Here's a nice little gem from today's Middle District of GA court filing by the US Attorney, in cooperation with the Army. This is to be savored and enjoyed.
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
______________________________
MAJOR STEFAN FREDERICK COOK, )
)
Plaintiff, )
)
v. ) Case No. 4:09-CV-82 (CDL)
)
COLONEL WANDA L. GOOD, et al. )
)
Defendants. )
)
MEMORANDUM IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS
PLAINTIFF’S APPLICATION FOR A TEMPORARY RESTRAINING ORDER
COMES NOW Defendants, by and through counsel, the United States Attorney for the Middle District of Georgia, and respectfully submit this Memorandum in Support of Defendants’ Motion to Dismiss the Application for a Temporary Restraining Order submitted by Plaintiff, Major Stefan Cook.
I. INTRODUCTION
Major Cook is a Army Reservist assigned to perform reserve duty at Headquarters, U.S. Southern Command ("SOUTCOM"), in Miami, Florida. Major Cook received mobilization orders to report active duty at MacDill Air Force Base on July 15, 2009, and then to Fort Benning, Georgia, on July 18, 2009, for deployment to Afghanistan with U.S. Special Operations
Central Command ("SOCCENT"). Major Cook now comes before this Court seeking a temporary restraining order to challenge his deployment orders to Afghanistan claiming that "the Commander in Chief is not constitutionally qualified nor [ ] legally elected or appointed to
succeed to the office of President of the United States." Plaintiff’s Application for a Temporary Restraining Order ("TRO App.") at 6. This case no longer presents a live case or controversy, nor does Major Cook have standing to pursue his claim; therefore, the Court lacks subject matter jurisdiction over his claims and they should be dismissed.
II. ARGUMENT
A. Motion To Dismiss For Lack Of Jurisdiction
A proper basis for a motion to dismiss is when the court lacks jurisdiction over the subject matter. See Fed. R. Civ. P. 12(b)(1). Unlike a Rule 12(b)(6) motion, consideration of a Rule 12(b)(1) jurisdiction-type motion need not be limited; conflicting written and oral evidence may be considered and a court may "decide for itself the factual issues which determine jurisdiction." Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981). See also Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990), Scarfo v. Ginsberg, 175 F.3d 957, 960-961 (11th Cir 1999) (11th Circuit adopts Williamson, Id., rationale for viewing motions to dismiss based on Rule12(b)(1)).
B. Major Cook’s Request for Injunctive Relief is Moot
Major Cook’s Application for a Temporary Restraining Order should be denied as moot. The Commanding General of SOCCENT has determined that he does not want the services of Major Cook, and has revoked his deployment orders. Defense Exhibit ("DEX" A). "A case is moot when it no longer presents a live controversy with respect to which the court can give
meaningful relief." Ethredge v. Hail, 996, F.2d 1173 (11th Cir. 1993), citing United States v. Certain Real & Personal Property, 943 F.2d 1292, 1296 (11th Cir. 1991).
In his Application for a Temporary Restraining Order, Major Cook asks that the Court enjoin Defendants from deploying him on active duty until the constitutional qualifications and eligibility of the President and Commander in Chief can be established. TRO App. at 20. Major
Cook’s mobilization orders have been revoked, see DEX A, therefore, he is no longer subject to deployment or active duty service. As such, there is no longer a live case or controversy upon which this Court can give meaningful relief. Accordingly, Major Cook’s Application for a Temporary Restraining Order should be dismissed.
C. Major Cook Lacks Standing to Pursue His Claim
Without mobilization orders, Major Cook lacks standing to pursue his claims. Standing is an "irreducible constitutional minimum" that has three elements. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992); see also Florida Family Policy Council v. Freeman, 561 F.3d 1246, 1253 (11th Cir. 2009) (employing Lucan’s three-pronged test). First, a party must have experienced an injury in fact: "an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical." Lujan, 504 U.S.
at 560 (citations and quotations marks omitted). Second, there must be a causal connection between the injury in fact and the defendant’s conduct that is "fairly ...traceable] to the challenged action of the defendant, and not ...the result [of] the independent action of some third party not before the court." Id. at 560-61 (quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41-42 (1976)). Third, a favorable decision must be likely to redress the complained of injury. Lujan, 504 U.S. at 561 (citations omitted). Major Cook cannot demonstrate that he will experience an injury in fact. His mobilization orders have been revoked and he is no longer subject to active duty military service or deployment. Major Cook asserts that he is not reluctant to serve his country in the Armed Forces. See TRO App. Plaintiff’s Verification at p. 2. Thus, Major Cook’s claim that he would be harmed by his participation in the war in Afghanistan because it could lead to his classification as a "de jure war criminal," not entitled to the protections of international law, is no longer an actual or imminent threat (if it ever were), and certainly amounts to nothing more than conjecture on his part.
Additionally, a favorable decision on Major Cook’s Application for a Temporary Restraining Order, the only thing currently pending before this Court, would no longer redress the complained of injury. Major Cook has asked that the Court issue a temporary restraining order to enjoin the execution of his mobilization orders which would bring him to Fort Benning, Georgia, and within the jurisdiction over this Court. As set forth above, those orders have been revoked and Major Cook no longer has orders giving him any presence within this judicial district. Thus, this Court would no longer be the proper forum for his claims, and lacks
jurisdiction to redress the complained of injury.
Accordingly, Major Cook no longer has standing to pursue his claims, and his Application for a Temporary Restraining Order should be dismissed.
III. CONCLUSION
Defendants respectfully request that the Court dismiss his Application for a Temporary Restraining Order.
Stefan (or should I modify his FR name into "roadkill"?), needs to hire a real lawyer, not this internet crackpot. Right now, he's sitting on an anvil and the hammer is cocked.
This is the operant statement:
The Commanding General of SOCCENT has determined that he does not want the services of Major Cook, and has revoked his deployment orders. Defense Exhibit ("DEX" A).
The pleading was ostensibly prepared by the US Attorney's office in coordination with Army staff lawyers. The bolded statement is not an idle throwaway - the Army is participating in this litigation. While the order revoking the prior order is plain vanilla, the bolded statement is not.
Major Cook's time, effort and career are being sacrificed on the altar of nutcase fundraising schemes.
UPDATE: For giggles, I went rooting around in the fever swamp of roadkill's (roaddog727) postings.
http://www.freerepublic.com/...
http://www.google.com/...
********************
FREEPER ROADKILL HAS NOW BEEN FIRED FROM CONTRACTING JOB
Oopsies!
http://www.freerepublic.com/...
"DOD RETALIATION AGAINST MR. COOK IS SWIFT AND BRUTAL" (Orly Taitz Esq. Application for Injunction)
Orly Taitz Blog ^ | 7/15/2009 | Orly Taitz
Posted on Wednesday, July 15, 2009 2:24:16 PM by balls
Major Cook has been fired from his civilian defense contractor job. See details at link.
Let the pointing and laughter commence.....
From the blog:
"The CEO of Simtech, Inc., Larry Grice, explained to Plaintiff over a series of four conversations within the next two hours, that he had been terminated. Grice told the Plaintiff that he would no longer be welcome in his former position at SOCOM but that Grice wanted to see whether he could find something within the company (Simtech, Inc.) for Cook. The upshot was that at this time Grice did not have anything for Plaintiff to do. Grice told Plaintiff, in essence, that the situation had become "nutty and crazy", and that Plaintiff would no longer be able to work at his old position.
Grice explained that he had been in touch with Defense Security Services (an agency of the Department of Defense[1], with regional offices located in SOCOM Headquarters at McDill Airforce Base in Tampa, Florida), and that DSS had not yet made a determination whether Plaintiff Major Cook's clearances would be pulled, but Grice made clear to Cook that it was DSS who had compelled Cook's termination. Essentially, because of the "nutty and crazy" situation and the communications received from DSS was no longer employable by him at all. So he was not optimistic about getting me another job at the company. Grice also reported to Plaintiff that there was some gossip that "people were disappointed in" the Plaintiff because they thought he was manipulating his deployment orders to create a platform for political purposes. Grice then discussed Plaintiff's expectation of receiving final paychecks (including accrued leave pay) already owed, without any severance pay, and wished the Plaintiff well."
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXx
Lou Dobbs is now flogging this story, has Taitz, Keyes to broadcast appeals to sedition.
http://www.loudobbs.com/