Hollister V Soetoro (appeal) - 12/9/09 - Corrected Appellant Reply Brief [1219842] Lodged - Transport Room

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CASE BEING CONSIDERED FOR TREATMENT PURSUANT TO RULE 34(j) OF THE COURT’S RULES [MOTION FOR ORAL ARGUMENT FILED]

__________________________________________________ No 09-5080 Consolidating No. 09-5161

_______________________ IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

GREGORY S. HOLLISTER, et al., Plaintiff-Appellants,

v. BARRY SOETORO, in his capacity as a natural person; de facto President in posse; and as de jure President in posse, also known as Barack Obama, et al. Appellees.

On Appeal from the United States Court for the District of Columbia: Case Below 08-2254 JR ___________________________________________

CORRECTED APPELLANTS’ REPLY BRIEF

September 18, 2009 December 9, 2009 (Corrected)

John D. Hemenway D.C. Bar #379663 Counsel for Appellants 4816 Rodman Street, NW Washington DC 20016 (202) 244-4819

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TABLE OF CONTENTS

Summary of Argument

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The Tactic of Misrepresenting The Classical Exposition of “Standing” Under The Facts of This Case

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LUJAN AND ITS ELEMENTS

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STANDING WAS ANALYZED AND FOUND

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WHAT IS “USUALLY” THE CASE IS NOT EXCLUSIVE

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NO NEW THEORY: INTERPLEADER THROUGHOUT

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RULE 11: NO INQUIRY INTO PRE-FILING INQUIRY; A HEARING STILL REQUIRED

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CERTIFICATE OF SERVICE

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CERTIFICATION OF COMPLIANCE WITH RULE 32(a)

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TABLE OF AUTHORITIES CASES

PAGE(S)

Bankers Trust Co. v. Mfrs. Nat’l Bank of Detroit, 139 F.R.D. 302 (S.D.N.Y. 1991)

11, 12

Berg v. Obama, 574 F.Supp.2d 509 (E.D.Pa. 2008)

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DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 242 (2006)

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Dist. of Columbia v. Air Florida, Inc. 750 F.2d 1077, (D.C.Cir.1984) Lujan v. Defenders of Wildlife 504 U.S. 555, 562, 112 S.Ct. 2130, 1191 L.Ed.2d 351. (Opp. Brief p. 21) Murphy v. Travelers Insurance Company, 534 F.2d 1155 (5th Cir.1976)

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1, 3, 7, 8

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STATUTES, RULES and TREATISES *28 U.S.C. § 1335 (“Interpleader Act”) 1, 2, 3, 5, 6, 9, 10, 11, 12, 13, 14, 15 Fed.R.Civ.P. Rule 11

1, 16, 17

Fed.R.Civ.P. Rule 12(b)(6)

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* Fed.R.Civ.P. Rule 22

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The Federal Interpleader Act of 1936, by Zecharia Chafee, Jr. “DISPUTED SUBJECT MATTER” number 3, Yale Law Journal, April 1936

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CONSTITUTIONAL PROVISIONS

Article III

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Article III, Section 2

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SUMMARY OF ARGUMENT The defendants/appellees Soetoro a/k/a Obama and Biden misrepresent by argument from cases that involve only general standing as a citizen member of the public or as a mere taxpayer and thus ignore the specific prescription of standing in the Federal Interpleader Act. This is to ignore the clear language of the Constitution. They also ignore that this case does not involve a third party or parties but the plaintiff himself. In so ignoring the prescription of the statute in question the defendants/appellees ignore the three elements of standing set out in Lujan v. Defenders of Wildlife 504 U.S. 555, 562, 112 S.Ct. 2130, 1191 L.Ed.2d 351. All three are met here when one considers the prescription of the statute and its clear language and the function of the ready reserve in the context of the Interpleader Act, particularly the use of the word “may” in the statute. The lower court did not fail to analyze whether it had standing or not. It specifically found that it had subject matter jurisdiction because of the Federal Interpleader Act and then chose, based on that analysis, to dismiss pursuant to Rule 12(b)(6) as raised in the motion to dismiss based on what it described as a failure to state a claim for which relief could be granted. This means necessarily that it analyzed standing and found it to exist. Referring to other cases as if they created res judicata without adhering to the well-

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known principles governing the law of res judicata does not create or demonstrate any aspect of that doctrine and is to take note of inapplicable matters. The defendants/appellees misrepresent virtually every case they cite. In doing so they again ignore the clear language of the Federal Interpleader Act, particularly that statute’s use of the word “obligation,” which is clearly what the plaintiff Hollister possesses that is at issue here. THE TACTIC OF MISREPRESENTING THE CLASSICAL EXPOSITION OF “STANDING” UNDER THE FACTS OF THIS CASE The brief of the appellees purposefully creates confusion by continually citing cases involving Article III standing where there is no specific grant of jurisdiction to the federal courts by Congress under Article III as there is if one actually applies the Interpleader Act in this case. Article III, Section 2 of the Constitution states: “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the laws of the United States,….” Obviously, if the Framers had intended cases in which Jurisdiction of the federal courts was dependent upon the Constitution alone as opposed to the “laws of the United States” to be lumped together, then the Framers would have worded the Constitution accordingly. They did not do so, but these appellees misrepresent the three

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elements of the classical exposition of “standing” by the Supreme Court when one applies the Interpleader Act principles in this case. They do so in the apparent hope that the disregard for the Constitution by those whom they defend would be echoed by members of this court despite their oath to uphold it against all enemies foreign and domestic. LUJAN AND ITS ELEMENTS One of the most significant attempts to confuse matters in the appellees’ brief is their citation and use of a leading case where the question is whether a remedy exists for a particular plaintiff or group representing particular plaintiffs where the law or prescription of Congress was not aimed at the person or group of persons but rather was the “government’s allegedly lawful regulation (or lack of regulation) of someone else,…”

Lujan v.

Defenders of Wildlife 504 U.S. 555, 562, 112 S.Ct. 2130, 1191 L.Ed.2d 351. (Opp. Brief p. 21). Here the question is whether Colonel Hollister is entitled to invoke the Interpleader Act and/or Rule not whether he can invoke some government law or regulation aimed at someone else. Further, having cited Lujan the appellees then proceed to ignore what it holds with regard to the most important aspect of the present case. In the classic prescription for standing Lujan sets out three elements, Id., 504 U.S. at 561:

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First, the plaintiff must have suffered 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,’.…Second, there must be a causal connection between the injury and the conduct complained of-the injury has to be “fairly…trace[able] to the challenged action of the defendant and not…th[e] result [of] the independent action of some third party not before the court.”….Third, it must be “likely” as opposed to merely “speculative,” that the injury will be “redressed by a favorable decision.” (citations omitted) We address these three classic elements of standing in reverse order in order to elucidate the confusion being attempted here by the appellees. As to the third element: It is clearly the case that the injury complained of by Colonel Hollister is that if, as there is evidence suggesting, the defendant Soetoro a/k/a Obama was not constitutionally qualified to run for President and is not constitutionally qualified to be President (And the allegations of fact in that regard in the complaint were not treated as true by the lower court, contrary to the law) then there are conflicting claims upon his obligation to serve if called because if Soetoro a/k/a Obama can only give orders that Colonel Hollister is required under the principles that we established at Nuremberg after World War II then he must instead obey orders from the other Interpleader defendant, Joseph Biden, who, under the Constitution, must immediately step in if it turns out that Soetoro a/k/a Obama cannot give legitimate orders to call up members of the Individual Ready Reserve. The 4

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conflicting claims that are the injury complained of will thus be “redressed.” There is nothing speculative about that being the case, the “redress[ing]” of the injury complained of. Since the injury complained of under the Interpleader Act is the conflicting claims upon the obligation of Colonel Hollister to serve if called up as a member of the Individual Ready Reserve as between a man who was elected as and is serving as President despite information indicating that he was not constitutionally eligible to run for President and is not constitutionally qualified to serve, on the one hand, and Joe Biden on the other hand, there is a direct causal connection “between the injury and the conduct complained of.”

The “conduct complained of” is the defendant

Soetoro a/k/a Obama’s running for President being (and knowing that he was) constitutionally unqualified and then taking the oath and serving in that office. That conduct has led directly to the injury which Colonel Hollister has alleged. Thus the second classic element of standing is met. Proceeding back to element number 1 in our taking up the 3 elements in reverse order, we note that it in turn has two subcomponents after a prefatory condition leading to those two subcomponents. The prefatory condition of element 1 is that there must be “an invasion of a legally protected interest.”

In passing the Interpleader Act and approving the

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Interpleader Rule Congress “created a legally protected interest.” That is what congressional enactments do, by definition, they create a legally protected interest.

Further, that legally protected interest is created

specifically for situations where there are conflicting claims upon either one of several kinds of property or upon an “obligation,” or upon both. That, as stated, is what we have here. Either Soetoro a/k/a Obama has a claim upon the obligation of Colonel Hollister as Commander-in-Chief, or Biden does. Both cannot at the same time be Commander-in-Chief. Having addressed the prefatory condition of element 1 we now address the two subcomponents that follow that prefatory condition, (a) and (b). Subcomponent (a) of the first element of the classical exposition of “standing” is that the invasion of the legally protected interest complained of must be “concrete and particularized.” Given that the legally protected interest is that the interest that any conflicting claims upon property and/or an obligation be resolved and that quite frequently, as is contemplated in the Interpleader Act, the claims are foreseeable but have not actually yet occurred, nothing could be more “concrete” than to have to participate, in any one or more of number of necessary and coordinated roles, either directly or in support in such things as bombing missions, air-to-air combat

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or troop and material transport in support of fighting or strategic positioning. Likewise, nothing could be more “particularized” than such an obligation. Finally we turn to subcomponent (b) of classical element 1 of the 3 elements of standing.

Subcomponent (b) is that the “legally protected

interest” is “actual or imminent and not ‘conjectural’ or ‘hypothetical.’” Given that the jurisdiction created by the Interpleader Act and/or Rule includes the situation routinely where the holder of the property and/or obligation submits the conflict to the court before the claims have actually been made in the situation where the conflict can be seen to exist when the claims are made, the argument advanced by the appellees in this regard seems deliberately designed to confuse. The obligation of a member of the Individual Ready Reserve such as Colonel Hollister is created by law and, given a legitimate Commander-in-Chief, is not the least bit “conjectural” or “hypothetical.” If a legitimate order is given by a legitimate Commander-inChief the individual must report. There is no uncertainty about it. Moreover note, in the classical exposition set out in Lujan that the disjunctive “or” is used. That is, the invasion of the legally protected interest must be “actual or imminent” not “actual and imminent.” The appellees, echoing the judge below, argue that the invasion of the legally protected interest must be imminent as if that were the only option. They thus misrepresent and seek to

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confuse, in an obvious belief that they have the political clout to force such confusion and misrepresentation upon the Court in lieu of a reasoned analysis and an application of the law and the Constitution. STANDING WAS ANALYZED AND FOUND Thus the appellees (p. 21) assert: The district court assumed, without analysis, that it had jurisdiction over Hollister’s claims. (App. 219). In making its ruling the district court did not address President Obama’s and Vice President Biden’s argument that Hollister lacked constitutional standing to pursue his claims. (App. 47-48) Standing “is an essential and unchanging part of the case-orcontroversy requirement of Article III.” (citing Lujan) The appellees then go on to say: “…and this Court may address it sua sponte. See DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 242 (2006).”

The

DaimlerChrysler case, we would note, involves what has come to be known as “the general prohibition on taxpayer standing.” Id., 547 U.S. at 345-347. That is true of almost every other case cited by appellees in their opposition brief, including those filed by or on behalf of Philip J. Berg other than the present case. See, for example the reference to the filing pro se by Mr. Berg of a case in the Eastern District of Pennsylvania. (Opp. pp. 3,5) Berg v. Obama, 574 F.Supp.2d 509 (E.D.Pa. 2008). In fact there are a very large number of references to other cases in this opposition brief almost all of which relied upon general taxpayer standing or ordinary citizen standing, not

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upon any specific prescription of Congress like the Interpleader Act. In fact the appellees do not cite a single other case that asserted jurisdiction based on the Interpleader Act. That is apparently because there is not another filed case that invokes its jurisdiction. Thus to maintain that all these other cases are “related” is to misrepresent, systematically, the facts of the cases and the law, apparently on the belief that this Court can be politically intimidated into ignoring the well established law of issue and claim preclusion and the vast body of such law about res judicata. To invoke, in effect, res judicata, by simply naming cases without putting forth anything that would establish any principle of res judicata is misrepresentative.

It is an attempt to

improperly influence the Court. We urge its rejection as of a piece with the reliance of the judge below upon “blogging and twittering” on the Internet rather than upon proper analysis and application of the law. Because almost every case cited by the appellees is cited in the same mispresentative way as the examples just given, and because there are so many such misrepresentations, we think it emphasizes the mistake this Court has made in, preliminarily at least, deciding not to have oral argument on this case.

Oral argument is the only way to make clear all the

misrepresentation that is involved, there is so much of it. We are, therefore,

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following on the heels of the filing of this reply brief, filing a motion to have oral argument, which we hereby incorporate by reference. Having looked extensively at the standing issue which the appellees brought up, we look to the “clear language” of the Interpleader Act, and why it applies here. In this area also we see a lot of misrepresentation. Most importantly, as emphasized in our opening brief we see a continuing pattern of misrepresentation in the appellees’ ignoring the import of the clear language of the statute 28 U.S.C. § 1335(a) that there is jurisdiction where the Interpleader plaintiff owns or has “any obligation, written or unwritten, to the amount of $500 or more,…”

It is acknowledged that the statute

articulates the long established practice of Interpleader that existed in the law since from long before the statute was enacted. There was no diversity analysis below and if the statute does not apply then Rule 22 does, and it also embodies the long standing practice of Interpleader before it was ever adopted. There is clearly diversity as between Colonel Hollister and the Interpleader defendants.

Both the Act and the Rule were invoked and

alleged and the court below was bound to consider both in any case by statute as pointed out in our opening brief. The appellees attempt to get around the clear language of the statute as incorporated also in the Rule by, again, a pattern of misrepresentation.

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For example, on p. 9 they create in their heading for their subsection B. 1. a concept not actually known in Interpleader law and not found in the Act, the Rule, or the predecessor common law and equity practice, something that they call an “intangible duty” The statute does not use the word “duty” and we must assume that Congress chose the word it wanted used and obeyed. We assure those who may not be familiar with the facts of being ordered to serve in the military, as may be the case here, that there is nothing “intangible” about the obligation to serve if ordered to do so. It is very tangible and very real.

After thus misrepresenting and misleading in the

title of the subsection the appellees then proceed in the text of the subsection to quote the actual language of the statute to include the part about an “obligation” but then ignore that part of the Act and focus only upon the preceding part naming notes, bonds and other instruments.

Then the

appellees seek to get around this glaring omission of language that they themselves quote and then seek to ignore by again misrepresenting some case law. WHAT IS “USUALLY” THE CASE IS NOT EXCLUSIVE The case law that the appellees misrepresent at that point in their argument starts with the opinion in Bankers Trust Co. v. Mfrs. Nat’l Bank of Detroit, 139 F.R.D. 302 (S.D.N.Y. 1991). That opinion, like the judge

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below in this case, focuses upon what is “usually” the case. But what is usually the case does not determine the law when the clear language of the statute or, for that matter, clear established law, of what may be sometimes the case although it is not, statistically, the most common situation. The Bankers Trust case involved a case that was one case out of an enormous interrelated set of cases concerning the ownership of pledged assets consisting of a fleet of railroad cars operating nationwide the supposed stake of the interpleading party was the “duty” to manage the fleet of railcars. That is quite complex and the court in that case held that the entire complex of litigations could not be resolved in a single Interpleader action. The duty to report for active duty if ordered to do so by a purported Commander-inChief whose eligibility under the Constitution to give such an order is, by the admitted facts of his life, “in doubt” is not a single part of an enormous interlocking series of complex litigations. Nor is it an “inchoate” obligation. It is clear cut and simple. Either one is obliged to obey the order when it comes or one is not. Another misrepresentation at this point concerns the case of Murphy v. Travelers Insurance Company, 534 F.2d 1155 (5th Cir.1976).

What was

“inchoate” in that case and thus not subject to Interpleader were certain contingent counsel fees.

The main dispute was over an irrevocable

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assignment of rights in a California property settlement agreement in a divorce. Thus that part of the case to which Interpleader was held not to be applicable did not resemble the obligation of Colonel Hollister in the present situation.

There is nothing contingent about the obligation of Colonel

Hollister and other members of the Individual Ready Reserve. If they are called up they are called up. This is a clear language question and thus there is no need for legislative history to be resorted to. An “obligation” clearly means an obligation within the commonly understood meaning of the word. The Individual Ready Reserve is created by law and the members of the military who have retired and are subject to that obligation are required to do so by their contracts of service. The court below, as part of its general failure to delve into the facts as required, did not examine these matters, though duty bound to do so if it had any question. And, we point out, the legislative history pointed to by the appellees by its own language refers to the “broad” meaning of the word in the very passages cited by the appellees. That history speaks of examples and makes no claim to give an exhaustive list.

Moreover, to the extent that the

subsequent writings of Zechariah Chafee, Jr. are to be considered, they emphasize the extremely broad nature of the amendments under discussion. At “DISPUTED SUBJECT MATTER” number 3, for example, Chafee

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states, after speaking of all kinds of instruments, that “obligations” includes “other obligations.” It then gives three examples of such obligations but makes no attempt to claim that the three examples are anything but representative and thus makes clear that all “obligations” are included. On p. 9 of their brief, the appellees argue that the complaint of Colonel Hollister does not allege “facts” to support his claiming Interpleader. This is simply incorrect. It is misrepresentative. Colonel Hollister has named two defendants, one of whom he has reason to believe in the facts he has alleged, may not be able to give a legitimate order under the principles that we established at Nuremberg and the other of whom would have to give the order to call him up if in fact Soetoro a/k/a Obama is not eligible to legitimately give him an order. Those are the clearly alleged facts of the two conflicting claimants to his obligation. He alleged that he is duty bound to obey one or the other and he asks the court to resolve which it is. The necessary facts are not complicated and they are alleged. NO NEW THEORY: INTERPLEADER THROUGHOUT It is also because of the clear allegations of Colonel Hollister in the complaint that it is misrepresentative of us, the appellants, to argue now that we are referring to an obligation, to be distinguished from “property” as if that were a new “legal theory” per the opinion of Judge Edwards of this

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Court in Dist. of Columbia v. Air Florida, Inc. 750 F.2d 1077 (D.C.Cir.1984). That is not, by any stretch a valid comparison. That case arose out of the crash of an Air Florida flight, on a cold icy day when the Potomac was covered with ice, into the 14th Street Bridge, a terrible tragedy which all who were here well remember. The District sued Air Florida on the theory that it held title to the stretch of the Potomac at issue in the crash, as ceded from Maryland when the District was founded and that, therefore, it could hold the airline responsible for negligence. It lost in the trial court because it was shown that the stretch of the Potomac and its real and personal property at issue belonged to the federal government, not the District. On appeal, for the first time, the District raised a new and very novel legal theory that because it had an obligation to remove impediments on the river it was a trustee for that section of the river and could, therefore, sue the airline. This was a truly new and novel theory. But Interpleader has been the theory of this case from the beginning and throughout. There is no new “legal theory.”

“Legal theory” and emphasis in argument are not the

same thing. Indeed, as we say, we are filing on the heels of this brief a motion for oral argument because of the extensive number of misrepresentations in the appellees’ brief. We could only hope that Judge Edwards would be on the panel that might consider our motion. If there is

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one judge on this court, in our experience, who will apply the law without fear or favor and takes his oath to uphold the Constitution seriously it is Judge Edwards. RULE 11: NO INQUIRY INTO PRE-FILING INQUIRY; A HEARING STILL REQUIRED With these things said I turn briefly to my own personal appeal, the issuance of the reprimand against me after the withdrawal of the threat of harsher Rule 11 sanctions. It is the case that nothing is pointed out in the opposing brief or in the analysis of the judge below that shows any inquiry into any prefiling inquiry that I made or didn’t make. Yet the same is necessary in order to levy any sanction under Rule 11. Our arguments show that, particularly because we have shown that by the holding of the Supreme Court and the facts that the defendant Soetoro has stated throughout his political career, that his father was not a citizen, his status as a “natural born citizen” is “in doubt.” At the very least, when the Supreme Court has held that an issue is “in doubt,” seeking to have that doubt clarified is a good faith extension of existing law. There were no hearings and the judge never had any opportunity to observe my demeanor and conduct. He refused to have a hearing on the sanctions although I showed in my Show of Cause, particularly my supplemental, that I was entitled to a hearing and more than likely to discovery. (App. 223 ff. and 252 ff.) Again here we see sleight of 16

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hand and misrepresentation. On p. 26 appellees cite notes to the 1993 amendments to Rule 11 and state that the court may act on its own initiative. True, but beside the point as to these requirements. The appellees cite authority that this Court may take notice of matters in related proceedings, pointing to proceedings that are not truly related. But we take a leaf from their notebook and point out that evidence has surfaced from related proceedings recently. In another case what may be the actual birth certificate has been filed.

In an eligibility proceeding proof of

deception as to the “natural born” status has been located. We will file these documents separately. Respectfully submitted, /s/ JOHN D. HEMENWAY John D. Hemenway D.C. Bar #379663 Counsel for Appellants 4816 Rodman Street, NW Washington DC 20016 (202) 244-4819

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that I have caused the foregoing Appellants Corrected Reply Brief to be served electronically upon counsel of record this 9th day of December, 2009, upon: Marc Erik Elias, Esq. Andrew Harris Werbrock, Esq. Perkins Coie LLP 607 14th Street, NW Suite 800 Washington, DC 20005-2003 and R. Craig Lawrence, Assistant U.S. Attorney U.S. Attorney's Office (USA) Appellate Division, Civil Unit 555 4th Street, NW Washington, DC 20530 /s/

John D. Hemenway

CERTIFICATION OF COMPLIANCE WITH RULE 32(a) Pursuant to Fed. R. App. P. 32(a) and D.C. Cir. R. 32(a), I hereby certify that this brief contains 4080 words, excluding the parts exempted by the rules, and has been prepared in a proportionally spaced typeface using Microsoft Word 2003 in Times New Roman 14-point typeface. /s/ ___________________ John D. Hemenway

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