CAPTAIN CONNIE RHODES, M.D., Plaintiff, vs.

THOMAS D. MACDONALD, ET AL., Defendants.

BEFORE THE HONORABLE CLAY D. LAND UNITED STATES DISTRICT JUDGE

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Proceedings recorded by mechanical stenography; transcript produced by computer.
BETSY J. PETERSON, RPR, CCR Federal Official Court Reporter Post Office Box 81 Columbus, Georgia 31902 (706) 317-3111

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TRANSCRIPT OF PROCEEDINGS

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) Case No. 4:09-CV-106 ) ) ) ) September 11, 2009 ) ) TRO HEARING ) )

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA COLUMBUS DIVISION

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2 3 4 5 6 7 8 9 FOR THE DEFENDANTS: 10 11 12 13 14 15 16 17 18 19 20 21 FOR THE PLAINTIFF:

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COURT REPORTER: BETSY J. PETERSON, RPR, CCR Federal Official Court Reporter P. O. Box 81 Columbus, GA 31902 (706) 317-3111
BETSY J. PETERSON, RPR, CCR Federal Official Court Reporter Post Office Box 81 Columbus, Georgia 31902 (706) 317-3111

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SHEETUL S. WALL sheetul.s.wall@usdoj.gov Assistant U.S. Attorney Middle District of Georgia 1246 First Avenue Post Office Box 2568 Columbus, Georgia 31902-2568 (706) 649-7700

REBECCA ELAINE AUSPRUNG rebecca.ausprung@usarmy.mil U.S. ARMY LITIGATION DIVISION 901 N. Stuart Street, Suite 400 Arlington, Virginia 22203 (703) 696-1614 CAPTAIN ADAM KERSEY

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ORLY TAITZ dr_taitz@yahoo.com Law Offices of Orly Taitz, Esq. 26302 La Paz Suite 211 Mission Viego, California 92691 (949) 683-5411

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APPEARANCES

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This is the case of Captain Connie Rhodes versus

Thomas D. MacDonald, et al., Case No. 4:09-CV-106. The purpose of this hearing is to hear from the plaintiff and the other parties as to the plaintiff's motion for a temporary

restraining order. The plaintiff is represented by Ms. Orly

DR. TAITZ: Yes.

THE COURT: The defendant is represented by Ms. Sheetul Wall and --

MS. WALL: This is Major Becky Ausprung from Army

CONUS Replacement Center at Fort Benning here. He's also an attorney.

Captain?

Rhodes is not here.

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Court and provided the defendants an affidavit from Captain Rhodes. And with your permission, I will read it. It's a

short affidavit. THE COURT: I've read it. According to what you

provided to the Court, it's your contention that Captain
BETSY J. PETERSON, RPR, CCR Federal Official Court Reporter Post Office Box 81 Columbus, Georgia 31902 (706) 317-3111

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THE COURT: All right. What is your last name again,

CAPTAIN KERSEY: Kersey, Your Honor, K-e-r-s-e-y. THE COURT: All right. Ms. Taitz, I see that Captain

DR. TAITZ: Yes, Your Honor. I have filed with the

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Litigation Division and Captain Adam Kersey. He is with the

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Taitz.

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THE COURT: Please be seated. Good afternoon.

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to the hearing today?

DR. TAITZ: Yes. And she was explained that she has to stay in Kansas until four o'clock tonight.

THE COURT: Kansas. She's in Kansas?

DR. TAITZ: Yes. If she doesn't, there will be

not following the order of her commanding officer, Colonel Jeffrey Johnson.

THE COURT: All right. Well, I had some questions that I needed to ask her, and I'm not sure how you're going to

witness being present. But I would have thought when you filed your action you would have taken the appropriate and necessary steps to try to secure her attendance at the hearing. DR. TAITZ: I did, Your Honor. She was intending to

come here, and at the last moment -THE COURT: When did she first ask her superiors for

leave?

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you that she will have hearing today, she notified her superior -- and I have here the name of the superior, Lieutenant Colonel Collette Pablo -- asking for one day early leave. She is supposed to be in Fort Benning tomorrow. All she asked was one day and only. At the end of the day,
BETSY J. PETERSON, RPR, CCR Federal Official Court Reporter Post Office Box 81 Columbus, Georgia 31902 (706) 317-3111

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DR. TAITZ: The moment I got a note -- notice from

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be able to carry your burden of proof without your primary

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court martial, and she can be thrown into military prison for

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Rhodes' superior officers in Kentucky prevented her from coming

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until four o'clock today. And, therefore, she was denied her Constitutional rights under the First and Ninth Amendment.

THE COURT: All right. Ms. Ausprung, do you know anything about this?

MAJOR AUSPRUNG: Your Honor, no, I do not. And that

of Fort Riley, the judge advocate's office, yesterday as to whether or not Captain Rhodes had asked for permission to attend the hearing today. And I was told that she had not and that her hospital commander had gone to her and asked her what

her orders. And she had said yes, that she was still going to get on the plane tomorrow morning and that the lawsuit would continue on in her absence. That is the last information that I had, and I have not been contacted by anyone last night or today saying that Captain Rhodes asked for attendance at this hearing.

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information as to when she will likely be deployed from Fort Benning to Iraq? MAJOR AUSPRUNG: Your Honor, she is to report no later than 6 p.m. tomorrow to the Fort Benning CONUS Replacement Company, and then she will stay there approximately

seven days.
BETSY J. PETERSON, RPR, CCR Federal Official Court Reporter Post Office Box 81 Columbus, Georgia 31902 (706) 317-3111

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THE COURT: All right. Do you have any further

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her intentions were and if she still intended to comply with

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is not the information that I had from Fort Riley. I inquired

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5:15 p.m., she was told that she is forbidden to leave Kansas

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of next week.

MAJOR AUSPRUNG: Yes, Your Honor.

THE COURT: Well, I am going to require her to appear in this court to answer questions that I have of her. It will be up to the attorneys whether they want to reappear when she

require her to appear next week. I have questions that I want to ask her with regard to the hearing, and I don't want there to be any contention later on that she did not have her day in court.

today, or do you want to wait until next week? DR. TAITZ: Yes, Your Honor. Actually --

can either do it today or next week but not twice. DR. TAITZ: Well, all I am asking, instead of --

first of all, I would like to state that Dr. Rhodes has signed her statement, and it was signed under penalty of perjury. It was notarized by a notary public, and maybe the defendant -THE COURT: Well, I'm not going to -- whether she has

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been completely forthcoming or not, we'll explore that with her next week. My question is: Do you want to proceed today without her present, or do you want to come back next week? DR. TAITZ: I'll come back.
BETSY J. PETERSON, RPR, CCR Federal Official Court Reporter Post Office Box 81 Columbus, Georgia 31902 (706) 317-3111

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THE COURT: I'm not going to let you do both. You

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Ms. Taitz, would you like to make your presentation

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appears, but I'm going to issue an order that is going to

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THE COURT: So she will be at Fort Benning for most

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government want to go ahead and make their arguments today, or do you want to come back next week?

MAJOR AUSPRUNG: May I have one moment, Your Honor? THE COURT: Yes.

(A discussion was held off the record.)

going to make their presentation today, we will wait until next week. And we are available any day except Friday next week, if that is in accordance with Your Honor's schedule. THE COURT: All right. Well, we've got a jury

Monday for another trial. I'm trying to determine the best way to schedule this.

for -- let's schedule it for four o'clock on Monday. That way we will have chosen our jury in our other case and will have some time for them to make their opening statements, and then we'll adjourn early in that case on Monday. Yes, ma'am? DR. TAITZ: I have -- at four o'clock I have to be at

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a conference with U.S. Attorneys in California. I could do it a little bit -- I could do it at five o'clock, maybe even 4:30, but I have to do this conference. It's a case where I'm representing 48 clients.
BETSY J. PETERSON, RPR, CCR Federal Official Court Reporter Post Office Box 81 Columbus, Georgia 31902 (706) 317-3111

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I think the best thing for us to do is to schedule it

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presently deliberating, and we've got jurors coming in on

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MAJOR AUSPRUNG: Your Honor, if plaintiff is not

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THE COURT: All right. Ms. Ausprung, does the

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DR. TAITZ: Yes. So I can do it at 4:30 or five o'clock, if possible.

THE COURT: I tell you what. Let's do it at -- what about noon? DR. TAITZ: Okay. Yes.

MAJOR AUSPRUNG: Yes, Your Honor.

THE COURT: All right. We'll do it at noon on Monday, and make sure that Captain Rhodes is present. She'll be at Fort Benning. So I'm assuming that, Major Ausprung,

at noon.

MAJOR AUSPRUNG: Absolutely, Your Honor.

at that time then. I mean, the earliest she would be deployed to Iraq would likely be next Friday? MAJOR AUSPRUNG: Yes, Your Honor. THE COURT: Okay. MAJOR AUSPRUNG: And if we could get a copy of the

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affidavit of Captain Rhodes. We don't yet have a copy of that document so that we can look -THE COURT: Well, I'm going to -- I was provided with

several items this afternoon before the hearing, and I'm going to give that to the clerk. And those will be filed and
BETSY J. PETERSON, RPR, CCR Federal Official Court Reporter Post Office Box 81 Columbus, Georgia 31902 (706) 317-3111

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THE COURT: Okay. All right. We'll just take it up

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y'all can make arrangements to make her available here Monday

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THE COURT: Is that all right with you, Major?

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THE COURT: That's a telephone conference?

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I think.

MAJOR AUSPRUNG: Thank you, Your Honor.

THE COURT: Okay. Well, this was a bust. We will be in -- we'll continue it until 12 noon on Monday. We're adjourned.

CERTIFICATE OF REPORTER

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I, Betsy J. Peterson, Official Court Reporter of the United States District Court, in and for the Middle District of the State of Georgia, Columbus Division, a Registered Professional Reporter, do hereby CERTIFY that the foregoing proceedings were reported by me in stenographic shorthand and were thereafter transcribed under my direction into typewriting; that the foregoing is a full, complete, and true record of said proceedings. This 6th day of October, 2009.

BETSY J. PETERSON, RPR, CCR Federal Official Court Reporter Post Office Box 81 Columbus, Georgia 31902 (706) 317-3111

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(Proceedings adjourned to Monday, July 14, 2009)

____________________________ S/Betsy J. Peterson, RPR,CCR Federal Official Court Reporter

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available to the other side also. That includes the affidavit,

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I think.

MAJOR AUSPRUNG: Thank you, Your Honor.

THE COURT: Okay. Well, this was a bust. We will be in -- we'll continue it until 12 noon on Monday. We're adjourned.

CERTIFICATE OF REPORTER

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I, Betsy J. Peterson, Official Court Reporter of the United States District Court, in and for the Middle District of the State of Georgia, Columbus Division, a Registered Professional Reporter, do hereby CERTIFY that the foregoing proceedings were reported by me in stenographic shorthand and were thereafter transcribed under my direction into typewriting; that the foregoing is a full, complete, and true record of said proceedings. This 6th day of October, 2009.

BETSY J. PETERSON, RPR, CCR Federal Official Court Reporter Post Office Box 81 Columbus, Georgia 31902 (706) 317-3111

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(Proceedings adjourned to Monday, September 14, 2009.)

____________________________ S/Betsy J. Peterson, RPR,CCR Federal Official Court Reporter

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available to the other side also. That includes the affidavit,

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