Hollister Appeal | Emergency Motion Re Amicus Brief (Berg & Joyce), filed Nov. 24, 2009

8/14/2019 Hollister Appeal | Emergency Motion Re Amicus Brief (Berg & Joyce), filed Nov. 24, 2009

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U.S. District Court

for the District of Columbia Case No. 1:08-cv-02254 JR

Court of Appeals Case No. 09-5080

Consolidating No. 09-5161

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT__________________________

GREGORY S. HOLLISTER,

Plaintiff Appellant,

v.

BARRY SOETORO, et al,

Respondents Appellees.

__________________________

EMERGENCY MOTION OF LAWRENCE J. JOYCE, ESQUIRE and

PHILIP J. BERG, ESQUIRE TO FILE A BRIEFAMICUS CURIAEIN

SUPPORT OF APPELLANTS HOLLISTER AND HEMENWAY,SUPPORTING REVERSAL_____________________

Lawrence J. Joyce, Esquire

1517 N. Wilmot Road,

Suite 215Tucson, AZ 85712

D.C. Circuit Bar No. 52501(520) 584-0236

As In Pro Se Amicus for himself

and as Attorney for Amicus,Philip J. Berg, Esquire

Case: 09-5080 Document: 1217273 Filed: 11/24/2009 Page: 1


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I. Rule 29 Considerations

In requesting Leave to File a Briefamicus curiae in this case, this Courts

amici are mindful of Circuit Rule 29(b) of this Court, which normally requires

Notice of the Intent to File a Briefamicus curiae within sixty [60] days of the

docketing of the case in this Court. However, we have two principal bases for

seeking a waiver of that Rule. One basis is that there is a new case, Barnett v.

Obama,1 which was decided by the United States District Court for the Central

District of California on October 29, 2009, and which could substantially affect the

outcome of this appeal; thus, we could not have known of the need to address the

holding of that case until after the normal sixty [60] day time limit had expired. In

addition, we have learned that a Notice of Appeal has been filed in that case,2 and

we think it would be best for ourselves, for the parties, and for the Courts for both

Circuits to be aware of the issue instead of just one Circuit. Also, as explained

below in theInterest of Philip J. Berg, the Third Circuit will have that issue before

it.

Another consideration is that there has been a change in the representation of

Appellant Gregory S. Hollister in this case as of November 10th of this year. We

could not have anticipated this change prior to the expiration of the normal sixty

1Barnett v. Obama, 2009 U.S. Dist. LEXIS 101206 (C.D. Cal. Oct. 29, 2009).2Wiley S. Drake, et al v. Barack H. Obama, et al, U.S. Court of Appeals for the Ninth Circuit,Case Number 09-56827



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[60] day deadline. We believe that, in aprima facie sense, this change of counsel

will not be prejudicial to Hollister on the grounds that Hemenway is a member of

the bar of this Court, plus the fact that Hollister himself made the change of

counsel. Nonetheless, for the reasons stated below, we believe this change in

representation could result in a less-than-sufficient presentation of all issues for

this Courts consideration unless this Motion to File the amicus Brief is granted.

John D. Hemenway, Esquire has denied consent to file this Brief, both for

himself and for Hollister. For a brief time it was not known if Hollister would

change his mind and take Berg and Joyce back as counsel. Once it was ascertained

that this would not happen, we notified counsel for Soetoro and Biden by email on

NovemberNovember 19, 2009 of our request for consent to file this Brief. As of the

date of the filing of this Motion and Brief, we have not received consent from them

either.

II. Background

A. Interest of Lawrence J. Joyce, Esquire

My name is Lawrence J. Joyce. I am an attorney in Tucson, Arizona. I am

the author of this case.

Last year I heard about legal efforts to bring to establish whether Senator

John McCain and Appellee Barry Soetoro are Constitutionally qualified to be

President. In the spring of 2008 a friend of mine was likewise concerned and



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asked me if I could help him resolve this in Court. After consideration of the issue,

we both decided not to pursue the matter. I did, however, file a Brief amicus

curiae on his behalf in November of 2008 in the Supreme Court of the United

States in support of a Petition for a Writ of Certiorari which was then pending on

behalf of Philip J. Berg, Esquire, who is a co-amicus on this Brief.

Immediately afterwards I began to wonder who the Courts would be most

likely to listen to on point. I concluded that the Joint Chiefs of Staff might be the

most likely individuals to be heard, given the nature of their duties and relationship

to the Commander-In-Chief. It then occurred to me that any member of the Armed

Forces would likewise be affected by Soetoros potential disqualification to at least

some degree, even an inactive member, so long as that person would be subject to

recall to active duty.

As I considered what the main problem a member of the Armed Forces

might have, it occurred to me that there would be a question as to whether the

member would be legally obligated to look to Soetoro as the rightful Commander-

In-Chief, or to Appellee Joseph Biden. This, I knew, sounded in Interpleader.

Also, Interpleader places the burden of proof where it most naturally where it

belongs under the wording of the Constitution itself: on the shoulders of someone

seeking to be President, rather than on the Plaintiff.



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I contacted Philip J. Berg, Esquires assistant Lisa Liberi and asked her if

any members of the Armed Forces had come forward and asked Phil for help. She

said that some had. I began my research and concluded that a valid case can be

made for the proposition that a member of the Armed Forces would have a claim in

Interpleader against Soetoro and Biden. I spoke with Phil and told him my

thoughts. He agreed that this would be a good claim for a member of the Armed

Forces. For various reasons, we elected to file the Interpleader claim on behalf of

Appellant Gregory S. Hollister as the sole Plaintiff.

I did the vast majority of the research on Interpleader, including the role of

Martin v. Wilks3 andN.O.W. v. Scheidler4 on statutory construction. I drafted the

portions of the original Complaint and First Amended Complaint dealing

specifically with Interpleader. I drafted the Opposition to the Motion to Dismiss

and most of the other filings in the District Court as well. It was my idea to refer

to Soetoro as Soetoro rather than as Obama, on the grounds that many individuals

think that this whole issue will be resolved solely by reference to his place of birth,

and with no consideration as to what may have happened to any U.S. citizenship he

might have once had while living in Indonesia. I likewise did virtually all of the

conceptualizing of the other details and arguments of the case, with the exception

of the addition of the Bivens claim, which came from Philip J. Berg, Esquires

3Martin v. Wilks, 490 U.S. 760 (1989).4N.O.W. v. Scheidler, 510 U.S. 249 (1994).



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office. Also, with my permission, in the Brief filed in this Court on August 5,

2009, John Hemenway, Esquire used a substantial amount of material which I had

prepared in advance for him to address the sanctions portion of the appeal.

We needed local counsel in the District Court. Several attorneys had

contacted Mr. Berg asking if they could help. One of them was John D.

Hemenway, Esquire, an Appellant in this case. Mr. Hemenway agreed to be local

counsel, and he signed everything which was filed in this case in the District Court.

After clearing the obstacles of hostility in the Office of the Clerk of the

District Court, we were finally able to get the claim filed and served. We found

the reaction of the District Court to be remarkable. Upon dismissal, we

immediately filed a Notice of Appeal.

Shortly thereafter, Mr. Berg and I initiated the process to be admitted to the

Bar of this Court. Mr. Berg sent our materials together to Mr. Hemenway, who

had agreed to be the moving party for admission for each of us. We had heard that

sometimes it may take a while for the Court of Appeals to announce the briefing

schedule, and so we waited to hear from this Court.

What transpired next, however, came not from this Court. Rather, Mr.

Hemenways behavior began to change.

John Hemenway, Esquire, we first wish to note, has been a model of what an

upstanding citizen and a member of the Bar should be. A member of the Greatest



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Generation, and a child of the Great Depression, he served as a Lieutenant in

World War II. He is a Rhodes Scholar. At one point, as a private citizen, he

single-handedly captured a fleeing felon and held him until the police arrived. He

has generously supported this case in good faith. We wish there were more like

him.

We suddenly learned by email, however, that Mr. Hemenway, without first

communicating with Mr. Berg or I, had contacted Mr. Hollister with the idea of

starting a whole new type of claim for Mr. Hollister in the District Court. Without

going into details, it is a form of action in which the plaintiff would assume the

usual burden of proof (as opposed to Interpleader), and which would entail a very

great deal of money to litigate. In addition, it would require so much time to

prepare that Discovery itself might not be done until after the current Presidential

term of office ends. Mr. Hemenway had also convinced Colonel Hollister that

Hollister had to start getting materials together as if they were preparing for

proceedings at the trial level in this case itself instead of in the Court of Appeals.

Prior to that time we had virtually never heard from Mr. Hemenway at all, except

for when he signed off on things which were filed in Court. In fact, he had

apologized for not taking a more active role, though no apology was needed.

In light of the fact that Mr. Hemenway was the sponsor of Mr. Berg and I to

proceedPro Hac Vice in the District Court, and with there being little prospect that



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Mr. Berg or I could soon gain full admission therein, I realized that I had to handle

this as gently as possible without upsetting Mr. Hemenway, and simply hope that

this would be an isolated incident. After speaking with Colonel Hollister, I

explained to Mr. Hemenway that Mr. Berg and I were instructed to be the decision

makers in the case.

Then, in July of this year, I received a Notice from the State Bar of Arizona

that a Bar Charge had been filed against me by a private citizen who had heard

about the District Courts ruling in this case, and who urged the State Bar to

discipline me. I submitted lengthy statements explaining the facts and law of the

matter to the State Bar. The complainant submitted more materials, and I

responded again. Then, in September of this year, the person charged with the

initial screening of such complaints informed me that he saw no merit to the Bar

Charge, but he also stated that I must report back to the State Bar when this case is

finished in this Court in order to see if there is anything further for the State Bar to

consider before final disposition of the Bar Charge against me.

In the mean time, on July 31, 2009, Mr. Berg and I learned from Mr.

Hemenway for the first time that this Court had announced the briefing schedule

for this case in June, and that the Principal Brief would be due on August 5 th. As

Colonel Hollister told this Court more fully in the Motion for Extension of Time,

Attorney Hemenway was not signed up to receive email notices from this Court,



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and he said he never received notice by any other means. As it turns out, in fact,

he first learned of the briefing schedule at all when a friend of his mentioned that

he had noticed it himself in his readings online. Also, as it turns out, Mr.

Hemenway said that he had never received the applications of Mr. Berg or I to

become members of the Bar of this Court.

I reinitiated the process of applying for admission to the Bar of this Court,

and John Hemenway, Esquire acknowledged that he received my materials around

August 22nd

. When I called the Office of the Clerk of this Court on September 3rd

,

however, I found that the materials still had not been submitted. I immediately

called Mr. Hemenway and asked him about this. He said that he hadnt gotten

around to it because my gaining admission to the Bar of this Court supposedly

would be unnecessary. I urged him as strongly as I could, without being

overbearing, to submit my application, and he finally said that he would break his

neck (to use his own words) and submit the materials that day or the next. Finally,

I was admitted to practice on September 15th of this year.

At about that time Colonel Hollister said that he wished to dismiss Mr.

Hemenway as one of his attorneys. He also spoke of dismissing Mr. Berg, though

he agreed with me that he should at least keep open the prospect of bringing Mr.

Berg back in at a later date. Colonel Hollister signed and returned a Retainer

Agreement acknowledging that I was, at that time, his exclusive attorney.



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On September 23rd

of this year, with the Reply Brief of Colonel Hollister

and Motion to file out of time before this Court under my signature, John

Hemenway, Esquire sent me an email in which he twice acknowledged that, at that

time, I was the sole and exclusive attorney of Colonel Hollister. Then, a few hours

later, he filed his Motion for Judicial Notice in this Court on behalf not only of

himself, but also on behalf of Colonel Hollister. He did so without first

mentioning to Mr. Berg or I that he was even considering filing such a thing at all

for anyone. Mr. Bergs assistant Lisa was able to contact Mr. Hemenway, and Mr.

Hemenway agreed to file a Motion with this Court immediately seeking to

withdraw his Motion for Judicial Notice as it applied to Colonel Hollister. Mr.

Hemenway never filed that Motion, and he did not respond to emails on point.

Accordingly, I filed the Motion to withdraw those materials as they pertain to

Colonel Hollisters end of this appeal, which Motion is still before this Court.

The materials in question filed by John Hemenway, Esquire come from

cases filed by another attorney, Orly Taitz, Esquire, who is also questioning the

qualifications of Soetoro to be President. Likewise, the new form of action

previously alluded to, which Mr. Hemenway had urged Colonel Hollister to

consider, was one which Orly Taitz, Esquire had considered. The problems and

dangers of being associated with that attorney [Taitz] are fully developed in the

following Interest of Philip J. Bergin this Motion, and I refer this Court to that



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statement of Mr. Berg. I was aware of much of the background development of

those problems at the time that John Hemenway, Esquire filed the said materials.

Aside from the fact that I was shocked by the fact that any materials were

filed by John Hemenway, Esquire at all for Colonel Hollister, I was aghast over the

fact that those materials came from a case involving that other attorney. I called

Mr. Hemenway and asked him about what he had done. I asked him if he had been

in touch with that other attorney. He said he didnt think so, other than a couple of

emails quite a while back. I asked him where he had gotten the materials from. He

didnt seem to know, although he thought he might have gotten them from his own

research on the internet. Significantly, the format of at least one of the documents

he filed in this Court does not match the format of what is available from Court

records online. I asked Mr. Hemenway if someone had sent those materials to him,

and again he wasnt sure.

I reminded Mr. Hemenway that just a few hours before he filed those things,

he had sent me an email in which he twice acknowledged that I was sole counsel

for Colonel Hollister at that time. He responded, by way of attempted justification

that I had to keep in mind that he had sponsored my admission to the Bar of this

Court. In the next sentence he then said that at the time he filed those things, I

supposedly was not a member of the Bar of this Court. I once again reminded him

that he had acknowledged that I was Colonel Hollisters sole attorney just before



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he filed those things. He said he didnt remember that. Fortunately (or

unfortunately), on the basis of his demeanor, as best as I could discern it over the

phone, I believe him. Before the call ended, Mr. Hemenway agreed that he would

submit to me anything he thought should be filed in the case.

I told Lisa that she would have to start looking through the list of other

attorneys who had offered to help in order to find another one who was a member

of the Bar of the District Court. Mr. Berg agreed to see if he knew of someone

who could sponsor him for full admission, at which point Mr. Berg could sponsor

me.

Right after this Courts Order in this case came down on October 20 th

announcing a new briefing schedule and a requirement that there be one joint Brief

of 14,000 words for the Appellants, Colonel Hollister decided that he wanted to

bring Mr. Hemenway back into the case, with myself as lead counsel, and with

John Hemenway, Esquire as co-counsel. I advised him against bringing Mr.

Hemenway back in at all, but I drafted a new Retainer Agreement expressing

Colonel Hollisters wishes and sent it to him by email. I explained to Mr.

Hemenway that Colonel Hollister wanted this arrangement. I said that I, of course,

would not file anything on behalf of Mr. Hemenway, and that Mr. Hemenway was

not to file anything on behalf of Colonel Hollister without sending it to me. Mr.

Hemenway reluctantly acknowledged this. He also agreed that if either of us were



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to use less than 7,000 words of the 14,000 words of the joint Brief that we would

let the other party use the remainder of the words, and the call ended rather

amicably.

On October 29th, however, the Central District of California decided a case

which may substantially impact this case; this fact is discussed below in the section

entitled Contents Of The Brief. On the basis of my research, I concluded at first

that it would take 4,000 words to address this new issue alone from scratch, and

that figure ultimately proved to be 5,000 words. I told Mr. Hemenway and Colonel

Hollister about this and said that I would file a Motion for Additional Words, for

separate Briefs, or for Deconsolidation of the Appeals. Mr. Hemenway opposed

this move. I finally concluded that Philip J. Berg, Esquire could seek to file an

amicus Brief in pro se to get the arguments in without a total disruption of the

appeal.

Then, on November 9th, Mr. Hemenway filed a Reply to the Response of

Soetoro and Biden to Johns Motion for Judicial Notice. John Hemenway,

Esquires Reply was denominated asPlaintiffs/AppellantsReply, instead of just as

his own Reply. I knew that as Colonel Hollisters lead counsel, I could not let that

stand. I would be forced to move to Withdraw that Reply as it pertained to Colonel

Hollisters Appeal, and that to explain such Motion, I would have to spell out in

painstaking detail the indications of Mr. Hemenways forgetfulness and the steps



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that had been taken to ensure that such things would not happen again. Given the

fact that in so doing, I would be attacking my clients own co-counsel, this would

place me in a legally and professionally untenable position.

I sent Colonel Hollister an email on the night of November 9 th telling him

that, realistically, he had three options: One was to require Mr. Hemenway to send

in an immediate statement of clarification telling this Court that it was only

through inadvertence or mistake that it had been filed on behalf of Colonel

Hollister instead of on behalf of Mr. Hemenway alone. Another option was for

Colonel Hollister to stay with myself as his sole attorney so that I could tell the

Court the full circumstances surrounding why I was going to move to Withdraw

Johns Reply to Soetoros and Bidens Response from Hollisters end of the

Appeal. The third was to allow me to withdraw from representing Colonel

Hollister. The following afternoon (November 10th), Colonel Hollister accepted

my offer to withdraw, and he and I currently have no attorney-client relationship at

all, nor do I believe that we shall have one in the future. (This likewise pertains to

John Hemenway, Esquire.)

Nonetheless, I myself have an interest to protect in this case. With my

personal and professional reputation and my potential discipline resting on the

competence of Colonel Hollisters counsel to argue this case, I cannot be confident

that John Hemenway, Esquire will be able to represent Colonel Hollister



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sufficiently, or even himself. Accordingly, I respectfully ask this Honorable Court

for Leave to File a Brief amicus curiae in this case on behalf of myself and on

behalf of Philip J. Berg, Esquire, or, in the alternative, for this Court to accept

Philip J. Berg, Esquire as an amicus (with myself as counsel for him), even if this

Court does not accept myself as an amicus.

In so saying, I wish to emphasize that even if I myself had remained as

counsel for Colonel Hollister, Philip J. Berg, Esquire would have sought Leave to

File this Briefin pro se for himself, and I am instructed by Mr. Berg to say that if,

for any reason, this Court does not allow me to file this Brief for either of us, that

Mr. Berg is in fact now asking Leave of this Honorable Court to file this Brief for

himselfin pro se.

B. Interest Of Philip J. Berg

My name is Philip J. Berg. I am a practicing attorney with law offices in

Lafayette Hill, Pennsylvania, just outside of Philadelphia. I am a former Deputy

Attorney General of the Commonwealth of Pennsylvania.

On August 21, 2008, I filed suit on behalf of myself in the United States

District Court for the Eastern District of Pennsylvania against Barack Obama

(a/k/a/ Barry Soetoro), alleging that Obama is not Constitutionally qualified to be

President of the United States on the grounds that he is not a natural-born citizen of



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the United States.5

The Third Circuit ruled on November 12, 2009,6

and I

anticipate filing a Petition for a Re-Hearing, in which I shall make arguments

stating, inter alia, that Barnett (the new case from the Central District of

California) should not govern the outcome. If I still do not prevail in the Third

Circuit, I shall file a Petition for a Writ of Certiorari. I likewise have another case

pending in the Court of Appeals for the District of Columbia based on the False

Claims Act (i.e., a qui tam case), alleging that Barry Soetoro has submitted claims

to the federal government which are false on the basis of his lack of any U.S.

citizenship at all;7 that case is likewise filed on behalf of myself. In addition, I

directed the legal effort of Appellant Gregory S. Hollister in the case at bar during

the proceedings of this case in the District Court, subject to a pending motion in

that Court for admissionPro Hac Vice. I have no attorney-client relationship with

Colonel Hollister or John Hemenway, Esquire, and I have no prospects or intention

of entering into one with either of them.

I wish to submit this amicus Brief because how this Court decides this case

could substantially affect the cases in which I am a party, as well as my personal

and professional reputation with respect to my previous efforts in the case at bar.

5Berg v. Obama, 574 F. Supp. 2d 509 (E.D. Pa. 2008)6Berg v. Obama, 2009 U.S. App. LEXIS 24805 (3d Cir. Pa. Nov. 12, 2009)7Berg v. Obama, 2009 U.S. Dist. LEXIS 86189 (D.D.C. Sept. 21, 2009)



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In addition, I am a named Plaintiff in a case against another attorney, Orly

Taitz, Esquire, who has brought several cases which also question the

Constitutional qualifications of Soetoro to be President, and the impact of the

outcome of this case on my professional reputation could affect my position in that

case as well.

There is much to say about Orly Taitz, Esquire, but since the matter is under

litigation at the moment,8 it is not advisable to say more here than is absolutely

necessary. Suffice to say, I note, that just recently, the U.S. District Court for the

Central District of Georgia held her in contempt and found it necessary to impose a

sanction of $20,000. And in the aforementioned Barnett case, the U.S. District

Court for the Central District of California took note of the fact that it had received

a statement from someone who told the Court that Orly Taitz, Esquire had tried to

suborn perjury through the testimony she wanted him to give in that case.9 Since

public perception now links anyone who is associated with any lawsuit which

questions Soetoros Constitutional qualifications to be President with Orly Taitz,

Esquire and since I have my own claims to adjudicate on that point, I respectfully

ask this Honorable Court for Leave to be this Courts amicus with this Brief.

Dated: November 24, 2009 _________________________Philip J. Berg, Esquire

8Liberi, et al v. Taitz, et al, U.S. District Court for the Eastern District of PA, Case Number09-01898-ECR9Barnett v. Obama, 2009 U.S. Dist. LEXIS 101206 at *56 (C.D. Cal. Oct. 29, 2009)

s/ Philip J. Berg



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III. Contents Of The Brief

A. Barnett v. Obama

The holding ofBarnett v. Obama10 is based on the idea that, at least in the

circumstances of that case (and, by implication, possibly other cases), the

Impeachment Clause of the Constitution strips the Article III Courts of the

authority they would otherwise have to remove even a de facto President from

office. Since this implicates the subject matter jurisdiction of the Article III

Courts, this issue can be raised at any time at any stage of the litigation, 11 and

could form the basis of this Courts judgment and opinion if the Court thinks of

this issue even after oral argument. Accordingly, for the sake of avoiding having

this issue arise at a time when neither this Court nor the parties would have a

sufficient opportunity to address this point properly, we wish to bring this issue to

the attention of this Court now. Specifically, we wish to make two [2] points:

1.) We wish to argue that a de facto President can be judicially removed

from office, at least for those cases in which suit was filed before the de facto

President took office. Significantly, this amicus Brief refers this Court to expressly

10Barnett v. Obama, 2009 U.S. Dist. LEXIS 101206 at *40-*47(C.D. Cal. Oct. 29, 2009).11 See,Bender v. Williamsport Area School Dist., 475 U.S. 534, 541 (1986); see also, Andrus v.Charlestone Stone Products Co., Inc., 436 U.S. 604, 607, n. 6 (1978).



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stated language in Marbury v. Madison which would allow at least some civil

claims to test the qualifications of public officers even after being sworn in.12

2.) We also wish to point out that the holding inBarnettmust impact the

concept of mootness, which is likewise a matter of the subject matter jurisdiction

of the Article III Courts,13 even though the Court in Barnettdid not specifically

face an issue of mootness, and did not expressly address that issue. This has

implications for the case at Bar because if this Court adopts the reasoning of

Barnett, the issue of mootness could arise in this case---academically, at least---due

to the inauguration of Soetoro and Biden. In the amicus Brief, we refer this Court

to expressly stated language from the Supreme Court emphasizing the necessity for

a remand for consideration of any doubts about mootness.

Even if the case at Bar were to be found moot with respect to the current

term of office of Soetoro and Biden, this would leave open the question of whether

Colonel Hollisters present case (or anyone elses new claim) can still be

adjudicated at least with respect to the next presidential term of office, which

begins on January 20, 2013. We argue in the Brief that, in light of the practical

ramifications ofBarnett, this case should not be dismissed because, on the face of

things, it would be applicable against Soetoro and Biden at least with respect to the

election of 2012.

12Marbury v. Madison, 5 U.S. (1 Cranch) 137, 167 (1803).13Sosna v. Iowa, 419 U.S. 393, 398-399 (1975).



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As to the election of 2012, we first wish to note that Soetoros principal

Presidential campaign remains active with the Federal Election Commission, with

nearly $9 million in cash on hand.14 And in light of how long it takes to adjudicate

a claim that someone is not Constitutionally qualified to be President, as is

illustrated by the case at Bar itself, if a party cannot adjudicate a claim now, then

there may not be enough time to adjudicate the claim until after Soetoro and Biden

are sworn in all over again. This fact, when combined with the possible

application ofBarnettagainst Colonel Hollister (or any other plaintiff), could make

a mockery of the very concept of judicial review for this type of case. In response

to that, we wish to bring to this Courts attention certain precedents of the Supreme

Court in which the Court allowed cases to proceed even though they would

otherwise be deemed moot, since they would present factual circumstances which

would be capable of repetition, yet evading review.15

B. Additional Materials In The Brief

The additional materials in the Brief deal with a further development of the

requirement of affording a party a hearing, the uncertainty in the case law of the

military jurisdiction which Colonel Hollister faces if he is ever recalled to active

14 See, http://images.nictusa.com/cgi-bin/fecimg/?C00431445; see also,http://images.nictusa.com/pdf/230/29992941230/29992941230.pdf#navpanes=015Roe v. Wade, 410 U.S. 113, 125 (1973). See also, Weinstein v. Bradford, 423 U.S. 147, 149(1975).



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duty, the nature of property, and the laws recognition of Colonel Hollisters

property interest in his office, First Amendment considerations, and the need of

this Court, for the sake of justice, to reach the merits of whether a claim upon

which relief can be granted was in fact well-pleaded, if at all possible.

Conclusion

For the foregoing reasons, this Honorable Courts amici requests Leave to

File their BriefAmicus Curiae.

Respectfully submitted,

Dated: November 24, 2009 s/ Lawrence J. JoyceLAWRENCE J. JOYCE, ESQUIRE

Attorney for the Amici1517 N. Wilmot Rd., #215Tucson, AZ 85712(520) 584-0236



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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 5,095 words, excluding the parts exempted by the

rules, and has been prepared ina proportionally spaced typeface using Microsoft

Word 2003 in Times New Roman 14-point typeface.

Dated: November 23, 2009 s/ Lawrence J. Joyce

Amicus Curiae for himself In Pro Se and,Counsel for Amicus Philip J. Berg, Esquire1517 N. Wilmot Road, Suite 215Tucson, AZ 85712(520) 584-0236Email: [email protected]. Circuit Bar Number 52501



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FOR THE DISTRICT OF COLUMBIA CIRCUIT

GREGORY S. HOLLISTER, :

:

Appellant, :

vs. : Court of Appeal Case No. 09-5080: Consolidating No. 09-5161

BARRY SOETORO, et al. ::

Appellees. :

ORDER

ON MOTION OF LAWRENCE J. JOYCE ESQUIRE and

PHILIP J. BERG, ESQUIRE TO FILE A BRIEFAMICUS CURIAE

THIS CAUSE came before the United States Court of Appeals for the

District of Columbia Judges, the Honorable ____________________________,

__________________________, and _____________________________, on the

Motion of Lawrence J. Joyce, Esquire and Philip J. Berg, Esquire to File a Brief

Amicus Curiae in support of Appellants Gregory S. Hollister and John D.

Hemenway, Esquire supporting reversal. Having reviewed the Motion and any

responses thereto, and for good cause shown, it is hereby

ORDERED that the Motion of Lawrence J. Joyce, Esquire and Philip J.

Berg, Esquire to File a BriefAmicus Curiae is GRANTED.

IT IS SO ORDERED.

Dated: November _____, 2009. Hon. _________________________



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U.S. District Courtfor the District of Columbia Case No. 1:08-cv-02254 JR

Court of Appeals Case No. 09-5080

Consolidating No. 09-5161


FOR THE DISTRICT OF COLUMBIA CIRCUIT__________________________

GREGORY S. HOLLISTER,

Plaintiff Appellant,

v.

BARRY SOETORO, et al,

Respondents Appellee.

__________________________

CERTIFICATE OF SERVICE_____________________

I, Lawrence J. Joyce, Esquire, hereby certify that the Emergency Motion of Lawrence J.

Joyce, Esquire and Philip J. Berg, Esquire to file a BriefAmicus Curiae was served via email this

24th day of November, 2009 upon the following:

John D. Hemenway, EsquireHEMENWAY & ASSOCIATES

4816 Rodman Street NWWashington, D.C. 20016

Email: [email protected] for Appellant, Gregory S. Hollister



25/25

Marc Elias EsquirePERKINS COIE

607 Fourteenth St., N.W.Washington, D.C. 20005-2003

[email protected] for Appellees, Barry Soetoro and Joseph Biden

Andrew Harris WerbrockPERKINS COIE

607 14th Street, NWSuite 800

Washington, DC [email protected]

Attorney for Appellees, Barry Soetoro and Joseph Biden

R. Craig Lawrence, Assistant U.S. AttorneyU.S. Attorney's Office

(USA) Appellate Division, Civil Unit555 4th Street, NW

Washington, DC 20530Email: [email protected]

Attorney for Appellees, Barry Soetoro and Joseph Biden

s/ Lawrence J. JoyceLAWRENCE J. JOYCE, ESQUIREAttorney for the Amici


Documents

Hollister Appeal | Emergency Motion Re Amicus Brief (Berg & Joyce), filed Nov. 24, 2009