rhodes v macdonald, et al. (appeal) - e-brief tendered: appellant - pcrqhr4p

8/14/2019 RHODES v MacDONALD, et al. (APPEAL) - E-Brief Tendered: Appellant - PCRQHR4P

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No. 09 15418 BB

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

____________________

CAPTAIN CONNIE RHODES, et al.,

Plaintiffs-Appellants,

vs.

COLONEL THOMAS MACDONALD; et al.,

Defendant-Appellee.

__________________

APPELLANT ORLY TAITZS OPENING BRIEF

Appeal from Final Judgment of the United States District Court,

Middle District of Georgia, Honorable Clayton Land

District Court No. 4:09-cv-00106-CDL

__________________

DR. ORLY TAITZ

CSB #223433

Co-Counsel in Pro Se

29839 S. Margarita Pkwy.Rancho Santa Margarita

CA 92688

ph. 949-683-5411

fax 949-586-2082

JONATHAN H. LEVYCSB #158032

37 Royale Pointe Dr

Hilton Head, South Carolina 29926Tel/Fax: 202-318-2406

[email protected]

Attorneys for Appellant - Orly Taitz


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CORPORATE DISCLOSURE STATEMENT & CERTIFICATE OF

INTERESTED PERSONS

This statement is made pursuant to Federal Rule of Appellate Procedure

26.1. Appellant is an individual and not a corporation.

The following persons may have an interest in the outcome of this matter:

The California State Bar;

The Honorable Clayton Land.

STATEMENT REGARDING ORAL ARGUMENT

Appellant believes this matter is suitable for an expedited ruling without

oral argument.


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TABLE OF CONTENTS Page

I. STATEMENT OF JURISDICTION

A. District Court Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

B. This Courts Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

C. Final Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

D. Timeliness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

II. STATEMENT OF ISSUES PRESENTED FOR APPEAL

A. The District Court Erred . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

III. STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

IV. STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

V. SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

VI. ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

A. Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

B. FRCP Rule 11(c)(3) Sua Sponte Sanctions . . . . . . . . . . . . . . . . . . . . . . 6

C. Political Speech & Sanctions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

D. Best Practices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11


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VII. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . Addendum - 15


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TABLE OF AUTHORITIES

CASES

Baker v. African Methodist Episcopal Church Non-Profit, Inc.,2005 U.S. Dist. LEXIS 11621, (SD GA, 2005). . . . . . . . . . . . . . . . . . . . . 9

Bridges v. California,314 U.S. 252, 270-271, 86 L. Ed. 192, 62 S. Ct. 190 (1941) . . . . . . . . . . 13

Cooke v. United States,267 U.S. 517 (1925) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Cooter & Gell v. Hartmarx Corp.,496 U.S. 384 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Flowers v. Life University,2006 U.S. Dist. LEXIS 11619 (ND GA 2006) . . . . . . . . . . . . . . . . . . . . . . 8

Gentile v. State Bar of Nevada,501 U.S. 1030, 1058 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

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

Kaplan v. DaimlerChrysler, A.G.,331 F.3d 1251, 1255 (11th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9

Lucky Development v. Tokai,3 N. Mar. I. 343; 1992 N. Mar. I. LEXIS 33 (1992) . . . . . . . . . . . . . . . . 7,11


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Mississippi Bar v. Lumumba,912 So. 2d 871; 2005 Miss. LEXIS 175 (2005) . . . . . . . . . . . . . . . . . . . . . 11

Offutt v. United States,

348 U.S. 11, 13 (1954) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13,14

Ortho Pharmaceutical v. Sona Distributors,847 F.2d 1512, 1515 (11th Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

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

Article II, Section 1, Clause 4 of the United States Constitution . . . . . . . . 1,3,5,11

28 U.S.C. 1291. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

FEDERAL RULES

Federal Rules of Civil Procedure, Rule 11 . . . . . . . . . . . . . . . . . . . . 1,2,5,6,7,8,11

Federal Rules of Civil Procedure, Rule 54 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Northern Mariana Islands Commonwealth Rules of Civil Procedure, Rule 11 . . 7


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Page 1 of 15

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

CONNIE RHODES, et al.,

Plaintiffs-Appellants,

v.

THOMAS MACDONALD, et al.,

Defendant-Appellee.

No. 09 15418 BB

D. C. No. 4:09-cv-00106-CDL

Middle District of Georgia

APPELLANTS OPENING BRIEF

I. STATEMENT OF JURISDICTION

A. District Court 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

States Constitution and Federal Rules of Civil Procedure Rule 11.


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Page 2 of 15

B. This Courts Jurisdiction

The Eleventh Circuit Court of Appeals has jurisdiction to entertain this

appeal pursuant to 28 U.S.C. 1291.

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

waited for a final judgment to appeal. See: Ortho Pharmaceutical v. Sona

Distributors, 847 F.2d 1512, 1515 (11th Cir. 1988).

D. Timeliness

Plaintiff filed a timely Notice of Appeal on October 20, 2009 (Doc. 29).

II. STATEMENT OF THE ISSUES

The District Court procedurally erred in making an award of Rule 11(c)

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.

III. STATEMENT OF THE CASE

This is an appeal of Rule 11 sanctions by Plaintiffs attorney, Orly Taitz.

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

not followed. Therefore the Rule 11 sanctions must be vacated.

IV. STATEMENT OF FACTS

The sanctions stem from the underlying complaint which involved a

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

orders were unconstitutional and unenforceable because President Barack Obama

is not constitutionally eligible to act as Commander in Chief of the United States

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

within the United States. [Emphasis added]

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.


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The District Court found the Plaintiffs 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): Plaintiffs counsel

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

similarly frivolous, shall subject counsel to sanctions. (Doc. 13 ) The District

Court despite its plain finding that Rule 11 had come into play did not afford

Plaintiff or Appellant to respond to this non monetary directive under Rule

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

an additional $10,000 sanction under Rule 11(c)(3) which amounted to a new

sanction for yet another reason (Doc. 28).

Appellant then abandoned her efforts in District Court as futile and filed a

Notice of Appealpro se (Doc. 29) and then retained counsel who filed a Motion

for Stay of Sanctions in this Court.


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V. SUMMARY OF ARGUMENT

Appellants Plaintiff brought a case or controversy based on the

interpretation of the natural citizenship clause of Article II, Section 1, Clause 4

of the United States Constitution. The District Court found the underlying case to

be frivolous under Rule 11 and ordered Appellant to file no further frivolous

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

Appellant challenged this improper procedure with a Motion to Recuse, a third

Rule 11 order was entered with no opportunity tor respond from which Appellant

now appeals.

Appellant contends that due to material irregularities in the imposition of

Rule 11 sanctions sua sponte, the District Court erred and abused its discretion in

ordering sanctions by not permitting proper response by Appellant and that a

hearing by another judge would have been the better practice since the District

Court was obviously exasperated with Appellant and what the District Court

termed political speech by Appellant.


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VI. ARGUMENT

A. Standard of Review

Appellate Review of Rule 11 sanctions are governed under the abuse of

discretion standard. See Cooter & Gell v. Hartmarx Corp., 496 U.S. 384 (1990).

B. FRCP Rule 11(c)(3) Sua Sponte Sanctions

FRCP Rule 11(c)(3) states:

On the Court's Initiative. On its own, the court may order an attorney, lawfirm, 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

sanctions in this matter:

1. The September 16, 2009 Order which made a finding the underlying

complaint was legally frivolous and imposed a non-monetary reprimand on

Appellant under Rule 11: Furthermore, Plaintiffs counsel is hereby notified that

the filing of any future actions in this Court, which are similarly frivolous, shall

subject counsel to sanctions. (Doc. 13, pg. 1 of 14)

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.

17, pg. 7 of 7).

3. The October 13, 2009 Order (Doc. 28) that sanctioned Appellant $20,000


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1 Rule 11 of the Northern Mariana Islands Commonwealth Rules of Civil Procedure isidentical in wording to FRCP Rule 11. See: http://cnmilaw.org/pdf/court_rules/R03.pdf

Page 7 of 15

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

Rule 11 sanctions, failure to provide adequate notice and opportunity to respond in

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

Court of the Commonwealth of the Northern Mariana Islands, Lucky Development

v. Tokai, 3 N. Mar. I. 343; 1992 N. Mar. I. LEXIS 33 (1992) philosophically sums

the matter up best:

Notice and an opportunity to respond must always be given beforesanctions can be imposed. The opportunity for a hearing must also begiven in those situations where a hearing would assist the court in itsdecision as to whether sanctions should be imposed or not. If theconduct being sanctioned occurs in the presence of the court andthere are no issues that a hearing would resolve, then a hearing wouldnot be necessary. However, notice and the opportunity to respondmust always be provided.


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Appellant, despite her many alleged pleadings transgressions, still was entitled to

notice and an opportunity to respond to each of the Rule 11 sanctions regardless of

the District Courts feeling about judicial economy or Constitutional Due Process:

Requiring additional procedures would result in an unjustifiabledisregard of the Courts interest in efficiently monitoring and using

judicial resources, with no measurable benefit to the legitimateinterests of counsel. The Court finds that the imposition of thesanction here complies with the requirements of constitutional dueprocess. (Doc. 28, pg. 39 of 43)

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 Appellants website

in support of its initial finding that the underlying case was frivolous: See Dr.

Orly Taitz, Esquire, http://www.orlytaitzesq.com (last visited Sept. 15,

2009). (Doc. 13, pg. 2 of 14)

Failure to provide adequate notice or hearing under Rule 11 requires sua

sponte sanctions be vacated. See Johnson v Cherry 422 F3d 540, 556 (7th Cir.

2005) wherein it was deemed imposition ofsua sponte Rule 11 sanctions against

an attorney without adequate notice or hearing was an abuse of discretion. A

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

Hutchinson v Pfeil 208 F3d 1180 (10th Cir. 2000).


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The Eleventh Circuit follows the 7th and 10th Circuit rule that requires Rule

11(c)(1)(B) sanctions must provide notice and an opportunity to respond. See

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 anopportunity to be heard; and (2) a higher standard ('akin to contempt')than in the case of party-initiated sanctions." Kaplan, 331 F.3d at1255. 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

chose to interpret otherwise:

The Court understands that such action by the Court isakin-to-contempt, and thus while criminal due process proceduresmay not be necessary, the Court must make sure that counsels dueprocess rights have been protected. See Kaplan v. DaimlerChrysler,

A.G., 331 F.3d, 1251, 1255-56 (11th Cir. 2003). (Doc. 28, pg. 39-40of 43).

As previously explained, the Court finds that Ms. Taitz is notentitled to that full panoply of rights under the circumstances of thiscase. The process used in this case protected Ms. Taitzs rights to theextent required by constitutional due process. (Doc. 28, pg. 40 of43). [Emphasis added]

Therefore, the three sanctions against Appellant should be vacated.

C. Political Speech & Sanctions

The District Court found that Appellants political speech was an

aggravating factor in assessing sanctions, for example:


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2http://tesibria.typepad.com/whats_your_evidence/BIRTHER%20CASE%20LIST.pdf [Last visited 12/6/09]

Page 10 of 15

Instead, she uses her Complaint as a platform for spouting politicalrhetoric, such as her claims that the President is an illegal usurper, anunlawful pretender, [and] an unqualified imposter. (Compl. 21.)(Doc 13, pg. 7 of 14).

Finally, it is clear that Plaintiffs counsel seeks to continue to use thefederal judiciary as a platform to further her political birtheragenda. (Doc. 17, pg. 6 of 7).

The absolute absence of any legitimate legal argument, combinedwith the political diatribe in her motions, demonstrates that Ms.Taitzs purpose is to advance a political agenda and not to pursue alegitimate legal cause of action.(Doc. 28, pg. 28 of 43).

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

advised interpleader inHollister v. Soetoro, 258 F.R.D. 1 (DC Dist. 2009).

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


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3 Orange County Weekly, June 17, 2009,www.ocweekly.com/2009-06-18/news/orly-taitz/ [last visited 12/006/09]

Page 11 of 15

Birthers.3

The District Court therefore was particularly concerned by political speech

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 Amendments protections. See Gentile v.

State Bar of Nevada, 501 U.S. 1030, 1058 (1991). Thus the alleged birther

agenda of the Appellant is irrelevant to Rule 11 sanctions especially without a

dispassionate examination and adequate due process. Of course offensive and

disrespectful behavior by an attorney within the confines of the court room is

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

sort of inappropriate court room decorum by an attorney not evidenced herein.

D. Best Practices

In hindsight it is easy to criticize the District Court for not handling what it

adjudged to be a difficult attorney better. However, as noted inLucky

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


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Recuse. (Doc. 28, pg. 13 of 43 et seq.) Rather than refer the matter to another

judge, the District Court chose to deal with it personally without a hearing.

Two allegations by Appellant in the recusal motion seemed to have

concerned the District Court most:

Ms. Taitz alleges that the undersigned may have discussed this casewith the Attorney General of the United States. In support of thisaccusation, counsel submits the affidavit of Robert D. Douglas.(Doc. 28, pg. 16 of 43 et seq.).

Counsels contention that the undersigned has a financial

interest in this case is perhaps more preposterous than the phantomvisit with the Attorney General. (Doc. 28, pg. 17 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

factual impossibility of being in Georgia and California on the same day.

As to the allegation of a financial interest in the proceedings. This may have


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better been handled by another District Court judge. The District Court simply

rejected the issue of stock ownership out of hand as irrelevant.

Perhaps the Motion to Recuse might have been worded differently to avoid

offending the District Courts sensibilities however as noted by the Ninth Circuit

in another case involving an infamously intemperate recusal attempt upon a

District Court judge :

The assumption that respect for the judiciary can be won byshielding judges from published criticism wrongly appraises the

character of American public opinion. For it is a prized Americanprivilege to speak one's mind, although not always with perfect goodtaste, on all public institutions. And an enforced silence, howeverlimited, solely in the name of preserving the dignity of the bench,would probably engender resentment, suspicion, and contempt muchmore than it would enhance respect. Standing Committee forDiscipline of the United States District Court for the Central District

of California v. Stephen Yagman, 55 F.3d 1430, 1445 (9th Cir. 1995)citing fromBridges v. California, 314 U.S. 252, 270-271, 86 L. Ed.

192, 62 S. Ct. 190 (1941).

However, even if the District Court found Appellants 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.


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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

restraint so as to not offend the fair administration of justice:

Of course personal attacks or innuendoes by a lawyer against ajudge, with a view to provoking him, only aggravate what may be anobstruction to the trial. The vital point is that in sitting in judgment onsuch a misbehaving lawyer the judge should not himself give vent to

personal spleen or respond to a personal grievance. These are subtlematters, for they concern the ingredients of what constitutes justice.Therefore, justice must satisfy the appearance of justice Offutt v.United States, 348 U.S. 11, 13 (1954).

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 Offuttat the point the District Court judge become

personally embroiled with Appellant, he should have referred the matter to another

judge for resolution. Offuttat 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

Rule 11 sanctions should be vacated in their entirety.

Dated: December 13v Macdonald AOB, 2009. Respectfully submitted,

___________s/________________JONATHAN H. LEVY

ORLY TAITZ, IN PRO SEAttorneys for Appellant


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CERTIFICATE OF COMPLIANCE PURSUANT TO FED.R.APP.P.32(A)(7)(C)

FOR CASE NUMBERNO.08-16060

I certify that: Pursuant to Fed. R. App. P. 32 (a)(7)(C), the attached openingbrief is proportionately spaced, has a typeface of 14 points or more and containsabout 3,900 words and less than 14,000 words.

Dated: December 13, 2009.Respectfully submitted,

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 andto be served by first-class mail, postage pre-paid, on the following counsel:

Rebecca Elaine Ausprung U.S. Army Litigation Division 901 North Stuart StreetSuite 400 Arlington, Virginia 22203 Email: [email protected]

Sheetul S. Wall U.S. Attorneys Office P.P.O. Box 2568 Columbus, Georgia31902-2568 Email: [email protected]

Signature S/

Jonathan Levy

Date: December 13, 2009

rhodes v macdonald, et al. (appeal) - e-brief tendered: appellant - pcrqhr4p

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