columbus Division.
Connie RHODES, Plaintiff, Rebecca Elaine Ausprung, Arlington, VA, Sheetul S.
v. W all, U.S. Attorney's Office, Columbus, G A, for
Thomas D. MacDONALD, Colonel, Garrison Defendants.
Commander, Fort Benning; et al., Defendants.
No. 4:09-CV-106 (CDL).
ORDER

Sept. 18, 2009.


CLAY D. LAND, District Judge.

W est KeySummary
FN1
Federal Civil Procedure 170A 2771(2) *1 “It was deja vu all over again.”

170A Federal Civil Procedure FN1. Attributed to New York Yankees baseball
170AXX Sanctions legend and philosopher, Yogi Berra.
170AXX(B) Grounds for Imposition
170Ak2767 Unwarranted, Groundless or
Frivolous Papers or Claims In her most recent tirade, Plaintiff's counsel seeks
170Ak2771 Complaints, Counterclaims and reconsideration of the Court's order dismissing this
Petitions action. FN2 Instead of seriously addressing the substance of
170Ak2771(2) k. Particular T ypes of the Court's order, counsel repeats her political diatribe
Cases. Most Cited Cases against the President, complains that she did not have time
to address dismissal of the action (although she sought
expedited consideration), accuses the undersigned of
Federal Civil Procedure 170A 2812 treason, and maintains that “the United States District
Courts in the 11th Circuit are subject to political pressure,
external control, and ... subservience to the same
170A Federal Civil Procedure illegitimate chain of command which Plaintiff has
170AXX Sanctions previously protested.” (Pl.'s Emergency Req. for Stay of
170AXX(D) Type and Amount Deployment 2.) This filing contemptuously ignores the
170Ak2811 Monetary Sanctions Court's previous admonition that Plaintiff's counsel
170Ak2812 k. In General. Most Cited Cases discontinue her illegitimate use of the federal judiciary to
A Rule 11 sanction of $10,000 was warranted against further her political agenda. The Court finds that the
counsel for a military member who was challenging her claims and legal contentions asserted in the present motion
deployment orders based on President Obama's alleged are not warranted by existing law and that no reasonable
illegitimacy. Counsel was trying to continue to use the basis exists to conclude that Plaintiff's arguments would be
judiciary as a platform to further the birther agenda, but accepted as an extension, modification, or reversal of
had provided no legal or factual basis for interference with existing law. Simply, put the motion is frivolous.
the deployment orders of the United States Army. Moreover, the Court further finds that Plaintiff's motion is

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being presented for the improper purpose of using the this drastic relief based upon the following arguments,
federal judiciary as a platform to espouse controversial each of which is frivolous.
political beliefs rather than as a legitimate forum for
hearing legal claims. Counsel's conduct violates Rule 11
of the Federal Rules of Civil Procedure, and sanctions are *2 First, counsel contends that the Court dismissed her
warranted. A ccordingly, P laintiff's motion for Complaint without giving her an opportunity to respond
reconsideration (Doc. 15) is denied, and counsel for adequately as required by the Federal Rules of Civil
Plaintiff is ordered to show cause why the Court should Procedure and the Court's Local Rules. Counsel ignores
not impose a monetary penalty of $10,000.00 upon that she sought to have the case heard in an expedited
Plaintiff's counsel for her misconduct. Counsel shall file fashion in the first place because of Plaintiff's imminent
her response to this show cause order within 14 days of deployment. The Court modified its schedule to
today's order. accommodate this request, and in fact held the hearing
during the lunch break in an ongoing jury trial. Yet, she
now complains that she only wanted the temporary
FN2. Though the motion is titled “Emergency restraining order expedited and not the entire case. W hat
Request for Stay of Deployment,” it appears to Plaintiff's counsel either fails to understand or refuses to
be a motion for reconsideration because it acknowledge is that in order to address the motion for a
catalogues Plaintiff's reasons why she believes temporary restraining order the Court had to satisfy itself
the Court's order of dismissal should be vacated. first that it had jurisdiction and legal authority to decide
the matter. See, e.g.,Fed.R.Civ.P. 12(h)(3) (“If the court
determines at any time that it lacks subject matter
The Sanctionable Conduct jurisdiction, the court must dismiss the action.”); see also
Winck v. England, 327 F.3d 1296, 1303 & n. 4 (11th
Cir.2003) (explaining framework a court must use to
Plaintiff's counsel filed the present action seeking a decide whether it may review a military determination). As
temporary restraining order to prevent the deployment of thoroughly explained in the Court's order of dismissal, the
Plaintiff, a Captain in the United States Army, to Iraq. Court found that under well established legal precedent
Counsel maintains that the President has not produced related to abstention principles, it did not have authority to
sufficient evidence of his place of birth to satisfy her that interfere with the United States Army's deployment order.
he is a natural born citizen of the United States. Therefore, Therefore, the Court determined that the case must be
she alleges he was not eligible to be elected President of dismissed in its entirety. The Court did not grant the
the United States and has no authority to act as Defendant's motion to dismiss under Federal Rule of Civil
Commander in Chief. At the request of Plaintiff's counsel, Procedure 12(b)(6), although the Court did note that any
the Court held an expedited hearing on Plaintiff's request such motion if considered would be granted based upon
for relief. W ithin two days of that expedited hearing, the the implausibility of Plaintiff's claims. If counsel had
Court issued an order dismissing Plaintiff's Complaint in carefully read the Court's order, she would have
its entirety. (See Order Den. TRO, Sept. 16, 2009.) The understood that the Court dismissed the Complaint based
Court also found that Plaintiff's Complaint was legally upon abstention principles. Furthermore, competent
frivolous and that any future similar frivolous conduct on counsel would have understood that the Court was
the part of Plaintiff's counsel would subject counsel to required to address abstention prior to ruling upon the
sanctions. motion for a temporary restraining order. FN3

Notwithstanding the Court's finding that Plaintiff's claims FN3. In an alternative finding, the Court also
were frivolous and that this Court had no legal authority denied the motion for temporary restraining
under the facts alleged to interfere with a lawful order on the merits, finding that Plaintiff had not
deployment order, Plaintiff's counsel filed the present satisfied the elements for such relief.
motion seeking reconsideration of that order and seeking
a stay of Plaintiff's deployment. Plaintiff's counsel seeks

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Counsel's contention that the Court denied Plaintiff her her press conferences, the federal courts are reserved for
due process rights under the 5th Amendment to the hearing genuine legal disputes and not as a platform for
Constitution by dismissing her Complaint on abstention political rhetoric that is disconnected from any legitimate
grounds without giving her more time to respond is legal cause of action.
frivolous. Counsel sought expedited review of the motion
for temporary restraining order. To consider that motion,
the Court had the obligation to satisfy itself that it had FN4. As explained in the Court's dismissal order,
legal authority to hear the case. It therefore, at Plaintiff's Plaintiff's counsel is a leader in the so-called
counsel's urging, made an expedited decision on that issue. “birther movement.” She and her followers do
Now that it did not go her way, counsel has fabricated a not believe that President Obama is eligible to
specious argument that she needed more time to address hold the office of President because he has not
the issue. satisfied them that he was born in the United
States.

Second, counsel argues that the Court ignored her


arguments when it dismissed her Complaint. The Court The conduct described above warrants that sanctions be
considered Plaintiff's Complaint, her motion for temporary imposed upon Plaintiff's counsel, Orly Taitz.
restraining order, and all evidence Plaintiff submitted in
support of her motion, including testimony from the
Plaintiff. Upon its consideration of Plaintiff's allegations CONCLUSION
in her Complaint and the evidence submitted prior to the
hearing, the Court found that under well established
precedent Plaintiff's Complaint must be dismissed based The Court finds Plaintiff's Motion for Stay of Deployment
upon abstention principles. Remarkably, in her motion for (Doc. 15) to be frivolous. Therefore, it is denied. The
reconsideration, Plaintiff does not even attempt to Court notifies Plaintiff's counsel, Orly Taitz, that it is
distinguish the legal precedent cited by the Court in its contemplating a monetary penalty of $10,000.00 to be
order of dismissal. She simply repeats the same bare and imposed upon her, as a sanction for her misconduct. Ms.
conclusory allegations that the Court found frivolous in its Taitz shall file her response within fourteen days of today's
previous order. A motion for reconsideration that does not order showing why this sanction should not be imposed.
even address the legal basis for the Court's previous order
is frivolous.
IT IS SO ORDERED.

*3 Finally, it is clear that Plaintiff's counsel seeks to


continue to use the federal judiciary as a platform to M.D.Ga.,2009.
further her political “birther agenda.” FN4 She has provided Rhodes v. MacDonald
no legal or factual basis for the Court to interfere with Slip Copy, 2009 W L 3111834 (M .D.Ga.)
deployment orders of the United States Army. She
supports her claims with subjective belief, speculation and
conjecture, which have never been sufficient to maintain END OF DOCUMENT
a legal cause of action. She continues to file motions that
do not address legal issues but that describe the President
as a “prevaricator,” allege that the President's father was
“disloyal and possibly treacherous” to the “British
Crown,” accuse the undersigned of treason, and suggest
that the United States District Courts in this Circuit are
“subservient” to the “illegitimate” “de facto President.”
Although the First Amendment may allow Plaintiff's
counsel to make these wild accusations on her blog or in

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227 Judges
Only the W estlaw citation is currently available. 227IV Disqualification to Act
227k51 Objections to Judge, and Proceedings
Thereon
United States District Court, 227k51(3) k. Sufficiency of Objection or
M.D. Georgia, Affidavit. Most Cited Cases
Columbus Division. Plaintiff's counsel's affidavit that judge had bias or
Connie RHODES, Plaintiff, prejudice against her did not comply with statutory
v. requirement that party file affidavit in support of motion
Thomas D. MacDONALD, Colonel, Garrison for recusal, where affidavit did not claim bias against
Commander, Fort Benning; et al., Defendants. counsel, plaintiff made no claim that judge had personal
Case No. 4:09-CV-106 (CDL). bias against her, and counsel had ceased representation of
plaintiff before filing affidavit. 28 U.S.C.A. § 144.

Oct. 13, 2009.


[2] Judges 227 51(2)

Background: Military officer brought action to prevent


United States Army from deploying her to Iraq based upon 227 Judges
President's alleged ineligibility to hold office. After case 227IV Disqualification to Act
was dismissed, 2009 W L 2997605, and denial of officer's 227k51 Objections to Judge, and Proceedings
motion for reconsideration, court issued order to show Thereon
cause why officer's counsel should not be sanctioned, and 227k51(2) k. Time of Making Objection. Most
counsel moved for recusal and for enlargement of time to Cited Cases
respond. Affidavit alleging that judge had bias against plaintiff's
counsel was untimely, and thus could not form basis for
recusal, where affidavit was not filed until after judge had
Holdings: The District Court, Clay D. Land, J., held that: heard underlying case, after case was terminated against
(1) counsel's affidavit that judge had bias or prejudice plaintiff, and after judge had entered order indicating
against her was insufficient; intention to impose sanctions. 28 U.S.C.A. § 144.
(2) judge's ownership of stock in computer company and
cable company did not create conflict of interest;
(3) expedited nature of court's rulings did not demonstrate [3] Judges 227 49(1)
that court had prejudged case;
(4) imposition of Rule 11 sanctions was warranted;
(5) monetary penalty of $20,000 was warranted; and 227 Judges
(6) sua sponte imposition of Rule 11 sanctions complied 227IV Disqualification to Act
with due process. 227k49 Bias and Prejudice
227k49(1) k. In General. Most Cited Cases
Ordered accordingly. Counsel's dissatisfaction with judge's rulings was
insufficient to substantiate her claim that judge had
personal bias against her warranting recusal. 28 U.S.C.A.
W est Headnotes § 144.

[1] Judges 227 51(3) [4] Judges 227 43

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227 Judges 170A Federal Civil Procedure


227IV Disqualification to Act 170AXX Sanctions
227k41 Pecuniary Interest 170AXX(B) Grounds for Imposition
227k43 k. Stockholder of Corporation. Most 170Ak2767 Unwarranted, Groundless or
Cited Cases Frivolous Papers or Claims
Judge's ownership of stock in computer company and 170Ak2768 k. In General. Most Cited Cases
cable company did not create conflict of interest requiring Rule 11 sanctions are properly assessed: (1) when party
judge's recusal in military officer's action to enjoin United files pleading that has no reasonable factual basis; (2)
States Army from deploying her to Iraq based upon when party files pleading that is based on legal theory that
President's alleged ineligibility to hold office, absent has no reasonable chance of success and that cannot be
showing as to how court's decision could have affected advanced as reasonable argument to change existing law;
companies. 28 U.S.C.A. § 144. or (3) when party files pleading in bad faith for improper
purpose. Fed.Rules Civ.Proc.Rule 11, 28 U.S.C.A.

[5] Federal Civil Procedure 170A 2757


[8] Federal Civil Procedure 170A 2771(2)

170A Federal Civil Procedure


170AXX Sanctions 170A Federal Civil Procedure
170AXX(A) In General 170AXX Sanctions
170Ak2756 Authority to Impose 170AXX(B) Grounds for Imposition
170Ak2757 k. Inherent Authority. Most 170Ak2767 Unwarranted, G roundless or
Cited Cases Frivolous Papers or Claims
District court has inherent authority to impose monetary 170Ak2771 Complaints, Counterclaims and
sanctions to punish and deter lawyer misconduct. Petitions
170Ak2771(2) k. Particular Types of
Cases. Most Cited Cases
[6] Judges 227 49(1)

Federal Civil Procedure 170A 2781


227 Judges
227IV Disqualification to Act
227k49 Bias and Prejudice 170A Federal Civil Procedure
227k49(1) k. In General. Most Cited Cases 170AXX Sanctions
Expedited nature of district court's rulings in military 170AXX(B) Grounds for Imposition
officer's action to enjoin United States Army from 170Ak2767 Unwarranted, Groundless or
deploying her to Iraq based upon President's alleged Frivolous Papers or Claims
ineligibility to hold office did not demonstrate that court 170Ak2781 k. Refusal to Dismiss or
had prejudged case, and thus did not demonstrate bias W ithdraw. Most Cited Cases
sufficient to warrant recusal, where counsel sought
expedited consideration, and counsel pointed to no legal
authority to create exception to well-established doctrine Federal Civil Procedure 170A 2795
of abstention regarding military's internal affairs. 28
U.S.C.A. § 144.
170A Federal Civil Procedure
170AXX Sanctions
[7] Federal Civil Procedure 170A 2768 170AXX(B) Grounds for Imposition
170Ak2795 k. Other Particular Conduct. Most
Cited Cases

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Imposition of Rule 11 sanctions against attorney 170A Federal Civil Procedure


representing military officer was warranted in officer's 170AXX Sanctions
action to enjoin United States Army from deploying her to 170AXX(D) Type and Amount
Iraq based upon President's alleged ineligibility to hold 170Ak2811 Monetary Sanctions
office, where counsel pointed to no legal authority 170Ak2818 k. Excessive or Unreasonable
supporting her contention that alleged “cloud” on Services or Charges. Most Cited Cases
President's eligibility to hold office violated her client's Monetary penalty of $20,000 was warranted as Rule 11
individual constitutional rights, counsel continued her sanction based on counsel's conduct in military officer's
challenge after court informed her that it was frivolous, action to enjoin United States Army from deploying her to
and counsel continued her political diatribe against Iraq based upon President's alleged ineligibility to hold
President and accused court of treason and participation in office, where counsel engaged in pattern of conduct that
vast conspiracy. Fed.Rules Civ.Proc.Rule 11, 28 U.S.C.A. advanced frivolous arguments and disrespectful personal
attacks on parties and court, counsel acted with intent to
injure anyone associated with litigation who did not agree
[9] Federal Courts 170B 12.1 with her, counsel engaged in similar misconduct in at least
two other cases, counsel's misconduct caused government
and court to expend substantial resources, and counsel
170B Federal Courts failed to present financial information to demonstrate that
170BI Jurisdiction and Powers in General intended penalty was excessive. Fed.Rules Civ.Proc.Rule
170BI(A) In General 11, 28 U.S.C.A.
170Bk12 Case or Controversy Requirement
170Bk12.1 k. In General. Most Cited Cases
Federal courts are not advisory councils to be called upon [11] Constitutional Law 92 4426
whenever lawyer believes Constitutional question needs
answering, no matter how important that question may be.
92 Constitutional Law
92XXVII Due Process
[10] Federal Civil Procedure 170A 2795 92XXVII(G) Particular Issues and Applications
92XXVII(G)19 Tort or Financial Liabilities
92k4426 k. Penalties, Fines, and Sanctions
170A Federal Civil Procedure in General. Most Cited Cases
170AXX Sanctions
170AXX(B) Grounds for Imposition
170Ak2795 k. Other Particular Conduct. Most Federal Civil Procedure 170A 2827
Cited Cases

170A Federal Civil Procedure


Federal Civil Procedure 170A 2812 170AXX Sanctions
170AXX(E) Proceedings
170Ak2827 k. Sua Sponte Imposition. Most
170A Federal Civil Procedure Cited Cases
170AXX Sanctions
170AXX(D) Type and Amount
170Ak2811 Monetary Sanctions Federal Civil Procedure 170A 2828
170Ak2812 k. In General. Most Cited Cases

170A Federal Civil Procedure


Federal Civil Procedure 170A 2818 170AXX Sanctions
170AXX(E) Proceedings

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170Ak2828 k. Notice and Hearing. Most Cited administering justice.” Goldfarb v. Va. State Bar, 421
Cases U.S. 773, 792, 95 S.Ct. 2004, 44 L.Ed.2d 572 (1975). For
Sua sponte imposition of Rule 11 sanctions against justice to be administered efficiently and justly, lawyers
attorney complied with due process, where court cautioned must understand the conditions that govern their privilege
attorney not to continue conduct that violated Rule 11 to practice law. Lawyers who do not understand those
after she filed her first frivolous pleading, court notified conditions are at best woefully unprepared to practice the
her that her continued conduct was sanctionable under profession and at worst a menace to it.
Rule 11 and provided her with notice of specific
misconduct that it found sanctionable, and court provided
her with opportunity to show cause why monetary penalty W hen a lawyer files complaints and motions without a
should not be imposed upon her as sanction for her reasonable basis for believing that they are supported by
misconduct. U.S.C.A. Const.Amend. 5; Fed.Rules existing law or a modification or extension of existing law,
Civ.Proc.Rule 11, 28 U.S.C.A. that lawyer abuses her privilege to practice law. W hen a
Connie Rhodes, Mission Viego, CA, pro se. lawyer uses the courts as a platform for a political agenda
disconnected from any legitimate legal cause of action,
that lawyer abuses her privilege to practice law. W hen a
Rebecca Elaine Ausprung, Arlington, VA, Sheetul S. lawyer personally attacks opposing parties and disrespects
W all, U.S. Attorney's Office, Columbus, GA, for the integrity of the judiciary, that lawyer abuses her
Defendants. privilege to practice law. W hen a lawyer recklessly
accuses a judge of violating the Judicial Code of Conduct
with no supporting evidence beyond her dissatisfaction
ORDER with the judge's rulings, that lawyer abuses her privilege to
practice law. W hen a lawyer abuses her privilege to
practice law, that lawyer ceases to advance her cause or
CLAY D. LAND, District Judge. the ends of justice.

INTRODUCTION It is irrefutable that a lawyer owes her client zealous


advocacy, but her zeal must be constrained within the
bounds placed upon her as an officer of the Court and
*1 Commenting on the special privilege granted to under the Court's rules. See e.g., Polk County v. Dodson,
lawyers and the corresponding duty imposed upon them, 454 U.S. 312, 323, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981)
Justice Cardozo once observed: (though a lawyer “has a duty to advance all colorable
claims and defenses ... [i]t is the obligation of any lawyer
... not to clog the courts with frivolous motions or
Membership in the bar is a privilege burdened with appeals”). Specifically, Rule 11 of the Federal Rules of
conditions. [A lawyer is] received into that ancient Civil Procedure expressly sets forth the outer boundaries
fellowship for something more than private gain. He of acceptable attorney conduct. That rule prohibits a
[becomes] an officer of the court, and, like the court lawyer from asserting claims or legal positions that are not
itself, an instrument or agency to advance the ends of well-founded under existing law or through the
justice. modification, extension, or expansion of existing law.
Rule 11 also prohibits an attorney from using the courts
for a purpose unrelated to the resolution of a legitimate
People ex rel. Karlin v. Culkin, 248 N.Y. 465, 162 N.E. legal cause of action. Cf., e.g., Donaldson v. Clark, 819
487, 489 (1928) (Cardozo, J., writing as Chief Judge of F.2d 1551, 1558-59 (11th Cir.1987) (en banc) (noting that
the New York Court of Appeals before his appointment to members of the bar have a “special administrative
the United States Supreme Court) (internal quotation responsibility in the judicial process” and that monetary
marks omitted). Competent and ethical lawyers “are sanctions may be imposed for “an unjustified failure to
essential to the primary governmental function of carry out” this special responsibility (internal quotation

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marks omitted)). Division in W ashington, D.C. to travel to Columbus for


the emergency hearing. Prior to the hearing, Major Cook's
future commander in Afghanistan decided that he did not
*2 Regrettably, the conduct of counsel Orly Taitz has wish for M ajor Cook to assume the duties set out in his
crossed these lines, and Ms. Taitz must be sanctioned for deployment orders, expressing the opinion that he had a
her misconduct. After a full review of the sanctionable military mission to conduct in Afghanistan and did not
conduct, counsel's conduct leading up to that conduct, and need any distractions associated with a reservist who did
counsel's response to the Court's show cause order, the not wish to serve. Therefore, the Army revoked Major
Court finds that a monetary penalty of $20,000.00 shall be Cook's deployment orders. As a result, Major Cook
imposed upon counsel Orly Taitz as punishment for her received the ultimate relief that he purportedly sought in
misconduct, as a deterrent to prevent future misconduct, the legal action: a revocation of the deployment order.
and to protect the integrity of the Court. Payment shall be However, the revocation pulled the proverbial rug out
made to the United States, through the Middle District of from under M s. Taitz, who at that point had no legitimate
Georgia Clerk's Office, within thirty days of today's Order. legal basis for pursuing the litigation in her attempt to
If counsel fails to pay the sanction due, the U.S. Attorney further her agenda of obtaining a “satisfactory birth
will be authorized to commence collection proceedings.FN1 certificate” from the President.

BACKGROUND *3 Notwithstanding the revocation of the deployment


order, counsel insisted upon pursuing the claim. Her
actions confirmed that counsel's focus was not to obtain
I. M ajor Stefan Frederick Cook's Action legal relief on behalf of Major Cook; rather, the objective
was to maintain a legal action in federal court in hopes of
having a federal judge permit discovery that would require
The Court first encountered Plaintiff's counsel, Orly Taitz, the President of the United States to produce a “birth
on July 9, 2009, when she filed an action in this Court on certificate” that was satisfactory to counsel and her
behalf of Army reservist Major Stefan Frederick Cook. In followers.
that action, counsel sought a temporary restraining order
to prevent Major Cook's deployment to Afghanistan.
Counsel alleged that Major Cook's deployment orders The Court dismissed the Cook action, finding that Major
were void and unenforceable because President Barack Cook did not have standing to pursue his claim. Cook v.
Obama was not eligible to hold the office of President and Good, No. 4:09-CV-82 (CDL), 2009 W L 2163535
thus was not the legitimate Commander in Chief. These (M.D.Ga. Jul. 16, 2009). Although Ms. Taitz's antics at
allegations were based on counsel's conclusory allegations that time caused the Court concern, the Court exercised
that the President was not born in the United States. As a restraint, optimistically expecting that Plaintiff's counsel
national leader in the so-called “birther movement,” would not return for a repeat performance. The Court's
Plaintiff's counsel has attempted to use litigation to hopes were quickly dashed when it learned of Ms. Taitz's
provide the “legal foundation” for her political agenda. subsequent press conference, in which she reportedly
She seeks to use the Court's power to compel discovery in stated that the Court's ruling made “absolutely no sense,”
her efforts to force the President to produce a “birth was “totally illogical” and “defie[d] any sense of
certificate” that is satisfactory to herself and her followers. decency,” notwithstanding the fact that her client had
obtained the relief he sought and thus had no legal
standing to maintain the action. Lily Gordon, Federal
Plaintiff's counsel requested an emergency hearing on her Judge Dismisses Lawsuit Questioning Obama's Natural
motion for a temporary restraining order based upon Born Citizen Status, Columbus Ledger-Enquirer, July 17,
Major Cook's alleged imminent deployment. The Court 2 0 0 9 , a v a i l a b l e a t h t t p : / /
accommodated counsel's request and scheduled a hearing www.ledger-enquirer.com/news/story/779860.html. These
for July 16, 2009. The U.S. Army had to activate its legal comments foreshadowed that we would see Ms. Taitz
team, which required a Major from the Army's Litigation again.

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legal authority supporting her position, counsel reverted to


“press conference mode,” repeating political “talking
II. Captain Connie Rhodes's Texas Action points” that did not answer the Court's questions or
address the Court's concerns. Specifically, counsel was
unable to explain why this Court should not abstain from
Ms. Taitz continued to pursue similar litigation across the deciding this case based upon well-established precedent,
Country, FN2 but the next action relevant here was filed in and she was unable to articulate clearly how the alleged
the U.S. District Court for the W estern District of Texas “cloud” on the President's place of birth amounted to a
on August 28, 2009. In that action, Ms. Taitz, representing violation of her client's individual constitutional rights.
Connie Rhodes, the same Captain Rhodes that was the Rather than address these two important questions,
Plaintiff in the present action, sought to have the Texas counsel retreated to her political rhetoric. W hen the Court
Court prevent the U.S. Army from deploying Captain admonished her for not addressing the legal issues
Rhodes to Iraq based upon the President's alleged presented by her Complaint, counsel accused the Court of
ineligibility to hold office-the same exact claim she unfairly badgering her and implored the Court to ask
asserted here. Judge Xavier Rodriguez promptly denied Defendants' counsel questions instead of her. Ms. Taitz's
Plaintiff's motion for a temporary restraining order, performance confirmed to the Court that her focus was not
finding that “Plaintiff has no substantial likelihood of to pursue a legitimate legal cause of action to obtain relief
s u c c e s s o n th e m e r its.” R h o d e s v . G a te s , for her client but was to use the Court to force the
5:09-CV-00703-XR, O rder Den. Mot. for TRO 3 President to produce a “birth certificate” satisfactory to
(W .D.Tex. Aug. 28, 2009). Judge Rodriguez explained her and her followers. Her other purpose appeared to be to
that “Plaintiff presents nothing but conjecture and use litigation as a means of drawing attention to her
subjective belief to substantiate the basis for her claims[.]” political agenda. During the hearing, Plaintiff's counsel
Captain Rhodes was thus on her way to Iraq, but she had threatened that if she did not get the opportunity to obtain
to stop at Ft. Benning, Georgia first. W ith yet another the relief she sought (discovery of a birth certificate), then
legal defeat and still no court order requiring the President a wave of subsequent similar actions would be filed in this
to “turn over his birth certificate,” Ms. Taitz apparently Court until she obtained what she wanted.
concluded that this Court would be more receptive to
Captain Rhodes's claim than Judge Rodriguez was.
*4 T wo days after the hearing, the Court issued an
admittedly strong order dismissing the action on
III. Captain Rhodes's Action in this Court abstention grounds. Rhodes v. MacDonald, No.
4:09-CV-106 (CDL), 2009 W L 2997605 (M .D.Ga. Sept.
16, 2009). The Court found that Plaintiff had failed to
A mere seven days after losing in Texas, Ms. Taitz filed satisfy any of the elements necessary for a federal court to
the same action in this Court. She again sought an interfere with a deployment order issued by the U.S.
emergency hearing on the motion. Reluctant to summarily Army. The Court further found the action to be legally
deny a litigant her day in court, the Court scheduled a frivolous, meaning that no reasonable attorney could have
hearing on September 14, 2009, prior to Captain Rhodes's expected that her legal claim would prevail under existing
scheduled deployment. In the midst of a jury trial of law or under a reasonable extension or modification of
another case, the Court nevertheless rearranged its existing law. The claims were based solely on conjecture
schedule, along with the schedules of jurors and other and speculation that the President may not have been born
attorneys, so that Captain Rhodes's matter could be heard in the United States. Moreover, counsel failed to allege
during an extended lunch break. Because of the alleged and explain how any such factual allegations resulted in a
urgent nature of the request, the Court waived its local rule denial of Plaintiff's individual constitutional rights such
that requires counsel admitted pro hac vice to associate that Plaintiff would be authorized to ignore a valid
local counsel. See M .D. Ga. R. 83.1.2(c)(1).FN3 It became deployment order from her chain of command. Counsel
apparent during the hearing on the motion that the Court's likewise could not reconcile her claim that the deployment
waiver of this local rule was a mistake as counsel abused order was suspect with the fact that Plaintiff apparently
her pro hac vice privileges. Instead of arguing pertinent had followed other orders (without questioning them) that

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had been issued since the President had taken office. responding to the Court's specific concerns or addressing
Plaintiff's sensitivity to the President's eligibility only the contemplated amount of the monetary sanction, Ms.
existed when she faced deployment to Iraq, where she may Taitz continued her attacks on the Court, as well as her
be in harm's way. Given the obvious frivolous nature of political grandstanding. She now moves to recuse the
the legal claim and the clear evidence that M s. Taitz was undersigned, alleging that the undersigned had ex parte
using the Court for an improper purpose, the Court placed communication with the Attorney General of the United
Ms. T aitz on notice that the filing of any future similar States; that the undersigned's ownership of certain stock
frivolous filings would subject her to Rule 11 sanctions. caused him to have a financial interest in the litigation;
Id. at *1. that the tone of the Court's previous rulings, and the
rapidity with which they were made, demonstrate bias on
the part of the Court; and that sanctions cannot be imposed
IV. Counsel's M otion for Reconsideration in this case by the undersigned without violating her due
process rights. Counsel therefore seeks to burden the
federal judiciary further by having another judge subjected
Undeterred by the Court's warning, counsel filed a motion to her unprofessional conduct and by prolonging the
for reconsideration the next day. (Pl.'s Emergency Req. for inevitable with an unjustified extension of time to respond
Stay of Deployment, Sept. 17, 2009.) That motion is the to the show cause order.
specific conduct that the Court relies upon in determining
that sanctions are appropriate. In her motion for
reconsideration, counsel did not address the substance of DISCUSSION
the Court's order dismissing her case. Rather, counsel used
the motion for reconsideration as a platform to repeat her
political diatribe against the President, to accuse the *5 The Court will first address counsel's Motion to Recuse
undersigned of treason, and to maintain that “the United (Doc. 24) and Motion for Enlargement of Time to
States District Courts in the 11th Circuit are subject to Respond to the show cause order (Doc. 25). The Court
political pressure, external command which Plaintiff has next addresses the sanctionability of counsel's misconduct.
previously protested.” (Id. at 2 (emphasis omitted).) Finally, the Court concludes by determining the
appropriate sanction necessary to deter counsel from
repeating her misconduct and to protect the integrity of the
The Court denied the motion, finding it to be frivolous and Court.
the filing of it to be sanctionable. The Court provided
counsel with the opportunity to show cause why she
should not be sanctioned with a financial penalty of I. M otion to Recuse and M otion for Enlargement of
$10,000.00. (Order Den. Mot. for Recons. 7, Sept. 18, Time
2009, 2009 W L 3111834.)

Counsel seeks recusal of the undersigned for the following


V. Counsel's Response to Show Cause Order reasons: (1) baseless speculation that the undersigned may
have engaged in ex parte communication with the
Attorney General; (2) fictitious allegations that the
The Court, consistent with Rule 11 and the requirements undersigned has a financial interest in the outcome of the
of due process, provided counsel with the opportunity to case based on ownership of stock in Microsoft and
respond to the Court's intention to impose sanctions. See, Comcast; (3) frivolous argument that the Court cannot
e.g., Donaldson, 819 F.2d at 1560-61 (finding that due issue monetary sanctions as a penalty to deter future
process requires notice and an opportunity to respond misconduct under Rule 11; and (4) frivolous contention
prior to imposition of Rule 11 sanctions but that a hearing that the Court is biased based upon the tone of its previous
is not necessary and may be a “waste of judicial rulings and the expedited nature and substance of the
resources” where the attorney fails to present support for Court's rulings. The Court addresses each of these issues
her claims despite opportunities to do so). Instead of in turn.

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Court to step aside because of alleged personal bias


against counsel, the Court notes that counsel has not filed
Preliminarily, the Court addresses the issue of whether it a § 144 affidavit on her own behalf. She filed a “certificate
must proceed no further with these proceedings based of good faith,” purportedly pursuant to § 144, that the
solely upon counsel's conclusory allegations that the Court undersigned was personally biased against Captain
has a personal bias against her. 28 U.S.C. § 144 states in Rhodes. But counsel has filed no affidavit, on her own
relevant part: behalf, pursuant to § 144. Thus, having failed to comply
with § 144, no legal justification exists for the undersigned
to discontinue further involvement in these proceedings.
W henever a party to any proceeding in a district court
makes and files a timely and sufficient affidavit that the
judge before whom the matter is pending has a personal [2] Even if counsel's “certificate of good faith” were
bias or prejudice either against him or in favor of any deemed to be a sufficient “affidavit” under § 144 and even
adverse party, such judge shall proceed no further if counsel, as opposed to the party to the action, has the
therein, but another judge shall be assigned to hear such right to seek immediate disqualification pursuant to § 144,
proceeding. counsel's certificate was not timely. It was not filed ten
days prior to the beginning of the term during which the
case was to be heard, as required by § 144, and counsel
The affidavit shall state the facts and the reasons for the offers no good cause why the certificate was not filed
belief that bias or prejudice exists, and shall be filed not sooner. Counsel's certificate was filed after the Court
less than ten days before the beginning of the term at heard the underlying case and after that case was
which the proceeding is to be heard, or good cause shall terminated against counsel's client. Moreover, as to the
be shown for failure to file it within such time. sanctions aspect of the case, the motion to disqualify was
filed after the Court entered its order indicating its
intention to impose sanctions and requiring counsel to
28 U.S.C. § 144 (emphasis added) (“ § 144”). show cause why the amount of those sanctions should not
be $10,000.00. Counsel had ample opportunity to seek
removal of the undersigned prior to the undersigned's
[1] The Court finds that counsel's purported affidavit-the devotion of substantial time to this matter. The Court
“certificate of good faith”-is neither sufficient nor timely. observes that after the Court ruled against counsel's claims
First, § 144 applies to “parties” to the proceeding. The in the Cook case and before she filed the present action,
party in this case was Captain Connie Rhodes. Captain counsel filed no affidavit pursuant to § 144 that the Court
Rhodes makes no claim that the undersigned has a possessed a personal bias warranting disqualification.
personal bias against her. In fact, she has discharged Ms. After the Court held a hearing in the Rhodes case but
Taitz and stated she has no interest in pursuing the matter before a ruling was made, no § 144 affidavit was
further. (See Letter from Rhodes to Ct., Sept. 18, 2009, submitted. Even when counsel filed her motion for
Doc. 18.) In response to Captain Rhodes's termination of reconsideration, in which she accused the Court of treason,
her services, counsel sought to withdraw from she did not file a § 144 affidavit. Only after the Court
representation of Captain Rhodes, which the Court devoted substantial time to this case and ultimately found
permitted. (See Mot. to W ithdraw, Sept. 28, 2009, Doc. 20 counsel's conduct sanctionable, ordering her to show cause
& Order Granting M ot. to W ithdraw, Sept. 28, 2009, Doc. why she should not be subjected to a financial sanction,
21.) Thus, no affidavit has been executed and filed by the did she file her § 144 affidavit. Counsel's claim of
party in this action alleging personal bias against the party personal bias is thus untimely under § 144.
to the action. Accordingly, the undersigned is not required
to step aside from deciding the remaining issue regarding
sanctions against counsel. [3] Moreover, as explained below, the grounds for seeking
disqualification are frivolous on their face. They are not
sufficient for purposes of 28 U.S.C. § 144. Section 144
*6 Insofar as counsel contends that § 144 requires the contemplates some initial screening of the affidavit in

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order to prevent manipulation of the judicial system by The undersigned has never talked to or met with the
disgruntled litigants. See Davis v. Bd. of Sch. Comm'rs of Attorney General. As to whether the Attorney General
Mobile County, 517 F.2d 1044, 1051 (5th Cir.1975) took time out of his busy schedule to visit an “obscure”
(“Once the motion is filed under § 144, the judge must “coffee shop” in Columbus, Georgia on July 16, 2009, the
pass on the legal sufficiency of the affidavit[.]”).FN4 As Court cannot definitively say because the Court was not
explained below, counsel provided no factual allegations there. What the Court can say is that no reasonable
other than her dissatisfaction with the Court's rulings to attorney would rely upon this affidavit in support of a
substantiate her claim that the Court has any personal bias legal argument in a court of law. See, e.g., Fox v.
against her. Under these circumstances, the Court finds Prudential Fin., 178 Fed.Appx. 915, 919 (11th Cir.2006)
that § 144 does not provide counsel with the authority to (per curiam) (finding that reasonable person would not
prevent the undersigned from completing its disposition of find partiality based on bare allegations and unsupported
this matter. See, e.g., Liteky v. United States, 510 U.S. conclusory statements that “secret discussions” took place
540, 555-56, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994) between defendant and court). To use this “evidence” in
(“[J]udicial rulings alone almost never constitute a valid support of a false and misleading accusation that a judge
basis for a bias or partiality motion.”). had an ex parte conversation with someone whom the
judge has never spoken to or even met is additional proof
of a pattern of frivolous and outrageous conduct on the
*7 It is clear that the Court is not automatically recused part of Ms. Taitz.FN6
pursuant to 28 U.S.C. § 144 simply based upon counsel's
conclusory allegations of bias. However, the Court is
obligated to evaluate counsel's reasons offered in support B. Stock Ownership
of her demand for disqualification and determine whether
they require the undersigned to disqualify himself pursuant
to 28 U.S.C. § 455. FN5 [4] Counsel's contention that the undersigned has a
financial interest in this case is perhaps more preposterous
than the phantom visit with the Attorney General. In the
A. The Attorney General main action by Captain Rhodes, Plaintiff sought an
injunction enjoining her from being deployed to Iraq. The
outcome of that action had no financial ramifications other
Ms. Taitz alleges that the undersigned may have discussed than perhaps to Captain Rhodes and the U.S. Army. The
this case with the Attorney General of the United States. action certainly did not implicate Microsoft or Comcast,
In support of this accusation, counsel submits the affidavit the two investments specifically referred to in counsel's
of Robert D. Douglas. Mr. Douglas states that on the day motion. (See Mot. to Recuse 2.) Moreover, that action has
of the hearing in the Cook case, he saw in the “coffee terminated in Defendants' favor, with Captain Rhodes
shop” across the street from the federal courthouse having discharged Ms. Taitz and indicating she no longer
someone whom he recognized as Eric Holder, the wished to pursue it. Thus, the legal matter from which
Attorney General. Mr. Douglas's identification is based counsel seeks recusal of the undersigned is the sanctions
upon what he describes as the Attorney General's proceeding against her. W hile that proceeding will
“distinguishing features: his trim upper lip mustache, not certainly affect M s. Taitz's financial condition, it is fantasy
large of stature and general olive complexion.” (Douglas to suggest that these proceedings will in any way affect the
Aff., Sept. 26, 2009.) The affidavit further states that Mr. fortunes of Microsoft and Comcast. Furthermore, counsel's
Douglas “new [sic] instantly that it was none other than suggestion-that if she were to succeed on her frivolous
Eric Holder, the current Attorney General of the United claim, and as a result the President were removed from
States.” (Id.) Mr. Douglas has apparently never seen the office, that these two companies would suffer as a result-is
Attorney General in person, but Mr. Douglas states that he so speculative and ridiculous that it is not worthy of
recognized the Attorney General because he had seen Mr. additional comment. The Court must nevertheless remind
Holder on television. counsel that she has been fired by her former client, who
has made it clear that she no longer wishes to pursue the
matter. Therefore, counsel cannot possibly succeed on her

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main claim that she maintains would topple Microsoft and movement.
Comcast because she has no means to appeal the Court's
dismissal of that claim.
The Court makes no apology for the tone of its previous
orders. They were direct and strong but apparently not
C. Sua Sponte Imposition of Monetary Sanctions strong enough. They certainly do not demonstrate personal
bias. They do demonstrate a lack of tolerance for frivolous
legal claims asserted by lawyers who should know better.
*8[5] Ms. Taitz argues that the undersigned should be A Court's insistence that lawyers comply with their duty to
recused because a judge cannot sua sponte act as follow the rules and their obligations as officers of the
“prosecutor, judge, and jury” in imposing monetary Court is not a legitimate basis for recusal.
sanctions that are designed as a penalty to punish and
deter lawyer misconduct. (Mot. to Recuse 17.) Once
again, counsel ignores the law. Rule 11 specifically [6] Counsel's contention that the expedited nature of the
authorizes the sua sponte imposition of monetary Court's rulings demonstrates that the Court had prejudged
sanctions for these purposes. Fed.R.Civ.P. 11(c)(3); cf. the case is laughable. First, as the Court has noted
Donaldson, 819 F.2d at 1558 (finding that due process previously, counsel sought expedited consideration. She
does not require courts to follow criminal contempt sought an injunction enjoining the U.S. Army from
procedures when imposing monetary sanctions under Rule deploying her client, which was to occur within days of the
11). Furthermore, it is likewise well settled that the Court filing of her Complaint. Yes, the Court ruled quickly. Had
has the inherent authority to impose such sanctions. See the Court not done so, counsel undoubtedly would have
Chambers v. NASCO, Inc., 501 U.S. 32, 42-43, 111 S.Ct. accused the Court of some conspiracy to delay ruling until
2123, 115 L.Ed.2d 27 (1991). The Court recognizes that after the deployment had occurred. Furthermore, although
such action is serious and that the lawyer must be given the Court is not personally familiar with the pace of legal
due process before the sanction is imposed. This requires decision making in counsel's home state of California, the
that the Court notify counsel of the conduct and allow Court notes that Georgia courts have long recognized that
counsel an opportunity to respond. To suggest that the the expedited nature of a decision does not detract from its
Court has not done so in this case is simply wrong. The quality. As observed by the Georgia Supreme Court long
Court outlined in its previous order the sanctionable ago:
conduct. Counsel was given ample opportunity to respond.
In fact, she filed a twenty-two page response. Counsel's
contention that this Court, which is most familiar with *9 Both observation and experience teach, that the human
counsel's conduct, must recuse so that another judge may mind acts with increased power according to the
be burdened with counsel's frivolous arguments is pressure put upon it. Give it time and it acts slowly.
meritless. Force it to decide promptly, as the General is required
to do on the battle-field, and the statesman in the midst
of revolutions, and the same mind will do the work of a
D. Judicial Bias month in a moment; and what is more, will do it better.
True, the effect upon the individual himself, is most
exhausting, but the public does not suffer.
Ms. Taitz maintains that the undersigned should recuse
because of bias. In support of her bias claim, she relies
upon three things: 1) the tone of the Court's previous Thornton v. Lane, 11 Ga. 459, 491 (1852).
rulings; 2) the expedited nature in which those rulings
were made; and 3) the substance of those rulings, which
she extrapolates into a personal attack on the Court, Finally, counsel insists that her substantive claims are so
suggesting that the rulings indicate that the Court would meritorious that only a biased judge would find them
have denied access to civil rights claims had the frivolous. Comparing herself to former Supreme Court
undersigned been on the bench during the civil rights Justice and civil rights icon Thurgood Marshall, counsel

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likens her plight to Justice Marshall's epic legal battle to of the military.
desegregate American schools and public places. Quite
frankly, the Court is reluctant to even dignify this
argument by responding to it, but it captures the essence *10 To suggest that an Army officer, who has received a
of counsel's misunderstanding of the purpose of the courts medical education at the expense of the government and
and her misunderstanding of her own claims. Yes, Justice then seeks to avoid deployment based upon speculation
Marshall had to extend then-existing law to prevail in that the President is not a natural born citizen, is
Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, equivalent to a young child, who is forced to attend an
98 L.Ed. 873 (1954). But he did so by persuading the inferior segregated school based solely on the color of her
Court that the de jure discrimination against black skin, demonstrates an appalling lack of knowledge of the
schoolchildren violated their rights under the existing history of this Country and the importance of the civil
Fourteenth Amendment to the Constitution a fundamental rights movement. Counsel's attempt to align herself with
truth that had been recognized years earlier by Justice Justice Marshall appears to be an act of desperation rather
Harlan in his eloquent and prescient dissent in Plessy v. than one of admiration. For if counsel truly admired
Ferguson, 163 U.S. 537, 555-56, 16 S.Ct. 1138, 41 L.Ed. Justice M arshall's achievements, she would not seek to
256 (1896) (Harlan, J., dissenting). Justice Marshall's cheapen them with such inapt comparisons.
arguments were a logical extension and certainly a
necessary modification of then-existing law. Counsel in
this case cannot articulate how the President's ineligibility In summary, counsel, dissatisfied with the Court's rulings
to hold office, even if proven, violates an Army officer's and “seeing the writing on the wall,” now seeks to escape
individual constitutional rights such that it would authorize accountability for her misconduct during this litigation.
that officer to disobey a deployment order. Counsel has She shall not be allowed to do so. Her motion to recuse
likewise never cited any legal authority or made any and motion for enlargement of time have no merit and are
reasonable argument as to why the traditional abstention accordingly denied as frivolous.
doctrine should not have been applied here. Finally,
Justice Marshall had real evidence that black children
were being sent to inferior segregated schools based solely II. Reaffirmation of the Appropriateness of Sanctions
on the color of their skin. He had credible evidence as to
the impact of inferior segregated schools upon the
schoolchildren forced to attend them by their government. [7][8] The major goal of Federal Rule of Civil Procedure
Justice Marshall was also able to articulate how this 11 is to “reduce frivolous claims, defenses or motions and
conduct on the part of the government violated the to deter costly meritless maneuvers.” Donaldson, 819 F.2d
Fourteenth Amendment, an amendment clearly designed at 1556 (internal quotation marks omitted).
to assure that the government finally recognized the
promise of the Declaration of Independence: that all men
are created equal. Rule 11 sanctions are properly assessed (1) when a party
files a pleading that has no reasonable factual basis; (2)
when the party files a pleading that is based on a legal
Counsel here has an affidavit from someone who allegedly theory that has no reasonable chance of success and that
paid off a government official to rummage through the cannot be advanced as a reasonable argument to change
files at a Kenyan hospital to obtain what counsel contends existing law; or (3) when the party files a pleading in
is the President's “authentic” birth certificate. Counsel here bad faith for an improper purpose.
makes no coherent argument connecting the Constitution's
presidential citizenship requirement to a violation of her
client's individual constitutional rights. Counsel here Massengale v. Ray, 267 F.3d 1298, 1301 (11th Cir.2001)
points to no legal authority-in the Constitution or (per curiam) (internal quotation marks omitted). The
elsewhere-that could be extended or expanded to create an preliminary legal issue for resolution by the Court is
exception to the well-established doctrine of abstention, whether an attorney, as an officer of the Court, should be
which disfavors judicial interference in the internal affairs sanctioned under Rule 11 for (1) filing a motion for

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reconsideration of an order that found the assertion of


Plaintiff's claim to be legally frivolous, when no
reasonable attorney could have concluded that there was Lujan v. Defenders of Wildlife, 504 U.S. 555, 573-74, 112
a reasonable basis for arguing that legitimate legal grounds S.Ct. 2130, 119 L.Ed.2d 351 (1992) (plurality opinion).
existed for vacating the previous order either under Counsel's grievance in this case is that the President has
existing law or a reasonable extension or modification of failed to produce satisfactory proof of his place of birth.
existing law; and/or (2) using a legal action for which no That general grievance is beyond the reach of the federal
reasonable expectation of obtaining relief existed in order judiciary.
to pursue a political and/or personal agenda. The Court
finds that Rule 11 clearly authorizes the imposition of
sanctions under these circumstances. See, e.g., Counsel, at least superficially, appears to understand that
Massengale, 267 F.3d at 1303 (affirming finding that she must structure her claim to overcome the standing
party violated Rule 11 by filing amended complaint with hurdle. She attempted to clear that hurdle on her way to
no factual or legal basis); see also Saltany v. Reagan, 886 the prize (verification of the President's place of birth) by
F.2d 438, 440 (D.C.Cir.1989) (per curiam) (“W e do not having her client challenge her deployment orders. This
conceive it a proper function of a federal court to serve as leap from a concern about a President's Constitutional
a forum for ‘protests,’ to the detriment of parties with eligibility to hold the office to a private legal cause of
serious disputes waiting to be heard.”). For the following action by an Army Captain to avoid deployment pursuant
reasons, the Court reaffirms that sanctions are necessary to an otherwise valid order is where counsel entered the
and appropriate. thicket of legal frivolity. Counsel and her followers
certainly have the right, as citizens, to seek from their
President proof of where he was born. Counsel does not
*11[9] First, notwithstanding counsel's narrow focus, the have the right, however, to file an action in federal court
issue is not simply whether the President is eligible to hold on behalf of an Army officer to avoid deployment when
that office. Federal courts are limited to deciding actual the only basis for seeking the Court's aid to prevent
cases and controversies. U.S. Const. art. III, § 2, cl. 1. deployment is speculation and conjecture that the
They are not advisory councils to be called upon whenever President is not eligible to serve. Plaintiff's counsel
a lawyer believes a Constitutional question needs ignored the well-established precedent that disfavors
answering, no matter how important that question may be. judicial interference in the internal affairs of the armed
See, e.g., Preiser v. Newkirk, 422 U.S. 395, 401, 95 S.Ct. forces. She pointed to no legal authority supporting her
2330, 45 L.Ed.2d 272 (1975) (noting that “a federal court contention that an alleged “cloud” on the President's
has neither the power to render advisory opinions nor to eligibility to hold office violated one of her client's
decide questions that cannot affect the rights of litigants in individual constitutional rights. And she provided no legal
the case before them” (internal quotation marks omitted)); authority to support the proposition that even if the
R.T. Vanderbilt Co. v. Occupational Safety & Health President were found not to be eligible for the office, that
Review Comm'n, 708 F.2d 570, 574 (11th Cir.1983) this would mean all soldiers in the military would be
(explaining that under Article III, “federal courts are authorized to disregard their duty as American soldiers
constitutionally empowered only to render judgments and disobey orders from their chain of command.
which are not advisory opinions or political in nature”
(citations omitted)). As consistently held by the Supreme
Court, *12 Adoption of counsel's legal theory would make the
judiciary the arbiter of any dispute regarding the
President's constitutional qualifications. Our founders
[A] plaintiff raising only a generally available grievance provided opportunities for a President's qualifications to
about government-claiming only harm to his and every be tested, but they do not include direct involvement by
citizen's interest in proper application of the the judiciary. In addition to the obvious opportunity that
Constitution and laws, and seeking relief that no more exists during a presidential campaign to scrutinize a
directly and tangibly benefits him than it does the public candidate's qualifications, the framers of the Constitution
at large-does not state an Article III case or controversy. provided a mechanism for removing a President who

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“slips through the cracks,” which is how counsel describes the judiciary will participate in the selection or removal of
President Obama. Upon conviction by the Senate of the President, unless an individual can clearly demonstrate
treason, bribery, or other high crimes and misdemeanors, that his individual constitutional rights are somehow
the President can be removed through impeachment. U.S. violated by the process. A generalized claim that the
Const. art. II, § 4; see also id. art. I, §§ 2 & 3. Thus, if the President is unqualified does not fall within this narrow
President were elected to the office by knowingly and exception and is best addressed to the First branch of
fraudulently concealing evidence of his constitutional government, not the Third.
disqualification, then a mechanism exists for removing
him from office. Except for the Chief Justice's role in
presiding over the trial in the Senate, that mechanism does *13 The absolute absence of any legitimate legal
not involve the judiciary. Id.art. I, § 3, cl. 6. argument, combined with the political diatribe in her
motions, demonstrates that Ms. Taitz's purpose is to
advance a political agenda and not to pursue a legitimate
One can readily see the wisdom of entrusting the elected legal cause of action. Rather than citing to binding legal
representatives of the people with the ultimate decision as precedent, she calls the President names, accuses the
to whether a President should be removed from office undersigned of treason, and gratuitously slanders the
rather than litigating the issue in our courts. Although President's father. As the Court noted in an earlier order,
counsel's present concern is the location of the President's counsel's wild accusations may be protected by the First
birth, it does not take much imagination to extend the Amendment when she makes them on her blog or in her
theory to his birthday. Perhaps, he looks “too young” to be press conferences, but the federal courts are reserved for
President, and he says he stopped counting birthdays when hearing genuine legal disputes, not as a platform for
he reached age thirty. If he refused to admit publicly that political rhetoric and personal insults. Simply put, no
he is older than the constitutional minimum age of reasonable basis existed for counsel to believe that her
thirty-five, should Ms. Taitz be allowed to file a lawsuit legal cause of action was legitimate under existing law or
and have a court order him to produce his birth certificate? under a reasonable extension or modification of existing
SeeU.S. Const. art. II, § 1, cl. 4. Or perhaps an eccentric law. Thus, counsel's Complaint on behalf of Captain
citizen has become convinced that the President is an alien Rhodes was frivolous.
from Mars, and the courts should order DNA testing to
enforce the Constitution. FN7 Or, more to the point, perhaps
the Court should issue a nationwide injunction that Although the Court found the Complaint frivolous, the
prevents the U.S. Army from sending any soldier to Iraq Court did not impose sanctions upon that finding alone.
or Afghanistan or anywhere else until Ms. Taitz is The Court did notify counsel of its conclusion, as it had a
permitted to depose the President in the Oval Office. The duty to do, in order to prevent future similar filings.
federal courts were not established to resolve such purely Defying that admonition, counsel immediately sought
political disputes or to assist in the pursuit of a political reconsideration of the Court's order. In doing so, she did
fishing expedition, particularly when that intrusion would not challenge with contrary legal authority the legal basis
interfere with the ability of the U.S. Army to do its job. for the Court's decision-abstention-nor did she attempt to
distinguish the authority cited by the Court. She didn't
even mention it.
Contrary to counsel's suggestion, the courts do not refrain
from entering political debates because of bias or personal
disinterest. They do so because the Constitution, within Local Rule 7.6 authorizes a motion for reconsideration
which counsel attempts to wrap herself, prevents their when “absolutely necessary.” M.D. Ga. R. 7.6.
encroachment into the political sphere. That does not Reconsideration is “absolutely necessary” only where the
mean that judicial decisions do not often have political movant demonstrates that (1) there was an intervening
consequences, nor does it mean that the judiciary cannot development or change in controlling law, (2) new
rule upon issues that may overturn actions by the political evidence has been discovered, or (3) the court made a
branches when they are contrary to the Constitution. But clear error of law or fact. McCoy v. Macon Water Auth.,
it is clear that the Constitution does not contemplate that 966 F.Supp. 1209, 1222-23 (M.D.Ga.1997). Counsel

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simply had no basis for concluding that reconsideration


was appropriate here, much less absolutely necessary.
Instead, she continued her political diatribe against the *14 For all of these reasons, the Court reaffirms its
President and baseless accusations against the Court. Her findings in its previous order that counsel's motion for
argument that she should have been given more time to reconsideration was frivolous and that her conduct
respond before the Court issued its ruling, when she had demonstrates that she has attempted to use the legal
requested the expedited consideration, is so shockingly process for an improper purpose. Thus, sanctions are
devoid of reality that it is difficult to know how to warranted.
respond. It is beyond dispute that filing a motion for
reconsideration of an order when no reasonable basis
exists under existing law or under an extension or III. The Nature and Amount of the Sanction
modification of existing law to modify that order is
sanctionable under Rule 11.
A. Factors To Be Considered

In addition, an attorney, as an officer of the Court, has an


obligation to use legal proceedings for the legitimate Rule 11 expressly limits a sanction to “what suffices to
purpose of pursuing a lawful cause of action. It is not deter repetition of the conduct or comparable conduct by
appropriate to use briefs or motions to make personal others similarly situated.” Fed.R.Civ.P. 11(c)(4). “The
attacks on opposing parties or the Court. As the Supreme imposition of a monetary sanction is a particularly
Court observed, “if the ruling is adverse, it is not counsel's reasonable use of the court's discretion under Rule 11.”
right to resist it or to insult the judge-his right is only Donaldson, 819 F.2d at 1557. The following
respectfully to preserve his point for appeal.” Sacher v. considerations are appropriate in deciding the amount of
United States, 343 U.S. 1, 9, 72 S.Ct. 451, 96 L.Ed. 717 the sanction:
(1952). Calling the President a usurper and mocking his
father as treacherous and disloyal to the British Crown
added nothing to the advancement of Plaintiff's legal cause [1] [w]hether the improper conduct was willful, or
of action. It provides good rhetoric to fuel the “birther negligent;
agenda,” but it is unbecoming of a member of the bar and
an officer of the Court. Likewise, accusing a judge of
treason and suggesting that the federal courts are under the [2] whether it was part of a pattern of activity, or an
thumb of the Executive Branch for no reason other than isolated event;
the judge ruled against you may be protected by the First
Amendment when made outside of court proceedings, but
it has no place in a legal motion for reconsideration. See [3] whether it infected the entire pleading, or only one
e.g. In re Mann, 229 F.3d 657, 659 (7th Cir.2000) particular count or defense;
(“Litigants are understandably disappointed when they do
not prevail in court, but that does not give them the license
to attack the integrity of the judiciary.”). Counsel's [4] whether the person has engaged in similar conduct in
conduct certainly could not be viewed as advancing other litigation;
Plaintiff's cause of action. It expanded the legal
proceedings beyond their proper scope, burdening the
Court with the necessity of responding to the frivolous [5] whether it was intended to injure;
contentions. It is further evidence of counsel's attempt to
use the federal courts for the improper purpose of
advancing her anti-Obama “birther agenda.” This is not [6] what effect it had on the litigation process in time or
the forum for that. The proper forum for that agenda, as expense;
previously explained, is to convince Congress to initiate
impeachment proceedings or at the ballot box.

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[7] whether the responsible person is trained in the law; counsel's attention. A significant sanction is necessary to
deter such conduct.

[8] what amount, given the financial resources of the


responsible person, is needed to deter that person from *15 W hether M s. Taitz had the subjective purpose to
repetition in the same case; [and] cause injury through her conduct cannot be easily
ascertained. It is clear to the Court, however, that
objectively her actions demonstrate an attempt by her to
[9] what amount is needed to deter similar activity by smear the Court and the judiciary because she did not
other litigants[.] prevail. She accused the Court of treason based upon its
dismissal of her case. She maintained that the district
courts in the Eleventh Circuit must be controlled by the
Fed.R.Civ.P. 11 advisory committee's note (1993). vast “Obama conspiracy” because otherwise she would
have prevailed on her claim. She suggested that the Court
violated the Code of Judicial Conduct by engaging in ex
The Court finds that counsel's conduct was willful and not parte communications when she had no evidence to
merely negligent. It demonstrates bad faith on her part. As support the suggestion and when the credible evidence
an attorney, she is deemed to have known better. She undisputably refuted the suggestion. She frivolously
owed a duty to follow the rules and to respect the Court. asserted that the Court had a financial interest in the
Counsel's pattern of conduct conclusively establishes that litigation, posting the web site for the undersigned's
she did not mistakenly violate a provision of law. She financial disclosure reports in her briefing, for no reason
knowingly violated Rule 11. Her response to the Court's other than to advance a false assertion. Counsel's smear
show cause order is breathtaking in its arrogance and attempts were not limited to the Court; she appears to
borders on delusional. She expresses no contrition or relish calling the President names that added nothing to
regret regarding her misconduct. To the contrary, she her legal arguments. The Court concludes from this
continues her baseless attacks on the Court. Defiantly conduct that counsel did have an intent to injure anyone
defending the “position of the patriots,” she scoffs at the associated with the litigation who did not agree with her.
notion that a federal court would consider sanctioning her
when she is on the side of such freedom fighters as the late
Justice Thurgood Marshall, a comparison that, if accepted, Although the Court has not thoroughly researched
would disgrace Justice Marshall's singular achievements. counsel's record to find similar instances of misconduct in
Counsel's bad faith warrants a substantial sanction. other cases, the Court is aware of at least two other cases
related to this one where counsel engaged in similar
conduct. First, counsel filed the very same case on behalf
Counsel's misconduct was not an isolated event; it was of Captain Rhodes in the W estern District of Texas and
part of a pattern that advanced frivolous arguments and then refiled it here upon the Texas court's finding that she
disrespectful personal attacks on the parties and the Court. had no reasonable possibility of success on the merits.
This pattern infected the entire proceeding, not just an Counsel filed another similar action here on behalf of
isolated pleading. Her initial Complaint was legally Major Cook in which she insisted on pursuing the case
frivolous. Upon being so informed, counsel followed it even though the Army had revoked the deployment order.
with a frivolous motion for reconsideration. In response to Then, counsel filed another action on behalf of Major
the Court's show cause order, she filed a frivolous motion Cook in the Middle District of Florida. That action was
to recuse. In all of counsel's frivolous filings, she hurled summarily dismissed, and upon losing there, counsel filed
personal insults at the parties and the Court. Rather than a motion to recuse that judge; that motion to recuse was
assert legitimate legal arguments, counsel chose to accuse found to be frivolous. Counsel's similar conduct in other
the Court of treason and of being controlled by the actions demonstrates that substantial sanctions are
“Obama Machine.” She had no facts to support her necessary to deter future misconduct.
claims-but her diatribe would play well to her choir. This
pattern of conduct reveals that it will be difficult to get

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Counsel's frivolous and sanctionable conduct wasted the sufficient to deter counsel's misconduct. In response to this
Defendants' time and valuable judicial resources that could threatened sanction, counsel scoffed and resumed similar
have been devoted to legitimate cases pending with the sanctionable conduct. Rather than provide legitimate
Court. W hen she filed the Rhodes case, counsel indicated arguments as to why this amount was unnecessary or why
that it was urgent that the matter be heard because her a lesser amount would be appropriate, she filed a motion
client was facing imminent deployment. The Court to recuse, relying upon false allegations and baseless
rearranged its schedule, took time to read the legal papers, assertions. Counsel had an opportunity to present financial
and conducted preliminary research in preparation for the information to demonstrate that the intended penalty was
hearing. The Army had to activate its legal team on short excessive, yet she never addressed the amount even as an
notice, sending a M ajor from the Army Litigation Division alternative position. If she wished for the Court to
in W ashington, D.C. and a Captain from the CONUS consider whether the $10,000.00 was excessive and
Replacement Center at Ft. Benning. In addition, the unnecessary to deter future similar conduct, she had the
Assistant U.S. Attorney had to accompany them. Like the burden to bring forth evidence to show why. See White v.
Court, the government attorneys had to prepare in an Gen. Motors Corp., 908 F.2d 675, 685 (10th Cir.1990).
expedited manner for the hearing. During the week Not only did counsel fail to point to any such evidence,
preceding Captain Rhodes's deployment, the Court was in but her conduct definitively establishes that the meager
the midst of a jury trial. Therefore, the Court had to alter $10,000.00 sanction would have no deterrent effect.
the trial schedule to conduct the hearing during an
extended lunch break, thus affecting other counsel and
jurors. The Clerk's Office was burdened by Ms. Taitz's [10] The Court must therefore determine what amount is
inability to follow the Court's rules regarding pro hac vice sufficient to deter counsel's conduct. The Court observes
admission and the Court's rules for electronic filing. On that Congress has concluded in the context of frivolous
five separate occasions in a short period, the Clerk's Office filings in the Tax Court that financial penalties up to
personnel error-noticed counsel for her failure to follow $25,000.00 may be appropriate. See26 U.S.C. §
simple rules. At the hearing, counsel failed to make 6673(a)(1). The Eleventh Circuit has affirmed a
coherent legal arguments but instead wasted the Court's $10,000.00 sanction against an attorney for conduct far
time with press conference sound bites and speeches. Due less egregious than Ms. Taitz's conduct. See Riccard v.
to the alleged urgency of the situation, the Court issued a Prudential Ins. Co., 307 F.3d 1277, 1294-96 (11th
ruling within two days of the hearing so that the Army Cir.2002); see also Kleiner v. First Nat'l Bank of Atlanta,
would have guidance as to whether Captain Rhodes would 751 F.2d 1193, 1209 (11th Cir.1985) (affirming $50,000
be deployed. This expedited ruling, during an ongoing sanction against attorney based on court's inherent
jury trial, obviously placed a burden on the Court and authority to discipline attorney misconduct). Under the
Court staff. Then counsel filed her motion for circumstances in this case and based upon the factors
reconsideration two days before Captain Rhodes was considered above, the Court finds that the Court's
scheduled to deploy, and the Court again was forced to previously contemplated financial sanction of $10,000.00
address the motion in an unusually expedited fashion. The is not adequate to deter future misconduct and that a
Court now has to draft the present order, which is longer monetary penalty of $20,000.00 is the minimum amount
than it should be because the Court must address the necessary to deter counsel's misconduct.FN8
additional frivolous arguments made by counsel in her
motion to recuse and also must make sure the Court of
Appeals has the complete picture of counsel's misconduct. B. Constitutionality of Sanction
Although the Court has not attempted to place a price tag
on the time and expense caused by counsel's misconduct,
any objective observer can ascertain that it is substantial. To make it clear that the Court has carefully considered
the due process protections to which Ms. Taitz is entitled,
the Court finds it appropriate to set forth those
*16 The Court also finds that counsel's response to the considerations in this Order. Attorneys facing discipline
Court's show cause order demonstrates that the originally under Rule 11 “have interests qualifying for protection
contemplated monetary sanction of $10,000.00 is not under the Due Process Clause.” Donaldson, 819 F.2d at

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1558. Procedural due process requires notice and an complies with the requirements of constitutional due
opportunity to be heard. Id. “Determining what process is process.
due in a Rule 11 case simply requires an application of
familiar principles of due process[.]” Id. The timing and
content of the notice and the nature of the hearing depend The Court fully appreciates its obligation to consider
upon an evaluation of the circumstances on a case-by-case carefully the imposition of sanctions, particularly when
basis. Id. Several factors influence the due process sanctions are imposed sua sponte. The Court understands
requirements in a particular case. These factors include: that such action by the Court is “akin-to-contempt,” and
thus while criminal due process procedures may not be
necessary, the Court must make sure that counsel's due
*17 the interests of attorneys ... in having a specific process rights have been protected. See Kaplan v.
sanction imposed only when justified; the risk of an DaimlerChrysler, A.G., 331 F.3d, 1251, 1255-56 (11th
erroneous imposition of sanctions under the procedures Cir.2003). The Court is also aware that under certain
used and the probable value of additional notice and circumstances, sanctions that are imposed solely to punish
hearing; and the interests of the court in efficiently and deter the sanctioned party may be so severe that the
monitoring the use of the judicial system and the fiscal sanctioned party may be entitled to the full panoply of
and administrative burdens that additional requirements rights under the due process clause, including a jury trial.
would entail. See In re E.I. DuPont de Nemours & Co.-Benlate Litig.,
99 F.3d 363, 368-69 (11th Cir.1996).FN9

Id. (citing Mathews v. Eldridge, 424 U.S. 319, 335, 96


S.Ct. 893, 47 L.Ed.2d 18 (1976)). As previously explained, the Court finds that Ms. Taitz is
not entitled to that full panoply of rights under the
circumstances of this case. The process used in this case
[11] Considering these factors, it is clear that counsel has protected Ms. Taitz's rights to the extent required by
been provided with due process prior to the imposition of constitutional due process. The sanctions imposed here are
sanctions in this case. As an attorney, she had notice of not of such a criminal nature that they require more than
what Rule 11 required prior to filing the first pleading in the notice and opportunity to be heard that counsel
this Court. After she filed her first frivolous pleading, the received. As emphasized by the Eleventh Circuit in
Court cautioned her not to continue conduct that violated Donaldson, the punitive nature of a Rule 11 monetary
Rule 11. Counsel ignored this admonition and continued sanction does not fix the proceeding as one of criminal
her misconduct. In response, the Court notified her that contempt. Donaldson, 819 F.2d at 1558. The Donaldson
her conduct was sanctionable under Rule 11 and provided court noted that it would be “counterproductive” and
her with notice of the specific misconduct that the Court contrary to the goals of Rule 11 to require criminal
found sanctionable. The Court also provided her with an contempt procedures whenever a judge contemplated
opportunity to show cause why a monetary penalty of imposing sanctions under Rule 11. Id. at 1559. The key is
$10,000 should not be imposed upon her as a sanction for whether the party had adequate notice and opportunity to
her misconduct. Counsel did not take advantage of this be heard under the circumstances. Id. W hen the attorney
opportunity but instead continued her misconduct by filing fails to present support for her claims despite being given
frivolous motions and using those motions for an improper the opportunity to do so, a hearing is a “waste of judicial
purpose. Under these circumstances, the sanction imposed resources” and thus unnecessary to satisfy due process
is clearly justified. There is no risk that the imposition of concerns. See id. at 1558, 1560-61. It would be
the sanction is erroneous under the procedures used, and particularly troublesome if a court were required to
additional notice and hearing would have no value. provide all of the protections to which a criminal
Requiring additional procedures would result in an defendant is entitled every time that it sought to impose
unjustifiable disregard of the Court's interest in efficiently serious sanctions upon an attorney for Rule 11 violations.
monitoring and using judicial resources, with no Such a burdensome requirement would make it practically
measurable benefit to the legitimate interests of counsel. difficult to discipline attorneys whose conduct requires
The Court finds that the imposition of the sanction here swift and serious attention by the court. The Court does

© 2010 Thomson Reuters. No Claim to Orig. US Gov.


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Case 1:10-cv-00151-RCL Document 10-5 Filed 02/26/10 Page 32 of 33
Gov't Ex. 5, 10-0151 (RCL)

Page 18

--- F.Supp.2d ----, 2009 W L 3299817 (M .D.Ga.)


(Cite as: 2009 W L 3299817 (M.D.Ga.))

not suggest that additional due process protections may imposed monetary sanctions upon an attorney
not be appropriate in other cases depending upon the sua sponte.
circumstances, but the Court is convinced that Ms. Taitz
has been provided all the process that she is due.
FN2. Immediately on the heels of his loss in this
Court, Major Cook filed another action in the
CONCLUSION Middle District of Florida. Cook v. Simtech, Inc.,
No. 8:09-CV-01382-RAL-EAJ (M.D.Fla.2009).
That case was promptly dismissed. Upon
*18 The Court takes no joy in reaching the conclusions it receiving an adverse ruling in that case, Ms.
has reached in today's Order. As correctly observed by Taitz, consistent with her modus operandi, filed
Judge W illiam Schwarzer from the Northern District of a motion to recuse the district judge there as she
California: has done here. That judge found her motion to be
frivolous.

Of all the duties of the lawyers is perhaps the most doing


so is understandable. 11 and let it fall into inclined to FN3. Ms. Taitz, a member of the California Bar,
abuse or misuse clear. Misconduct, once judge, is not admitted to practice in this Court. Under
imposing sanctions on unpleasant. A desire to avoid But this Court's rules, an attorney may be admitted
if judges turn from Rule disuse, the message to those the pro hac vice, as long as she associates another
litigation process will be tolerated, will breed more attorney who is admitted to practice in the
misconduct and those who might seek relief against Middle District of Georgia.
abuse will instead resort to it in self-defense.FN10

FN4. In Bonner v. City of Prichard, 661 F.2d


W hile the Court derives no pleasure from its imposition of 1206, 1209 (11th Cir.1981) (en banc), the
sanctions upon counsel Orly Taitz, it likewise has no Eleventh Circuit adopted as binding precedent all
reservations about the necessity of doing so. A clearer decisions of the former Fifth Circuit handed
case could not exist; a weaker message would not suffice. down prior to the close of business on September
30, 1981.

As explained above, counsel's Motion to Recuse (Doc. 24)


and Motion for Enlargement of Time to Respond to the FN5.28 U.S.C. § 455(a) requires a judge to
show cause order (Doc. 25) are denied. Counsel Orly disqualify himself if his impartiality “might
Taitz is hereby ordered to pay $20,000.00 to the United reasonably be questioned.” A judge shall also
States, through the Middle District of Georgia Clerk's disqualify himself if he has a personal bias or
Office, within thirty days of the date of this Order as a prejudice against a party or if he has a financial
sanction for her misconduct in violation of Rule 11 of the interest in the subject matter in controversy. 28
Federal Rules of Civil Procedure. FN11 U.S.C. §§ 455(b)(1) & (b)(4).

The Court further directs the Clerk of this Court to send a FN6. Minimal research reveals that the Attorney
copy of this Order to the State Bar of California, 180 General was in Los Angeles on July 15 and July
Howard Street, San Francisco, CA 94105, for whatever 16, the same time Ms. Taitz claims he was in
use it deems appropriate. Columbus, Georgia, 2,000 miles away. E.g.,
Press Release, U.S. Department of Justice,
Attorney General Eric Holder to Visit Los
FN1. The Court does not take this action lightly, Angeles to Address Southwest Border Strategy,
and in fact, cannot recall having previously Violence Against W omen and Gang Prevention

© 2010 Thomson Reuters. No Claim to Orig. US Gov.


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Case 1:10-cv-00151-RCL Document 10-5 Filed 02/26/10 Page 33 of 33
Gov't Ex. 5, 10-0151 (RCL)

Page 19

--- F.Supp.2d ----, 2009 W L 3299817 (M .D.Ga.)


(Cite as: 2009 W L 3299817 (M.D.Ga.))

(July 14 , 20 0 9 ), a va ila b le a t http:// FN10. W illiam W . Schwarzer, Sanctions Under


www.reuters.com/article/pressRelease/idUS17 the New Rule 11-A Closer Look, 104 F.R.D. 181,
5 9 3 6 + 1 4 -Ju l-2 0 0 9 + P R N 2 0 0 9 0 7 1 4 ; P ress 205 (1985).
Release, U.S. Department of Justice, Attorney
General Announces $500,000 Recovery Act
Grant for California Transitional Housing FN11. The Court wishes to explore the
Program (July 16, 2009), available at possibility of directing the financial penalty to
http://www.usdoj.gov/opa/pr/2009/July/09-ag- the National Infantry Foundation at Ft. Benning,
689.html. Georgia, which has as part of its mission the
recognition of our brave soldiers who do their
duty regardless of the personal sacrifice required
FN7. The Court does not make this observation and their own personal political beliefs. The
simply as a rhetorical device for emphasis; the Assistant U.S. Attorney shall file within thirty
Court has actually received correspondence days of today's Order a short brief outlining the
assailing its previous order in which the sender, position of the United States as to whether such
who, incidentally, challenged the undersigned to a monetary sanction can be used for this intended
a “round of fisticuffs on the Courthouse Square,” purpose. The Court emphasizes that the Court is
asserted that the President is not human. ordering the penalty be paid to the United States
as required under Rule 11 and not to a third
party, but the Court seeks to determine whether
FN8. Counsel will likely respond that this the Court is authorized to subsequently order that
sanction exceeds the statutory maximum fine for the proceeds be paid by the United States to the
the offense of criminal contempt, 18 U.S.C. § Foundation.
402, a petty misdemeanor which has a maximum
fine of $1,000. The Court finds counsel's conduct
here to be more egregious than simple M.D.Ga.,2009.
disobedience of a court order. Moreover, Rhodes v. MacDonald
criminal contempt would also authorize a prison --- F.Supp.2d ----, 2009 W L 3299817 (M .D.Ga.)
sentence up to six months. Id. The Court
observes that half a year's legal fees earned by an
average lawyer would far exceed the sanction the END OF DOCUMENT
Court imposes against Ms. Taitz.

FN9. In DuPont, the Eleventh Circuit concluded


that the district court's sanctions against a party
of more than $13 million for discovery abuses
and $100 million for “civil contempt” were
criminal in nature because they were imposed
against a party for flouting the district court's
authority and were so enormous that they bore no
rational relation to the case or the impact of the
party's misconduct. 99 F.3d at 369. Accordingly,
the Eleventh Circuit found that the district court
had to follow all of the requirements of criminal
contempt proceedings in imposing such
sanctions.

© 2010 Thomson Reuters. No Claim to Orig. US Gov.


W orks.
US Court of Appeals for the Eleventh Circuit Page 1 of 5
Case 1:10-cv-00151-RCL Document 10-6 Filed 02/26/10 Page 1 of 5
Gov't Ex. 6, 10-0151 (RCL)

United States Court of Appeals


for the Eleventh Circuit
56 Forsyth Street, N.W.
Atlanta, GA 30303-2289
(404) 335-6100

09-15418-BB
Connie Rhodes v. Thomas D. MacDonald
Docket #: 09-15418-BB
Short Style: Connie Rhodes v. Thomas D. MacDonald
Docket Date: 10/26/2009
Lead Case:
Agency:
Nature of Suit: Civil Rights: Other
Misc. Type:
Clerk: Camp, Jan
Clerk Phone: (404) 335-6171

District Information

Docket #: 09-00106-CV-CDL-4 Judge: Clay D. Land


Dkt Date: 09/04/2009 District: Georgia-Middle
NOA Date: 10/20/2009 Office: MGA-Columbus

Secondary Case Information

Docket #: Judge:
Dkt Date: / /

Case Relationships

Docket # Short Style Relation Status

Pending Motions

Date Motion Party Emergency


Orly Taitz
29839 SANTA MARGARITA PKWY, Ste
100
Motion for Oral Argument: (Atty: Jonathan Harris
02/08/2010 RCHO STA MARG, CA 92688-3616 No
Levy)
(949) 683-5411
Fax: (949) 766-7603
drtaitz@yahoo.com

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Gov't Ex. 6, 10-0151 (RCL)

United States Court of Appeals


for the Eleventh Circuit
56 Forsyth Street, N.W.
Atlanta, GA 30303-2289
(404) 335-6100

09-15418-BB
Connie Rhodes v. Thomas D. MacDonald
CONNIE RHODES,

Captain, M.D., F.S.,

Plaintiff,

DR. ORLY TAITZ,

Interested Party -Appellant,

versus

THOMAS D. MACDONALD, Colonel,

Garrison Commander, Fort Benning,

GEORGE STEUBER, Deputy

Commander, Fort Benning,

ROBERT M. GATES,

Secretary of Defense,

BARACK HUSSEIN OBAMA,

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Gov't Ex. 6, 10-0151 (RCL)

(202) 514-4815
Fax: (202) 514-9405
eric.fleisig-greene@usdoj.gov
No Briefing Information Found.

Initial Service
Rebecca E. Ausprung, Major
901 N STUART ST STE 400
ARLINGTON, VA 22203-1821
(703) 696-1627
Sheetul S. Wall
U.S. Attorney's Office
PO BOX 2568
COLUMBUS, GA 31902-2568
(706) 649-7700
Fax: (706) 649-7667
Sheetul.S.Wall@usdoj.gov
United States Court of Appeals
for the Eleventh Circuit
56 Forsyth Street, N.W.
Atlanta, GA 30303-2289
(404) 335-6100

09-15418-BB
Connie Rhodes v. Thomas D. MacDonald
File Date Entry Party Pending
10/20/2009 Fee Status: Paid (10/20/09) for Orly Taitz Orly Taitz No
10/27/2009 Briefing Notice Issued No
DKT7CIV (Docketing Notice confirming brief due date) issued. To:Taitz,
10/27/2009 Orly; c:Gregory J. Leonard; c:Rebecca E. Ausprung, Major; c:Sheetul S. No
Wall
10/27/2009 No Hearings to be Transcribed / all transcripts on file. No
10/28/2009 Probable Jurisdiction Noted: (ProSe) Orly Taitz No
Jonathan Harris
11/09/2009 Appearance Form Submitted. No
Levy
DIS-1 (Dismissal notice, 14 days to correct default) issued. To:Jonathan
11/13/2009 Harris Levy; c:Gregory J. Leonard; c:Rebecca E. Ausprung, Major; No
c:Sheetul S. Wall; c:Taitz, Orly
Motion for Leave to File Civil Appeal Statement Out of Time: (Atty:
11/17/2009 Orly Taitz No
Jonathan Harris Levy)
Attorney Changed for: Orly Taitz (949) 683-5411 drtaitz@yahoo.com
11/18/2009 Orly Taitz No
From: To: Levy, Jonathan Harris.
Motion to Stay Lower Court Action Pending Appeal: (Atty: Jonathan
11/20/2009 Orly Taitz No
Harris Levy)
DC Order: Doc. 36 Order for Taitz to pay the $20,000 sanction ordered by
11/20/2009 No
the Court on 10/13/09.

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Gov't Ex. 6, 10-0151 (RCL)

Defendants-Appellees.

United States Court OF Appeals


FOR the Eleventh Circuit
56 Forsyth Street, N.W.
Atlanta, GA 30303-2289
(404) 335-6100

09-15418-BB
Connie Rhodes v. Thomas D. MacDonald
Appellant Appellant Attorney
Orly Taitz Jonathan Harris Levy
29839 SANTA MARGARITA PKWY, Ste 100 Attorney at Law
RCHO STA MARG, CA 92688-3616 37 ROYAL POINTE DR
(949) 683-5411 HILTON HEAD, SC 29926-1166
Fax: (949) 766-7603 (202) 318-2406
drtaitz@yahoo.com Fax: (202) 318-2406
E-Brief Tendered: Appellant filed on 12/15/2009 jonlevy@hargray.com
Appellant Brief Filed filed on 12/15/2009 No Briefing Information Found.
Record Excerpts filed on 12/15/2009
Fees: Paid on 10/20/2009
Appellee Appellee Attorney
Thomas D. MacDonald Eric Fleisig-Greene
Address Not On File 950 PENNSYLVANIA AVE NW RM 7214
WASHINGTON, DC 20530-0009
(202) 514-4815
Fax: (202) 514-9405
eric.fleisig-greene@usdoj.gov
No Appellee's Brief will be Filed per Letter from Counsel
filed on 01/11/2010
George Steuber Eric Fleisig-Greene
Address Not On File 950 PENNSYLVANIA AVE NW RM 7214
WASHINGTON, DC 20530-0009
(202) 514-4815
Fax: (202) 514-9405
eric.fleisig-greene@usdoj.gov
No Briefing Information Found.
Robert M. Gates Eric Fleisig-Greene
Address Not On File 950 PENNSYLVANIA AVE NW RM 7214
WASHINGTON, DC 20530-0009
(202) 514-4815
Fax: (202) 514-9405
eric.fleisig-greene@usdoj.gov
No Briefing Information Found.
Barack Hussein Obama Eric Fleisig-Greene
Address Not On File 950 PENNSYLVANIA AVE NW RM 7214
WASHINGTON, DC 20530-0009

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Gov't Ex. 6, 10-0151 (RCL)

Appellant's Motion for Leave to File Civil Appeal Statement Out of Time
12/01/2009 No
is GRANTED. (by DC)
MOT2 (Notice of court action) issued. To:Jonathan Harris Levy; c:Rebecca
12/01/2009 No
E. Ausprung, Major; c:Sheetul S. Wall
12/01/2009 Civil Appeal Statement Form: (Atty: Jonathan Harris Levy) Orly Taitz No
Over the Phone Extension to File Appellant's Brief Granted by JSC Until
12/04/2009 Orly Taitz No
12/14/09: (Atty: Jonathan Harris Levy)

12/15/2009 E-Brief Tendered: Appellant by Jonathan Harris Levy Orly Taitz No


21pages
12/15/2009 Appellant Brief Filed: (Atty: Jonathan Harris Levy) Orly Taitz No
Record Excerpts: M 12/30 PT'D Doc. #8 MTD (Atty: Jonathan Harris
12/15/2009 Orly Taitz No
Levy)
EXC-1CIV (Record Excerpts deficiency letter) issued. To:Jonathan Harris
12/18/2009 No
Levy; c:Rebecca E. Ausprung, Major; c:Sheetul S. Wall
01/06/2010 Appellant's motion for stay of sanctions is DENIED. (GBT, SHB, CRW) No
MOT2 (Notice of court action) issued. To:Jonathan Harris Levy; c:Orly
01/06/2010 No
Taitz; c:Rebecca E. Ausprung, Major; c:Sheetul S. Wall
Eric Fleisig-
01/11/2010 Appearance Form Submitted. No
Greene
No Appellee's Brief will be Filed per Letter from Counsel: (Atty: Eric Thomas D.
01/11/2010 No
Fleisig-Greene) MacDonald
01/15/2010 Certificate of Readiness No
01/15/2010 Record on Appeal No
MOT2 (Notice of court action) issued. To:Jonathan Harris Levy; c:Eric
01/28/2010 No
Fleisig-Greene
02/08/2010 Motion for Oral Argument: (Atty: Jonathan Harris Levy) Orly Taitz Yes

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General Docket
United States Court of Appeals for the Ninth Circuit
Court of Appeals Docket #: 10-55084 Docketed: 01/19/2010
Nature of Suit: 3440 Other Civil Rights
Pamela Barnett, et al v. Barack Obama, et al
Appeal From: U.S. District Court for Central California, Santa Ana
Fee Status: Paid

Case Type Information:


1) civil
2) private
3) null

Originating Court Information:


District: 0973-8 : 8:09-cv-00082-DOC-AN
Court Reporter: Blanca Aguilar, Official Court Reporter
Trial Judge: David O. Carter, U.S. District Judge
Date Filed: 01/20/2009
Date Order/Judgment: Date Order/Judgment EOD: Date NOA Filed: Date Rec'd COA:
01/12/2010 01/12/2010 01/17/2010 01/17/2010

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Gov't Ex. 7, 10-0151 (RCL)

01/19/2010 1 DOCKETED CAUSE AND ENTERED APPEARANCES OF COUNSEL. SEND MQ: Yes. The
schedule is set as follows: Fee due from Appellants Pamela Barnett, et al, on 01/19/2010. Mediation
Questionnaire due by Attorney Orly Taitz due on 01/26/2010. Appellants Pamela Barnett, et al opening
brief due 06/28/2010. Appellee Joseph R. Biden, Appellee Hillary Rodham Clinton, Appellee Robert M.
Gates, Appellee Barack Hussein Obama and Appellee Michelle L.R. Obama answering brief due
07/28/2010. Appellant's optional reply brief is due 14 days after service of the answering brief.
[7198465] (FB)
01/19/2010 2 Filed representation notice by Attorney Orly Taitz. Served on 01/17/2010. [7198493] (FB)
01/22/2010 3 Received notification from District Court re: payment of docket fee. Amount Paid: USD 455 Date paid:
01/21/2010. [7205336] (MT)
01/22/2010 4 Received Appellants notice regarding representation statement. [7208971] (MT)
01/26/2010 5 Received notification from District Court re: payment of docket fee. Amount Paid: USD 455 Date paid:
01/21/2010. [7210425] (MT)
01/27/2010 6 Received Appellants notice regarding payment of fees by appellants. [7210435] (MT)
01/28/2010 7 Filed (ECF) Appellants Capt. Pamela Barnett, Richard Norton Bauerbach, Capt. Robin D. Biron, Col.
John D. Blair, Mr. David L. Bosley, Ms. Loretta G. Bosley, Capt. Harry G. Butler, Rep. Glenn Casada,
Jennifer Leah Clark, Timothy Comerford, Charles Crusemire, Thomas S. Davidson, Rep. Cynthia
Davis, Matthew Michael Edwards, Lt. Jason Freese, Mr. Kurt C. Fuqua, Officer Clint Grimes, Julliett
Ireland, D. Andrew Johnson, Israel D. Jones, Timothy Jones, Alan Keyes, Ph. D., David Fullmer
LaRoque, Gail Lightfoot, Lita M. Lott, Major David Grant Mosby, Steven Kay Neuenschwander, Frank
Niceley, Robert Lee Perry, Col. Harry Riley, Sgt. Jeffrey Wayne Rosner, Capt. David Smithey, John
Bruce Steidel, Douglas Earl Stoeppelwerth, Rep. Eric Swafford, Capt. Neil B. Turner, Richard E.
Venable, Jeff Graham Winthrope and Mark Wriggle Mediation Questionnaire. Date of service:
01/26/2010. [7211032] (OT)
02/01/2010 8 Filed Appellants Mediation Questionnaire. Served on 01/02/2010. [7217859] (MT)
02/11/2010 9 Filed clerk order (Deputy Clerk:MT): The court sua sponte consolidates appeal nos. 09-56827 and 10-
55084. Appeal nos. 09-56827 and 10-55084 are consolidated. The briefing schedule for the consolidated
appeals is as follows: the opening briefs and excerpts of record are due June 28, 2010; the consolidated
answering brief is due July 28, 2010; and the optional reply briefs are due within 14 days after service
of the answering brief. All parties on a side are encouraged to join in a single brief to the greatest extent
practicable. See 9th Cir. R. 28-4. [7229212] [09-56827, 10-55084] (BJB)

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Case 1:10-cv-00151-RCL Document 11 Filed 02/26/10 Page 1 of 18

UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF COLUMBIA

)
ORLY TAITZ, )
)
Plaintiff, ) Civil Action No.: 10-0151 (RCL)
)
v. )
)
BARACK HUSSEIN OBAMA, )
)
Defendant. )
)

DEFENDANT’S COMBINED MEMORANDUM


IN SUPPORT OF MOTION TO DISMISS AND IN
OPPOSITION TO MOTION FOR PRELIMINARY INJUNCTION

Defendant, Barack H. Obama, respectfully provides this combined memorandum of

points and authorities in (1) support of his motion to dismiss this case, and (2) opposition to

Plaintiff’s motion for a preliminary injunction (R.8). Plaintiff lacks standing to bring her claims,

as has been thoroughly established by the several other federal courts in which she has litigated

substantially similar claims. For this reason alone, her case should be dismissed and her request

for preliminary injunction denied. As to her motion for a preliminary injunction, she seeks the

recusal of the United States Attorney's Office for the District of Columbia from representing the

President in this civil lawsuit as well as the release of a number of documents purportedly related

to a vague series of allegations associated with her representations about the President’s

eligibility for office. None of these requests have any merit.

Background

Although, to Defendant's knowledge, this is Dr. Taitz’s first case in which she serves as

Plaintiff, this is not her first bite at the apple, or even her second: she has unsuccessfully
Case 1:10-cv-00151-RCL Document 11 Filed 02/26/10 Page 2 of 18

represented plaintiffs in at least three judicial districts seeking to raise similar claims. In each of

these cases, the United States district courts have declined to find jurisdiction and have denied

relief similar to the ultimate relief sought here.

Dr. Taitz’s Complaint suffers from exactly the same defects that doomed many of her

previous litigation efforts. Simply put, her allegations about the President’s citizenship are not a

concrete and particularized injury, as required to establish standing under the “case or

controversy” requirement of Article III, and the harms that she has suffered from judicial and/or

bar sanctions for her conduct in litigation are the consequences of her own actions and not in any

way traceable to any legal claim cognizable against Defendant.

Even if plaintiff had standing, however, her request for a preliminary injunction should

nonetheless be denied. A preliminary injunction entered with respect the underlying issue would

carry with it the potential of irreparable harm to the public interest, whereas Plaintiff has not

provided any credible showing that she will be irreparably harmed if her application is denied.

Plaintiff’s prior cases:

1. Cook v. Good, --- F. Supp. 2d ---, No. 09-cv-82, 2009 WL 2163535 (M.D. Ga.

July 16, 2009), attached hereto as Exhibit 1.

On July 9, 2009, United States Army Major Stefan Frederick Cook sought a temporary

restraining order in the Middle District of Georgia to enjoin his pending overseas deployment to

Afghanistan. See Civil Docket sheet, Cook v. Good, No. 09-cv-82, attached hereto as Exhibit 2.

Represented by Dr. Taitz, Major Cook alleged that his orders were not valid and that his doubts

about the President's citizenship would cause him to violate his oath to the United States

Constitution if he were forced to deploy. See generally 2009 WL 2163535. After a hearing on

2
Case 1:10-cv-00151-RCL Document 11 Filed 02/26/10 Page 3 of 18

July 16, 2009, Judge Clay Land dismissed Major Cook’s claims, finding that “Major Cook

cannot satisfy” the standing prerequisite of Article III. Id. at *1. The district court also noted

that Dr. Taitz had sought to salvage the action by “seek[ing] to amend the complaint to add two

additional parties, Maj. Gen. Carol Dean Childers (Retired) and Lt. Col. David Earl Graef.” Id.

at *2. Judge Land rejected this proposed amendment, noting that the two officers had “alleged

no concrete particularized injury,” and that “[t]heir political claim does not give rise to a case or

controversy to be heard in federal court.” Id.

Still represented by Dr. Taitz, Major Cook appealed the dismissal to the Eleventh Circuit

Court of Appeals, which dismissed the appeal “for want of prosecution” on November 24, 2009.

See 11th Circuit Docket sheet, No. 09-14698-CC (noting pending motion to reinstate appeal),

attached hereto as Exhibit 3.

2. Rhodes v. Gates, 5:09-CV-00703-XR (W.D. Tex. 2009); and Rhodes v.

MacDonald, 09-cv-106 (M.D. Ga. 2009).

Dr. Taitz returned to court in late August, 2009, representing a new plaintiff, Dr. Connie

Rhodes, a United States Army Captain slated to deploy to Iraq in support of Operation Iraqi

Freedom. Plaintiff and her client initially sought a temporary restraining order in the Western

District of Texas, but the case was summarily dismissed as the district court quickly found their

claims had “no substantial likelihood of success on the merits.” Rhodes v. Gates, No.

09-00703-XR, Order Denying Mot. for TRO (W.D. Tex. Aug. 28, 2009). A copy of this order

attached hereto as Exhibit 4.

Plaintiff then re-filed the same action in the Middle District of Georgia, the same court

which had previously dismissed Cook v. Good. See Rhodes v. MacDonald, 2009 WL 2997605

3
Case 1:10-cv-00151-RCL Document 11 Filed 02/26/10 Page 4 of 18

at *1 (M.D. Ga. 2009), copies of the three Rhodes decisions are attached as Exhibit 5. Plaintiff

again sought a temporary restraining order to enjoin her client's overseas deployment. Id.

Finding that there was “no credible evidence” and ‘no reliable factual allegations to support [the]

unsubstantiated, conclusory allegations and conjecture that President Obama is ineligible to serve

as President of the United States,” the Georgia district court again dismissed the complaint,

deeming the claims “frivolous” and the “threatened injury . . . not substantial.” Id. at *3, *5.

In addition, the Georgia district court issued a stark warning to Dr. Taitz: “Plaintiff's

counsel is hereby notified that the filing of any future actions in this Court, which are similarly

frivolous, shall subject counsel to sanctions.” Id. at *1.

Responding with what the Georgia district court characterized as a “tirade,” Plaintiff then

moved for reconsideration of the district court’s dismissal. See Rhodes v. MacDonald, 2009 WL

3111834 at *1. The district court noted that Plaintiff had “contemptuously ignore[d] the Court’s

previous admonition that Plaintiff's counsel discontinue her illegitimate use of the federal

judiciary to further her political agenda.” Id. Accordingly, in conjunction with its previous

warning, the district court denied the reconsideration motion as “frivolous” and found that Dr.

Taitz’s conduct violated Rule 11 of the Federal Rules of Civil Procedure. The district court

ordered her to “show cause why the Court should not impose a monetary penalty of $10,000.00

upon Plaintiff's counsel for her misconduct.” Id. at *1, *3.

After Dr. Taitz withdrew as counsel for Major Rhodes, she continued to litigate the award

of sanctions. As the district court noted in its next order, however, "[i]nstead of responding to

the Court’s specific concerns or addressing the contemplated amount of the monetary sanction,

Ms. Taitz continued her attacks on the Court,” floating a number of implausible theories and

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alleging bias on the part of the district court. Rhodes v. MacDonald, --- F. Supp. 2d ----, 2009

WL 3299817 (M.D. Ga. 2009) at *4. In response, the district court issued a detailed opinion

documenting Dr. Taitz's misconduct, the frivolousness of her actions, and increasing the dollar

amount of the contempt sanction to $20,000. Id.

Dr. Taitz has appealed these sanctions to the Eleventh Circuit Court of Appeals. See 11th

Cir. Docket sheet, in Rhodes v. MacDonald, No. 09-15418BB, attached hereto as Exhibit 6. Her

appeal has not yet been resolved.

3. Barnett v. Obama, No. 09-0082, 2009 WL 3861788 (C.D. Cal. Oct. 29, 2009).

Meanwhile, throughout the pendency of the above cases, Dr. Taitz maintained yet another

action purportedly challenging the President’s eligibility for office. In this case, a group of 44

plaintiffs comprising “third party candidates from the American Independent Party for president

and vice president in the 2008 presidential election, inactive and active military personnel, and

state representatives” brought an action in the Central District of California on January 20, 2009,

shortly after the President's inauguration. See Barnett v. Obama, 2009 WL 3861788 at *1, *3.

Similar to the instant case, the amended complaint in California “set[] forth ten questions for

which they request[ed] declaratory judgment pursuant to 28 U.S.C. §§ 2201-2202, . . . all

relat[ing] to the meaning of the Constitution’s natural born citizen clause and the appropriate

recourse should a sitting president not meet the ‘natural born citizen’ requirement.” Id. The

plaintiffs in Barnett also “request[ed] that the Court order the production of documents pursuant

to FOIA.” Id. As with Dr. Taitz’s other cases, the district court dismissed plaintiffs’ claims for

lack of subject-matter jurisdiction. See Barnett at *3-8. Although the Barnett court identified

one category of plaintiffs -- presidential candidates defeated by the President in the 2008 election

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-- who might satisfy Article III's injury requirement, see Barnett at *8 (discussing the potential

injury to failed presidential candidates), Dr. Taitz is not representing those plaintiffs in this action

in the District of Columbia.

In its opinion, the California district court also discussed Dr. Taitz’s litigation conduct,

observing that she “has favored rhetoric . . . rather than the language of a lawyer seeking to

present arguments through cogent legal reasoning,” and that she took the “improper and

unethical” step of “encourag[ing] her supporters to attempt to influence this Court’s decision.”

See id. at *19. In addition, the district court expressed its “deep[] concern[] that Taitz may have

suborned perjury through witnesses she intended to bring.” Id. In contrast to the district court’s

characterization of Dr. Taitz’s conduct, the same court noted that Gary Kreep, who served as

separate counsel for two of the Barnett plaintiffs, had attempted “to bring serious issues before

the Court.” Id.

Following dismissal, the Barnett plaintiffs appealed to the Ninth Circuit Court of

Appeals, which has not yet decided the appeal. See 9th Cir. Docket sheet in Barnett v. Obama,

No.10-55084, attached hereto as Exhibit 7.

Argument

I. Plaintiff Lacks Standing.

To the extent Plaintiff seeks to challenge the President's qualifications for office, she

lacks standing to raise the issue. The question of standing is a threshold determination

concerning “whether the litigant is entitled to have the court decide the merits of the dispute or of

particular issues.” Warth v. Seldin, 422 U.S. 490, 498 (1975). A plaintiff bears the burden of

establishing proper standing “at the outset of its case.” Sierra Club v. Environmental Protection

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Agency, 292 F.3d 895, 901 (D.C. Cir. 2002). In so doing, the plaintiff must allege facts

sufficient to satisfy the “irreducible Constitutional minimum” of Article III standing. Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560 (1992). Accordingly, to have standing here, Plaintiff

must first allege that she “suffered an ‘injury in fact’ -- an invasion of a legally protected interest

which is (a) concrete and particularized . . . and (b) actual or imminent, not ‘conjectural’ or

‘hypothetical[.]’” Id. at 560 (citations omitted). “Second, there must be a causal connection

between the injury and the conduct complained of.” Id. (quotations omitted). “Third, it must be

likely, as opposed to merely speculative, that the injury will be redressed by a favorable

decision.” Id. (quotations omitted). In her Complaint, plaintiff has entirely failed to establish

her standing to sue.

By now, it is well-established that the purported injury suffered by citizens who doubt the

qualifications of the President is an injury to “the generalized interest of all citizens in

Constitutional governance” which is too abstract to satisfy standing requirements. See

Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 217, 220 (1974); Berg v.

Obama, 574 F. Supp. 2d 509, 518-21 (E.D. Pa. 2008), and cases cited therein; see also Barnett;

Rhodes, 2009 WL 2997605; Rhodes, 2009 WL 3299817. Having served as counsel in many of

the prior cases establishing this principle, Plaintiff is well aware that an allegation of such injury

is inadequate. In this case, she now alleges that she herself has suffered a unique injury through

having her theories of standing and subject matter jurisdiction rejected in those prior cases. Even

if this could constitute a tangible injury, it is neither causally related to the President's citizenship

nor redressable by a favorable decision by this Court. Therefore, the instant complaint must also

be dismissed for lack of standing.

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Plaintiff presents a rambling set of unsubstantiated conspiratorial allegations to support

her claim that she has somehow been “injured” through her prior efforts to litigate the President's

eligibility for office including, inter alia, that she suffered “vicious attacks coming from the

media,” that an “emissions hose” in her car “was disconnected,” that certain private individuals

“submitted [sic] perjured affidavits . . . and forged her signature,” and that “her paypal account

was tampered with.” Complaint at 2-3. Of these, the only harm that conceivably stems from

official action on the part of any governmental entity is her claim that “[w]hen she brought two

legal actions in the Middle District of Georgia . . . she was sanctioned $20,000.” Complaint at 3.

This injury is not traceable to any action of Defendant, but stems instead from her

decisions to file, repeatedly, frivolous motions in district court in the Middle District of Georgia,

even after being warned by that court.

This injury would not be redressed by the relief she seeks, because this Court cannot

affect, through relief affecting Defendant, the sanctions issued by the Georgia court, nor the

actions of the third parties allegedly responsible for her other injuries. Where injuries result only

indirectly, “from the independent action of some third party not before the court,” then “the

presence of intervening factors interrupts the chain of traceability” and there is no standing.

International Labor Rights Educ. & Research Fund v. Bush, 954 F.2d 745, 751 (D.C. Cir. 1992).

In her application for a preliminary injunction, Plaintiff raises the prospect of another type

of harm: that her “law license” will be “undermine[d]” or “endanger[ed].” (Taitz Affidavit at

18-22.) She intimates that this threat is a collateral consequence of the decisions in Rhodes,

claiming that the order from the Middle District of Georgia “was forwarded to the CA Bar.” (Id.

at 17.) Like the sanction from the Georgia district court, however, this injury is neither traceable

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to Defendant’s conduct nor redressable by an action of this Court.

Plaintiff cannot circumvent the requirement that she have standing merely by recasting

her claims under the quo warranto statute, 16 D.C. Official Code § 3501, et seq. It is well-

established that statutes conferring a right-to-sue may not extend that right to individuals who

otherwise lack standing under Article III. See, e.g., McClure v. Reagan, 454 U.S. 1025 (1981)

(affirming McClure v. Carter, 513 F. Supp. 265, 271 (D. Idaho 1981) (finding inadequate

statutory authorization for Members of Congress to challenge the constitutionality of the

appointment of another Member as an Article III judge). In certain circumstances, that provision

permits an “interested person [to] apply to the court by certified petition for leave to have the writ

issued. Without Article III standing, however, Dr. Taitz cannot maintain such a claim.1

Plaintiff cannot establish constitutional standing and her case should be dismissed in its

entirety.

II. This Case Presents Only Non-Justiciable Political Questions.

It is well settled that when the United States Constitution makes a “textually

demonstrable commitment” of an issue to another branch of the government, other than the

judiciary, that issue presents a non-justiciable political question. See Baker v. Carr, 369 U.S.

186, 217 (1962). “The principle that the courts lack jurisdiction over political decisions that are

by their nature committed to the political branches to the exclusion of the judiciary is as old as

the fundamental principle of judicial review.” Schneider v. Kissinger, 412 F.3d 190, 193 (D.C.

1
There is ample reason to believe that the D.C. statute is entirely consistent with Article III
because the definition of an “interested person” likely excludes those who have not suffered a
cognizable injury-in-fact. See Columbian Cat Fanciers, Inc. v. Koehne, 96 F.2d 529, 532 (D.C.
Cir. 1938) (“an action in quo warranto . . . must be brought by a person claiming title to the
office in question and out of possession thereof.”).

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Cir. 2005). The political question doctrine serves to “restrain the Judiciary from inappropriate

interference in the business of the other branches of Government” by prohibiting the courts from

deciding issues that properly rest within the province of the political branches. United States v.

Munoz-Flores, 495 U.S. 385, 394 (1990). Accordingly, claims “involving political questions

outside of the Article III jurisdiction of federal courts are “consistently dismissed for want of

subject matter jurisdiction.” Zivotofsky v. Sec’y of State, 571 F.3d 1227, 1233 n.3 (D.C. Cir.

2009).

According to the text of the Constitution, the issues Plaintiff seeks to raise in this case

regarding both whether President Obama is a “natural born citizen of the United States,” and

therefore qualified to be President, are to be judged (if at all), by other parts of the government

than the judiciary.

At the outset, the Constitution indicates that issues related to a candidate’s eligibility for

the Office of President rest, in the first instance, with the voters and the Electoral College, the

Constitutionally created body responsible for selecting the President of the United States. See

U.S. Constitution, Article II, section 1, cl. 2 (“Each State shall appoint, in such Manner as the

Legislature thereof may direct,” electors for the President and Vice President); Amend. XXIII

section 1; Williams v. Rhodes, 393 U.S. 23, 43 (1968) (Harlan, J., concurring) (“The [Electoral]

College was created to permit the most knowledgeable members of the community to choose the

executive of a nation.”). The Constitution’s commitment to the Electoral College of the

responsibility to select the President necessarily includes the authority to decide whether a

presidential candidate is qualified for office because the examination of a candidate’s

qualifications is an integral component of the electors’ decision-making process.

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The Constitution also provides that, after the Electoral College has voted, further review

of a presidential candidate’s eligibility for office, to the extent such review would ever be

required, rests with Congress. Where no candidate receives a majority of the electoral votes, the

Constitution commits to the House of Representatives the authority to select the President and, in

so doing, to evaluate the candidates’ qualifications. See U.S. Constitution Amendment XII.

Similarly, the Twentieth Amendment exclusively grants Congress the responsibility for selecting

a President when a candidate elected by the Electoral College does not satisfy the Constitution’s

eligibility requirements. See id. Amendment XX, § 3 (“the Congress may by law provide for the

case wherein neither a President-elect nor a Vice President-elect shall have qualified, declaring

who shall then act as President, or the manner in which one who is to act shall be selected, and

such person shall act accordingly until a President or Vice President shall have qualified.”). Thus,

review of Presidential qualifications after the Electoral College has acted rests in Congress,

pursuant to the Constitution.

Federal legislation further details the process for counting electoral votes in the Congress.

Under 3 U.S.C. § 15, Congress is directed to be in session on the appropriate date to count the

electoral votes for President, with the President of the Senate presiding. The statute further

directs that the electoral votes be counted, and then the results be presented to the President of

the Senate, who shall then “announce the state of the vote.” The statute then provides a

mechanism for objections to be registered and resolved in the following language:

Every objection shall be made in writing, and shall state clearly and concisely, and
without argument, the ground thereof, and shall be signed by at least one Senator
and one Member of the House of Representatives before the same shall be
received. When all objections so made . . . shall have been received and read, the
Senate shall thereupon withdraw, and such objections shall be submitted to the

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Senate for its decision; and the Speaker of the House of Representatives shall, in
like manner, submit such objections to the House of Representatives for its
decision.

3 U.S.C. § 15. The statute is clear that Congress adjudicates all challenges to the counting of

Electoral votes for President.

In summary, the text of the Constitution and the relevant statutory law make plain that

challenges to the qualifications of a candidate for President can, in the first instance, be presented

to the voting public before the election, and, once the election is over, can be raised as objections

as the Electoral votes are counted in the Congress. Therefore, challenges such as those

purportedly raised in this case are committed to the electors, and to the Legislative branch.

Barack Obama has been President of the United States for over a year now. The issues

which Plaintiff seeks to litigate in this case, and the allegations which she makes in her

Complaint all relate to the fitness, competence, and qualification of President Obama to continue

to serve in office. As the D.C. Circuit observed, under different circumstances, these issues are

political questions for a very good reason:

Although the primary reason for invoking the political question doctrine in our
case is the textual commitment . . . to the Senate, the need for finality also
demands it. See Baker v. Carr, 369 U.S. at 210, 82 S. Ct. at 706 . . . . [T]he
intrusion of the courts would expose the political life of the country to months, or
perhaps years, of chaos. Even if the courts qualified a finding of justiciability
with a rule against stays or specific relief of any kind, their review would
undermine the new President’s legitimacy . . . for at least as long as the process
took. And a declaratory action without final relief awarding the Office to one
person or the other could confound matters indefinitely.

Nixon v. United States, 938 F.2d 239, 243 (D.C. Cir. 1991) (emphasis added), aff’d, 506 U.S.

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224 (1992).2

Litigation of these issues in this Court would be an equal intrusion of the judiciary into

the political life of the other branches of government. The intrusion would do violence to the

principle of separation of powers, an equally-important basis to recognize that this political

question is outside the jurisdiction of the Court. See Baker, 369 U.S. at 210 (“The non-

justiciability of a political question is primarily a function of the separation of powers.”); id. at

217 (setting forth the elements typically describing a political question).

In summary, the issues which Plaintiff seeks to litigate in this case are constitutionally

and statutorily within the sole and exclusive jurisdiction of the Congress. Litigation of these

issues in this Court at all, and certainly the granting of any of the relief sought by Plaintiff herein,

would violate separation of powers. Accordingly, this case must be dismissed.

III. Plaintiff Cannot Justify Mandamus Relief.

Plaintiff seeks a writ of mandamus to compel the Secretary of State, Hillary Clinton, to

produce the birth certificate supporting the President’s application for a U.S. passport. Plaintiff

cannot meet the high standards for mandamus relief. See, e.g., In re DRC, Inc., No. 09-5083,

2009 WL 5125602 (Dec. 8, 2009). In addition to failing to state a claim for any cause of action

supporting production of records, Plaintiff cannot identify a non-discretionary duty violated by

Defendant here that could possibly support mandamus.

2
The same interest in finality has also long been recognized to limit the scope of actions in quo
warranto. See Newman v. U.S. ex rel., Frizzell, 238 U.S. 537, 548 (1915) (“[G]eneral public
interest is not sufficient to authorize a private citizen to institute such [Quo Warranto]
proceedings, for if it was, then every citizen and every taxpayer would have the same interest and
the same right to institute such proceedings, and a public officer might, from the beginning to the
end of his term, be harassed with proceedings to try his title.”).

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IV. Plaintiff Has No Entitlement to Defendant’s Records.

Plaintiff seeks the production of Defendant’s birth certificate and various other records,

but the simple problem with her claim is that she has no legal entitlement to them. For example,

she has no basis to pursue a claim under the Freedom of Information Act, 5 U.S.C. § 552,

because she has neither sued a federal agency nor produced any evidence of a request she made

to a federal agency for such records (still less exhausting her administrative remedies). Other

than her groundless claim for quo warranto relief, she has cited no other statute or common law

right that would entitle her to production of any such records from Defendant. Her complaint

therefore fails to state a claim upon which relief may be granted. See Ashcroft v. Iqbal, 556 U.S.

---, 129 S. Ct. 1937 (2009).

V. Plaintiff is Not Entitled to a Preliminary Injunction.

Even if the Court were to find that Plaintiff had standing, she would still not be entitled to

injunctive relief. A grant of preliminary injunctive relief under Rule 65(a) “is considered an

extraordinary remedy in this circuit.” Sociedad Anonima Vina Santa Rita v. U.S. Dep’t of

Treasury, 193 F. Supp. 2d 6, 13 (D.D.C. 2001) (citations omitted). Because preliminary

injunctive relief is such “a drastic and unusual judicial measure,” see Marine Transp. Lines v.

Lehman, 623 F. Supp. 330, 334 (D.D.C. 1985), the power to issue such an injunction must be

“sparingly exercised,” see Dorfmann v. Boozer, 414 F.2d 1168, 1173 (D.C. Cir. 1969).

To prevail in her request for a preliminary injunction, Plaintiff bears the burden of

demonstrating that: (1) there is a substantial likelihood of success on the merits; (2) failure to

grant the injunction would result in irreparable injury; (3) the requested injunction would not

substantially injure other interested parties; and (4) the public interest would be furthered by the

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injunction. See Katz v. Georgetown Univ., 246 F.3d 685, 687-88 (D.C. Cir. 2001); Nat’l Head

Start Ass’n v. Dep’t of Health & Human Servs., 297 F. Supp. 2d 242, 246-47 (D.D.C. 2004). In a

case such as this, where “the injunction sought would alter, rather than preserve, the status quo,”

Plaintiff must meet an even higher standard: she must demonstrate “a clear entitlement to relief”

or that “extreme or very serious damage will result if the injunction does not issue.” Qualls v.

Rumsfeld, 357 F. Supp. 2d 274, 279 (D.D.C. 2005).

Here, Plaintiff seeks a preliminary injunction to (1) recuse the U.S. Attorney’s Office

from defending this suit, and (2) compel production of various “vital records” of Defendant. As

explained above, she has no prospect of prevailing on the merits on her latter request. As for

recusal of the U.S. Attorney’s Office, her theory is pure speculation that the Office may bring a

criminal prosecution against her and that if that happened, it would suffer a conflict of interest in

defending this suit. Cf. Younger v. Harris, 401 U.S. 37, 42 (1971) (plaintiffs lacked standing

where they did not claim they had ever been threatened with prosecution, that a prosecution was

likely, or even that a prosecution was remotely possible). Plaintiff offers no plausible support for

her conspiracy theory or that it, if true, it would justify recusal of the Office, much less on an

expedited basis on the current record.

More generally, because Plaintiff cannot show an injury to satisfy Article III standing, she

cannot show irreparable harm for purposes of receiving an injunction. See, e.g., In re Navy

Chaplaincy, 534 F.3d 756, 762-63 (D.C. Cir. 2008).

Moreover, her allegation of immediate injury falls well short of constituting a serious or

irreversible harm. In her affidavit, Plaintiff claims: “I have a serious concern that a CA bar [sic]

will be used as yet another tool in the same effort to destroy me,” and that she is “supposed to

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provide an answer to the CA bar by 02.26.10.” (Taitz Affidavit R.8 ¶¶ 21-22.) Even if this were

taken at face value, Plaintiff provides no specifics as to what her “answer” to the bar is required

to include, what sort of inquiry is being performed by the Bar, or what additional stages of any

bar inquiry may include.

The finality associated with Plaintiff's suggested date of February 26, 2010, is further

undercut by the pendency of her appeals in Barnett and Rhodes. Those appeals are far more

directly relevant to the (extremely tenuous) claims of harm she makes regarding her law license

than anything likely to be resolved in this case. She has fallen far short of justifying preliminary

relief, much less preliminary relief that would so significantly alter, rather than preserve, the

status quo.

Finally, the request for preliminary injunction should be denied based on its adverse

impact to the public interest. “[C]ourts of equity should pay particular regard for the public

consequences in employing the extraordinary remedy of injunction.” Weinberger v.

Romero-Barcelo, 456 U.S. 305, 312 (1982). Plaintiff cannot meet her burden of establishing that

an injunction will serve the public interest in this case. The public has an interest in the finality

of elections and avoiding disruption in the country’s leadership. The storm of innuendo she

seeks to create, if indulged, cannot but open the door to innumerable, equally frivolous claims.

The Court should deny the preliminary injunction.

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Conclusion

For the foregoing reasons, Defendant asks the Court to dismiss this case for lack of

standing and deny Plaintiff’s motion for a preliminary injunction.

February 26, 2010 Respectfully submitted,

RONALD C. MACHEN JR., D.C. Bar #447889


United States Attorney

/s/
RUDOLPH CONTRERAS, D.C. Bar # 434122
Assistant United States Attorney

/s/
ALAN BURCH, D.C. Bar # 470655
Assistant United States Attorney
555 4th St., N.W.
Washington, D.C. 20530
(202) 514-7204, alan.burch@usdoj.gov

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Certificate of Service

I hereby certify that I caused copies of the foregoing Motion to Dismiss and supporting
Memorandum to be served by first class mail addressed to pro se Plaintiff at:

Orly Taitz
29839 Santa Margarita Parkway, Suite 100
Rancho Santa Margarita, CA 92688

and on

Christopher-Earl Strunk
593 Vanderbilt Ave., #281
Brooklyn, NY 11238

on this 26th day of February 2010.

ALAN BURCH, D.C. Bar # 470655


Assistant United States Attorney

18