Case 1:10 Cv 00151 RCL Document 9

8/14/2019 Case 1:10 Cv 00151 RCL Document 9

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UNITED STATES DISTRICT COURTFOR 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 # 470655Assistant United States Attorney555 4th St., N.W.Washington, D.C. 20530(202) [email protected]

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


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Certificate of Service

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

Orly Taitz29839 Santa Margarita Parkway, Suite 100Rancho Santa Margarita, CA 92688

and on

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

on this 26th day of February 2010.

ALAN BURCH, D.C. Bar # 470655Assistant United States Attorney



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)

ORLY TAITZ, ))Plaintiff, ) Civil Action No.: 10-0151 (RCL)

)v. )

)BARACK HUSSEIN OBAMA, )

)Defendant. )

)

DEFENDANTS 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 Defendants opposition

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

attempt to obtain pro se Plaintiffs position on this motion.

February 26, 2010 Respectfully submitted,

RONALD C. MACHEN JR., D.C. Bar #447889United States Attorney

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



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/s/ALAN BURCH, D.C. Bar # 470655Assistant United States Attorney555 4th St., N.W.Washington, D.C. 20530

(202) 514-7204, [email protected]



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)

ORLY TAITZ, ))Plaintiff, ) Civil Action No.: 10-0151 (RCL)

)v. )

)BARACK HUSSEIN OBAMA, )

)Defendant. )

)

DEFENDANTS COMBINED MEMORANDUMIN 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

Plaintiffs 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 Presidents

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

Background

Although, to Defendant's knowledge, this is Dr. Taitzs 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. Taitzs Complaint suffers from exactly the same defects that doomed many of her

previous litigation efforts. Simply put, her allegations about the Presidents 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.

Plaintiffs 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 Cooks 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 courts dismissal. See Rhodes v. MacDonald, 2009 WL

3111834 at *1. The district court noted that Plaintiff had contemptuously ignore[d] the Courts

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.

Taitzs 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 Courts 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 Presidents 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 Constitutions 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. Taitzs 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. Taitzs 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 Courts 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 courts

characterization of Dr. Taitzs 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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There is ample reason to believe that the D.C. statute is entirely consistent with Article III1

because the definition of an interested person likely excludes those who have not suffered acognizable 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 theoffice in question and out of possession thereof.).

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to Defendants 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.



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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. Secy 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 candidates 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 Constitutions 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 candidates

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 candidates 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 Constitutions

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, andwithout 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 bereceived. When all objections so made . . . shall have been received and read, theSenate 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, inlike manner, submit such objections to the House of Representatives for itsdecision.

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 alsodemands it. See Baker v. Carr, 369 U.S. at 210, 82 S. Ct. at 706 . . . . [T]heintrusion 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 justiciabilitywith a rule against stays or specific relief of any kind, their review wouldundermine the new Presidents legitimacy . . . for at least as long as the processtook. 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), affd, 506 U.S.



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The same interest in finality has also long been recognized to limit the scope of actions in quo2

warranto. See Newman v. U.S. ex rel., Frizzell, 238 U.S. 537, 548 (1915) ([G]eneral publicinterest 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 andthe same right to institute such proceedings, and a public officer might, from the beginning to theend of his term, be harassed with proceedings to try his title.).

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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 Presidents 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.



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IV. Plaintiff Has No Entitlement to Defendants Records.

Plaintiff seeks the production of Defendants 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. Dept 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); Natl Head

Start Assn v. Dept 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. Attorneys 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. Attorneys 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 countrys 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 Plaintiffs motion for a preliminary injunction.

February 26, 2010 Respectfully submitted,

RONALD C. MACHEN JR., D.C. Bar #447889United States Attorney

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

/s/ALAN BURCH, D.C. Bar # 470655Assistant United States Attorney555 4th St., N.W.Washington, D.C. 20530(202) 514-7204, [email protected]



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18

Certificate of Service

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

Orly Taitz29839 Santa Margarita Parkway, Suite 100Rancho Santa Margarita, CA 92688

and on

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

on this 26th day of February 2010.

ALAN BURCH, D.C. Bar # 470655Assistant United States Attorney



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Only the Westlaw citation is currently available.

This decision was reviewed by West editorialstaff and not assigned editorial enhancements.

United States District Court,M.D. Georgia,

Columbus Division.Major Stefan Frederick COOK, Plaintiff

v.Colonel Wanda L. GOOD, et al., Defendants.

No. 4:09-cv-82 (CDL).

July 16, 2009.

Orly Taitz , Law Offices of Orly Taitz Esq, MissionViego, CA, for Plaintiff.

Hugh Randolph Aderhold, Jr ., Macon, GA, for De-fendants.

ORDER

CLAY D. LAND , District Judge.

*1 To make the record complete and easily access-ible to the parties and other persons interested inthe Court's oral ruling today, the Court files thiswritten order that puts in writing the oral order thatthe Court issued from the bench at the conclusionof the hearing today on the Defendants' motion todismiss.

The same Constitution upon which Major Cook re-lies in support of his contention that PresidentBarack Obama is not eligible to serve as President

of the United States very clearly provides that fed-eral courts shall only have the authority to hear ac-tual cases and controversies. By restricting theJudiciary's power to actual cases and controver-sies, our founders wisely established a separationof powers that would ensure the freedom of theirfellow citizens. They concluded that the Judicial

Branch, the unelected branch, should not inject it-self into purely political disputes, and that itshould not entangle itself in hypothetical debateswhich had not ripened to an actual legal dispute.

The Courts have therefore consistently held that inorder to have legal standing to pursue a claim infederal court, a party seeking federal jurisdictionmust establish the following three elements: 1) thathe has experienced an injury in fact that is con-crete and particularized and actual or imminent, asopposed to merely conjectural or hypothetical; 2)that there is a causal connection between the injury

and the defendant's conduct that is traceable to thechallenged action of the defendant; and 3) that a fa-vorable decision will likely redress the complainedof injury.

In this case, Major Cook cannot satisfy these ele-ments. His orders have been revoked. He is not be-ing deployed to Afghanistan or Iraq. He is under nopresent order to report anywhere. There is no evid-ence that he is subject to future deployment. Anysuch contention is sheer speculation and entirelyhypothetical. Thus, he has suffered no particular-

ized or concrete injury. There is no causal connec-tion between any conduct by the defendant and anyalleged injury. And the only remedy he sought fromthis court, avoiding deployment, has already beenprovided, and thus there is no remedy that this courtmay provide that will redress his alleged injury.

Based on all of these reasons, Major Cook does nothave standing to pursue this action. Thus, no caseor controversy exists under the United States Con-stitution, and this Court consequently has no subject matter jurisdiction over this action. Accord-

ingly, Defendants' motion to dismiss must be gran-ted.

Recognizing that his opportunity to air his griev-ance over the President's eligibility to serve as Pres-ident of the United States was slipping by,Plaintiff's attorney seeks to rescue the claims with

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

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two arguments: First, she argues that the Courtshould exercise jurisdiction because the complainedof conduct is capable of repetition, yet evading ju-dicial review. Second, she seeks to amend thecomplaint to add two additional parties, Maj. Gen.Carol Dean Childers (Retired) and Lt. Col. DavidEarl Graef. Plaintiff's efforts to maintain this polit-ical controversy in federal court must fail.

*2 First, there is no evidence that Major Cook islikely subject to future deployment orders. In fact,the evidence is to the contrary. He is not likely tobe deployed in the future. Therefore, it is specula-tion that he will be under the command of PresidentObama as a member of the United States Military.

Second, there is no evidence that he would not havean opportunity to have any future claim reviewed.There is simply no evidence that this claim fallswithin the narrow capable of repetition, yet evad-ing review principle of federal jurisdiction.

Second, the Court finds that Major GeneralChilders and Lt. Col Graef do not have standing topursue their claims. They have alleged no concreteparticularized injury. They simply maintain thatthey do not believe President Obama is eligible toserve 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 nostanding orders to report to duty. They are under noorder for future deployment. They have made noshowing that they will not have a process availableto them to protest any orders should they be issued.Their political claim does not give rise to a case orcontroversy to be heard in federal court.

This Court has a duty to follow the United StatesConstitution. That Constitution limits jurisdiction toactual cases and controversies. To extend jurisdic-

tion beyond its limits would be a violation of thatvery Constitution upon which Plaintiff relies insupport of his claims. This the Court refuses to do.

This entire action is dismissed for lack of subjectmatter jurisdiction. The parties shall bear their owncosts.

M.D.Ga.,2009.Cook v. GoodSlip Copy, 2009 WL 2163535 (M.D.Ga.)

END OF DOCUMENT

Page 2Slip Copy, 2009 WL 2163535 (M.D.Ga.)(Cite as: 2009 WL 2163535 (M.D.Ga.))

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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 alAssigned to: Judge Clay D. Land

Cause: 15:53(b) - Prelim & Perm Inj Relief & other EquitaCase in other court: 11th Circuit, 09-14698C

Date Filed: 07/09/2009Date Terminated: 07/16/2009Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: OtherJurisdiction: U.S. GovernmentDefendant

Plaintiff

Stefan Frederick Cook Major

represented by Orly TaitzLaw Offices Of Orly Taitz Esq

26302 La Paz Ste 211Mission Viego , CA 92691949-683-5411Email: [email protected]

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff

Carol Dean Childers Major General

represented by Orly Taitz(See above for address)


Plaintiff

David Earl Graef Lieutenant Colonel

represented by Orly Taitz(See above for address)


V.

Defendant

Wanda L Good

Colonel represented by

Rebecca Elaine AusprungU.S. Army Litigation Division901 N STUART ST STE 400ARLINGTON , VA 22203703-696-1614Fax: 703-696-8126Email: [email protected]


Page 1 of 5CM/ECF LIVE - U.S. District Court:gamd

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Motion, # 3 Certificate of Service - Signed, # 4 Civil Cover Sheet, # 5 Affidavitof Sankey, # 6 Exhibits to Sankey Affidavit - Part 1, # 7 Exhibits to SankeyAffidavit - 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 filingfee. (tls) (Entered: 07/10/2009)

07/10/2009 This is a text only entry; no document issued.ORDER. The Court shall hold ahearing on Plaintiff's motion for a temporary restraining order on July 16, 2009beginning at 9:30 A.M. at the Federal Courthouse in Columbus, Georgia. TheClerk 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 onJuly 10, 2009. (CDL) (Entered: 07/10/2009)

07/10/2009 Set Deadlines as to 1 MOTION for Temporary Restraining Order. MotionHearing 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, beforeJudge 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 Orderby Wanda L Good, Thomas D MacDonald, Robert M. Gates, Barack HusseinObama filed by Hugh Randolph Aderhold, Jr. (Attachments: # 1 Memorandumin 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 decideDefendant's presently pending motion to dismiss after hearing argument fromthe attorneys at the hearing scheduled for 9:30 A.M. on July 16, 2009. Orderedby 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 OrlyTaitz.(Taitz, Orly) (Entered: 07/15/2009)

07/15/2009 7 Notice of Error in Filing (related document(s): 6 Motion for PreliminaryInjunction 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 toDismiss, and dismissing 6 Motion for Preliminary Injunction. (Court ReporterBetsy 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 byJudge 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 Motionfor Preliminary Injunction, Order on Motion for TRO, 8 Order on Motion to

Dismiss,, Order on Motion for Preliminary Injunction,, Order on Motion forTRO,, Motion Hearing, by Stefan Frederick Cook. Filing fee $ 455, ReceiptNo.: 113G0000000000816523. (Taitz, Orly) (Entered: 09/15/2009)

09/17/2009 12 Notice of Error in Filing (related document(s): 11 Notice of Appeal, filed byStefan 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 AppealStatement must be filed with the Court of Appeals. A copy of this form may beobtained 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 Counselconcerning 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 StefanFrederick 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 thecourt public terminal or purchased through the Court Reporter/Transcriberbefore the deadline for Release of Transcript Restriction. After that date it maybe obtained through PACER. IMPORTANT NOTICE - REDACTION OFTRANSCRIPTS: In order to remove personal identifier data from thetranscript, a party must electronically file a Transcript Redaction Request withthe Clerk's Office within 21 calendar days of this date. The Policy governingthe redaction of personal information is located on the court website atwww.gamd.uscourts.gov. Read this policy carefully. If no Transcript RedactionRequest is filed within 21 calendar days of this date, the court will assumeredaction of personal identifiers is not necessary and the transcript will be madeavailable 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 CenterTransaction Receipt

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09-14698-CCStefan Frederick Cook v. Wanda L. Good

District Information

Secondary Case Information

Case Relationships

Pending Motions

United States Court of Appealsfor the Eleventh Circuit

56 Forsyth Street, N.W.Atlanta, GA 30303-2289

(404) 335-6100

ClosedDocket #: 09-14698-CC

Short Style: Stefan Frederick Cook v. Wanda L. GoodDocket Date: 09/18/2009

Lead Case:Agency:

Nature of Suit: Civil Rights: OtherMisc. Type:

Clerk: Dixon, EleanorClerk Phone: (404) 335-6172

Docket #: 09-00082-CV-CDL-4 Judge: Clay D. LandDkt Date: 07/09/2009 District: Georgia-Middle

NOA Date: 09/15/2009 Office: MGA-Columbus

Docket #: Judge:Dkt Date: / /

Docket # Short Style Relation Status

Date Motion Party Emergency

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


56 Forsyth Street, N.W.

Page 1 of 6US Court of Appeals for the Eleventh Circuit

2/25/2010http://pacer.ca11.uscourts.gov/CHMSDKTP.FWX



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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,

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





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United States Secretary of Defense,

BARACK HUSSEIN OBAMA,

LOUIS B. WINGATE,

Colonel,

Defendants-Appellees.


United States Court OF AppealsFOR the Eleventh Circuit


(404) 335-6100

Appellant Appellant Attorney

Stefan Frederick Cook Address Not On File

E-Brief Tendered: Appellant filed on 12/08/2009 Fees: Paid on 09/15/2009

Orly Taitz 29839 SANTA MARGARITA PKWY, Ste 100RCHO STA MARG, CA 92688-3616(949) 683-5411Fax: (949) [email protected]

No Briefing Information Found.

Appellee Appellee Attorney

Wanda L. Good Address Not On File

Eric Fleisig-Greene 950 PENNSYLVANIA AVE NW RM 7214WASHINGTON, DC 20530-0009(202) 514-4815Fax: (202) [email protected]


Thomas D. MacDonald

Address Not On File

Eric Fleisig-Greene

950 PENNSYLVANIA AVE NW RM 7214WASHINGTON, DC 20530-0009(202) 514-4815Fax: (202) [email protected]


Robert M. Gates Address Not On File

Eric Fleisig-Greene 950 PENNSYLVANIA AVE NW RM 7214WASHINGTON, DC 20530-0009(202) 514-4815Fax: (202) 514-9405





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[email protected] No Briefing Information Found.

Barack H. Obama Address Not On File



Louis B. Wingate Address Not On File



Mark B. Stern 950 PENNSYLVANIA AVE NW RM 7531WASHINGTON, DC 20530-0009(202) 514-5089Fax: (202) [email protected]


Initial Service

Rebecca E. Ausprung, Major 901 N STUART ST STE 400ARLINGTON, VA 22203-1821(703) 696-1627

Hugh Randolph Aderhold, Jr. U.S. Attorney's OfficePO BOX 1702MACON, GA 31202-1702(478) 621-2728Fax: (478) [email protected]

George F. Peterman, III U.S. Attorney's Office - Middle Dis. Of Ga.300 MULBERRY ST STE 400MACON, GA 31201-7999(478) 752-3511Fax: (478) [email protected]



(404) 335-6100





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02/25/2010 11:03:44


Description: docket sheet Case Number: 09-14698-CC


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Case 5:09-cv-00703-XR Document 3 Filed 08/28/09 Page 1 of 3Gov't Ex. 4, 10-0151 (RCL)

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


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U.S. District Court [LIVE AREA] Georgia Middle District (Columbus)

CIVIL DOCKET FOR CASE #: 4:09-cv-00106-CDL

APPEAL

Rhodes v. MacDonald et alAssigned to: Judge Clay D. Land

Cause: 15:5Case in other court: Eleventh Circuit Court of Appeals, 09-15418BB

Date Filed: 09/04/2009Date Terminated: 09/16/2009Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: OtherJurisdiction: U.S. Government Defendant

Plaintiff

Connie Rhodes Captain, M.D., F.S,

represented by Connie Rhodes PRO SE

Orly TaitzLaw Offices Of Orly Taitz Esq26302 La Paz Ste 211Mission Viego , CA 92691949-683-5411Email: [email protected]: 09/28/2009

LEAD ATTORNEY PRO HAC VICE

ATTORNEY TO BE NOTICED

V.

Defendant

Thomas D MacDonald Colonel, Garrison Commander, Fort Benning

represented by Rebecca Elaine AusprungU.S. Army Litigation Division901 N STUART ST STE 400ARLINGTON , VA 22203703-696-1614Fax: 703-696-8126Email: [email protected]


Sheetul S. WallU.S. Attorney's OfficeP.O. Box 2568

Columbus , GA 31902-2568706-649-7700Fax: 706-649-7667Email: [email protected]

Defendant

George Steuber Deputy Commander, Fort Benning

represented by Rebecca Elaine Ausprung(See above for address)






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Sheetul S. Wall(See above for address)

Defendant

Robert M. Gates Secretary of Defense

represented by Rebecca Elaine Ausprung(See above for address)



Defendant

Barack Hussein Obama represented by Rebecca Elaine Ausprung(See above for address)



ATTORNEY TO BE NOTICED

Movant

Orly Taitz represented by Orly Taitz Law Offices Of Orly Taitz Esq26302 La Paz Ste 211Mission Viego, CA 92691949-683-5411Email: [email protected] SE

Movant

Victor M Serby represented by Victor M Serby 255 Hewlett Neck Road

Woodmere, NY 11598-1452516-374-2455PRO SE

Date Filed # Docket Text

09/04/2009 1 COMPLAINT filed by Connie Rhodes against all defendants; Filing Fee $ 350, Receipt Number812572 (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 socialsecurity numbers and 140 addresses for Barack Obama, # 3 Exhibit list of 140 addresses and 39social 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 deploymentSeptember 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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(Entered: 09/28/2009)

09/28/2009 TEXT ONLY Notice of Error in Filing (related document: 20 Motion to Withdraw as Attorneyfiled by Connie Rhodes ). SIGNED CERTIFICATE OF SERVICE IS MISSING FROMDOCUMENT. PLEASE E-FILE AN EXECUTED CERTIFICATE OF SERVICE ANDLINK IT BACK TO DOCUMENT 20 . Failure to include service on Plaintiff will result inanother 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 forexplanation). 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. CourtReporter/Transcriber Betsy Peterson. Transcript may be viewed at the court public terminal orpurchased through the Court Reporter/Transcriber before the deadline for Release of TranscriptRestriction. After that date it may be obtained through PACER. IMPORTANT NOTICE -REDACTION OF TRANSCRIPTS: In order to remove personal identifier data from thetranscript, a party must electronically file a Transcript Redaction Request with the Clerk's Officewithin 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 noTranscript Redaction Request is filed within 21 calendar days of this date, the court will assumeredaction of personal identifiers is not necessary and the transcript will be made available viaPACER 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 AffidavitAffidavit 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 orpurchased through the Court Reporter/Transcriber before the deadline for Release of TranscriptRestriction. After that date it may be obtained through PACER. IMPORTANT NOTICE -REDACTION OF TRANSCRIPTS: In order to remove personal identifier data from thetranscript, a party must electronically file a Transcript Redaction Request with the Clerk's Officewithin 21 calendar days of this date. The Policy governing the redaction of personal informationis located on the court website at www.gamd.uscourts.gov. Read this policy carefully. If noTranscript Redaction Request is filed within 21 calendar days of this date, the court will assumeredaction of personal identifiers is not necessary and the transcript will be made available viaPACER 90 days from today's date. (Peterson, Betsy) (Additional attachment(s) added on10/8/2009: # 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 byJudge 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 Motionfor 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, ReceiptNo.: 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, DocketSheet, 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 districtcourt 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 ThomasD MacDonald, George Steuber, Robert M. Gates, Barack Hussein Obama re 28 Order onMotion 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 WL 2997605 (M .D.Ga.)(Cite as: 2009 WL 299 7605 (M.D.Ga.))

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

Only the Westlaw citation is currently available.

United States District Court,M.D. Georgia,

Columbus Division.Connie RHODES, Plaintiff,

v.Thomas D. MacDO NALD, Colonel, GarrisonCommander, Fort Benning; et al., Defendants.

No. 4:09-CV-106 (CDL).

Sept. 16, 2009.

West KeySummaryInjunction 212 150

21 2 Injunction 212IV Preliminary and Interlocutory Injunctions 212IV(A) Grounds and Proceedings to Procure 212IV(A)4 Proceedings 212k150 k. Restraining Order Pending

Hearing of Application. Most Cited CasesAn army officer was not entitled to a temporar y restrainingorder to prevent her deployment to Iraq. The restrainingorder was not warranted because the officer demonstratedno likelihood of success on the merits of her claim. Theofficer alleged that her deployment orders wereunconstitutional and unenforceable because the Presidentof the United States was no t constitutionally eligible to actas Commande r in Chief of the United States armed forces

because he was allegedly not born in the United S tates.

Orly Taitz , Law Offices of Orly Taitz Esq., Mission

Viego, CA, for Plaintiff.

Rebecca Elaine Ausprung, Arlington, VA, Sheetul S.Wall , U.S. Attorney's Office, Columbus, GA, for Defendants.

ORDER

CLAY D. LAND , District Judge.

*1 Plaintiff, a Captain in the United States Army, seeks atemporary restraining order to prevent the Army fromdeploying her to Iraq in support of Operation IraqiFreedom. Plaintiff alleges that her deployment orders areunconstitutional and unenforceable because PresidentBarack Obama is not constitutionally eligible to act asCommander in Chief of the United States armed forces.

After conducting a hea ring on Plaintiff's motion, the Courtfinds that Plaintiff's claims are frivolous. Accordingly, her application for a temporary restraining order (Doc. 3) isdenied, and her Complaint is dismissed in its entirety.Furthermore, Plaintiff's counsel is hereby notified that thefiling of any future actions in this Court, which aresimilarly frivolous, shall subject counsel to sanctions.See Fed.R.Civ.P. 11(c) .

BACKGROUND

Plaintiff's counsel is a self-proclaimed leader in what has become known as the birther movement. She maintainsthat President Barack Obama was not born in the UnitedStates, and, therefore, he is not eligible to be Pre sident of the United States. FN1See Dr. Orly Taitz, Esquire, http://www.orlytaitzesq.com (last visited Sept. 15, 2009).Counsel has filed numerous lawsuits in various parts of thecountry seeking a judicial determination as to thePresident's legitimacy to hold the office of President. The

present action is the second such action filed in this Courtin which counsel pursues her birther claim. Her modusoperandi is to use military officers as parties and havethem allege that they should not be required to follow

deployment orders because President Obama is notconstitutionally qualified to be President. Althoughcounsel has managed to fuel this birther movement withher litigation and press conferences, she does not appear to have prevailed on a single claim. FN2 In fact, Plaintiff

previously filed the present action in the United StatesDistrict Court for the Western District of Texas. ThatCourt summarily dismissed her complaint upon finding

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that Plaintiff has no substantial likelihood o f success onthe merits. Rhodes v. Gates, 5:09-CV-00703-XR, Order

Den. Mot. for TRO 3 (W.D .Tex. Aug. 28, 2009). Counselthen re-filed the same action in this Court.

FN1. Article II, Section 1, Clause 4 of the Unite dStates Constitution provides in relevant part thatNo Person exce pt a natural born Citizen ... shall

be eligible to the Office of P resident.

FN2. This Court dismissed an ea rlier action filed by Plaintiff's counsel on behalf of a militaryreservist based upon that plaintiff's lack of

standing. See Cook v. Good, No. 4:09-CV-82(CDL), 2009 WL 2163535 (M.D.Ga. Jul.16,2009) .

Plaintiff's counsel speculates that President Obama wasnot born in the United States based upon the President'salleged refusal to disclose publicly an official birthcertificate that is satisfactory to Plaintiff's counsel and her followers. She therefore seeks to have the judiciarycompel the President to produce satisfactory proof thathe was born in the United States. Counsel makes theseallegations although a short-form birth certificate has

been made publicly available which indicates that thePresident was born in Honolulu, Hawaii on August 4,1961. FN3

FN3. The Court observes that the Presidentdefeated seven oppo nents in a grueling campaignfor his party's nomination that lasted more thaneighteen months and cost those opponents wellover $300 million. See Federal ElectionCommission, Presidential Pre-NominationCampaign Disbursements Dec. 31, 2008,h t t p : / / w w w . f e c . g o v / p r e s s / p r e s s 2 0 0 9 /

20090608Pres/3-2008PresPrimaryCmpgnDis.pdf (last visited Sept. 15, 2009). Then the Presidentfaced a formidable opponent in the generalelection who received $84 million to conduct hisgeneral election campaign against the President.Press Release, Federal Election Commission,2008 Presidential Campaign Financial ActivitySummarized (June 8, 2009), available at http://

www.fec.gov/press/press2009/20090608PresStat.shtml. It would appea r that ample opportunity

existed for discovery of evidence that wouldsupport any contention that the President was noteligible for the office he sought.

Furthermore, Cong ress is apparently satisfiedthat the President is qualified to serve.Congress has not instituted impeachment

proceedings, and in fact, the House of Representatives in a broad bipartisan manner has rejected the suggestion that the President isnot eligible for office. See H.R. Res. 593,111th Cong. (2009) (comme morating, by vote

of 378-0, the 50th anniversary of Hawaii'sstatehood and stating, the 44th President of the United States, Barack Obam a, was born inHawaii on August 4, 1961).

To press he r birther agenda, P laintiff's counsel has filedthe present action on behalf of Captain Rhodes. CaptainRhodes entered the Army in March of 2005 and presentlyserves as a medical doctor. The American taxpayers paidfor her third and fourth years of medical school andfinancially supported her during her subsequent medicalinternship and residency program. In exchange for this

valuable free medical education, Captain Rhodes agreedto serve two years in active service in the Army. She

began that term of active service in July of 2008 and h adno concerns about fulfilling her military obligation untilshe received orders notifying her that she would bedeployed to Iraq in September of 2009.

*2 Captain Rhodes does not seek a discharge from theArmy; nor does she wish to be re lieved entirely from her two year active service obligation. She has not previou slymade any official complaints regarding any orders or assignments that she has received, including orders that

have been issued since President Obama becameCommand er in Chief. But she does not want to go to Iraq(or to any other destination where she may be in harm'sway, for that matter). Her conscientious objections toserving under the current Commander in Chief apparentlycan be accommodated as long as she is permitted toremain on American soil.

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Captain Rhodes is presently stationed at Ft. Benning,Georgia awaiting deploymen t to Iraq. This deployment is

imminent and will likely occur absent an order from thisCourt granting Plaintiff's motion for a temporaryrestraining order.

DISCUSSION

I. Jurisdiction and Abstention

Plaintiff seeks to have this Court declare a deploymentorder issued by the United States Army void and

unenforceable. It is well settled that judicial interferencein internal military affairs is disfavored. As the SupremeCourt has explained:

[J]udges are not given the task of running the Army. Theresponsibility for setting up channels through whichsuch grievances can be considered and fairly settledrests upon the Congress and upon the President of theUnited States and his subordinates. The militaryconstitutes a specialized community governed by aseparate discipline from that of the civilian. Orderlygovernment requires that the judiciary be as scrupulou s

not to interfere with legitimate Army matters as theArmy must be scrupulous not to intervene in judicialmatters.

Orloff v. Willoughby, 345 U.S. 83, 93-94, 73 S.Ct. 534, 97L.Ed. 842 (1953) , quoted with approval in Winck v.

England, 327 F.3d 1296, 1302 -03 (11th Cir.2003) . Thelimitation on the judiciary's involvement in m ilitary affairsdoes not mean that such interference is never appropr iate.However, a court should not review internal militaryaffairs in the absence of (a) an allegation of thedeprivation of a constitutional right, or an allegation that

the military has acted in violation of applicable statutes or its own regulations, and (b) exhaustion of availableintraservice corrective measures. Winck, 327 F.3d at1303 (quoting Mindes v. Seaman, 453 F.2d 197, 201 (5thCir.1971) ). Moreover, mere allegations of a constitutionalviolation unsupported by a reasonable factual foundationare insufficient to warrant judicial review. To holdotherwise would be to create chaos within the military

decision-making process and chain of command. Asexplained below , the Court must balance several factors to

determine whether jud icial review of a military decision isauthorized.

Typically, the first issue to be resolved in cases seeking judicial review of a military decision is whether the soldier has exhausted all intraservice administrative remedies. SeeWinck, 327 F.3d at 1304 . In the present case, Defendantsdo not contend that Plaintiff was required to exhaust her intraservice administrative remedies, presumably becauseno procedure is in place for a soldier to contest thequalifications of the Commander in Chief. Defenda nts doargue, however, that the dispute presented by Plaintiff's

complaint is not justiciable in the courts.

*3 Even if a soldier has exhausted her intraserviceadministrative remedies, the Court must decline to reviewthe military decision if the review would constitute aninappropriate intrusion into m ilitary matters. Id. at 1303 &n. 4 (citing Mindes, 453 F.2d at 201). It has long been thelaw in this Circuit that in determining whether judicialreview of a military decision should be undertaken, thereviewing court

must examine the substance of that allegation in light of the policy reasons behind nonreview of militarymatters, balancing four factors: (1) The nature andstrength of the plaintiff's challenge to the militarydetermination; (2) The po tential injury to the plaintiff if review is refused; (3) The type and degree of anticipated interference with the military function; and(4) The extent to which the exercise of militaryexpertise or discretion is involved.

Winck, 327 F.3d at 1303 n. 4 (quoting Mindes, 453 F.2dat 201). Although certain aspects of the Mindes decision

have been eroded through the years, the Eleventh Circuithas relatively recently reaffirmed the unflagging strengthof the principles of comity and judicial noninterferencewith, and respect for, military operations that informedthe analysis in Mindes. Winck, 327 F.3d at 1304 .FN4

FN4. It is not always clear whether the analysis

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Case 1:10 Cv 00151 RCL Document 9

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