Hollister V Soetoro - Joint Motion - To Schedule Oral Argument

Case: 09-5080

Document: 1218455

Filed: 12/01/2009

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No 09-5080 Consolidating No. 09-5161

IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT GREGORY S. HOLLISTER,

Case Below 08-2254 JR

Appellant, 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.

========= APPELLANTS’ MOTION FOR AND STATEMENT SUPPORTING ORAL ARGUMENT =========

John D.Hemenway D.C. Bar #379663 Counsel for AppellantS 4816 Rodman Street, NW Washington DC 20016 (202) 628-4819 [email protected]

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TABLE OF AUTHORITIES CASES

PAGE(S)

Ex Parte Reynolds, 5 Dill. 394, 402 (1879)

8

Figueroa-Ruiz v. Alegria, 905 F.2d 545, 549 (1st Cir.1990)

16

Fletcher v. Evening Star Newspaper Co., 133 F.3d 395, 395 (D.C.Cir..1942)

14

Hilton Hotels Corporation v. Banov, 899 F.2d 40, 46 (D.C.Cir.1990)

15, 16

Keith v. U.S., 8 Okla. 446, 58 P. 507 (1899)

8

Linda R.S. v. Richard D., 410 U.S. at 617, 93 S.Ct., at 1148, 35 L.Ed.2d, at 540

18

*Minor v. Happersett, 88 U.S. 162, 167-68 (1874)

6, 8, 10

Owens v. Republic of Sudan, 412 F.Supp.2d 99, 117 (D.D.C.2006)

13, 14

Renal Physicians Ass’n v. U.S. Dept. of Health & Human Servs., 489 F.3d 1267, 1273 (D.C.Cir.2007)

17

Shanks v. Dupont, 28 U.S. 242, 245 (1830)

8

Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41-42 (1976)

18

*The Venus, 12 U.S. (8 Cranch.) 253, 289 (1814)

7

United States v. Ward, 42 F. 320 (C.C.S.D.Cal.1890)

8

U.S. v. Wong Kim Ark, 169 U.S. 649 (1898)

8

Veg-Mix, Inc. v. U.S. Dept. of Agric., 832 F.2d 601, 607 (D.C.Cir. 1987)

14

i

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CONSTITUTION OF THE UNITED STATES Article II, Section 1, Clause 5

5, 6, 8, 15

14th Amendment

6, 8, 20

STATUTES, RULES AND TREATISES 28 U.S.C. § 1335 (“Interpleader Act”)

11, 12, 13, 18

*F.R.A.P. 34(a)(2)

1, 10, 11, 12

*Fed.R.Civ. P. Rule 11

3, 4, 11, 16

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

9, 11

Fed.R.Civ. P. Rule 12 (b)(1)

17

Vattel, The Law of Nations, bk. 1, ch. 19 § 212

8

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IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT GREGORY S. HOLLISTER, et al. Appellants,

) ) ) ) ) ) )

v. BARRY SOETORO, et al. Appellees.

Case Below 08-2254 JR No 09-5080 Consolidating No. 09-5161

MOTION FOR AND STATEMENT SUPPORTING ORAL ARGUMENT In its Order of June 26, 2009, the Court indicated its adoption of a briefing schedule and in doing so noted the following, namely that to the Court it was “appearing that this case might be suitable for disposition without oral argument,” (emphasis added). In so doing, the Court then requested that the parties consult Fed.R.App.P. 34(a)(2). Upon examining that rule as requested, appellants note that it states that oral argument “must be allowed in every case unless a panel of three judges who have examined the briefs and record unanimously agrees that oral argument is unnecessary for” any of three reasons that are then listed. (emphasis added). The heading of paragraph 34(a)(2) indicates that these three reasons are “Standards.” So the question of whether an oral argument will be denied in light of this positive admonition that oral argument “must” be

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allowed “in every case” unless one of the three reasons can be “unanimously” found establishes that each of the three reasons is a “standard” and that, therefore, the actual facts of this case must be measured against each of the three reasons in turn until one is found against which the facts of this case can be measured and found wanting. Because in its Order of June 26 the Court stated: “…it appearing that this case might be suitable for disposition without oral argument, (emphasis added) the Court did not indicate anything more than an “appear[ance]” that this case “might” be suitable for such disposition. The Court did not say that the case was suitable for presentation without oral argument or that at that point, when the order was issued, such a possibility was more than an “appear[ance].” Thus, it would seem that the type of thorough examination and analysis required for a panel “unanimous” opinion can not yet have yet been undertaken. This is particularly so when, as has now become the case, the entire matter has had to be briefed anew under a new schedule. Because of the intimation of this language of the rule as just discussed, and as we indicated would be done in the reply brief that was timely filed for the undersigned and for Colonel Hollister, and because, as we indicated in that reply brief, of the very substantial number of misrepresentations contained in the opposition brief of the appellees, which will now have to

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redone, were too many to be all dealt with in that timely filed reply brief, we ask for oral argument unless there is a valid standard that dictates that it should not be allowed. This would require a unanimous panel consideration and decision. In addition, there is the fact that it is evident that the pattern of misrepresentation thus exhibited will continue. The appellants, both of them are, at this point, requesting in this motion that there be a full oral argument so that all questions about the misrepresentations can be adequately addressed. They do so because they maintain that none of the three reasons for not having an oral argument as set out above in the Rule obtains here. The first of the three reasons, paragraph (A), provides that the Court may omit oral argument if the appeal is “frivolous.” The use of the word “frivolous” would seem to echo the language that has been used for years in applying. Since the individual appeal of the undersigned in this case is centered around the trial judge’s levying (albeit greatly reduced from its original form) of a Rule 11 sanction, one of a “reprimand,” it would seem that the present appeal could hardly be frivolous in light of the fact that the judge below originally sought to impose upon the undersigned the full costs of the defense of the appellees to include counsel fees. Since we know from Federal Election Commission filings, of which this Court may take judicial notice, the fees to the appellees’ law firm now exceed one million and four

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hundred thousand dollars ($1,400,000) of which the greater amount seem to be fees for defending cases about the eligibility for the presidency of the appellee Soetoro/Obama,

Further, such a Rule 11 sanction would be

ruinous to the average attorney, particularly one in solo practice. We can understand that the “backing off” by the judge below leading to his revised Rule 11 sanction was quite substantial. Yet, nonetheless, a Rule 11 sanction remains, as has been acknowledged by the appellees Soetoro a/k/a Obama and Biden in their filings heretofore. It seems to have been a withdrawal of an attempt by the lower court to ruin an attorney who had the temerity to bring such a suit.

We say this

because the sanction that was thus initially proposed by the lower court was clearly erroneous in several ways. Two of the most important of those errors were (A) that a Rule 11 sanction that is proposed by a judge clearly, under established law, cannot include such counsel fees and (B) it is hornbook law that such an award under Rule 11 entitles the attorney thus attacked to a hearing.

While, in drawing back as he did, the judge below, clearly

eliminated the violation of (A), he did not eliminate the violation of the hornbook law (B) and that cause for an appeal that is clearly not frivolous remains.

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Further, many, many examinations of Rule 11 have considered and established what “frivolity” in legal filings consists of, They have focused upon what is known as “pre-filing inquiry.” Here the judge below did not even begin to inquire what pre-filing inquiry the undersigned or the plaintiff and appellant Colonel Gregory S. Hollister did or did not consist of. Instead of inquiring into, or allowing any presentation of, what the pre-filing inquiry in this case consisted of, the court below instead relied upon the following pronunciamiento: 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-yearcampaign for the presidency, but this plaintiff wants it resolved by a court. App. 218 The question of “citizenship” was manifestly not what was at issue. Under the clear allegations of the complaint, as well as all of the filings of the plaintiffs/appellants below, what was at issue was whether the defendant Soetoro/Obama met one of the basic requirements imposed upon the person who wanted to legitimately qualify as the President. The Constitution in Article II, Section 1, Clause 5 states that the person who would seek that High Office be a “natural born citizen.” Clearly if what had been intended by the Founders was to require mere citizenship, they would have said so. Repeatedly in our history, particularly at the time of the enactment of the

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14th Amendment, it has been made abundantly clear that “citizenship” is not the same as the specific constitutional requirement of being a “natural born citizen.” For a United States District Court judge to assert that it is the “citizenship” of Soetoro/Obama that is at issue is not only error; it would seem to indicate inattention to what has been pled and argued in the case. As we have pointed out in our reply brief, there is an occasion in which the meaning of the Article II, Section 1, Clause 5 of the Constitution was discussed as a coherent part of a lengthy discussion by the Supreme Court. That was in its 1874 decision in Minor v. Hapersett, 88 U.S. 162. The case was about suffrage and not about citizenship; the discussion of citizenship and of the phrase “natural born citizen” in Article II was by way of setting the scene for the discussion of suffrage which was what was directly at issue. In setting that background at the outset of the case then Chief Justice Waite, for a unanimous court, discussed the state of affairs of who was a citizen under the law prior to the adoption of the 14th Amendment. In that context the court discussed how “additions” might be made in those early days, speaking of there being two routes to becoming a U. S. Citizen, by birth and by naturalization. After mentioning the two routes, the court by way of illustrating how one becomes a citizen by birth, quoted the Article II, Section 1, Clause 5 phrase and in doing so, discussed the ways of being a

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natural born citizen as known at the time of our founding. The court pointed out that at common law “it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural born citizens…”

The high

court then went on to say that there were those who went “further” and include as “citizens” (but not as “natural born citizens”) “children born within the jurisdiction without reference to the citizenship of their parents.” The court then held that “As to this class there have been doubts but never as to the first.” It then declared that for purposes of that case it was not necessary to resolve the doubts, reaffirming “that all children born of citizen parents [plural] within the jurisdiction [of the United States] are themselves citizens.” In addition to that decision in 1874, there have been other Supreme Court decisions in which the question of the “divided loyalty” created by a child’s having a parent, particularly the male parent, not be a citizen, have been discussed. In several of these cases the influence of the writer on international law, Vattel, as having been known to and an influence upon our Founders, was discussed. One of the most prominent of these was by no less a figure than John Marshall himself, writing in The Venus, 12 U.S. (8 Cranch.) 253, 289 (1814).

Perhaps the greatest figure in our early

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jurisprudence made it abundantly clear that it was the opinions of Vattel’s 1758 treatise that should be considered when reflecting on the intent of the constitutional framers such as what was meant by a phrase that they chose such as “natural born citizen.” Vattel, The Law of Nations, bk. 1, ch. 19 § 212. Marshall’s concurring opinion, in which he was joined by Justice Livingston, went on for several pages in distinguishing these considerations of Vattel from what later came to be erroneously pointed to by some as an influence upon the Founders coming from a different common law concept in which merely being born in a country conferred citizenship that could be distorted to be the “natural born citizen” status chosen by the Framers. For the importance of the natural born citizenship requirement in this regard in the 19th Century see also Shanks v. Dupont, 28 U.S. 242, 245 (1830), and, as we have previously pointed out Minor v. Happersett, 88 U.S. 162, 167-68 (1874). And see also, where the significance of Vattel is also mentioned: Ex Parte Reynolds, 5 Dill. 394, 402 (1879) and United States v. Ward, 42 F. 320 (C.C.S.D.Cal.1890). Also see Keith v. U.S., 8 Okla. 446, 58 P. 507 (1899). To see clearly the distinction between “citizenship” derived from being born in the country and the phrase “natural born citizen” as used in Article II by the Framers, see the dissenting opinion of Chief Justice Fuller in U.S. v. Wong Kim Ark, 169 U.S. 649 (1898), which was only about being

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naturally born into citizenship under the 14th Amendment and not about the Article II phrase “natural born citizen.” Chief Justice Fuller, in his dissent, emphasized that distinction as it was clearly understood in those days. In his Memorandum Order of March 24, 2009, the judge below, at p. 4 states that he has “no business” addressing the merits, and states that he refuses to address them because he is dismissing the case under Rule 12(b)(6) for failure to state a claim. He does not state how a judge can find that a claim makes no case without deciding that the claim as presented make a case that has no merit. His heavy reliance upon “blogging and twittering” on the Internet having constituted a “vet[ting]” of the defendant Soetoro a/k/a Obama by “America’s vigilant citizenry” would seem to those familiar with the history of our founding like kowtowing to the kind of easily susceptible pure democracy that was the Founder’s inspiration for creating a constitutional republic. Indeed the refusal to face the paramount issue in the case would seem to be the very “usurpation” of the Constitution that George Washington warned about in his farewell address. One wonders what the “vigilant citizenry,” or at least those citizens who truly are vigilant think about judges who are sworn to uphold the Constitution and then assiduously avoid its enforcement.

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The best cure for such avoidance would be, we submit, vigorous questioning by a panel at an oral argument. Far from being frivolous this appeal presents issues going to our very survival as a constitutional republic. They echo Ben Franklin’s reported concern at the close of the constitutional convention when he said to a woman on the street, “We have given you a Republic, Madam, if you can keep it?” In this regard an attempt to clarify the doubts set out by the Supreme Court in Minor, supra, is not “frivolous” by definition; it is an attempt to get clarified what the Supreme Court unanimously held to be in doubt and reserved to be decided on a later day. Therefore, a fortiori, an appeal from a decision in which a lower court refuses to allow such clarification based, not upon anything in the law, but rather upon “blogging and twittering” and vetting on the internet cannot itself be frivolous in any non-erroneous legal sense. We would implore the Court to examine what we have set out above and explain its position if is going to say that this appeal is “frivolous” as a reason for not having an oral argument. The above discussion of the 1874 decision also eliminates the withholding of oral argument in this case for the reason set out in subparagraph (B) of Rule 34 (a)(2) of the Federal Rules of Appellate Procedure.

That reason is: “the dispositive issue or issues have been

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authoritatively decided.” Clearly they have not been authoritatively decided in the context of the events of the presidential election of 2008. No other case involves the use of 28 U.S.C. § 1335 (“Interpleader”) and no other case is one in which subject matter jurisdiction has been found in this context and the case decided and dismissed under Rule 12(b)(6) for failure to state a claim. The lower court, echoing the defendants, recited other cases, including another case brought by the attorney Berg pro se but it made no actual analysis of actual issue or claim preclusion, not could it have under the circumstances. Thus that too was more evidence of bias and error than an actual legal analysis.

It is self evident that “blogging and twittering” and

vetting on the internet do not preclusion make. This has resulted in the Judge

below

being

characterized

across

the

conservative

and

constitutionalist internet (as opposed to the Soetoro/Obama, Soros financed “astroturfing” internet) as the “blogging and twittering” judge. We would suggest that to deny oral argument under these circumstances and certainly to do so without a unanimous panel decision based upon sound and rational and transparent analysis would not contribute to public respect for the neutrality of the courts but rather to the opposite conclusion.

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This brings us to the third reason that a U. S. Court of Appeals may find under FRAP 34(a)(2)(C), which is: “(C) the facts and legal arguments are adequately presented in the briefs and record, and the decisional process would not be significantly aided by oral argument.” It is this reason to which we alluded in our timely filed reply brief.1

There we pointed out

certain cases used by the appellees in their Opposition which badly misrepresented the law but stated that there was not sufficient room in the Reply to deal with many other such misrepresentations so that we would deal with them in this separate statement and motion. A particularly egregious example of such a misrepresentation in the appellees’ Opposition is the use of the case that appellees cite as the one they would have the Court put “first” in affirming the dismissal below. Here is what the appellees said, at Opp. p.20: First, in his Amended Complaint, Hollister dropped his rule Interpleader claim. (See App. at 83-85). Hollister acknowledges this point in his brief. See Br. at 8 (stating “the allegations of proceeding under Rule 22 are in the record and but were then dropped out but they are in the record and should have been considered.”) Once Hollister amended his 1

We filed a reply brief timely after the Court’s adoption of electronic filing and have stamped copies proving that filing. This was after we filed a timely opening brief and an opposition was filed to that. Our timely filed reply brief was at first in the docket and then was withdrawn. We have now found out the reason and have been instructed how to rectify the situation. It was only after that that, unbeknownst to the undersigned, the attorney Joyce, having then recently been admitted to this Court under the sponsorship of the undersigned, filed what purported to be a reply brief for the plaintiff Colonel Hollister that the undersigned had not been advised of or given an opportunity as local counsel to review ahead of time. It is this untimely filing that the Court has, by its Order setting a new briefing schedule, refused to accept. So the undersigned, in filing this motion, is keeping commitments made in the Reply brief which he timely filed and which has not been rejected and which will now be reinstated.

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complaint, that claim had no legal effect, and the district was not obligated to address it. See, e.g., Owens v. Republic of Sudan, 412 F.Supp.2d 99, 117 (D.D.C.2006); … This is, of course, a straight-out misrepresentation of the events in this case. Colonel Hollister moved to have his complaint amended, but that motion was never granted.

Indeed it was never, so far as can be told,

considered. See App. 118. And see Statement of Issues filed on 4/17/09 [1176499] Issues nos. 3, 4 and 5. Had the proffered amended complaint been accepted there would have been no need to raise these issues in this appeal. Further, the actual proffered First Amended Complaint alleges in its very first numbered paragraph that is being brought pursuant to the Interpleader Act. See App. 66. So the proffered First Amended Complaint does not drop the allegation of violation of the Interpleader Act and to represent that it does is factually inaccurate. Even further, there is no indication in the opinion dismissing the case below (App. 219) that the Interpleader Act was not at issue and that opinion indicates clearly that the Interpleader Act claim is the only claim at issue and is the only claim that the court was considering. Because of this factual misrepresentation, the appellees misrepresent the law of the Owens case. That case, at the page referred to in the abovequoted passage, does refer to situations, unlike this case, where an amended

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complaint has been accepted, where it clearly drops an earlier cause of action and is what is being ruled upon. It is a misrepresentation to assert that the Owens case represents law that applies to this case. Equally misrepresentative in a very similar vein is the use by the defendants/appellees in their Opposition of September 4, 2009, p. 28, of this court’s decision in Veg-Mix, Inc. v. U.S. Dept. of Agric., 832 F.2d 601, 607 (D.C.Cir. 1987) and tin turn to cite as further support for the same contention the decision in Fletcher v. Evening Star Newspaper Co., 133 F.3d 395, 395 (D.C.Cir..1942). In citing these two cases the defendants/appellees use them to seek to justify the references by the lower court to cases brought by Philip J. Berg pro se with the false assertion that they are cases between the same parties. Manifestly, Philip J. Berg is not Colonel Gregory S. Hollister and so to say that cases brought by Philip J. Berg pro se have the same parties as a case in which he is an attorney working for plaintiff Colonel Greg S. Hollister is simply false and a misrepresentation. Nor do the cases involve the same issues. Neither of the pro se cases brought by Philip J. Berg involves any use of interpleader. Neither do either of the other cases pose the question of an order from the defendant Biden being lawful as opposed to an order from the defendant Soetoro a/k/a Obama.

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Similarly, the defendants/appellees made misrepresentations with regard to the assessment of the Rule 11 reprimand against the undersigned. They seek to justify the lower court’s taking this step as an exercise of allowable discretion by the lower court and cite in support the decision by this Court in Hilton Hotels Corporation v. Banov, 899 F.2d 40, 46 (D.C.Cir.1990). Opp. p. 25 The appellees cite this case for the proposition that the “virtually untrammeled” discretion allowed there is “appropriate to the fact of [this] case.” That is quite a misrepresentation. In that case the sanctions were approved upon motion of the defendant against the plaintiff’s attorney because he never investigated prior to filing to see if the words that were the subject of the defamation claim made in the complaint had in fact been uttered. As we have seen, the fact here that the defendant Soetoro a/k/a Obama’s father was Kenyan is not even denied. And that alone casts his status as a “natural born citizen” under Article II, Section 1, Clause 5 in doubt. Further as far as the evidence cited in the complaint that he was not born in Hawaii, to make this case comparable it would have to be the case that the plaintiff and his counsel, prior to filing, could have ferreted out the actual “long form” birth certificate of Soetoro a/k/a Obama. Since he has expended hundreds of thousands of dollars keeping anyone from seeing it and has refused to reveal it, this is not a comparable dilatation at all to that in

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Banov.

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In fact, as we have pointed out, here the lower court made

absolutely no inquiry into what the pre-filing inquiry was or was not. And it had no hearing and in failing to do so, as we have pointed out, violated the hornbook requirement where, as here, it had had absolutely no opportunity to assess the demeanor of the undersigned and what the undersigned had or had not done as he could have been brought out at a hearing in looking into such matters as the failure to produce an actual birth certificate while falsely claiming to have done so. In addition the defendants/appellants also cite Figueroa-Ruiz v. Alegria, 905 F.2d 545, 549 (1st Cir.1990) for the proposition that “as an alternative to monetary sanctions, district courts may admonish or reprimand attorneys who violate Rule 11 where such a course is appropriate.” The misrepresentation with this was that in the Figueroa-Ruiz case the lower court had not done that. In fact that was one of four possible routes the court of appeals in that case pointed out the lower court could have taken when in fact, as in this case, the lower court failed to properly investigate and analyze Rule 11 at all. If anything, that case indicates why any Rule 11 sanction was error here. Here the Rule 11 assessment was an exercise in name-calling dictated by the lower court’s expressed bias toward Berg and Joyce which it

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decided to exercise upon the undersigned with no authority to support such a transposition or transference of bias. Even though the finding of the lower court here that there was subject matter jurisdiction and, hence, necessarily standing, and even though the defendants Soetoro a/k/a Obama and Biden sought dismissal for lack of standing under Rule 12 (b) (1) and failed, they did not appeal that decision against them. So, at this point standing is not an issue that has been placed before this Court. Nonetheless, undeterred, the defendants/appellees argued it in their now superseded Opposition. And in doing so, as we might expect, they engaged in misrepresentation. The most obvious example of this is their use of cases involving advocacy groups rather than individual plaintiffs. These advocacy groups do not have the standing that an individual plaintiff might have.

The defendants/appellees couple that with further

misrepresentations. For example they cite the case of Renal Physicians Ass’n v. U.S. Dept. of Health & Human Servs., 489 F.3d 1267, 1273 (D.C.Cir.2007) for the proposition that the standard of review of standing is de novo. But that was where it was specifically appealed that there was no standing. Here standing was found and that finding was not appealed by the defendants/appellees. So they chose not to put the issue before the Court. They further misrepresent that cases where there is no specific statutory

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mandate and general, broad Article III standing of all citizens is being relied upon. For example, they cite, at p. 22, Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41-42 (1976). In doing so they fail to point out that in that decision the Supreme Court specifically mentioned that the lack of standing it found there was precisely because there was no specific statute involved such as the federal Interpleader Act involved here.

Here is what the

Supreme Court said in that case, quoting from another of its decisions: “Although the law of standing has been greatly changed in (recent) years, we have steadfastly adhered to the requirement that, at least in the absence of a statute expressly conferring standing, federal plaintiffs must allege some threatened or actual injury resulting from the putatively illegal action before a federal court may assume jurisdiction.” Linda R.S. v. Richard D., (footnote omitted) , 410 U.S. at 617, 93 S.Ct., at 1148, 35 L.Ed.2d, at 540. [emphasis added] When a statute expressly confers standing there still must be injury but the statute defines the type of injury that creates the standing, as the federal Interpleader Act does.

The defendants/appellees engage in further

misrepresentation by falsely asserting, along with cases on that point, that there is some action of a third party, not a party to the case, that must happen here.

That is false.

If the defendant Soetoro a/k/a Obama is not

constitutionally eligible to hold the office he claims and is in fact only a de facto officeholder and not de jure, and, therefore, cannot give a lawful order to a member of the individual ready reserve, then the interpleader defendant 18

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Biden is obliged to obey the Constitution and give the order. There is not another party that need be involved. In fact it can be accurately said that the defendants/appellees have followed a pattern of throwing a large number of misrepresentations out in the hopes that there will be so many that we will be overwhelmed to the point of not being able to respond to them all. It is for that reason that we believe that the Court must grant oral argument so that we can respond to any such misrepresentation that any member of the panel has a question about. Many of the misrepresentations are quite obvious once the case cited is read but there are so many that it will not likely be possible to counter them all in a reply brief. Finally, there are factual misrepresentations consisting of gratuitous slurs against the plaintiff, Colonel Gregory S. Hollister. In their opening Opposition brief, for example, at p.2, there is such a reference where the defendants/appellees Soetoro a/k/a Obama and Biden refer to the plaintiff as an alleged Colonel who is retired and a member of the Individual Ready Reserve. Yet these facts are clearly established as such by the DOD Form 214 which is the attachment to the complaint. App. 30-31 Thus this is the sort of snide misrepresentation that also cries out for oral argument. In fact the entire assault of these appellees, like much of their activity on the

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Internet and through the media that are subservient to them, consists of name calling and ridicule, as if taking the Constitution and the oath to uphold and protect it were frivolous just because these appellees have their counsel call the charges made here by that and similar adjectives. Colonel Hollister wishes it emphasizes that his concern, far from being frivolous or absurd, is evidenced by his entire record of service to his country. As has been pointed out, his concern over the Constitution being upheld was sufficiently serious during his active duty when William Jefferson Clinton was President that it is a matter of public record that he wrote to then Secretary of Defense Perry about concerns he had about the applicability of Section 3 of the 14th Amendment to events then in progress. These misrepresentative tactics are best encountered by oral argument and indeed that is one of the primary purposes of having such argument, so that questions that may be created by such tactics can be answered and false impressions corrected. Respectfully submitted, /s/ John D. Hemenway D.C. Bar No. 379663 Counsel for Appellants 4816 Rodman Street, NW Washington DC 20016 (202) 628-4819 [email protected]

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that I have caused the foregoing to be served electronically upon counsel of record this1st day of December, 2009.

/s/ __________________________ John D. Hemenway

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