Here is an email exchange between Orly and me this morning. I have been begging her to bring the military Complaint for Declaratory Relief as I conceived and wrote it. She informed me, she had too little faith to bring this, and was unwilling to jeopardize her license to practice on what could be a frivolous case.
In the meantime, she has attempted to enforce President Bush’s EO against BO notwithstanding the Order explicitly stated it created no such enforcement rights; and, even if it had, did not apply to government officers, like the POTUS. (She had called me on the Saturday before the inauguration, saying she intended to serve subpoenas under the Order. I asked when she intended to serve these subpoenas; “Wednesday morning.” I told her not to waste her time drafting these orders unless she could serve them before noon on Tuesday, as BO would rescind all Executive Orders he could, at 12:01 on Tuesday. She argued, the D.C. courts are closed on Monday and Tuesday; I told her to go somewhere else. Unfortunately, I hadn’t read the EO; I was merely advising her as to the futility of trying to enforce an EO issued by President Bush, on Wednesday morning, under a ‘President’ Obama.) (Note: for the first time, Orly shifted the burden of proof from Plaintiffs establishing BO is not a NBC, to having BO establish, he is, the tack I take in my military Complaint.)
So, this morning, given BO’s response to the Hollister case, she sent me the following email. (Note: Berg borrowed my idea of the military Plaintiff but, changed the cause of action to Interpleader.)
I was waiting to see what BO’s lead attorney Robert Bauer will write in response to Berg’s military complaint. As I expected, in his motion to dismiss he notes several hurdles common for all of these cases.
One of them, that the court has no jurisdiction and the plaintiffs have no standing. As discharged members of the military their standing is questionable. He is saying that any injury is highly speculative. Bottom line, the decision by the judge will be merely an advisory opinion, which is impermissible. Even though Dec relief does not require injury in fact, there still has to be a standing and real controversy. He is saying that according to Lujan v Wildlife the damage is not imminent, but rather conjectural or hypothetical. Even in Dec relief the has to be a concrete or actual invasion of a particular right. I suspect the judge will decide for BO. That is why I am still working on proper court, jurisdiction, standing and points and authorities. If I go with guns blazing without proper legal ground, the case will be res judicata and deemed to be heard on the merits. We will loose both the plaintiffs and the whole line of attack. We can’t afford to do that. I might be able to go to SCOTUS on this one on original jurisdiction. One of my active people has met with the top brass at the Pentagon. We are waiting to see their response, will they let an active military to seek dec relief on this issue without exposing him to court martial. It is not just him: there is a family and children. It is a catch 22: retired military will be dismissed quickly, but active faces serious repercussions.
Here was my response.
“As I expected, in his motion to dismiss he notes several hurdles common for all of these cases.” Then why did you expand the set of Plaintiffs to include a 77-year-old Plaintiff; or someone retired as opposed to on inactive duty status? If you will note my original memo on the subject, the ideal Plaintiff would be someone about to be or anticipated to be called up to active duty status. National guard would have been great. You expanded the set of Plaintiffs, against my advice.
I will read the response. I have already been asked to comment on my blog.
Then, I read BO’s response in Hollister.
Thank goodness for Berg. Between his first case, which had no chance of success; and this last one, using my idea of the military Plaintiff but the wrong cause of action; he forced the hand of BO’s attorneys, which crystallized for me exactly how to counter them, on all counts. The Plaintiff I described in my initial military memo is the winner. And my decision to focus on the FactCheck angle in my military Complaint turns out to be pure genius. We will prevail, just as soon as we bring the Complaint I conceived and drafted.
Finally, let me clarify for all of you that, the Plaintiff who faces no real jeopardy is not a valid Plaintiff; the case brought by a Plaintiff in no jeopardy fails to present a valid case or controversy to the Court. In other words, by claiming she is attempting to insulate the Plaintiff from liability in advance of filing the military Complaint, Orly is essentially depriving Plaintiff of the standing required to sue in the first place, and the Court of the jurisdiction to hear the suit.
I will elaborate later on today.