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09 15418 BB
Plaintiffs-Appellants,
vs.
Defendant-Appellee.
__________________
__________________
INTERESTED PERSONS
The following persons may have an interest in the outcome of this matter:
oral argument.
-i-
TABLE OF CONTENTS Page
I. STATEMENT OF JURISDICTION
C. Final Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
D. Timeliness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
V. SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
VI. ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
A. Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
D. Best Practices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
-ii-
VII. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
-iii-
TABLE OF AUTHORITIES
CASES
Bridges v. California,
314 U.S. 252, 270-271, 86 L. Ed. 192, 62 S. Ct. 190 (1941) . . . . . . . . . . 13
Hollister v. Soetoro,
258 F.R.D. 1 (DC Dist. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Hutchinson v Pfeil,
208 F3d 1180 (10th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Johnson v Cherry,
422 F3d 540, 556 (7th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
-iv-
Mississippi Bar v. Lumumba,
912 So. 2d 871; 2005 Miss. LEXIS 175 (2005) . . . . . . . . . . . . . . . . . . . . . 11
Standing Committee for Discipline of the United States District Court for the
Central District of California v. Stephen Yagman,
55 F.3d 1430, 1445 (9th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
STATUTES
28 U.S.C. § 1291. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
FEDERAL RULES
-v-
UNITED STATES COURT OF APPEALS
Defendant-Appellee.
I. STATEMENT OF JURISDICTION
The court below had jurisdiction to entertain this matter because all claims
brought herein related to alleged violations of the United States Constitution and
various federal statutes, including Article II, Section 1, Clause 4 of the United
Page 1 of 15
B. This Court’s Jurisdiction
C. Final Order
This appeal is from an order rendered on October 13, 2009 that sanctioned
Appellant $20,000 under FRCP Rule 11. (Doc 28) Appellant appealed in pro se on
October 20, 2009 ( Doc. 29) prior to the entry of final judgment on November 13,
2009. (Doc. 36) In this situation, Appellant as a non-party attorney need not have
D. Timeliness
Plaintiff filed a timely Notice of Appeal on October 20, 2009 (Doc. 29).
sanctions sua sponte because: The District Court failed to provide appropriate due
process to Appellant under FRCP Rule 11(c)(3) and abused its discretion.
Appellant was sanctioned $20,000 sua sponte by the District Court. Appellant
takes the position that regardless of the supposed content and tone of her
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pleadings, the proper procedure for institution of Rule 11 sua sponte sanctions was
temporary restraining order filed by Plaintiff (Plaintiff is not the Appellant here), a
Captain in the United States Army, who sought a temporary restraining order to
prevent the Army from deploying her to Iraq. Plaintiff alleges that her deployment
armed forces for failure to meet the requirements of being a natural born US
citizen under Article II, Section 1, Clause 4 of the United States Constitution
which states: “No person except a natural born citizen, or a citizen of the United
States, at the time of the adoption of this Constitution, shall be eligible to the
office of President; neither shall any person be eligible to that office who shall not
have attained to the age of thirty five years, and been fourteen Years a resident
The District Court then dismissed the complaint for several reasons
including insufficient plausible facts under FRCP Rule 8, comity and judicial
noninterference with, and respect for, military operations and the abstention
doctrine.
Page 3 of 15
The District Court found the Plaintiff’s claims to be frivolous and awarded
costs under FRCP Rule 54(d) to Defendants. More to the point of this appeal, the
Court sua sponte ordered Appellant that any further filings deemed frivolous by
the District Court would result in sanctions under Rule 11(c): “Plaintiff’s counsel
is hereby notified that the filing of any future actions in this Court, which are
Court despite its plain finding that Rule 11 had come into play did not afford
11(c)(4).
Appellant then filed a Motion to Reconsider (Doc. 15) which the District
Court found objectionable for numerous reasons and issued an Order to Show
Cause under Rule 11(c) for sanctions in the amount of $10,000 (Doc. 17).
Appellant then filed a Motion to Recuse the District Court Judge (Doc. 24)
and Motion to Extend Time to Respond to the OSC for Rule 11 Sanctions Doc.
25). This resulted in a 43 page ruling by the District Court Judge which imposed
Appellant then abandoned her efforts in District Court as futile and filed a
Notice of Appeal pro se (Doc. 29) and then retained counsel who filed a Motion
Page 4 of 15
V. SUMMARY OF ARGUMENT
of the United States Constitution. The District Court found the underlying case to
actions in that court or face further Rule 11 sanctions. Appellant was not afforded
an opportunity to respond to the initial finding that the underlying case was
frivolous under Rule 11 hence the Motion for Reconsideration which resulted in
an order of monetary sanctions under Rule 11 and an Order to Show Cause. When
Rule 11 order was entered with no opportunity tor respond from which Appellant
now appeals.
Rule 11 sanctions sua sponte, the District Court erred and abused its discretion in
hearing by another judge would have been the better practice since the District
Court was obviously exasperated with Appellant and what the District Court
Page 5 of 15
VI. ARGUMENT
A. Standard of Review
discretion standard. See Cooter & Gell v. Hartmarx Corp., 496 U.S. 384 (1990).
“On the Court's Initiative. On its own, the court may order an attorney, law
firm, or party to show cause why conduct specifically described in the order
has not violated Rule 11(b).”
Appellant contends there were three nested or interlocking sua sponte Rule 11
1. The September 16, 2009 Order which made a finding the underlying
Appellant under Rule 11: “Furthermore, Plaintiff’s counsel is hereby notified that
the filing of any future actions in this Court, which are similarly frivolous, shall
2. The September 18, 2009 Order which sanctioned Appellant $10,000 and
found her Motion for Reconsideration and Stay (Doc. 15) was frivolous and
ordered her to show cause why monetary sanctions should not be imposed. (Doc.
3. The October 13, 2009 Order (Doc. 28) that sanctioned Appellant $20,000
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and specifically ordered that she was not entitled to any notice or opportunity to
respond to the new sanction for reasons of judicial economy: “There is no risk that
the imposition of the sanction is erroneous under the procedures used, and
additional notice and hearing would have no value.” (Doc. 28, pg. 39 of 43).
Of the three orders, only one, the September 18, 2009 order, attempted to
follow the proper procedure under Rule 11 and even this is questionable since
Appellant was not able to file her actual response due to the imposition of the
subsequent October 13, 2009 sanctions. However, since these were interlocking
one would vitiate its successor that relied upon the previous finding.
An out of circuit case dealing with of Rule 111 sanctions from the Supreme
1
Rule 11 of the Northern Mariana Islands Commonwealth Rules of Civil Procedure is
identical in wording to FRCP Rule 11. See: http://cnmilaw.org/pdf/court_rules/R03.pdf
Page 7 of 15
Appellant, despite her many alleged pleading’s transgressions, still was entitled to
the District Court’s feeling about judicial economy or Constitutional Due Process:
Additionally a hearing was in order, since Appellant was sanctioned not for her
behavior in the courtroom but for her written pleadings and speech outside court.
The District Court made this influence clear when it cited to Appellant’s website
in support of its initial finding that the underlying case was frivolous: “See Dr.
sponte sanctions be vacated. See Johnson v Cherry 422 F3d 540, 556 (7th Cir.
2005) wherein it was deemed imposition of sua sponte Rule 11 sanctions against
similar result vacating sua sponte sanctions due to failure of the District Court to
adhere to the letter of the law in Rule 11(c)(3) as to notice and hearing occurred in
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The Eleventh Circuit follows the 7th and 10th Circuit rule that requires Rule
Kaplan v. DaimlerChrysler, A.G., 331 F.3d 1251, 1255 (11th Cir. 2003) and
Flowers v. Life University, 2006 U.S. Dist. LEXIS 11619 (ND GA 2006).
“...When a court sua sponte invokes the rule under Rule 11 (c)(1)(B),
it "must employ (1) a show-cause order to provide notice and an
opportunity to be heard; and (2) a higher standard ('akin to contempt')
than in the case of party-initiated sanctions." Kaplan, 331 F.3d at
1255.” Baker v. African Methodist Episcopal Church Non-Profit,
Inc., 2005 U.S. Dist. LEXIS 11621, (SD GA, 2005).
The District Court was well aware of the Kaplan standard in the 11th Circuit but
“As previously explained, the Court finds that Ms. Taitz is not
entitled to that full panoply of rights under the circumstances of this
case. The process used in this case protected Ms. Taitz’s rights to the
extent required by constitutional due process.” (Doc. 28, pg. 40 of
43). [Emphasis added]
Page 9 of 15
Instead, she uses her Complaint as a platform for spouting political
rhetoric, such as her claims that the President is “an illegal usurper, an
unlawful pretender, [and] an unqualified imposter.” (Compl. ¶ 21.)”
(Doc 13, pg. 7 of 14).
This political aspect that permeates the Rule 11 orders requires careful analysis.
There has been by one count well over sixty actions filed nationwide
challenging the qualifications of the current president under Article II, Section 1,
Clause 4 of the United States Constitution or similar grounds.2 To date, only one
other case has resulted in FRCP Rule 11 sanctions, a non monetary reprimand to
an 82 year old attorney, John Hemenway, who was adjudged to have filed an ill
One criticism of these “natural born” lawsuits echoed by the District Court
is that they are filed by so called “birthers” who are somehow organized and under
the leadership of Appellant. Appellant has been tagged by the press with many
colorful sobriquets the least offensive of which may be the “Queen Bee of the
2
http://tesibria.typepad.com/whats_your_evidence/BIRTHER%20CASE%20LIST.
pdf [Last visited 12/6/09]
Page 10 of 15
Birthers.”3
by the Appellant. Yet political speech itself is not grounds for Rule 11 sanctions.
In fact, political speech by an attorney outside the court room has long been
considered under the ambit of the First Amendment’s protections. See Gentile v.
State Bar of Nevada, 501 U.S. 1030, 1058 (1991). Thus the alleged “birther
another matter however that is not the case here. See for example Mississippi Bar
v. Lumumba, 912 So. 2d 871; 2005 Miss. LEXIS 175 (2005) for an example of the
D. Best Practices
In hindsight it is easy to criticize the District Court for not handling what it
Development v. Tokai, when sua sponte Rule 11sanctions touch on matters outside
the courtroom, holding a hearing may be the better practice. Additionally, this
case was complicated by what the District Court found to be a frivolous Motion to
judge, the District Court chose to deal with it personally without a hearing.
“Ms. Taitz alleges that the undersigned may have discussed this case
with the Attorney General of the United States. In support of this
accusation, counsel submits the affidavit of Robert D. Douglas.”
(Doc. 28, pg. 16 of 43 et seq.).
Ultimately the District Court satisfied itself that neither allegation was true
though the reasoning is less than objective. As to Attorney General Holder, the
District Court decided that since news service accounts pegged the Attorney
General in Los Angeles that day, he could not be in Georgia on the same day.
(Doc. 28, pg. 17 of 43, fn 16). In theory the Attorney General could have jetted
over to the coffee shop across the street from the court house where the affiant
claims to have spotted Mr. Holder for a quick chat with the District Court. (Doc.
28, pg. 17 of 43). At any rate, the Court did not produce an affidavit from Mr.
Holder or other responsible party instead choosing to rely upon the supposed
Page 12 of 15
better been handled by another District Court judge. The District Court simply
Perhaps the Motion to Recuse might have been worded differently to avoid
offending the District Court’s sensibilities however as noted by the Ninth Circuit
However, even if the District Court found Appellant’s Motion to recuse personally
distasteful, this by itself does not harm of the administration of justice. Lawyers
will try to disqualify judges they feel are biased and fail, but this by itself does not
justify sanctions nor present a clear and present danger to the administration of
justice. See Standing Committee for Discipline of the United States District Court
for the Central District of California v. Stephen Yagman at 55 F.3d 1444 et. seq.
Page 13 of 15
VII. CONCLUSION
Supreme Court Justice Felix Frankfurter writing for the Court in Offutt v.
United States noted that when a judge perceives she is dealing with an
argumentative attorney, the best results are achieved when that judge acts with
The District Court abused its discretion by not affording Appellant proper notice
or a hearing which would at the very least would have served to disambiguate the
situation. Additionally per Offutt at the point the District Court judge become
personally embroiled with Appellant, he should have referred the matter to another
judge for resolution. Offutt at 348 U.S. 11, 17 citing to Cooke v. United States, 267
U.S. 517 (1925). Therefore for the reasons and material defects stated above the
___________s/________________
JONATHAN H. LEVY
ORLY TAITZ, IN PRO SE
Attorneys for Appellant
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CERTIFICATE OF COMPLIANCE PURSUANT TO FED. R. APP. P. 32(A)(7)(C)
FOR CASE NUMBER NO. 08-16060
JONATHAN H. LEVY
Attorney for Appellant
CERTIFICATE OF SERVICE
I hereby certify that on this date I am causing two copies of the foregoing brief and
to be served by first-class mail, postage pre-paid, on the following counsel:
Rebecca Elaine Ausprung U.S. Army Litigation Division 901 North Stuart Street
Suite 400 Arlington, Virginia 22203 Email: ebecca.ausprung@us.army.mil
Sheetul S. Wall U.S. Attorney’s Office P.P.O. Box 2568 Columbus, Georgia
31902-2568 Email: Sheetul.S.Wall@usdoj.gov
Signature S/
Jonathan Levy
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