Cook V Good - Appellant Brief - 23848962 Cook V Good Appellant Brief

No. 09-14698-CC ___________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ___________________________ STEFAN FREDRICK COOK, Plaintiff-Appellant, v. WANDA L. GOOD et al, Defendants-Appellees. ___________________________ On Appeal from the United States District Court for the Middle District of Georgia ___________________________ BRIEF FOR APPELLANT ___________________________

Dr. Orly Taitz 29839 Santa Margarita Parkway, Suite 100 Rancho Santa Margarita, CA 92688 (949) 683-5411 Counsel for Appellant December 7, 2009

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TABLE OF CONTENTS TABLE OF CITATIONS ...........................................................................iii STATEMENT OF JURISDICTION.............................................................1 STATEMENT OF THE ISSUES..................................................................1 STATEMENT OF THE CASE.....................................................................2 A.

Nature of the Case and Proceedings Below...................................6

B.

Statement of Facts..........................................................................3

STANDARD OF REVIEW.........................................................................12 SUMMARY OF ARGUMENT...................................................................13 ARGUMENT...............................................................................................16 I.

Lack of Time to Respond.............................................................6

II.

Omitting Military Pressure on Employer.....................................7

III.

Imminent Not Hypothetical Injury...............................................8

IV.

Exception to Repetition, Evasion Mootness Doctrine..................8

V.

Standing of Additional Plaintiffs................................................10

VI.

Ignoring Whistleblower Acts......................................................10

VII.

Not Providing Opportunity to File Complaint............................10

CONCLUSION ............................................................................................11 CERTIFICATE OF SERVICE

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MOTION FOR LEAVE OF COURT...........................................................11 CERTIFICATE OF SERVICE

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TABLE OF CITATIONS CASES Gerstein v. Pugh, 420 U.S. 102, 110 n. 11, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975)............13 Oregon Advocacy Ctr v. Mink, 322 F.3d 1101, 1118 (9th Cir. 2003)...................................................14 Roe v. Wade, 410 U.S. 113, 125, 93 S,Ct. 705, 35 L.Ed.2d 147 (1973) ..................13 Ukranian American Bar Assn’n v. Baker, 893 F.2d 1374, 1377 (D.C. Cir 1990) ................................................14

STATUTES 4th Amendment to the US Constitution

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9th Amendment to the US Constitution …………......................................11 Rule 65 Application for Preliminary Injunction...........................................12 State of Hawaii Statute 338-5……………………………………………..12 Local Rule 7-2 US District Court, Middle District of GA

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STATEMENT OF JURISDICTION This court has jurisdiction, as the order being reviewed came from the 11 th circuit, US District court, Middle District of Georgia, Columbus division. The case revolves around the issues of Federal law and US Constitution and there was a complete diversity between the parties and because the jurisdiction does not lie solely in the Supreme Court of Georgia under the Georgia Constitution, Art. 6 §6, PII. See GA Const., Art 6, §5, III

STATEMENT OF THE ISSUES PRESENTED Did the District court err in law and fact in dismissing the whole Legal action of Cook et al v Good et al on 07.16.09, while not giving the Plaintiff’s-Appellant’s counsel any time to respond to the Motion to Dismiss, filed by the defendants only a day prior to dismissal, by not giving the plaintiff an opportunity to file an actual complaint beyond the Motion for TRO and injunction, and by disregarding most of the facts of the case, most egregiously the fact that the military acted in bad faith and pressured the plaintiffs employer, small military contractor to have the Plaintiff-Appelant

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fired after he exercised his first Amendment rights to question legitimacy of the Commander in Chief due to the split allegiance and lack of legitimate vital records for the Commander in Chief?

STATEMENT OF THE CASE

Statement of Facts The Plaintiff-Appellant Major Stefan Frederick Cook is a high ranked US military officer, who has served this country for some twenty years on active duty or active reserves. He worked for a military contractor Simtech in the area of security and computer security, and he has advanced degrees and training in Engineering, Management, Business, Computer Science and Economics. Major Cook has served in the field of battle before and is ready, willing and able to serve again as member of US active reserves. Recently Major Cook became aware of extremely troubling facts regarding the Commander in Chief, specifically the fact that the Commander in Chief according to National databases and affidavit by a licensed investigator and former elite unit Scotland Yard investigator Mr. Sankey, has used some 39 different social security numbers, several of them were used in Georgia, several of these numbers belonged to deceased individuals, some are never assigned numbers, none of these numbers were issued in the state of Hawaii, 6

where Mr. Obama was born, according to Mr. Obama’s claims. Major Cook was also concerned about the fact that according to a leading US Forensic Document expert Sandra Ramsey Lines the short version Certification of Life Birth, issued in 2007, and presented by Mr. Obama to the public, cannot be considered genuine without examining the original supposedly on file in the Health Department in Hawaii. In spite of over 100 legal actions in state and federal courts demanding to see Mr. Obama’s vital records, Mr. Obama has refused to unseal his original records, such as original birth certificate from 1961 from Hawaii, his birthing file from Kapiolani hospital, his college and university enrollment records, and instead has instructed his private attorney, currently White House Counsel, Mr. Robert Bauer from Perkins Coie and Department of Justice, US Attorneys’ office to quash all subpoenas for production of records. This is of particular concern, since Hawaii statutes going back to 1911 consistently allowed foreign born children of Hawaiian residents to get Hawaiian birth certificate and Hawaiian statute 338-5 allows one to obtain a birth certificate based on a statement of one relative only, who of course can be biased, without any corroborating evidence from any hospital. Even more troubling is the fact that the director of the Health department of Hawaii Ms. Chioumi Fukino has only provided a cryptic statement, that there is a document on file, according to Hawaiian rules and 7

regulations, however she consistently refused to provide a clear answer, as to what document is there, is it a 338-5 document supplied by a parent only without any corroborating evidence, is it a 338-17 document given to a foreign born child of a Hawaiian resident, is it an amended birth certificate, given upon Mr. Obama’s adoption by his Indonesian step father and showing him as a citizen of Indonesia? Major Cook brought this current action to stop his deployment and stop any retaliatory actions by the military until the legitimacy of the Commander in Chief is verified and there is a declaratory relief

on this issue. When the military revoked Major Cook’s

deployment orders, it only exacerbated unrest in the military, as it became clear that Mr. Obama and the military have nothing to show, it became a political story number 5 in the World, and in order to prevent future similar actions the military applied tremendous pressure on Major Cook’s employer, small military contractor Simtech, to have him fired from his $120, 000 position, to teach a lesson anybody who dares to exercise his First Amendment right to free speech and redress of Grievances and question legitimacy of the Commander in Chief. The Plaintiff in his Motion for injunction was asking to stop retaliation by the military and reinstatement in his position. The inference of this case is that it appears that the US district judge Clay D. Land has colluded with Obama administration and the top 8

brass of the military by throwing out the whole legal action, by refusing to grant the injunction, by not giving the undersigned counsel any time to respond to the motion to dismiss, by completely ignoring most of the facts of the case, specifically the fact of retaliation by the military and claiming that the case needs to be dismissed due to lack of injury and lack of standing. Judge Land didn’t see a loss of $120,000 a year position as an injury. Judge Land equally ignored all legal argument, specifically the fact that two other high ranked officers joined the current action and the fact that this is specifically type of an repeated injury that evades the judicial review and falls under the exception to mootness

doctrine.

This order to dismiss

necessitated current appeal. STANDARD OF REVIEW The standard of review is Whether the district court has 1.abused its discretion in dismissing the case within one day after receiving the motion to dismiss without giving the undersigned counsel any time to respond, while she was allowed 20 days according to local rules, by ignoring most facts of the case, specifically the fact that more members of the military with proper standing have joined the action and the fact that the plaintiff-appellant was subjected to retaliation by the military, and ignoring all legal argument by the plaintiff. 9

2. Whether the district court has erred in applying the law, specifically on the issue of repeated occurrence that evades judicial review 3. Whether the district court has erred in applying the facts while reaching conclusion that the plaintiffs have suffered no injury and had no immenent injury.

SUMMARY OF ARGUMENT ARGUMENT Plaintiff-Appellant Major Stefan Fredrick Cook appeals the order to dismiss for lack of jurisdiction due to following errors of law and fact: I.

Lack of Time to Respond Judge Land has dismissed the whole legal action on July 16, the

second day after the Defendant’s motion to dismiss was filed. The court’s action was on the same day as that motion was even seen by the plaintiffs and the undersigned counsel, who were traveling from out of state to the hearing. The court dismissed the whole case within one day without providing the undersigned counsel 20 days allowed by local rules to be given to the non-moving party to respond to the motion:

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“-7.2 RESPONSE. Respondent's counsel desiring to submit a response, brief, or affidavits shall serve the same within twenty (20) days after service of movant's motion and brief.” The court dismissed the legal action before the undersigned counsel had an opportunity to even read the motion. These actions by Judge Land are not only a flagrant error and violation of the local rules, but are a violation of the appellant’s rights to due process under the 4th and 9th amendment and 42 U.S.C §§1983,1988, which would provide valid grounds to reverse the order to dismiss. II.

Omitting Military Pressure on Employer In the order to dismiss the court argue that the court has no

jurisdiction because the plaintiff Cook has no standing. The court argues that the plaintiff cannot satisfy the requirement for standing, - of having injury that is concrete and actual or permanent, - because “his orders to deploy were revoked” p.2 of the order. The court completely ignores Major Cook’s statement that the military retaliated against him by pressuring his employer, a small defense contractor to fire Major Cook from his $120,000 a year position. How can the court miss such an important issue and not address it in the order? Judge 11

Land read his order to dismiss immediately after a short TRO hearing. It was quite clear that he prepared the order in advance, before hearing the arguments in court and without reading the Rule 65 Application for Preliminary Injunction that was submitted to court shortly before the hearing. Either judge Land didn’t read the Application for Preliminary Injunction, which would show negligence on part of the court or he read the Application and consciously decided to ignore such an important issue, which would show bias and bad faith on part of the court. Omitting the issue of pressure applied on the plaintiff’s employer to have him fired from his $120,000 a year job represents a clear error of material fact, which justifies reversal of the order to dismiss. III.

Imminent Not Hypothetical Injury The court argued that “There is no evidence that he is subject to future

deployment. Any such contention is sheer speculation and entirely hypothetical. Thus he has suffered no particularized or concrete injury” p2 order. Here the court assumes facts not in evidence and ignores fact in evidence. Actually, major Cook submitted evidence showing that he has been in the military for over 20 years either as an active duty officer or active reserve. Active reserve officers are deployed every year. Therefore the evidence shows that future deployment is imminent, completely opposite 12

to what the court ruled. Additionally, as stated previously, not only the plaintiff-appellant is subject to imminent future deployment, he also suffered injury from being fired from his position as a defense contractor under pressure from the military. Therefore, the plaintiff-appellant has suffered actual injury and he is additionally subject to imminent injury. The court has made an error of fact, which necessitates reversal of order. IV.

Exception to Mootness Doctrine The court ruled that there was no evidence for the undersigned

counselor’s argument that this issue falls within the narrow “capable of repetition, yet evading review” issue. P3 order. There are thousands of soldiers and officers who are being deployed on a daily basis. They are entitled to know whether the orders coming from the Commander in Chief are lawful. In Gerstein v Pugh, 420 US 102, 110 n. 11, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975) the Supreme Court of the US held the exception to mootness doctrine for violations “capable of repetition, yet evading review” applied because the Constitutional violation was likely to be repeated but would not last long enough to be reviewed before becoming moot.. In oral argument the undersigned counselor equated this issue to Roe v Wade 410 US 113,125,93 S.Ct. 705, 35 L.Ed.2d 147 (1973) and the issue of women getting pregnant and not being able to have their case reviewed, as it was 13

rendered moot after each delivery, at which time the above doctrine was introduced. It was actually argued that some cynics might say that Obama’s refusal to unseal any of his vital records equates to abortion of legitimacy of the American Presidency. In Oregon Advocacy Ctr v Mink, 322 F.3d 1101, 1118 (9th Cir.2003). it was held that plaintiffs have standing if they are challenging an ongoing governmental policy, even if specific injury no longer exists. Here we have an ongoing policy of concealment of records of the Commander in Chief. To this point is the DC Circuit court held that when a complaint challenges an acknowledged or apparent governmental policy, the government cannot prevail by arguing that the controversy became moot when the particular situation at issue resolved itself. UkranianAmerican Bar Assn’n v Baker, 893 F.2d 1374, 1377 (D.C. Cir 1990).

Not only is this specifically an issue that is capable of repetition,

yet evading review, Judge Land’s finding evades the premises of basic human logic. Even if Major Cook’s orders were revoked shortly after this legal action was filed, there are thousands of similar orders issued every day. Therefore the court erred in its assertion that this issue does not fall within “capable of repetition, yet evading review principle of federal jurisdiction. Therefore the order needs to be reversed. V.

Standing of Additional Plaintiffs 14

The court found that two officers who joined this action as additional plaintiffs “do not have standing to pursue their claims”p3. Again the court assumed facts not in evidence and ignored facts in evidence. One of the officers is lifetime subject to recall, and the other is in active reserves and can be called to deploy at any time with but a few days notice. Per the argument above, the court erred in assuming that the additional plaintiffs have no standing, and thus the order has to be reversed. VI.

Ignoring Whistleblower Acts The court erred in completely avoiding the legal argument that the

fact of retaliatory pressure from the military to have Major Cook fired from his $120,000 position as a defense contractor may be a violation of general and specific military Whistleblower acts as well as the First and Ninth amendment civil rights. The Application seeks a writ of Mandamus to be issued to the Department of Defense commanding it to cease, cure, or remedy retaliation against Plaintiff Cook P2, 3 Rule 65 Application for Preliminary Injunction. At the very minimum this issue warrants standing, discovery and determination by the jury. VII. Not Providing Opportunity to File Complaint

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The court erred in not giving the undersigned counsel an opportunity to file an actual Complaint. As the matter at hand was urgent, the counselor had filed a TRO and then an application for preliminary injunction. As the situation was changing by the day, the plaintiff needed time to respond to the motion to dismiss filed by the Department of Defense and Department of Justice and file an actual complaint. While the court could have jurisdiction to deny the TRO, it had no jurisdiction to deny the Application for Injunction and not give the plaintiff time to file the actual complaint. CONCLUSION Due to the above mentioned the district court erred in dismissing the above action due to lack of Jurisdiction. The Appellant respectfully requests reversal of this order. Respectfully submitted, /s/Orly Taitz ______________________ Dr. Orly Taitz 29839 Santa Margarita Parkway Rancho Santa Margarita, CA 92688 (949)-683-5411 December 7, 2009

Counsel for Appellant

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CERTIFICATE OF SERVICE I hereby certify that on this date I am causing two copies of the foregoing brief to be served by first-class mail, postage pre-paid, on the following counsel: Hugh Randolph Aderhold, JR Assistant US Attorney P.O. Box 1702 Macon, Georgia 31202-1702 (478) 752-3511 [email protected] Rebecca Elaine Ausprung US Army Litigation Division 901 N. Stuart Street, Suite 400 Arlington, Virginia 22203 (703) 696-1614 [email protected]

/s/Orly Taitz____________________ Dr. Orly Taitz, ESQ December 7, 2009

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No. 09-14698-CC ___________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ___________________________ STEFAN FREDRICK COOK, Plaintiff-Appellant, v. WANDA L. GOOD et al, Defendants-Appellees. ___________________________ On Appeal from the United States District Court for the Middle District of Georgia ___________________________ MOTION FOR LEAVE OF COURT ___________________________

Dr. Orly Taitz 29839 Santa Margarita Parkway, Suite 100 Rancho Santa Margarita, CA 92688 (949)-683-5411 Counsel for Appellant December 7, 2009

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MOTION FOR LEAVE OF COURT Undersigned counsel respectfully motions the court for leave of court to file documents out of time due to the fact that she did not receive the briefing schedule. Additionally her Pro Hac Vice was approved only last week on December 2, 2009 and was received in her office only two days ago on December 5, 2009. This motion is submitted on December 7, 2009 within allowed 14 days since the dismissal on November 24, 2009 as provided by local rules 42-1, 42-2 and 42-3. Appellant brief and record excerpts are attached.

Respectfully submitted, /s/ Orly Taitz ______________________ Dr. Orly Taitz, ESQ 29839 Santa Margarita Parkway Rancho Santa Margarita, CA 92688 (949)-683-5411 December 7, 2009

Counsel for Appellant

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Designation of Records Counsel for the appellant herewith designates the following documents to be transmitted for the purpose of appeal heretofore filed in the above entitled case: 1. 07.16.09. Order to dismiss from Judge Clay D. Land 2. Transcript of the TRO hearing on the 07.16.09. 3. Motion for TRO 4. Rule 65 motion for injunction Certificate of word count The undersigned counsel certifies that the appellant brief is 21 pages long and does not exceed allowed 30 page count or 14,000 word count.

CERTIFICATE OF SERVICE I hereby certify that on this date I am causing two copies of the foregoing brief to be served by first-class mail, postage pre-paid, on the following counsel: Hugh Randolph Aderhold, JR Assistant US Attorney P.O. Box 1702 Macon, Georgia 31202-1702 (478) 752-3511 20

[email protected] Rebecca Elaine Ausprung US Army Litigation Division 901 N. Stuart Street, Suite 400 Arlington, Virginia 22203 (703) 696-1614 [email protected]

/s/ Orly Taitz__________________ Dr. Orly Taitz, ESQ December 7, 2009

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