Case 4:09-cv-00106-CDL Document 35 Filed 1 1/10/09 Page 1 of 5 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF GEORGIA COLUMBUS DIVISION CAPTAIN CONNIE RHODES, M.D., ) ) Plaintiff, ) ) V. ) Case No. 4:09-CV-I06 (CDL) ) COLONEL THOMAS D. MACDONALD) et al. ) Defendants. ) ) DEFENDANTS’ BRIEF IN RESPONSE TO THE COURT’S ORDER DATED OCTOBER 13. 2009 COMES NOW Defendants, by and through counsel, the United States Attorney for the Middle District of Georgia, pursuant to the Court’s Order dated October 13, 2009. Defendants respectfully submit the following brief addressing the government’s position as to the feasibility of the Court directing that the monetary sanction imposed upon counsel Orly Taitz be paid by the United States to the National Infantry Foundation at Fort Benning, Georgia. As set forth below, it is the government’s position that, notwithstanding the Court’s good intentions, the monetary sanction cannot be paid to the Foundation and must be paid into the United States Treasury. I. BACKGROUND On October 13, 2009, this Court issued an Order, sua sponte, imposing a monetary penalty of $20,000.00 upon counsel Orly Taitz, pursuant to Fed. R. Civ. P. 1 1. The Court directed that payment be made to the United States, through the Middle District of Georgia Clerk’s office, within thirty days of the Order. The Court also requested that the government submit a brief addressing it’s position on the feasability of the Court directing that the monetary Case 4:09-cv-001 06-CDL Document 35 Filed 1 1 /1 0/09 Page 2 of 5 sanction be paid by the United States to the National Infantry Foundation at Fort Benning, Georgia.' II. DISCUSSION It is the government’s position that the monetary sanetion must be paid into the United States Treasury. Fed R. Civ P. 1 1(e) provides for two types of sanetions-sanetions requested on motion by a party, and sanetions imposed on the eourt’s initiative. Id. Rule 1 1(e)(4) provides that a “sanetion may inelude nonmonetary direetives, an order to pay a penalty into eourt; or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of part or all of the reasonable attorney’s fees and other expenses direetly resulting from the violation.” Id. Thus, Rule 4(e) only provides for payment of monetary sanetions either to the eourt, or a party to the litigation. Moreover, the rule provides for payment to a party only when the party requests the sanetions on motion, and the sanctions are limited to the reasonable expenses and attorney’s fees ineurred in making the motion. In this ease, the National Infantry Foundation is not a party to the litigation, and the Court ordered the monetary sanetion on its own initiative. Aeeordingly, Rule 1 1 only provides for payment of the sanetion to the Court. In its Order, this Court eites to In re E.L duPont de Nemours & Co. Benlate Litig. , 99 F.3d 363, 368-69 (I I* Cir. 1996). In duPont . one faetor that the Eleventh Cireuit eonsidered in concluding that a contempt sanetion was criminal in nature was that the distriet court ordered the 'Aeeording to its website, the National Infantry Foundation at Fort Benning, Georgia, was “established in 1998 to honor our Nation’s Infantrymen - past, present and future - and to preserve their legaey through the eonstruetion and operation of the new, world-class National Infantry Museum and Soldier Center in Columbus, Georgia.” The Foundation is a non-profit organization pursuant to 26 U.S.C. §501(e)(3). http://www.nationalinfantrvmuseum.eom 2 Case 4:09-cv-001 06-CDL Document 35 Filed 1 1 /1 0/09 Page 3 of 5 sum to be paid into the registry of the eourt, as opposed to a party to the litigation. However, duPont does not eounsel sueh a result in this case because, as set forth above. Rule 1 1 does not provide for payment to a non-party. The National Infantry Foundation is not a party to the litigation; therefore, they would not be a proper recipient of the funds. Once the sanction is paid to the Court, the sanction must then be paid into the United States Treasury. Pursuant to 28 U.S.C. § 75 1(e), the “clerk of each district court shall pay into the Treasury all fees, costs and other moneys collected by him, except naturalization fees listed in section 742 of Title 8 and uncollected fees not required by Act of Congress to be paid.” Additionally, the Miscellaneous Receipts Act, 31 U.S.C. § 3302, commands the same result. It requires that an “official or agent of the Government receiving money for the Government from any source shall deposit the money in the Treasury as soon as practicable without deduction for any charge or claim.” 31 U.S.C. § 3302(b). Thus, once the sanctions are paid to the Court, it is the government’s position that the funds cannot be then redirected to the Foundation, and must be paid, without deduction, into the Treasury. One of the few courts to address this issue has reached the same conclusion. In National Association of Radiation Survivors v. Tumage , 115 F.R.D. 543 (N.D. Ca. 1987), the Northern District of California District Court had previously issued a bench ruling ordering that the defendant pay monetary sanctions imposed pursuant to Fed. R. Civ. P. 1 1 and 26(g) into a fund used to compensate unpaid law students working as externs in the courts of that District. Id. at 559. However, the court later modified its bench ruling in the written order, concluding that 28 U.S.C. § 751(e) mandated that the sanctions be paid into the United States Treasury. Id. The same conclusion appears to be the inescapable result in this case. 3 Case 4:09-cv-001 06-CDL Document 35 Filed 1 1 /1 0/09 Page 4 of 5 III. CONCLUSION As set forth above, it is the government’s position that the monetary sanction imposed upon counsel Orly Taitz must be paid to the United States Treasury. Respectfully Submitted, G. F. Peterman, III Acting United States Attorney Bw. Sheetul S. Wall Sheetul S. Wall Assistant United States Attorney 1246 First Avenue Post Office Box 2658 Columbus, Georgia 31902 Tel: 706/649-7700 Fax: 706/649-7667 OF COUNSEL: MAJOR REBECCA E. AUSPRUNG Department of the Army U.S. Army Litigation Division 901 North Stuart Street, Suite 400 Arlington, VA 22203-1837 Tele: 703-696-1614 Email : Rebecc a. Ausprung @ us . army . mil 4 Case 4:09-cv-001 06-CDL Document 35 Filed 1 1 /1 0/09 Page 5 of 5 CERTIFICATE OF SERVICE I hereby certify that on November 10, 2009, 1 electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following: Orly Taitz, DDS, Esq. 29839 S. Margarita Pkwy. Rancho Santa Margarita, CA 92688 and I hereby certify that I have mailed by United States Postal Service the document and a copy of the Notice of Electronic Filing to the following non-CM/ECF participants: n/a. Respectfully submitted, G. F. Peterman, III Acting United States Attorney s/ Sheetul S. Wall Sheetul S. Wall Assistant United States Attorney United States Attorney’s Office Post Office Box 2568 Columbus, Georgia 31902-2568 (706)649-7700 5