Hollister V Soetoro - Attachment #1 To Corrected Emergency Motion - Transport Room

Case: 09-5080

Document: 1217859

Filed: 11/27/2009

Page: 1

ATTACHMENT NUMBER ONE [1] Erratum And Appellant Hollister’s Reply Brief

Case: 09-5080

Document: 1217859

U.S. District Court for the District of Columbia

Case No.

Court of Appeals Case No.

09-5080

Consolidating No.

09-5161

Filed: 11/27/2009

Page: 2

1:08-cv-02254 JR

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA _____________ Ο _____________

GREGORY S. HOLLISTER, Plaintiff – Appellant, v.

BARRY SOETORO, et al, Respondents – Appellee. _____________ Ο _____________

ERRATUM _____________________

The oath of office given as that of Appellant Hollister in his Original Reply Brief expressly states a duty to obey orders. This, in fact, is expressly stated in the oath of enlisted personnel, but is not expressly stated in the oath of officers, as officers are presumed to fulfill their duty to obey orders in accordance with military law. The undersigned apologizes to the Court, to the parties, and to counsel for the error. s/ Lawrence J. Joyce LAWRENCE J. JOYCE, ESQUIRE Attorney for the Amici 1517 N. Wilmot Rd., #215 Tucson, AZ 85712 (520) 584-0236

ATTACHMENT NO. 1-1

Case: 09-5080

Document: 1217859 1207621

U.S. District Court, District of Columbia

Case Number

Court of Appeals No. Consolidating No.

09-5080 09-5161

Filed: 11/27/2009 09/22/2009

Page: 3 1

1:08-cv-02254 JR

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA _________________O_________________ GREGORY S. HOLLISTER, Plaintiff - Appellant, v. BARRY SOETORO, et al. Defendants - Appellees. _________________O_________________ REPLY BRIEF OF APPELLANT, GREGORY S. HOLLISTER _________________O_________________ Lawrence J. Joyce, Esquire 1517 N. Wilmot Road, Suite 215 Tucson, AZ 85712 D.C. Circuit Bar No. 52501 (520) 584-0236 Email: [email protected] September 18, 2009

Attorney for Appellant, Gregory S. Hollister

ATTACHMENT NO. 1-2

Case: 09-5080

Document: 1217859 1207621

Filed: 11/27/2009 09/22/2009

Page: 4 2

Reasons Why Oral Argument Should Be Heard

Pursuant to Federal Rule of Appellate Procedure 34(a), counsel for Appellant, Col. Hollister respectfully requests oral argument. We believe that oral argument will assist the Court in deciding this appeal, which involves a number of important legal issues. Oral Argument will enable the parties to address these issues adequately and respond to the Court’s questions and concerns.

i

ATTACHMENT NO. 1-3

Case: 09-5080

Document: 1217859 1207621

Filed: 11/27/2009 09/22/2009

Page: 5 3

TABLE OF CONTENTS Page(s) REQUEST FOR ORAL ARGUMENT……………………………………...i TABLE OF CONTENTS……………………………………………......ii, iii TABLE OF AUTHORITIES…………………………………………..iv - vii ARGUMENT………………………………………………………….…1-26 I.

The Overriding Issue is the Lack of any Hearing……………...1 A.

Dismissal without Holding a Hearing was a Denial of Due Process………………………………………..1, 2

II.

The District Court Improperly Denied Col. Hollister’s Request that he be Allowed to file a Second Amended Complaint………….………………………………………..2, 3

III.

The District Court Improperly Refused to Consider Col. Hollister’s First Amended Complaint………………………3, 4

IV.

The District Court Decided this Case by Reference to Political Factors Rather than to the Law exclusively…..…..4-11

V.

The Standing of Hollister Establishes that Interpleader and Bivens were Well-Pleaded, and that He Stated a Claim upon which Relief can be Granted………………...11-27 A.

Hollister had Standing under Interpleader…………11-19 1.) The Foundation of Standing in Interpleader was established in the Complaint and in the First Amended Complaint……………………..12-14 2) The Facts Establish Col. Hollister’s Standing under Interpleader………………..……………14-17

ii

ATTACHMENT NO. 1-4

Case: 09-5080

Document: 1217859 1207621

Filed: 11/27/2009 09/22/2009

Page: 6 4

TABLE OF CONTENTS, Continued Page(s) a.)

B.

This Court’s Holding in New v. Cohen, and the Supreme Court’s Holding in Nguyen v. United States, Impact the Degree of Speculation………………18-19

Hollister Stated a Claim Upon which Relief can be Granted…………………………………………19- 25 1.) The “Property” and “Obligation” Elements are not Part of Rule 22 Interpleader……………19-21 2.) The “Property” or “Obligation” Requirement of Statutory Interpleader must be Considered in light of Martin v. Wilks and N.O.W. v. Scheidler…………………….…21-24 3.) The “Obligation” Element was alleged in the First Amended Complaint………………24-25

C.

Hollister had standing Under Bivens……………........25

D.

Interpleader and Bivens Most closely Parallel the Text and Framework of the Constitution………..…26

E.

The Supreme Court has Noted an Important Difference between “Valid” Claims and “Arguable” Claims for Purposes of a Motion to Dismiss……………………………………………...27

CONCLUSION………………………………………………………...27, 28 CERTIFICATION OF COMPLIANCE WITH RULE 32(a)………….......29 CERTIFICATE OF SERVICE……………………………………………..30 APPENDIX I

-

Appendix “A” Filed with the Brief iii

ATTACHMENT NO. 1-5

Case: 09-5080

Document: 1217859 1207621

Filed: 11/27/2009 09/22/2009

Page: 7 5

TABLE OF AUTHORITIES Page(s) Cases United States Supreme Court

Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937 (2009)………….………..23 Bender v. Williamsport Area School Dist., 475 U.S. 534 (1986)…………....2 Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S. Ct. 1999, 28 L.Ed.2d 619 (1971)………4, 11, 12, 25, 26 Davis v. Passman, 442 U.S. 228 (1979)……………………………………25 Farmer v. Brennan, 511 U.S. 825 (1994)…………………………….……25 Foman v. Davis, 371 U.S. 178 (1962)…………………………...……2-4, 11 LaChance v. Erickson, 522 U.S. 262, (1988)……………..…………………1 Martin v. Wilks, 490 U.S. 760 (1989)……………………..…………...21, 23 Nebraska Press Ass’n. v. Stuart, 427 U.S. 539 (1976)…………...…...…9-11 Nguyen v. United States, 539 U.S. 69 (2003)………………...………...18, 19 N.O.W. v. Scheidler, 510 U.S. 249 (1994)…………………..………....21, 23 Planned Parenthood v. Casey, 505 U.S. 833 (1992)………………………..5 Schweiker v. Chilicky, 487 U.S. 412 (1988)…………………………..……25 State of Texas v. State of Florida, 306 U.S. 398 (1939)………..…………..12 Steel Co. v Citizens For A Better Environment, 523 U.S. 83 (1998)………27

iv

ATTACHMENT NO. 1-6

Case: 09-5080

Document: 1217859 1207621

Filed: 11/27/2009 09/22/2009

Page: 8 6

TABLE OF AUTHORITIES, Continued Page(s) Cases United States Supreme Court, Continued

Talamini v. Allstate Insurance Co., 470 U.S. 1067 (1985)……..………….10 Treinies v. Sunshhine Mining Co., 308 U.S. 66 (1939)…...………………..23 Webster v. Fall, 266 U.S. 507, 45 S.Ct. 148, 149, 69 L.Ed. 411 (1925)……………………………………22

Court of Appeals: District of Columbia Circuit

Barr v. Clinton, 370 F.3d 1196 (D.C. Cir. 2004)…………………………..27 Colbert v. Potter, 471 F.3d 158 (D.C. Cir. 2006)…………………………...6 James v. Hurson Assocs., Inc. v. Glickman, 229 R.3d 277 (D.C. Cir. 2000)…………………………………...………….3 United States ex rel. New v. Cohen, 129 F.3d 639 (D.C. Cir. 1997), cert. den., 523 U.S. 1048……………...….18

Court of Appeals: All Other Circuits Bierman v. Marcus, 246 F.2d 200 (3rd Cir. 1957)……………...…………..23 Indianapolis Colts v. Mayor & City Council, 733 F.2d 484 (7th Cir. 1984)……………………………..…………………23 Murphy v. Travelers Ins. Co., 534 F.2d 1155 (5th Cir. 1976)………………23

v

ATTACHMENT NO. 1-7

Case: 09-5080

Document: 1217859 1207621

Filed: 11/27/2009 09/22/2009

Page: 9 7

TABLE OF AUTHORITIES, Continued Page(s) Cases Court of Appeals: All Other Circuits, Continued Pure Country, Inc. v. Sigma Chi Fraternity, 312 F.3d 952 (8th Cir. 2002).…4 Underwriters at Lloyd’s v. Nichols, 363 F.2d 357 (8th Cir. 1966)….......10-15 United States v. Board of School Commissioners, 128 F.3d 507 (7th Cir. 1997)………………………………………….……...2 United States v. High Technology Products, Inc., 497 F.3d 637 (6th Cir. 2007)……………………………………….……….23

United States District Courts Bank of Neosho v. Colcord, 8 F.R.D. 621 (W.D. Mo. 1949)…...……....19-22 Bankers Trust Co. v. Manufacturers National Bank, 139 F.R.D. 302 (S.D.N.Y. 1991)……………………………………….21-23 Berg v. Obama, et al.. 574 F. Supp. 2d 509 (E.D. Pa 2008)………..……….8 Hollister v. Soetoro, et al, 601 F.Supp.2d 179 (D.D.C. 2009)………………5 Hollister v. Soetoro, et al, 258 F.R.D. 1 (D.D.C. 2009)………………..……5 McAlister v. Potter (J. Collyer), 570 F.Supp.2d 24 (D.D.C. 2008)……….…4 Pan American fire & Cas. Co. v. Revere, 188 F.Supp. 474 (E.D. La 1960)……………………………………….13, 15 Xerox Corp. v. Nashua Corp., 314 F.Supp. 1187 (S.D.N.Y. 1970)…....22, 23

vi

ATTACHMENT NO. 1-8

Case: Case:09-5080 09-5080

Document: Document:1217859 1207621

Filed: Filed:11/27/2009 09/22/2009

Page: Page:10 8

TABLE OF AUTHORITIES, Continued Page(s) Cases United States Court of Military Appeals United States v. Calley, 22 USCMA 534, 48 CMR 19 (1973)…….……7, 19

FEDERAL RULES OF CIVIL PROCEDURE Rule 22…………………………………………………………11, 19, 21, 22 Rule 32(a)……………………………………………………………….…29

STATUTES 28 U.S.C. § 1335…………………………………………………….……..19

UNITED STATES CONSTITUTION

Article II, Sect. I, Cl. 5………………………………………..……………26 Article III…………………………………….…………………..5, 11, 12, 18 Fourth Amendment……………………………….……………..…………25 Fifth Amendment…………………………………………………..………25

vii

ATTACHMENT NO. 1-9

Case: Case:09-5080 09-5080

I.

Document: Document:1217859 1207621

Filed: Filed:11/27/2009 09/22/2009

Page: Page:11 9

The Overriding Issue Is The Lack Of Any Hearing A.

Dismissal Without Holding A Hearing Was A Denial Of Due Process

Even if everything which Appellees Soetoro and Biden have said in their brief were found to be true, Appellant Col. Greg Hollister was never afforded any hearing at all in the District Court. In fact, with respect to the motion to proceed pro hac vice to which Soetoro and Biden refer,1 the District Court itself said that there would be a hearing on the question of good faith and the legal basis for bringing the suit,2 but then never held that hearing.3 By contrast, the Supreme Court of the United States has said, “The core of due process is the right to notice and a meaningful opportunity to be heard.” LaChance v. Erickson, 522 U.S. 262, 266 (1998). Nonetheless, the District Court apparently felt quite comfortable making its findings of fact by its readings on the internet: “Even in its relatively short life the case has excited the blogosphere and the conspiracy theorists. The right thing to do is to bring it to an early end …. The issue of the President’s citizenship was raised, vetted, blogged, texted, twittered, and otherwise massaged by America’s vigilant citizenry during Mr. Obama’s two-year-campaign for the presidency, but this plaintiff wants it resolved by a court.” (Appendix 217-220). “Many people, perhaps as many as a couple of dozen, feel deeply about this issue.” (Appendix 221-222)

1

Br. Of Appellees at 28. Appendix 65. All filings by the Plaintiff-Appellant in the District Court were signed by counsel of record in that Court John Hemenway, a member of the bar of that Court. 2 3

1

ATTACHMENT NO. 1-10

Case: 09-5080

Document: 1217859 1207621

Filed: 11/27/2009 09/22/2009

Page: 12 10

In that light, we again refer this Court to the Supreme Court of the United States: “We have frequently recognized the importance of the facts and the factfinding process in constitutional adjudication. (‘How the facts are found will often dictate the decision of federal claims’); (‘It is the typical, not the rare, case in which constitutional claims turn upon the resolution of contested factual issues’).” Bender v. Williamsport Area School Dist., 475 U.S. 534, 542, n. 5 (1986) (citations omitted) (emphasis supplied). All in all, the District Court was apparently unaware of the admonition of the Seventh Circuit that courts must resist the temptation “… to disregard procedural niceties, all in fulfillment of a confident sense of mission.”4 Dismissal without holding any hearing was reversible error as an abuse of discretion. II.

The District Court Improperly Denied Col. Hollister’s Request That He Be Allowed To File A Second Amended Complaint For reasons stated later herein, we maintain that the District Court

improperly refused to consider Col. Hollister’s First Amended Complaint. We mention the issue of the denial of his request to file a Second Amended Complaint (while his First Amended Complaint was still pending)5 separately because that denial involves a violation of different precedents. In such cases, the Supreme Court could not have been more clear: Foman v. Davis, 371 U.S. 178, 192 (1962).

4 5

United States v. Board of School Commissioners, 128 F.3d 507, 512 (7th Cir. 1997). Opp. to Mot. to Dismiss [Dkt. #13] at 18 2

ATTACHMENT NO. 1-11

Case: 09-5080

Document: 1217859 1207621

Filed: 11/27/2009 09/22/2009

Page: 13 11

Of course, we expect Soetoro and Biden to maintain that there was bad faith or other aggravating circumstances. But it was nonetheless reversible error for the District Court to dismiss this case without giving Col. Hollister any hearing at all on point. Under Foman v. Davis, 371 U.S. 178, (1962) the refusal to allow Appellant’s Amended Complaint was an abuse of discretion. III.

The District Court Improperly Refused To Consider Col. Hollister’s First Amended Complaint We told the District Court that under James v. Hurson Assocs., Inc. v.

Glickman, 229 R.3d 277, 282-283 (D.C. Cir. 2000) this Circuit recognizes a plaintiff’s “absolute right” to amend prior to the filing of a responsive pleading (Opp. to Mot. to Dismiss [Dkt. #13] at 9.) We also noted for the District Court that the same case recognizes that a motion to dismiss is not a responsive pleading. Ibid. (Opp. to Mot. to Dismiss [Dkt. #13] at 9-10.) Soetoro and Biden filed no responsive pleading at all in the District Court, and the District Court dismissed this case only after the First Amended Complaint was filed. Col. Hollister’s First Amended Complaint added to his original Complaint by saying that the duties he owes are obligations (as mentioned by the federal Interpleader statute), and also by adding an entirely new, additional Count: a

3

ATTACHMENT NO. 1-12

Case: 09-5080

Document: 1217859 1207621

Filed: 11/27/2009 09/22/2009

Page: 14 12

Bivens claim. Yet, when Appellant Hollister filed his First Amended Complaint, the District Court said only this: “Plaintiff’s amended complaint [#11] adds nothing to the original complaint except rhetoric and legal theory and creates no obligation upon the defendants to respond to it. …. Unless points and authorities in opposition to the motion to dismiss are filed by 2/13/09, the motion will be treated as conceded and granted.” (Appendix 118) The District Court simultaneously said that the First Amended Complaint was not “responsive to the Appellees’ motion to dismiss”, and gave Appellant Hollister only two days in which to file the response to the Motion to Dismiss.6 (Appendix 118) (The response was timely filed.) We tried to point out the error of such procedure to the District Court, but to no avail, citing to authority on point from the District of the District of Columbia, and to one particularly on point from the Eighth Circuit: McAlister v. Potter (J. Collyer), 570 F.Supp.2d 24, n. 3 (D.D.C. 2008); Pure Country Inc. v. Sigma Chi Fraternity, 312 F.3d 952 (8th Cir. 2002). Under Foman v. Davis, 371 U.S. 178, (1962) the District Court’s refusal to consider the First Amended Complaint was an abuse of discretion. IV.

The District Court Decided This Case By Reference To Political Factors Rather Than To The Law Exclusively This case is inherently political just on the facts themselves. The decision of

the District Court to make its findings of fact from the political speech of the internet, instead of at a hearing, makes it even more so. And the dismissal of this 6

Appendix 87; see Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971) 4

ATTACHMENT NO. 1-13

Case: 09-5080

Document: 1217859 1207621

Filed: 11/27/2009 09/22/2009

Page: 15 13

case, and the reprimand of John Hemenway, are now published opinions, open for the political realm to see.7 The danger is that if the Article III courts are perceived as participating in the political process every bit as much as the other two departments of government, instead of being a neutral arbitrator, the judiciary will have lost much of what it was called to do.8 Now, in addition, Soetoro and Biden would enhance the political considerations of this case; in their brief they said, “Hollister’s claims fail as a matter of law because he used Interpleader as a pretext to try to obtain a ruling on the Natural Born Citizenship Clause.” (Br. Of Appellees at 5.) The thing is, in order for Col. Hollister’s interest in this matter to be a pretext, he would have to have no true interest otherwise at all, and his interest would have to be political only. During the administration of President Bill Clinton, while Hollister was serving as an active-duty lieutenant colonel in the United States Air Force, he became concerned that then-President Bill Clinton might be constitutionally disqualified from serving as President. He wrote a letter to then-Secretary of Defense Perry about his concerns.9 In sending that letter to the Secretary Perry, 7

Hollister v. Soetoro, et al., 601 F.Supp.2d 179 (D.D.C. 2009); Hollister v. Soetoro, et al., 258 F.R.D. 1 (D.D.C. 2009). 8 See, Planned Parenthood v. Casey, 505 U.S. 833, 866-867 (1992). 9 See Appendix “A”, Col. Hollister wished to hold this letter in reserve in the District Court for a hearing in case his testimony would be impeached on the grounds that he was politically motivated, but the District Court’s decision to dismiss without a hearing left him unable to 5

ATTACHMENT NO. 1-14

Case: 09-5080

Document: 1217859 1207621

Filed: 11/27/2009 09/22/2009

Page: 16 14

Hollister put his career on the line for the sake of his duty. He risked never being promoted to full colonel (which he eventually was), along with whatever mistreatment anyone along his entire chain of command might wish to visit upon him for raising the issue. Yet his sense of duty compelled him to act. When his concerns were addressed, and his superiors thought there was no further need for investigation, he did what any good, conscientious member of the Armed Forces should do: He accepted the decision of his superiors, and no more was said or done about it. Yet now Soetoro and Biden themselves have dragged up the political end of this issue by alleging that Col. Hollister’s concern is but a political pretext, and nothing more than that. (Br. Of Appellees at 5.) They thus fail to grasp that this thing which they call a pretext is in fact the very substance of Col. Hollister’s claim, and Col. Hollister was not even given an opportunity at a hearing to explain that. We mention all this to establish that, for Col. Hollister, this is no political matter. When he thinks it his duty to bring to light the possibility of such an exceptionally important matter as the constitutional qualifications of the Commander-In-Chief of the Armed Forces of the United States, he does so.

establish the contents of the letter in the record. Regarding the addition of new material on appeal, see, Colbert v. Potter, 471 F.3d 158, 165-166 (D.C. Cir. 2006).

6

ATTACHMENT NO. 1-15

Case: 09-5080

Document: 1217859 1207621

Filed: 11/27/2009 09/22/2009

Page: 17 15

We also mention this to point out that if Col. Hollister ever feels the need to act upon such concerns again, he shall certainly do so again. But this time, as Col. Hollister alleged to the District Court, the basis for questioning the current Commander-In-Chief’s qualifications are so much more substantial than they were with respect to Bill Clinton, Col. Hollister is of the opinion---tentatively, at least--that if he receives an order returning him to active duty, that such order will be an order he will be legally obligated to disobey.10 This places him at risk for court-martial and with it, all that such portends: incarceration, demotion, a dishonorable discharge, damage to his reputation, loss of pay and benefits (including pension), and potential civil liability. Such is not the stuff of a political pretext. Rather, such is the stuff of a concrete, nonpolitical concern … and at that, from someone who has an established track record of expressing such concerns, when he has them, in a way which illustrates that he can keep his political preferences separate from his duty as an officer in the United States Air Force. If all of the above were not bad enough, the District Court, at the behest of Soetoro and Biden,11 even went so far as to make the following remarks in dismissing the case:

10

Complaint, [Dkt. #1], ¶¶ 14-47; First Amended Complaint, [Dkt. #11], ¶¶ 17-53; see also, United States v. Calley, 22 USCMA 534, 48 CMR 19 (1973). 11 Motion to Dismiss [Dkt. #9] at 3-4. 7

ATTACHMENT NO. 1-16

Case: 09-5080

Document: 1217859 1207621

Filed: 11/27/2009 09/22/2009

Page: 18 16

“The real plaintiff is probably Philip J. Berg, a lawyer who lives in Lafayette Hill, Pennsylvania, and who has pursued his crusade elsewhere. see Berg v. Obama, 574 F. Supp. 2d 509 (E.D. Pa. 2008) …. That case was … dismissed …. Mr. Hollister is apparently Mr. Berg’s fallback brainstorm, essentially a straw plaintiff, one who could tee Mr. Berg’s native-born [sic] issue up for decision on a new theory …” (Dismissal [Dkt. #21] at 2.) Thus, here we have an instance of a federal judge actually reaching out from beyond the legal aspects of a case to prejudice the rights and claim of a plaintiff by making reference to an entirely different case in which counsel for the plaintiff is a party in that other case. And the end goal of such behavior by the District Court, by all appearances, was to punish counsel Berg indirectly by actually punishing Col. Hollister directly instead. In addition, all of this completely ignores the relief which Col. Hollister asked for. He asked for relief in the alternative, depending upon what findings of fact the District Court would make an a hearing, seeking either an order from the District Court ordering him to refrain from recognizing Soetoro as the rightful Commander-In-Chief or, in the alternative, an order requiring Col. Hollister to recognize Soetoro as being in fact the rightful Commander-In-Chief.12 Thus, the relief which Col. Hollister asks for is not simply one which favors one side of the political equation or the other. He simply seeks resolution of this issue by

12

Complaint at ¶¶ E, F, and G of Prayer for Relief in First Cause of Action, and First Amended Complaint at ¶¶ E, F, and G of Prayer for Relief in Count One and ¶¶ E, F, and G of Prayer for Relief in Count Two. 8

ATTACHMENT NO. 1-17

Case: 09-5080

Document: 1217859 1207621

Filed: 11/27/2009 09/22/2009

Page: 19 17

competent authority one way or the other, as he did during the administration of Bill Clinton, and nothing more than that. This is about as nonpolitical a form of relief as one could ask for. Furthermore, the District Court’s reprimand of counsel simply pours salt into the political wound already opened by the District Court. Col. Hollister himself, we first note, did not speak out politically on the issue of Bill Clinton’s constitutional eligibility, nor did he do so regarding the same issue for Soetoro. But as between two persons who, years from now, might wish to pursue some unrelated claim that could also have political overtones, if either of them has been politically active, and has publicly expressed political opinions, if the use of political speech on the internet is allowed to stand as a substitute for a hearing in a court of law, then that person who has spoken out on political issues may be suspect in the eyes of the court for having improper motives, whereas the one who has had fewer or no political interests, or who has maintained silence concerning such opinions, will not be so prejudiced. This is effectively prior restraint, not even limited to the given subject matter of this case, and is a violation of First Amendment principles through intimidation of free speech. We are in fact reminded of a case in which a press association had to sue a judge of the District Court of the State of Nebraska concerning an order he had entered restraining the news media from making certain statements about a trial. (The courthouse wherein this Court sits was, in

9

ATTACHMENT NO. 1-18

Case: 09-5080

Document: 1217859 1207621

Filed: 11/27/2009 09/22/2009

Page: 20 18

fact, named for lead counsel for the press in that case.) The Supreme Court of the United States said in response, “The thread running through all these cases is that prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights. A criminal penalty or a judgment in a defamation case is subject to the whole panoply of protections afforded by deferring the impact of the judgment until all avenues of appellate review have been exhausted. Only after judgment has become final, correct or otherwise, does the law’s sanction become fully operative. “A prior restraint, by contrast and by definition, has an immediate and irreversible sanction. If it can be said that a threat of criminal or civil sanctions after publication ‘chills’ speech, prior restrain ‘freezes’ it at least for the time. “The damage can be particularly great when the prior restraint falls upon the communication of news and commentary on current events.” Nebraska Press Ass’n. v. Stuart, 427 U.S. 539, (1976). It is no wonder then that such unrestrained issuance of any form of sanction is frowned upon by the Supreme Court.13 In fact, it is particularly egregious that the District Court should have issued a reprimand when Col. Hollister cited to Nichols in his original Complaint and in his First Amended Complaint, and when counsel John Hemenway had likewise cited to Nichols in his Response to Order to Show Cause.14

13

Talamini v. Allstate Insurance Co., 470 U.S. 1067, 1070-71 (1985). Complaint, [Dkt. #1], ¶ 37; First Amended Complaint, [Dkt. #11], ¶ 43; Response to Order to Show Cause [Dkt. # 23] at 10. 14

10

ATTACHMENT NO. 1-19

Case: 09-5080

Document: 1217859 1207621

Filed: 11/27/2009 09/22/2009

Page: 21 19

The Judge’s decision to use First Amendment Political speech off the internet in lieu of a hearing is a clear abuse of discretion, Nebraska Press Ass’n. v. Stuart, 427 U.S. 539 (1976); Foman v. Davis, 371 U.S. 178, (1962). V.

The Standing Of Hollister Establishes That Interpleader And Bivens Were Well-Pleaded, And That He Stated A Claim Upon Which Relief Can Be Granted A.

Hollister Had Standing Under Interpleader

In his Complaint, Col. Hollister alleged both statutory Interpleader and Rule 22 Interpleader. As the Eighth Circuit has noted, these two forms of Interpleader are so similar that it deems case authority for one to be likewise case authority for the other.15 We likewise deem this to be so, except to the extent that the two forms specifically differ: i.e., regarding whether jurisdiction is conferred, and whether there is a “property” or “obligation” requirement. Standing for purposes of Interpleader and Bivens is different from that of all other federal claims. Appellees state that the allegations of the Complaint are too speculative for an Article III Court to have jurisdiction (Br. Of Appellees at 21-23.) They state that supposedly, Plaintiff Hollister must show 1.) injury in fact; and, 2.) a causal connection between the injury in fact and the conduct complained of; and, 3.) a substantial likelihood that the requested relief will be redressed by a favorable decision. Ibid. We agree that this is the normal rule for ascertaining standing in the

15

Underwriters At Lloyd’s v. Nichols, 363 F.2d 357, 361 (8th Cir. 1966) 11

ATTACHMENT NO. 1-20

Case: 09-5080

Document: 1217859 1207621

Filed: 11/27/2009 09/22/2009

Page: 22 20

Article III courts, but Soetoro and Biden fail to understand that the normal rule has no application to Interpleader and to Bivens claims. And thus, such statements of Soetoro and Biden demonstrate a lack of knowledge of the fundamentals of Interpleader and Bivens. 1.)

The Foundation Of Standing In Interpleader Was Established In The Complaint And In The First Amended Complaint

In Interpleader, a plaintiff need not show harm or an immediate threat of harm. As we pointed out in the Complaint, courts have recognized that all that need be shown is a real, reasonable, bona fide fear of exposure to multiple claims or the hazards and vexation of conflicting claims.16 As Col. Hollister told the District Court, he knows he owes his duties to Soetoro or Biden, and that he must share in the employer/employee and superior/subordinate relationships with one of the two, but not to or with both simultaneously; he filed this suit to find out whether it is Soetoro or Biden who may properly claim all this from him.17 Significantly, in one of those cases we cited to in the District Court,18 not only was there a speculative question of a factual element which would have to be satisfied first in order for the Interpleader plaintiff to face a definite, concrete threat, but also there was an open, speculative question of law on which the 16

Complaint, [Dkt. #1], ¶ 37; First Amended Complaint, [Dkt. #11], ¶ 43.) See also, State of Texas v. State of Florida, 306 U.S. 398, 410-411 (1939). 17 Complaint, [Dkt. #1], ¶¶ 9-47; First Amended Complaint, [Dkt. #11], ¶¶ 11-53. 18 Underwriters at Lloyd’s v. Nichols, 363 F.2d 357 (8th Cir. 1966) (holding that a court has a duty to allow Interpleader liberally). 12

ATTACHMENT NO. 1-21

Case: 09-5080

Document: 1217859 1207621

Filed: 11/27/2009 09/22/2009

Page: 23 21

Interpleader element hinged as well. The question of fact depended on whether the Interpleader plaintiff, an insurance company, would ever face liability at all, since it would face liability if and only if a judgment was ever entered against the insured. The Eastern District of Arkansas thus found that the insurance company’s concerns were “double contingent”, and for that reason were to speculative to allow Interpleader; simultaneously, the open question of law was whether the insurance company would be liable to plaintiffs in later cases if it exhausted the sum available under its policy in judgments with plaintiffs in the first cases to be brought to final judgment against the insured.19 Notwithstanding all that uncertainty, the Eighth Circuit reversed the Eastern District of Arkansas, quoting from an opinion written by His Honor Judge J. Skelly Wright, while Judge Wright was still serving as a judge of the Eastern District of Louisiana, saying, “The key to the clause requiring exposure to ‘double or multiple liability’ is in the words ‘may be.’ The danger need not be immediate; any possibility of having to pay more than is justly due, no matter how improbable or remote, will suffice.” Nichols, 363 F.2d at 364, quoting Pan American Fire & Cas. Co. v. Revere, 188 F.Supp. 474, 480 (E.D.La. 1960) (emphasis supplied by the Eighth Circuit). The Eighth Circuit went on to say, “We are in accord with the statement of the Third Circuit … when it speaks ‘* * of the normal duty of a district court to permit interpleader liberally to relieve parties of the hazards and vexations of conflicting 19

Nichols, 363 F.2d at 360, and at 363. 13

ATTACHMENT NO. 1-22

Case: 09-5080

Document: 1217859 1207621

Filed: 11/27/2009 09/22/2009

Page: 24 22

claims against them.’ We hold interpleader to be justified in the present situation.” Nichols, 363 F.2d at 365-366. (citation omitted). Appellees simply fail to appreciate the fact that Interpleader is for those cases in which the threat of harm is speculative as well as for those cases in which the threat of harm is direct and immediate. This addresses both point one (1) and point two (2) of Appellees’ three-part test, since if injury or an immediate threat of injury need not be shown, it would be irrational to require Plaintiff Hollister to establish a causal connection between an injury and the Appellees’ conduct. As for the third part of the Appellees’ test, in Interpleader, relief consists of the Court’s dispelling of the fear of multiple claims, and of the potential hazards and vexations thereof. Given the fact that the relief we have requested will do precisely that if granted as pleaded (Complaint at Prayer for Relief A-J, pp. 19-21; First Amended Complaint at Prayer for Relief A-J, pp. 20-22), there is a substantial likelihood that the requested relief will be redressed by a favorable decision. 2.)

The Facts Establish Col. Hollister’s Standing Under Interpleader

As we mentioned above, in the District Court Col. Hollister alleged sufficient facts to establish a concern under Interpleader that Soetoro may not be constitutionally qualified to be President of the United States, and thus, that

14

ATTACHMENT NO. 1-23

Case: 09-5080

Document: 1217859 1207621

Filed: 11/27/2009 09/22/2009

Page: 25 23

Hollister himself may be subject to multiple, conflicting claims pertaining to his duties, relationships, and obligations.20 With respect to these facts, Soetoro and Biden make much about the fact that Biden himself has made no claim to the duties, relationships, and obligations of Col. Hollister.21 They miss the point in two respects. First of all, we repeat here for emphasis what we have already pointed out, “The key to the clause requiring exposure to ‘double or multiple liability’ is in the words ‘may be.’ The danger need not be immediate; any possibility of having to pay more than is justly due, no matter how improbable or remote, will suffice.” Nichols, 363 F.2d at 364, quoting Pan American Fire & Cas. Co. v. Revere, 188 F.Supp. 474, 480 (E.D.La. 1960) (emphasis supplied by the Eighth Circuit). Second, as we said to the District Court, “Plaintiff is in need of the assistance of this Court. Without a determination by competent authority as to whether Soetoro is or isn’t constitutionally eligible to be President, the Plaintiff will be left on his own to determine his duties should he receive what is purported to be his reactivation orders from Soetoro, or conflicting orders from his superiors in the chain of command, or orders which may conflict with his duty to support and defend the Constitution …. Accordingly, if this Court does find that Soetoro is indeed constitutionally qualified to hold the Office of President, Plaintiff will need for this Court to base such a finding upon a clear showing by affirmative evidence, consistent with Soetoro’s burden of proof under Interpleader, that Soetoro is indeed a ‘natural born’ United States citizen and qualified to be President in order to reduce any possibility that the deference to this Court might start to weaken among those above them [i.e., him] in the chain of command with respect to this most crucial issue

20 21

Complaint, [Dkt. #1], ¶¶ 9-47; First Amended Complaint, [Dkt. #11], ¶¶ 11-53. Br. Of Appellees at 14 and 15. 15

ATTACHMENT NO. 1-24

Case: 09-5080

Document: 1217859 1207621

Filed: 11/27/2009 09/22/2009

Page: 26 24

concerning the various duties of all members of the Armed Forces of the United States.”22 (emphasis supplied). Consequently, even if Biden were to become forever personally disinterested in assuming the Office of President from now on, this would not change the fact that there might be multiple divisions at multiple points along Col. Hollister’s chain of command as to whether the rightful Commander-In-Chief is Soetoro or Biden. In fact, given that the Constitution would operate in such a way as to require Col. Hollister and his fellow members of the Armed Services to recognize Biden as the rightful Commander-In-Chief if in fact he is so, the apparent reluctance of Biden to consider complying with the Constitution in this regard makes judicial resolution of this issue even more emphatically needed, not less so, as Soetoro and Biden contend. For if the Constitution, by operation of law, makes Biden the rightful Commander-In-Chief right now, that is a status which he cannot disavow without resigning from office. In this respect, consider the oath which Col. Hollister took to become an officer in the United States Air Force, and which others entering the Armed Forces likewise take. As he alleged in the District Court, under this oath, he swore that he would “… support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same

22

Complaint, [Dkt. #1], ¶ 44; First Amended Complaint, [Dkt. #11], ¶ 56.

16

ATTACHMENT NO. 1-25

Case: 09-5080

Document: 1217859 1207621

Filed: 11/27/2009 09/22/2009

Page: 27 25

…” In the same oath he also swore that he would “… obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. So help me God.”23 The natural sense of these two duties within the oath is that they should be read together and not be in conflict with each other, of course. But what if they are in conflict, and cannot be read together? If, for instance, Col. Hollister’s superiors should happen to develop the opinion that someone possesses prima facie evidence that Soetoro is not a natural-born citizen, and is blackmailing him into making decisions adverse to the United States (as they see it), would the duty to defend the Constitution against all enemies, foreign and domestic, be in conflict with the duty to obey the orders of the President of the United States? And what would be the case if there were one or more divisions on point along the chain of command above Col. Hollister? He has brought this suit to keep just such an issue from arising (which, if it did arise, could very well be in time of a national crisis). True, this is speculative. But as we said above, speculative scenarios are what Interpleader is for every bit as much as concrete, immediate threats. And at that, this is one type of scenario which the nation would be best off knowing it would never have to face.

23

Complaint, [Dkt. #1], ¶ 7; First Amended Complaint, [Dkt. #11], ¶ 7. 17

ATTACHMENT NO. 1-26

Case: 09-5080

a.)

Document: 1217859 1207621

Filed: 11/27/2009 09/22/2009

Page: 28 26

This Court’s Holding In New v. Cohen, And The Supreme Court’s Holding In Nguyen v. United States, Impact The Degree Of Speculation

The District Court also failed to appreciate the point raised in the Complaint about the significance of United States ex rel. New v. Cohen, 129 F.3d 639 (D.C. Cir. 1997), cert. den., 523 U.S. 1048. (Complaint at ¶¶ 41-42; First Amended Complaint at ¶¶ 47-48.) Any argument about Col. Hollister’s Complaint alleging things that are too speculative must be considered in light of the fact that by Act of Congress (as construed by this Court in New v. Cohen), if Hollister is recalled to active duty, from that moment on the Article III courts are closed to him under the precedent of this very Court itself. Accordingly, this is the only chance which Appellant Hollister has to prevent a potentially catastrophic confrontation between himself and his superiors as to what may or may not be an illegal order that he is obligated to disobey, or a legal order which he must obey; and right now---before his reactivation---is the only window of time available to him to straighten this potential conflict out before such a confrontation can happen, with potentially devastating consequences for him and for others. Col. Hollister, we ask the Court to keep in mind, has a present-tense status, right now, of being someone who is subject to a recall order. Thus, the Act of Congress which bars active duty members of the Armed Forces from having access to this Court right now hangs like a Sword of Damocles over Plaintiff Hollister’s head. That is not speculative.

18

ATTACHMENT NO. 1-27

Case: 09-5080

Document: 1217859 1207621

Filed: 11/27/2009 09/22/2009

Page: 29 27

Likewise, as we told the District Court, in both the military and civilian sectors, the holding of the Supreme Court of the United States in Nguyen v. United States24 impacts Col. Hollister’s concern that at least some of the official acts of a constitutionally unqualified Commander-In-Chief might be void, and that it may be illegal to follow orders from the Commander-In-Chief in such circumstances.25 B. 1.)

Hollister Stated A Claim Upon Which Relief Can Be Granted The “Property” And “Obligation” Elements Are Not Part Of Rule 22 Interpleader

Soetoro and Biden contend that there is but one difference between statutory and Rule 22 Interpleader, i.e., that statutory Interpleader (i.e., Interpleader under 28 U.S.C. § 1335) gives the District Court jurisdiction, whereas Rule 22 does not. (Br. Of Appellees at 8-9). There is, however, an additional difference between the two forms of Interpleader: statutory Interpleader states a requirement that the subject of Interpleader involve some sort of “property” or “obligation”, whereas Rule 22 Interpleader states no such requirement. With that in mind, we direct this Court’s attention to Bank of Neosho v. Colcord,26 a case in Rule 22 Interpleader, not in statutory Interpleader. In that case the Western District of Missouri found that a duty can be the proper subject of

24

Nguyen v. United States, 539 U.S. 69, 77-81 (2003); see, Complaint, [Dkt. #1], ¶ 43; First Amended Complaint, [Dkt. #11], ¶ 49. 25 See, United States v. Calley, 22 USCMA 534, 48 CMR 19 (1973). 26 Bank of Neosho v. Colcord, 8 F.R.D. 621 (W.D. Mo. 1949). 19

ATTACHMENT NO. 1-28

Case: 09-5080

Document: 1217859 1207621

Filed: 11/27/2009 09/22/2009

Page: 30 28

Interpleader. This is at odds with the findings of the District Court in the case at bar, but a simple look at Colcord will establish our point. After first noting that the case was a case in strict Interpleader,27 the Western District of Missouri said, “In strict interpleader actions, the subject-matter thereof is the fund, thing, or duty to which the parties make adverse claims. 48 C.J.S., Interpleader, § 13, p. 49. In the case at bar, it is apparent from the pleadings that the ‘thing’ which the adverse claimants here demand of the disinterested stakeholder is the performance of a ‘duty’ imposed upon it which arises by virtue of a written contract executed by the adverse claimants. The duty of the stakeholder under that contract was, to retain the fund in question and to apply it ‘upon the purchase price consideration upon the final closing of (the) transaction,’ by said parties …. The duty so imposed upon the stakeholder, by such contract, is the subject-matter of this action …. To adjudicate the issues here presented, the Court will be compelled to consider … the obligations and duties assumed by the stakeholder … “The establishment of the facts … will relieve the stakeholder of the ‘duty’ imposed on it by the contract …” Colcord, 8 F.R.D. at 623624. (emphasis supplied). This language belies the conclusion of the District Court in the instant case that, supposedly, in its decision, the Colcord Court was “… deciding nothing more than that a cross-claim for the ‘duty’ of specific performance would lie in the same case because it involved the same subject matter as the underlying interpleader action.” (Mem. Order [Dkt. #27] at 6) (emphasis supplied). For the above-quoted language from the Western District of Missouri was not merely obiter dicta:

27

Bank of Neosho v. Colcord, 8 F.R.D. at 622. 20

ATTACHMENT NO. 1-29

Case: 09-5080

Document: 1217859 1207621

Filed: 11/27/2009 09/22/2009

Page: 31 29

“To adjudicate the issues here presented, the Court will be compelled to consider … the obligations and duties assumed by the stakeholder …” Colcord, 8 F.R.D. at 623. (emphasis supplied). 2.)

The “Property” Or “Obligation” Requirement Of Statutory Interpleader Must Be Considered In Light Of Martin v. Wilks And N.O.W. v. Scheidler

The District Court refused to recognize Col. Hollister’s duties and relationships as being a proper subject of Interpleader despite the fact that we had apprised the District Court of two key cases from the U.S. Supreme Court on statutory construction: Martin v. Wilks, 490 U.S. 760 (1989) and N.O.W. v. Scheidler, 510 U.S. 249 (1994). [Dkt. #1] at ¶¶ 10-11; First Am. Compl. [Dkt. #11] at ¶¶ 12 and 14.) Not only does Rule 22 not even state a requirement that the res of Interpleader be either property or an obligation, but even statutory Interpleader (which does have a “property” or “obligation” requirement) does not state a requirement that the property or obligation be tangible. Thus, under Martin and Scheidler, reading such a requirement into the required elements of Interpleader violates Supreme Court precedent. Yet Soetoro and Biden continue to press the idea that such is not the case. Curiously, in support of their position, they cite Bankers Trust Co. v. Manufacturers National Bank, 139 F.R.D. 302 (S.D.N.Y. 1991). With respect to the application of Martin to Interpleader in that case (Scheidler had not yet been decided), Martin is not mentioned in Bankers Trust,

21

ATTACHMENT NO. 1-30

Case: 09-5080

Document: 1217859 1207621

Filed: 11/27/2009 09/22/2009

Page: 32 30

and in all probability, it was not even brought to the attention of the Court. In that light we ask the Court to consider the following: “Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents.” Webster v. Fall, 266 U.S. 507, 511, 45 S.Ct. 148, 149, 69 L.Ed. 411, 413 (1925). Like the case at bar, Bankers Trust was a case brought under both statutory and Rule 22 Interpleader. Bankers Trust, 139 F.R.D. at 306. And granted, in potential conflict with the Western District of Missouri in Colcord, the Court in Bankers Trust said that a duty to manage a fleet of railcars is not a “stake” for purposes of Interpleader. Bankers Trust, 139 F.R.D. at 307. But this was obiter dicta, for the Southern District of New York found that if anyone could be said to be the stakeholder in that case, it would be a different corporate entity than the Interpleader plaintiff, Manufacturers National Bank (MNB). Ibid. Thus, MNB did not even have standing to assert a right to Interpleader in the first place. It is also curious that Soetoro and Biden should cite to Bankers Trust because the Court therein referred to one of the cases the Appellees rely on for support, Xerox Corp. v. Nashua Corp., and cited with approval to the fact that in Xerox, the Court held that “… Rule 22 does not require a formal stake or fund …” Ibid (citing Xerox Corp. v. Nashua Corp., 314 F.Supp. 1187, 1189 (S.D.N.Y. 1970).) What is more, the Court in Bankers Trust found that the “Interpleader” plaintiff had Interpleader completely backwards, and was, in essence, trying to use 22

ATTACHMENT NO. 1-31

Case: 09-5080

Document: 1217859 1207621

Filed: 11/27/2009 09/22/2009

Page: 33 31

Interpleader to determine from which of two or more entities Bankers Trust itself could claim a right to receive something rather than to determine to which of two or more entities Bankers Trust might owe something. Ibid. Bankers Trust, 139 F.R.D. at 307. As to Murphy v. Travelers Ins. Co., 534 F.2d 1155 (5th Cir. 1976), to which Soetoro and Biden cite, that case was decided before either Martin or Scheidler were decided. With respect to Bierman v. Marcus, 246 F.2d 200 (3rd Cir. 1957), the Court there noted that the Interpleader “plaintiff” knew for a fact that there was no possible way that it could be faced with conflicting claims. Bierman, 246 F.2d at 203. With respect to Xerox, supra, the Court found that there was no factual basis upon which Nashua Corp. could possibly believe that there was any potential for its being subject to multiple claims, and also found that the corporation in essence wanted the District Court to force Xerox Corp. and RCA (which otherwise was not even a party to the case) to sue each other over a patent. Xerox, 314 F.Supp. at 1189. As to Treinies v. Sunshine Mining Co., 308 U.S. 66 (1939) and Indianapolis Colts v. Mayor & City Council, 733 F.2d 484 (7th Cir. 1984), those two cases focused more heavily on diversity of citizenship than on the substance of what constitutes adversity between potential claimants. And as to Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937 (2009) and United States v. High Technology Products,

23

ATTACHMENT NO. 1-32

Case: 09-5080

Document: 1217859 1207621

Filed: 11/27/2009 09/22/2009

Page: 34 32

Inc., 497 F.3d 637 (6th Cir. 2007), neither of those cases states anything incompatible with what Col. Hollister has been alleging all along. Perhaps strangest of all is the reference of Soetoro and Biden to the fact that, according to their own authority, an inchoate thing such as a right to borrow on an insurance policy can be a proper subject of Interpleader. (Br. Of Appellees at 12.) For this point they make supports our argument not theirs. 3.)

The “Obligation” Element Was Alleged In The First Amended Complaint

Soetoro and Biden argue that Col. Hollister cannot now discuss the “obligation” element of statutory Interpleader because it was not argued in the District Court.28 But the “obligations” element was alleged in the First Amended Complaint,29 which, as we have said, the District Court improperly refused to consider. Incredibly, Soetoro and Biden now argue that because Hollister had filed a First Amended Complaint, this Court can no longer consider the original Complaint, meaning, by implication, that the First Amended Complaint, with its allegation of the duties as “obligations”, must be good after all. (Br. Of Appellees at 20). Soetoro and Biden also apparently wish to have this Court believe that Counsel John Hemenway made reference to the “obligation” element as a

28 29

Br. Of Appellees at 11. First Amended Complaint, [Dkt. #11], ¶¶ 13-15, 56, 76. 24

ATTACHMENT NO. 1-33

Case: 09-5080

Document: 1217859 1207621

Filed: 11/27/2009 09/22/2009

Page: 35 33

supposed substitute for the “property” element,30 but the brief of Hemenway, properly construed, refers to “obligation” as being simply one of the statutory alternative ways of establishing an Interpleader res. C.

Hollister Had Standing Under Bivens

Likewise, in a Bivens claim, the grounds to establish standing are different than they are for ordinary cases. To obtain injunctive relief, one must simply show that the ordinary criteria for bringing a Bivens claim are met,31 and that one quite naturally fears that a federal officer will violate a protected constitutional right.32 Rights which have been recognized as being protected by Bivens claims include the Fourth Amendment right against and unreasonable search and seizure (i.e., Bivens itself) and against a deprivation of a Fifth Amendment right against a deprivation of property without due process.33 Col. Hollister does not claim a right under the “Natural Born Citizen” Clause of the Constitution. But as may be plainly seen by notice pleading, he does fear that he may be personally seized by reactivation to active duty, tried and incarcerated, and deprived of rights, pay, and benefits, all in violation of his Fourth and Fifth Amendment rights.

30

Br. Of Appellees at 11 Schweiker v. Chilicky, 487 U.S. 412, 421 (1988). 32 Farmer v. Brennan, 511 U.S. 825, 830, 845-846 (1994). 33 Davis v. Passman, 442 U.S. 228, 234-236 (1979). 31

25

ATTACHMENT NO. 1-34

Case: 09-5080

D.

Document: 1217859 1207621

Filed: 11/27/2009 09/22/2009

Page: 36 34

Interpleader And Bivens Most Closely Parallel The Text And Framework Of The Constitution

Appellant Hollister does not base his claim on the Constitution per se, but Appellant’s entire claim does stem from a provision of the Constitution regarding the qualifications to become President, a provision which states in pertinent part, “No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President … ” U.S. Const., Art. II, Sect. I, Cl. 5. (emphasis supplied) Notice, please, that the Constitution does not say, “A Person shall be eligible to the Office of President unless such Person is not a natural born Citizen …” In other words, there is no presumption that one is eligible to become President. Rather, the converse is the case: there is a presumption that one seeking to become President is not eligible to that office. Consequently, the wording of the Constitution itself places the burden of proof on someone seeking to become President. And such is likewise the nature of Interpleader and Bivens, once the threshold requirement of showing a reasonable fear of injury has been met. Other cases pertaining to this same subject matter have indeed been dismissed. But in how many of them were the plaintiffs able to establish their standing? And in how many of them did Soetoro (and Biden) have the burden of proof?

26

ATTACHMENT NO. 1-35

Case: 09-5080

E.

Document: 1217859 1207621

Filed: 11/27/2009 09/22/2009

Page: 37 35

The Supreme Court Has Noted An Important Difference Between “Valid” Claims And “Arguable”Claims For Purposes Of A Motion To Dismiss

The Supreme Court of the United States has said, “It is firmly established in our cases that the absence of a valid (as opposed to arguable) cause of action does not implicate subject-matter jurisdiction …. Dismissal for lack of subject-matter jurisdiction because of the inadequacy of the federal claim is proper only when the claim is ‘so insubstantial, implausible, foreclosed by prior decisions of this Court, or otherwise completely devoid of merit as not to involve a federal controversy.’”34 Accordingly, it was improper for the District Court, prior to a hearing, to substitute its own sense of whether Col. Hollister’s claim would eventually be found to have merit, in place of first allowing the establishment of a record at a hearing, something which is a prerequisite, of course, for appellate review of a District Court’s findings of fact. Appellant, Gregory S. Hollister, requests this Court to review De Novo the lower Court’s finding that Hollister failed to state a cause of action which relief could be granted, Barr v. Clinton 370 F.3d 1196, 1199 (D.C. Cir. 2004) VI.

Conclusion For the foregoing reasons, the judgment of the District Court should be

reversed, and this case remanded to that Court with instructions to accept Hollister’s First Amended Complaint, or, in the alternative, with instructions to

34

Steel Co. v. Citizens For A Better Environment, 523 U.S. 83, 89 (1998) (citations omitted). 27

ATTACHMENT NO. 1-36

Case: 09-5080

Document: 1217859 1207621

Filed: 11/27/2009 09/22/2009

Page: 38 36

allow Hollister to amend again, or at least to hold a hearing on the basis for Hollister’s claim. Respectfully submitted,

Dated: September 18, 2009

s/ Lawrence J. Joyce __________________________ Lawrence J. Joyce 1517 N. Wilmot Road, Suite 215 Tucson, AZ 85712 D.C. Circuit Bar No. 52501 (520) 584-0236

Attorney for Appellant, Gregory S. Hollister

28

ATTACHMENT NO. 1-37

Case: 09-5080

Document: 1217859 1207621

Filed: 11/27/2009 09/22/2009

Page: 39 37

CERTIFICATION OF COMPLIANCE WITH FED. R. APP. P. 32(a)

Pursuant to Fed. R. App. P. 32(a) and D.C. Circuit Rule 32)a), I hereby certify that this brief contains 6,638 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.

Dated: September 18, 2009

s/ Lawrence J. Joyce _________________________ LAWRENCE J. JOYCE, ESQ. [email protected] 1517 N. Wilmot Road, Suite 215 Tucson, AZ 85712 D.C. Circuit Bar No. 52501

29

ATTACHMENT NO. 1-38

Case: 09-5080

Document: 1217859 1207621

Filed: 11/27/2009 09/22/2009

Page: 40 38

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA

GREGORY S. HOLLISTER,

: : Appellant, : vs. : Court of Appeal Case No. : Consolidating No. BARRY SOETORO, et al. : : Appellees. :

09-5080 09-5161

CERTIFICATE OF SERVICE I, Lawrence J. Joyce, Esquire, hereby certify that Appellant, Gregory S. Hollister’s, Reply to Respondents Barry Soetoro a/k/a Barack H. Obama and Joseph R. Biden’s Appellees Brief was served via electronic filing this 20th day of September 2009 upon the following: Robert F. Bauer, Esquire PERKINS COIE 607 Fourteenth Street, N.W. Washington, D.C. 20005-2003 [email protected] Attorney for Appellees

s/ Lawrence J. Joyce _______________________ Lawrence J. Joyce, Esquire 1517 N. Wilmot Road, Suite 215 Tucson, AZ 85712 D.C. Circuit Bar number 52501 Attorney for Appellant

30

ATTACHMENT NO. 1-39

Case: 09-5080

Document: 1217859 1207621

Filed: 11/27/2009 09/22/2009

Page: 41 39

APPENDIX “A”

ATTACHMENT NO. 1-40

Case: 09-5080

Document: 1217859 1207621

Filed: 11/27/2009 09/22/2009

Page: 42 40

The Honorable William J. Perry Secretary of Defense The Pentagon, Room 2E 880 Washington, D.C. 20301 Dear Mr. Secretary, Sir, I am writing to ask your assistance to obtain an answer from the Attorney General (Tab 1) regarding section 3 of the 14th Amendment of the Constitution and how it may apply to Mr. Clinton. I have been seeking a direct answer to this question since February 1993. I continue to seek a formal, direct answer for the following reasons: 1. Section 3 of the 14th Amendment and Mr. Clinton’s letter of December 1969 to Colonel Eugene Holmes of Arkansas ROTC appear to make Mr. Clinton’s Presidency suspect unless and until a vote is taken by the House and the Senate. 2. Page 22 of American Jurisprudence in the Constitutional Law section confirms amendments to the Constitution require ratification by three-fourths of the States. The Act of June 6, 1898, stat 432 by Congress removing the disability of section 3 was not ratified at all as best I can tell from my research. 3. Griffin 11 Fed Case page 24 as regards section 3 of the 14th Amendment states “The Amendment applies to all the states of the union, to all offices under the United States or under any state, and to all persons in the category of the prohibition, and for all time present and future.” 4. American Jurisprudence 2d Edition, page 88, describes aid and comfort as “aid and comfort are given whenever overt acts are committed which, in their natural consequence, if successful would encourage and advance the interests of the enemy.” Mr. Clinton’s acts of organizing protests while a student in England after he signed up for ROTC falls into this category. Additionally, Admiral Stockdale is on record as characterizing Mr. Clinton’s acts of that time as aiding the North Vietnamese effort. (A copy of Mr. Clinton’s letter is a part of the Congressional record – read in during the September/October ’92 time frame.) 5. The case of Stephan vs. the U.S. describes the enemy as “subjects of a foreign power in open hostility with the U.S. No declaration of war is required to categorize a nation or a people as an enemy. 6. In Gillars vs. U.S. speaking into a microphone and causing a record to be made that is to be used as propaganda were held to constitute aid and comfort. Again, a parallel can be drawn to Mr. Clinton’s actions as outlined in his December 1969 letter as documented in the Congressional Record.

ATTACHMENT NO. 1-41

Case: 09-5080

Document: 1217859 1207621

Filed: 11/27/2009 09/22/2009

Page: 43 41

7. Mr. Clinton had also taken an oath as a staffer prior to his aid and comfort actions (see Tab 5 page 2) Mr. Secretary, I want you to understand this is not about Mr. Clinton becoming President, remaining, or never having been President. It is about the Constitution and my oath of office. It is also not about me being right or wrong. It is about ensuring the integrity of the principles and ideals embodied in the Constitution remain intact and credible. Failure to clarify this matter places in question the very essence, the bedrock, upon which our nation and way of life are based. If section 3 of the 14th Amendment is Constitutionally and legally no longer applicable then the Constitution should be changed accordingly. If this is not done, the entire Constitution becomes suspect – what is or is not applicable any longer? Do we only “support and defend” certain sections and ignore others? What of our oaths of office? How can they be considered binding or meaningful in any manner if we collectively care little for the accuracy or credibility of the Constitution? I have tabbed out letters with information sent to the Attorney General, the Supreme Court, Congress, and an attorney for your review prior to consultation with the Attorney General. I have not and will not discuss this issue with any active duty member. It would not be appropriate. This is an issue for our civilian leadership to grapple with and resolve. I respectfully request your assistance to obtain rulings from the Attorney General in a formal, legal, and professional manner on all the issues addressed in this letter and the attached packages. God bless you and guide you Submitted with deepest respect, Gregory S. Hollister, Lt. Col, USAF Commander 52nd Communications Squadron

1. 2. 3. 4. 5.

Note/letter to Att. Gen Copy DOJ Receipt Doc Letter/Reply Supreme Letter/info Rep Houghton Letter to attorney

ATTACHMENT NO. 1-42