This shows you how nuts the whole birther thing has gotten.
A fascinating read. Justice does work.




IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
CONNIE RHODES,
Plaintiff,
vs.
THOMAS D. MACDONALD, Colonel,
Garrison Commander, Fort
Benning; et al.,
Defendants.
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CASE NO. 4:09-CV-106 (CDL)
O R D E R
Plaintiff, a Captain in the United States Army, seeks a
temporary restraining order to prevent the Army from deploying her to
Iraq in support of Operation Iraqi Freedom. Plaintiff alleges that
her deployment orders are unconstitutional and unenforceable because
President Barack Obama is not constitutionally eligible to act as
Commander in Chief of the United States armed forces. After
conducting a hearing on Plaintiff's motion, the Court finds that
Plaintiff's claims are frivolous. Accordingly, her application for
a temporary restraining order (Doc. 3) is denied, and her Complaint
is dismissed in its entirety. Furthermore, 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.
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 maintains that President
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Article II, Section 1, Clause 4 of the United States Constitution
1
provides in relevant part that "No Person except a natural born Citizen
. . . shall be eligible to the Office of President."
This Court dismissed an earlier action filed by Plaintiff's counsel
2
on behalf of a military reservist 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).
2
Barack Obama was not born in the United States, and, therefore, he is
not eligible to be President of the United States. See Dr. Orly
1
Taitz, Esquire, http://www.orlytaitzesq.com (last visited Sept. 15,
2009). Counsel has filed numerous lawsuits in various parts of the
country seeking a judicial determination as to the President's
legitimacy to hold the office of President. The present action is
the second such action filed in this Court in which counsel pursues
her "birther claim." Her modus operandi is to use military officers
as parties and have them allege that they should not be required to
follow deployment orders because President Obama is not
constitutionally qualified to be President. Although counsel has
managed to fuel this "birther movement" with her litigation and press
conferences, she does not appear to have prevailed on a single claim.2
In fact, Plaintiff previously filed the present action in the United
States District Court for the Western District of Texas. That Court
summarily dismissed her complaint upon finding that Plaintiff "has no
substantial likelihood of success on the merits." Rhodes v. Gates,
5:09-CV-00703-XR, Order Den. Mot. for TRO 3 (W.D. Tex. Aug. 28,
2009). Counsel then re-filed the same action in this Court.
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The Court observes that the President defeated seven opponents in
3
a grueling campaign for his party's nomination that lasted more than
eighteen months and cost those opponents well over $300 million. See
Federal Election Commission, Presidential Pre-Nomination Campaign
Disbursements Dec. 31, 2008, http://www.fec.gov/press/press2009/
20090608Pres/3_2008PresPrimaryCmpgnDis.pdf (last visited Sept. 15, 2009).
Then the President faced a formidable opponent in the general election who
received $84 million to conduct his general election campaign against the
President. Press Release, Federal Election Commission, 2008 Presidential
Campaign Financial Activity Summarized (June 8, 2009), available at
http://www.fec.gov/press/press2009/20090608PresStat.shtml. It would
appear that ample opportunity existed for discovery of evidence that would
support any contention that the President was not eligible for the office
he sought.
Furthermore, Congress is apparently satisfied that 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 is not eligible for office.
See H.R. Res. 593, 111th Cong. (2009) (commemorating, by vote of 378-0,
the 50th anniversary of Hawaii's statehood and stating, "the 44th
President of the United States, Barack Obama, was born in Hawaii on August
4, 1961").
3
Plaintiff's counsel speculates that President Obama was not born
in the United States based upon the President's alleged refusal to
disclose publicly an "official birth certificate" that is
satisfactory to Plaintiff's counsel and her followers. She therefore
seeks to have the judiciary compel the President to produce
"satisfactory" proof that he was born in the United States. Counsel
makes these allegations although a "short-form" birth certificate has
been made publicly available which indicates that the President was
born in Honolulu, Hawaii on August 4, 1961.3
To press her "birther agenda," Plaintiff's counsel has filed the
present action on behalf of Captain Rhodes. Captain Rhodes entered
the Army in March of 2005 and presently serves as a medical doctor.
The American taxpayers paid for her third and fourth years of medical
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school and financially supported her during her subsequent medical
internship and residency program. In exchange for this valuable free
medical education, Captain Rhodes agreed to serve two years in active
service in the Army. She began that term of active service in July
of 2008 and had no concerns about fulfilling her military obligation
until she received orders notifying her that she would be deployed to
Iraq in September of 2009.
Captain Rhodes does not seek a discharge from the Army; nor does
she wish to be relieved entirely from her two year active service
obligation. She has not previously made any official complaints
regarding any orders or assignments that she has received, including
orders that have been issued since President Obama became Commander
in Chief. But she does not want to go to Iraq (or to any other
destination where she may be in harm's way, for that matter). Her
"conscientious objections" to serving under the current Commander in
Chief apparently can be accommodated as long as she is permitted to
remain on American soil.
Captain Rhodes is presently stationed at Ft. Benning, Georgia
awaiting deployment to Iraq. This deployment is imminent and will
likely occur absent an order from this Court granting Plaintiff's
motion for a temporary restraining order.
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DISCUSSION
I. Jurisdiction and Abstention
Plaintiff seeks to have this Court declare a deployment order
issued by the United States Army void and unenforceable. It is well
settled that judicial interference in internal military affairs is
disfavored. As the Supreme Court has explained:
[J]udges are not given the task of running the Army. The
responsibility for setting up channels through which such
grievances can be considered and fairly settled rests upon
the Congress and upon the President of the United States
and his subordinates. The military constitutes a
specialized community governed by a separate discipline
from that of the civilian. Orderly government requires that
the judiciary be as scrupulous not to interfere with
legitimate Army matters as the Army must be scrupulous not
to intervene in judicial matters.
Orloff v. Willoughby, 345 U.S. 83, 93-94 (1953), quoted with approval
in Winck v. England, 327 F.3d 1296, 1302-03 (11th Cir. 2003). The
limitation on the judiciary's involvement in military affairs does
not mean that such interference is never appropriate. However, "'a
court should not review internal military affairs in the absence of
(a) an allegation of the deprivation 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 available
intraservice corrective measures.'" Winck, 327 F.3d at 1303 (quoting
Mindes v. Seaman, 453 F.2d 197, 201 (5th Cir. 1971)). Moreover, mere
allegations of a constitutional violation unsupported by a reasonable
factual foundation are insufficient to warrant judicial review. To
hold otherwise would be to create chaos within the military decision-
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making process and chain of command. As explained below, the Court
must balance several factors to determine whether judicial review of
a military decision is authorized.
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. See Winck, 327
F.3d at 1304. In the present case, Defendants do not contend that
Plaintiff was required to exhaust her intraservice administrative
remedies, presumably because no procedure is in place for a soldier
to contest the qualifications of the Commander in Chief. Defendants
do argue, however, that the dispute presented by Plaintiff's
complaint is not justiciable in the courts.
Even if a soldier has exhausted her intraservice administrative
remedies, the Court must decline to review the military decision if
the review would constitute an inappropriate intrusion into military
matters. Id. at 1303 & n.4 (citing Mindes, 453 F.2d at 201). It has
long been the law in this Circuit that in determining whether
judicial review of a military decision should be undertaken, the
reviewing court
'must examine the substance of that allegation in light of
the policy reasons behind nonreview of military matters,'
balancing four factors: (1) 'The nature and strength of the
plaintiff's challenge to the military determination'; (2)
'The potential 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 military expertise or
discretion is involved.'
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It is not always clear whether the analysis of the appropriateness
4
of judicial review of military decisions involves subject matter
jurisdiction or abstention principles based on comity and respect for the
unique military decision-making process. The Court finds that the proper
analysis in this case requires an evaluation of the deployment order using
principles of abstention. See Winck, 327 F.3d at 1299-1300
(distinguishing subject matter jurisdiction from abstention principles).
7
Winck, 327 F.3d at 1303 n.4 (quoting Mindes, 453 F.2d at 201).
Although certain aspects of the Mindes decision have been eroded
through the years, the Eleventh Circuit has relatively recently
reaffirmed the "unflagging strength of the principles of comity and
judicial noninterference with, and respect for, military operations
that informed" the analysis in Mindes. Winck, 327 F.3d at 1304.
4
Using the Mindes factors as an analytical framework, the Court
finds that it is not authorized to interfere with Plaintiff's
deployment orders. First, Plaintiff's challenge to her deployment
order is frivolous. She has presented no credible evidence and has
made no reliable factual allegations to support her unsubstantiated,
conclusory allegations and conjecture that President Obama is
ineligible to serve as President of the United States. 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.)
She continues with bare, conclusory allegations that the President is
"an alien, possibly even an unnaturalized or even an unadmitted
illegal alien . . . without so much as lawful residency in the United
States." (Id. ¶ 26.) Then, implying that the President is either a
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wandering nomad or a prolific identity fraud crook, she alleges that
the President "might have used as many as 149 addresses and 39 social
security numbers prior to assuming the office of President." (Id. ¶
110 (emphasis added).) Acknowledging the existence of a document
that shows the President was born in Hawaii, Plaintiff alleges that
the document "cannot be verified as genuine, and should be presumed
fraudulent." (Id. ¶ 113 (emphasis added).) In further support of
her claim, Plaintiff relies upon "the general opinion in the rest of
the world" that "Barack Hussein Obama has, in essence, slipped
through the guardrails to become President." (Id. ¶ 128.) Moreover,
as though the "general opinion in the rest of the world" were not
enough, Plaintiff alleges in her Complaint that according to an "AOL
poll 85% of Americans believe that Obama was not vetted, needs to be
vetted and his vital records need to be produced." (Id. ¶ 154.)
Finally, in a remarkable shifting of the traditional legal burden of
proof, Plaintiff unashamedly alleges that Defendant has the burden to
prove his "natural born" status. (Id. ¶¶ 136-138, 148.) Thus,
Plaintiff's counsel, who champions herself as a defender of liberty
and freedom, seeks to use the power of the judiciary to compel a
citizen, albeit the President of the United States, to "prove his
innocence" to "charges" that are based upon conjecture and
speculation. Any middle school civics student would readily
recognize the irony of abandoning fundamental principles upon which
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our Country was founded in order to purportedly "protect and
preserve" those very principles.
Although the Court has determined that the appropriate analysis
here involves principles of abstention and not an examination of
whether Plaintiff's complaint fails to state a claim under Federal
Rule of Civil Procedure 12(b)(6), the Court does find the Rule
12(b)(6) analysis helpful in confirming the Court's conclusion that
Plaintiff's claim has no merit. To state a claim upon which relief
may be granted, Plaintiff must allege sufficient facts to state a
claim to relief that is "plausible on its face." Ashcroft v. Iqbal,
129 S.Ct. 1937, 1949 (2009) (internal quotation marks omitted). For
a complaint to be facially plausible, the Court must be able "to draw
the reasonable inference that the defendant is liable for the
misconduct alleged" based upon a review of the factual content pled
by the Plaintiff. Id. The factual allegations must be sufficient
"to raise a right to relief above the speculative level." Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007). Plaintiff's complaint is
not plausible on its face. To the extent that it alleges any
"facts," the Complaint does not connect those facts to any actual
violation of Plaintiff's individual constitutional rights. Unlike in
Alice in Wonderland, simply saying something is so does not make it
so. The weakness of Plaintiff's claim certainly weighs heavily
against judicial review of the deployment order, and in fact, would
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One piece of "evidence" Plaintiff's counsel relies upon deserves
5
further discussion. Counsel has produced a document that she claims shows
the President was born in Kenya, yet she has not authenticated that
document. She has produced an affidavit from someone who allegedly
obtained the document from a hospital in Mombasa, Kenya by paying "a cash
'consideration' to a Kenyan military officer on duty to look the other
way, while [he] obtained the copy" of the document. (Smith Decl. ¶ 7,
Sept. 3, 2009.) Counsel has not, however, produced an original
certificate of authentication from the government agency that supposedly
has official custody of the document. Therefore, the Court finds that the
alleged document is unreliable due to counsel's failure to properly
authenticate the document. See Fed. R. Evid. 901.
10
authorize dismissal of Plaintiff's complaint for failure to state a
claim.5
Examining the second Mindes factor, the Court further finds that
the risk of potential irreparable injury to Plaintiff as a result of
the Court's refusal to review the deployment order is minimal.
Plaintiff has not sought to be excused from all military service.
She does not seek a discharge from the Army.   She does not even seek
to avoid taking military orders under President Obama's watch. She
simply seeks to avoid being deployed to Iraq.   As observed by the
Eleventh Circuit, one "cannot say that military deployment, in and of
itself, necessarily entails [irreparable harm], even if to volatile
regions." Winck, 327 F.3d at 1305 n.9. "Holding otherwise could
unduly hamper urgent military operations during times of crisis."
Id. Thus, the lack of potential irreparable harm to Plaintiff weighs
against judicial review.
Finally, the "type and degree of anticipated interference with
the military function" that judicial review would cause is
significantly burdensome. Any interference with a deployment order
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injects the Court directly into the internal affairs of the military.
This type of interference has serious implications. For example, it
would encourage other soldiers who are not satisfied with their
deployment destination to seek review in the courts. It also will
have an adverse effect on other soldiers who honorably perform their
duties. Presumably, some other military doctor, who does not resort
to frivolous litigation to question the President's legitimacy as
Commander in Chief, would be required to go to Iraq in Plaintiff's
place. Similarly, the doctor who Plaintiff is being sent to relieve
and who has likely been there for months would be delayed in
receiving his well deserved leave because his replacement seeks
special treatment due to her political views or reservations about
being placed in harm's way. "It is not difficult to see that the
exercise of such jurisdiction as is here urged would be a disruptive
force as to affairs peculiarly within the jurisdiction of the
military authorities." Orloff, 345 U.S. at 94-95.
Based on an evaluation of all of these factors, the Court
concludes that it must abstain from interfering with the Army's
deployment orders. Accordingly, Plaintiff's motion for a temporary
restraining order is denied, and her complaint is dismissed in its
entirety.
II. Failure to Satisfy Elements for Temporary Restraining Order
Even if the Court did not abstain from deciding the merits of
Plaintiff's claim, the Court finds that Plaintiff has failed to
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establish her entitlement to a temporary restraining order.
Plaintiff must establish the following to obtain a temporary
restraining order:
(1) [Plaintiff] has a substantial likelihood of success on
the merits;
(2) irreparable injury will be suffered unless the
injunction issues;
(3) the threatened injury to [Plaintiff] outweighs whatever
damage the proposed injunction may cause the opposing
party; and
(4) if issued, the injunction would not be adverse to the
public interest.
Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1223, 1231 (11th Cir.
2005).
As explained previously, Plaintiff has demonstrated no
likelihood of success on the merits. Her claims are based on sheer
conjecture and speculation. She alleges no factual basis for her
"hunch" or "feeling" or subjective belief that the President was not
born in the United States. Moreover, she cites no legal authority
supporting her bold contention that the alleged "cloud" over the
President's birthplace amounts to a violation of her individual
constitutional rights. Thus, for these reasons alone, she is not
entitled to a temporary restraining order.
Second, as previously noted, the Court's refusal to interfere
with Plaintiff's deployment orders does not pose a substantial threat
of irreparable injury to her. Plaintiff does not seek to be
discharged and apparently is willing to follow all orders from her
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military command except for any order that deploys her to Iraq.
Although close proximity to any combat zone certainly involves
personal danger, Plaintiff, somewhat disingenuously, claims that fear
is not her motivation for avoiding her military duty. She insists
that she would have no qualms about fulfilling her duties if
President George W. Bush was still in office. The Court cannot find
from the present record that deployment to Iraq under the current
administration will subject Plaintiff to any threat of harm that is
different than the harm to which she would be exposed if another
candidate had won the election. A substantial threat of irreparable
harm related to her desire not to serve in Iraq under the current
President simply does not exist.
Third, any potential threatened injury that may be caused to
Plaintiff by the denial of the temporary restraining order certainly
does not outweigh the harm that will result if the injunction is
granted. As mentioned previously, the threatened injury to Plaintiff
is not substantial; yet if the temporary restraining order was
granted, the harmful interference with military operations would be
significant.
Finally, Plaintiff has failed to establish that the granting of
the temporary restraining order will not be adverse to the public
interest. A spurious claim questioning the President's
constitutional legitimacy may be protected by the First Amendment,
but a Court's placement of its imprimatur upon a claim that is so
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lacking in factual support that it is frivolous would undoubtedly
disserve the public interest.
For all of these reasons, the Court finds that Plaintiff's
motion for a temporary restraining order should be denied.
CONCLUSION
For the reasons previously stated, Plaintiff's motion for a
temporary restraining order is denied and Plaintiff's complaint is
dismissed in its entirety. Defendants shall recover their costs from
Plaintiff. See Fed. R. Civ. P. 54(d).
IT IS SO ORDERED, this 16th day of September, 2009.
S/Clay D. Land            
CLAY D. LAND         
UNITED STATES DISTRICT JUDGE
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