cook v. good, cc initial brief of appellant

8/14/2019 Cook v. Good, CC Initial Brief of Appellant

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No. 09-14698-CC___________________________

IN THE UNITED STATES COURT OF APPEALSFOR THE ELEVENTH CIRCUIT___________________________

STEFAN FREDRICK COOK,Plaintiff-Appellant,

v.

WANDA L. GOOD et al,

Defendants-Appellees.___________________________

On Appeal from the United States District Courtfor the Middle District of Georgia___________________________

BRIEF FOR APPELLANT___________________________

Dr. Orly Taitz29839 Santa Margarita Parkway, Suite 100

Rancho Santa Margarita, CA 92688(949) 683-5411

Counsel for Appellant

December 7, 2009

Found at:

The Florida Legal Blog

www.floridalegalblog.org


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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...................................6B. 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.....................................7III. Imminent Not Hypothetical Injury...............................................8IV. Exception to Repetition, Evasion Mootness Doctrine..................8V. Standing of Additional Plaintiffs................................................10VI. Ignoring Whistleblower Acts......................................................10VII. Not Providing Opportunity to File Complaint............................10

CONCLUSION ............................................................................................11

CERTIFICATE OF SERVICE

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MOTION FOR LEAVE OF COURT...........................................................11CERTIFICATE 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 Assnn v. Baker,

893 F.2d 1374, 1377 (D.C. Cir 1990) ................................................14

STATUTES

4th Amendment to the US Constitution ...................................................11

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 .12

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STATEMENT OF JURISDICTION

This court has jurisdiction, as the order being reviewed came from the 11th

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

Plaintiffs-Appellants 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,

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where Mr. Obama was born, according to Mr. Obamas 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. Obamas 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

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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. Obamas 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 Cooks

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 Cooks 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

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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 didnt 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 REVIEWThe standard of review is Whether the district court has

1.abused its discretionin 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.

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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 Defendants motion to dismiss was filed. The courts

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

appellants 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 Cooks 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

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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 didnt 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 plaintiffs 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 oppositeFound at:The Florida Legal Blog



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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 DoctrineThe court ruled that there was no evidence for the undersigned

counselors 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 wasFound at:The Florida Legal Blog



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rendered moot after each delivery, at which time the above doctrine was

introduced. It was actually argued that some cynics might say that Obamas

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 Assnn v Baker, 893 F.2d 1374, 1377 (D.C. Cir

1990). Not only is this specifically an issue that is capable ofrepetition,

yet evading review, Judge Lands finding evades the premises of basic

human logic. Even if Major Cooks 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 PlaintiffsFound at:




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The court found that two officers who joined this action as additional

plaintiffs do not have standing to pursue their claimsp3. 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 Taitz29839 Santa Margarita ParkwayRancho Santa Margarita, CA 92688(949)-683-5411

December 7, 2009 Counsel for Appellant

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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, JRAssistant US AttorneyP.O. Box 1702Macon, Georgia 31202-1702(478) [email protected]

Rebecca Elaine AusprungUS Army Litigation Division901 N. Stuart Street, Suite 400Arlington, Virginia 22203(703) [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 APPEALSFOR THE ELEVENTH CIRCUIT___________________________

STEFAN FREDRICK COOK,Plaintiff-Appellant,

v.

WANDA L. GOOD et al,

Defendants-Appellees.___________________________

On Appeal from the United States District Courtfor the Middle District of Georgia___________________________

MOTION FOR LEAVE OF COURT___________________________

Dr. Orly Taitz29839 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, ESQ29839 Santa Margarita ParkwayRancho 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. Land2. Transcript of the TRO hearing on the 07.16.09.3. Motion for TRO4. 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.


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, JRAssistant US AttorneyP.O. Box 1702Macon, Georgia 31202-1702(478) 752-3511

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[email protected]

Rebecca Elaine AusprungUS Army Litigation Division901 N. Stuart Street, Suite 400Arlington, Virginia 22203(703) [email protected]

/s/ Orly Taitz__________________Dr. Orly Taitz, ESQ

December 7, 2009

Found at:


cook v. good, cc initial brief of appellant

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