hollister v soetoro - joint motion - to schedule oral argument
Post on 30-May-2018
218 Views
Preview:
TRANSCRIPT
-
8/14/2019 HOLLISTER v SOETORO - JOINT MOTION - To Schedule Oral Argument
1/24
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 #379663Counsel for AppellantS
4816 Rodman Street, NWWashington DC 20016(202) 628-4819
johndhemenway@comcast.net
Case: 09-5080 Document: 1218455 Filed: 12/01/2009 Page: 1
-
8/14/2019 HOLLISTER v SOETORO - JOINT MOTION - To Schedule Oral Argument
2/24
i
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 Assn 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
Case: 09-5080 Document: 1218455 Filed: 12/01/2009 Page: 2
-
8/14/2019 HOLLISTER v SOETORO - JOINT MOTION - To Schedule Oral Argument
3/24
ii
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
Case: 09-5080 Document: 1218455 Filed: 12/01/2009 Page: 3
-
8/14/2019 HOLLISTER v SOETORO - JOINT MOTION - To Schedule Oral Argument
4/24
1
IN THE UNITED STATES COURT OF APPEALSFOR THE DISTRICT OF COLUMBIA CIRCUIT
GREGORY S. HOLLISTER, et al. ) Case Below 08-2254 JRAppellants, )
)v. ) No 09-5080
) Consolidating No. 09-5161BARRY SOETORO, et al. )
Appellees. )
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
Case: 09-5080 Document: 1218455 Filed: 12/01/2009 Page: 4
-
8/14/2019 HOLLISTER v SOETORO - JOINT MOTION - To Schedule Oral Argument
5/24
2
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
Case: 09-5080 Document: 1218455 Filed: 12/01/2009 Page: 5
-
8/14/2019 HOLLISTER v SOETORO - JOINT MOTION - To Schedule Oral Argument
6/24
3
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 judges 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
Case: 09-5080 Document: 1218455 Filed: 12/01/2009 Page: 6
-
8/14/2019 HOLLISTER v SOETORO - JOINT MOTION - To Schedule Oral Argument
7/24
4
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.
Case: 09-5080 Document: 1218455 Filed: 12/01/2009 Page: 7
-
8/14/2019 HOLLISTER v SOETORO - JOINT MOTION - To Schedule Oral Argument
8/24
5
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 Presidents citizenship was raised, vetted, blogged, texted, twittered, and otherwise massaged byAmericas vigilant citizenry during Mr. Obamas two-year-campaign for the presidency, but this plaintiff wants itresolved 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
Case: 09-5080 Document: 1218455 Filed: 12/01/2009 Page: 8
-
8/14/2019 HOLLISTER v SOETORO - JOINT MOTION - To Schedule Oral Argument
9/24
6
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
Case: 09-5080 Document: 1218455 Filed: 12/01/2009 Page: 9
-
8/14/2019 HOLLISTER v SOETORO - JOINT MOTION - To Schedule Oral Argument
10/24
7
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
childs 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
Case: 09-5080 Document: 1218455 Filed: 12/01/2009 Page: 10
-
8/14/2019 HOLLISTER v SOETORO - JOINT MOTION - To Schedule Oral Argument
11/24
8
jurisprudence made it abundantly clear that it was the opinions of Vattels
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. Marshalls 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
Case: 09-5080 Document: 1218455 Filed: 12/01/2009 Page: 11
-
8/14/2019 HOLLISTER v SOETORO - JOINT MOTION - To Schedule Oral Argument
12/24
9
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 Americas 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 Founders 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.
Case: 09-5080 Document: 1218455 Filed: 12/01/2009 Page: 12
-
8/14/2019 HOLLISTER v SOETORO - JOINT MOTION - To Schedule Oral Argument
13/24
10
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 Franklins 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
Case: 09-5080 Document: 1218455 Filed: 12/01/2009 Page: 13
-
8/14/2019 HOLLISTER v SOETORO - JOINT MOTION - To Schedule Oral Argument
14/24
11
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.
Case: 09-5080 Document: 1218455 Filed: 12/01/2009 Page: 14
-
8/14/2019 HOLLISTER v SOETORO - JOINT MOTION - To Schedule Oral Argument
15/24
12
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 hisrule Interpleader claim. (See App. at 83-85). Hollisteracknowledges this point in his brief. See Br. at 8 (stating theallegations of proceeding under Rule 22 are in the record and
but were then dropped out but they are in the record andshould have been considered.) Once Hollister amended his
1
We filed a reply brief timely after the Courts adoption of electronic filing and have stamped copiesproving that filing. This was after we filed a timely opening brief and an opposition was filed to that. Ourtimely filed reply brief was at first in the docket and then was withdrawn. We have now found out thereason and have been instructed how to rectify the situation. It was only after that that, unbeknownst to theundersigned, the attorney Joyce, having then recently been admitted to this Court under the sponsorship ofthe undersigned, filed what purported to be a reply brief for the plaintiff Colonel Hollister that theundersigned had not been advised of or given an opportunity as local counsel to review ahead of time. It isthis untimely filing that the Court has, by its Order setting a new briefing schedule, refused to accept. Sothe undersigned, in filing this motion, is keeping commitments made in the Reply brief which he timelyfiled and which has not been rejected and which will now be reinstated.
Case: 09-5080 Document: 1218455 Filed: 12/01/2009 Page: 15
-
8/14/2019 HOLLISTER v SOETORO - JOINT MOTION - To Schedule Oral Argument
16/24
13
complaint, that claim had no legal effect, and the district wasnot obligated to address it. See, e.g., Owens v. Republic ofSudan, 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 above-
quoted passage, does refer to situations, unlike this case, where an amended
Case: 09-5080 Document: 1218455 Filed: 12/01/2009 Page: 16
-
8/14/2019 HOLLISTER v SOETORO - JOINT MOTION - To Schedule Oral Argument
17/24
14
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
courts 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 inFletcher 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. Bergpro 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.
Case: 09-5080 Document: 1218455 Filed: 12/01/2009 Page: 17
-
8/14/2019 HOLLISTER v SOETORO - JOINT MOTION - To Schedule Oral Argument
18/24
15
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 courts 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 plaintiffs
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
Obamas 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
Case: 09-5080 Document: 1218455 Filed: 12/01/2009 Page: 18
-
8/14/2019 HOLLISTER v SOETORO - JOINT MOTION - To Schedule Oral Argument
19/24
16
Banov. 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 courts expressed bias toward Berg and Joyce which it
Case: 09-5080 Document: 1218455 Filed: 12/01/2009 Page: 19
-
8/14/2019 HOLLISTER v SOETORO - JOINT MOTION - To Schedule Oral Argument
20/24
17
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
Assn 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
Case: 09-5080 Document: 1218455 Filed: 12/01/2009 Page: 20
-
8/14/2019 HOLLISTER v SOETORO - JOINT MOTION - To Schedule Oral Argument
21/24
-
8/14/2019 HOLLISTER v SOETORO - JOINT MOTION - To Schedule Oral Argument
22/24
19
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
Case: 09-5080 Document: 1218455 Filed: 12/01/2009 Page: 22
-
8/14/2019 HOLLISTER v SOETORO - JOINT MOTION - To Schedule Oral Argument
23/24
20
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. 379663Counsel for Appellants4816 Rodman Street, NWWashington DC 20016(202) 628-4819
johndhemenway@comcast.net
Case: 09-5080 Document: 1218455 Filed: 12/01/2009 Page: 23
-
8/14/2019 HOLLISTER v SOETORO - JOINT MOTION - To Schedule Oral Argument
24/24
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I have caused the foregoing to be servedelectronically upon counsel of record this1st day of December, 2009.
/s/
__________________________
John D. Hemenway
Case: 09-5080 Document: 1218455 Filed: 12/01/2009 Page: 24
top related