Case: 10-55084

11/07/2011

ID: 7957482

DktEntry: 52-1

Page: 1 of 6

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT WILEY S. DRAKE, et al., Plaintiffs/Appellants, v. BARACK HUSSEIN OBAMA, et al., Defendants/Appellees. PAMELA BARNETT, Captain, et al., Plaintiffs/Appellants, v. BARACK HUSSEIN OBAMA, et al., Defendants/Appellees. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) NO. 09-56827 D.C. No. 8:09-CV-00082-DOC Central District of California Santa Ana

NO. 10-55084 D.C. No. 8:09-CV-00082-DOC Central District of California Santa Ana

APPELLEES OPPOSITION TO EMERGENCY PETITION FOR WRIT OF MANDAMUS APPEAL FROM THE THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA - SANTA ANA SA CV 09-00082 DOC ANDR BIROTTE JR. United States Attorney LEON W. WEIDMAN Assistant United States Attorney Chief, Civil Division ROGER E. WEST Assistant United States Attorney First Assistant Chief, Civil Division DAVID A. DeJUTE Assistant United States Attorney Room 7516 Federal Building 300 North Los Angeles Street Los Angeles, CA 90012 Telephone: (213) 894-2461/2574 Facsimile: (213) 894-7819 Attorneys for Defendants/Appellees

Case: 10-55084

11/07/2011

ID: 7957482

DktEntry: 52-1

Page: 2 of 6

I.

INTRODUCTORY STATEMENT Appellees, by and through their undersigned counsel, hereby set forth their

Opposition to Appellants Emergency Petition for Writ of Mandamus. As demonstrated infra, the Petitioners have no standing herein, this case presents nonjusticiable political questions, the person against whom mandamus is sought is not a party, and the grounds set forth in Appellants moving papers are factually false and legally frivolous. II. APPELLANTS ARE NOT PROPER PARTIES HEREIN BECAUSE THEY LACK STANDING, AND THE CASE PRESENTS NONJUSTICIABLE POLITICAL QUESTIONS As set forth in Appellees Answering Brief, filed herein on or about October 13, 2010, Appellants are not proper parties, as they lack standing to bring the action, and this case presents non-justiciable political questions. These arguments, as well as others supporting the dismissal of this case, are set forth in Appellees Answering Brief, a copy which is attached hereto for the Courts convenience as Appendix 1, and will not be repeated here. III. APPELLANTS HAVE NOT SET FORTH A LEGAL BASIS FOR THIS COURT TO EXERCISE JURISDICTION OVER LORETTA FUDDY, WHO IS NOT A PARTY TO THIS CASE Appellants seek a Writ of Mandamus from this Court directing Loretta Fuddy, who is the Director of Health of the State of Hawaii, to allow Appellants counsel, Orly Taitz, and her forensic document experts to examine the original 1961 long-form birth certificate of President Obama. Counsel provides no legal basis whatever to support the issuance of such a writ to a non-party. In the absence of such showing, the Petition should be denied.

Case: 10-55084

11/07/2011

ID: 7957482

DktEntry: 52-1

Page: 3 of 6

IV.

THE FACTUAL BASIS PROFERRED BY APPELLANTS IN SUPPORT OF THEIR PETITION IS BLATANTLY FALSE At several points in their Petition, Appellants allege that, during the May 2,

2011 hearing before this Court, Appellees counsel argued that this case was moot by virtue of the fact that President Obama had authorized the release of his longform birth certificate from the State of Hawaii, and had posted it on an official website. Specifically, at Page 4 of the Petition, Appellants counsel states: During the May 2, 2011 hearing Assistant U.S. Attorney David DeJute, Attorney for the Defendant Barack Hussein Obama, argued, that a few days prior the hearing Mr. Obama had produced his long-form birth certificate to the public by posting it on the official website of the White House. . . . He argued that due to release of the alleged certified copy of such birth certificate, the appeal at hand is moot, is fait accompli [sic] Again, at Page 10 of the Petition, Appellants counsel states as follows: If the requested Writ of Mandemus [sic] is not granted, Appellants will be greatly prejudiced, as their case is intimately connected to the Birth certificate in question. Appellees introduced the alleged certified copy as proof of existence of the document in question on file and as basis for their position that the appeal needs to be dismissed. Without access to the original Appellants cannot disprove allegations by the Appellees. (emphasis supplied). The aforesaid statements in the Petition, proferred as a principal factual basis

Case: 10-55084

11/07/2011

ID: 7957482

DktEntry: 52-1

Page: 4 of 6

for the Petition, and offered to explain why there is a basis for issuance of a Writ of Mandamus from this Court, are patently and demonstrably false. A review of the transcript of the hearing in this case, of which this Court is asked to take judicial notice, will reveal that at the oral argument herein on May 2, 2011, counsel for President Obama never referred to the long-form birth certificate, and never argued that the case was moot as a result of its release. The aforesaid false statements were also proferred by counsel for Appellant in the case of Taitz v. Fuddy, et al., Civil No. 11-1-1731 (Cir. Ct. of the First Circuit, State of Hawaii). In a hearing held in that case on October 12, 2011, Ms. Taitz represented to the Hawaiian Court that she needed an Order from it requiring the defendant to produce the original long-form birth certificate because counsel for President Obama had argued before this Court that the case was moot by virtue of the fact that the President had released his birth certificate. (See transcript in Taitz v. Fuddy, Appendix 2 infra at Pg. 22, ll 13-20, and Pg. 23, ll 8-17. From the foregoing, it is submitted that the principal factual basis proferred by Appellants for issuance of the requested Writ of Mandamus herein is patently false, and the Petition should be denied.1 V. THE PETITION SHOULD BE DENIED BECAUSE IT IS NOT WARRANTED AS A MATTER OF LAW Even assuming, arguendo, that this Court had jurisdiction over Ms. Fuddy, that Appellants had standing to bring this action, and could overcome the other obstacles set forth in Appellees brief, and that it was not based on patently false factual assertions, the Petition for Writ of Mandamus herein should be denied Similar misconduct by this very counsel in, inter alia, proferring alleged facts which were not true, resulted in a $20,000 sanction entered against her by the United States District Court for the Middle District of Geogia. See Rhodes v. McDonald, 670 F.Supp. 2d 1363 (M.D. Georgia 2009).
3
1

Case: 10-55084

11/07/2011

ID: 7957482

DktEntry: 52-1

Page: 5 of 6

because it has no legal basis. It is well settled that a Petition for Writ of Mandamus will issue only where the alleged duty to be performed is ministerial and nondiscretionary, and the obligation to act is plain and mandatory. Emergency Disaster Loan Assn, et al. v. Block, et al, 653 F.2d. 1267 (9th Cir. 1981). In this case, Appellants cannot point to any ministerial, non-discretionary, mandatory duty on the part of Loretta Fuddy to produce the original of President Obamas longform birth certificate, and to allow it to be inspected by counsel, or experts. In support of this argument, Appellees submit the Motion to Dismiss Petition for Writ of Mandamus, filed by the State of Hawaii in Taitz v. Fuddy, supra, (Appedix 3 infra) and the Memorandum in Reply filed by Defendants therein (Appendix 4), incorporated herein by reference. As can be seen from the arguments set forth in Appendices 3 and 4, there is no mandatory, non-discretionary duty on the part of Ms. Fuddy to produce President Obamas long-form birth certificate for inspection by Counsel for Appellants. Indeed, the duty imposed on Ms. Fuddy is exactly the opposite, to wit: to prevent the disclosure or production of the long-form birth certificate of President Obama, to Appellants counsel, or to anyone else similarly situated, who does not fall within the confines of permitted recipients under Hawaiian law. /// /// /// /// /// /// /// VI. CONCLUSION

Case: 10-55084

11/07/2011

ID: 7957482

DktEntry: 52-1

Page: 6 of 6

Based upon the above and foregoing, it is respectfully submitted that the Emergency Petition for Writ of Mandamus filed by Appellants herein should be denied forthwith. DATED: November 7, 2011. Respectfully submitted, ANDR BIROTTE JR. United States Attorney LEON W. WEIDMAN Assistant United States Attorney Chief, Civil Division /s/ ROGER E. WEST Assistant United States Attorney First Assistant Chief, Civil Division /s/ DAVID A. DeJUTE Assistant United States Attorney Attorneys for Defendants/Appellees