HOLLISTER v SOETORO (Appeal) - Corrected Appellants Reply (1/7/2010)

8/14/2019 HOLLISTER v SOETORO (Appeal) - Corrected Appellants Reply (1/7/2010)

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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, et al., Case Below 08-2254 JR

Appellants,

v.

Barry Soetoro, in his capacity as a natural

person; de facto President in posse; and as

de jure President in posse , also known as

Barack Obama, et al.

Appellees.

======================CORRECTED

APPELLANTS REPLY BRIEF

======================

John D. Hemenway D.C. Bar #379663Counsel for Appellant

4816 Rodman Street, NW

Washington DC 20016(202) 244-4819

(202) [email protected]

Case: 09-5080 Document: 1224425 Filed: 01/07/2010 Page: 1
mailto:[email protected]:[email protected]


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Table of Contents i

Table of Authorities ii

SUMMARY OF ARGUMENT . 1

THE LACK OF ADVERSITY ARGUMENT IS NOT

WELL TAKEN AND NOT SUPPORTED BY THE

AUTHORITY CITED .. 1

THE SAME IS TRUE OF THE ARGUMENT THAT

THERE IS NO COGNIZABLE STAKE .. 8

ARTICLE III STANDING APART FROM INTERPLEADER ..17

THE FAILURE TO CONSIDER THE AMENDED COMPLAINT

IS GROUNDS FOR REVERSAL 20

RULE 11 SANCTIONS AND BIAS . .. 22

CONCLUSION . 26



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ii

TABLE OF AUTHORITIES

Ashcroft v. Iqbal, 129 S.Ct. 1937, 1947 (2009) .......................................................22

Bankers Trust Co. v. Mffrs. Natl. Bank of Detroit, 139 F.R.D. 302, 307

(S.D.N.Y.1991).............................................................................................. 14, 15

Barr v. Clinton, 370 F.3d 1196, 1199 (D.C.Cir.2004) ..............................................7

Bates v. Rumsfeld, 271 F.Supp. 2d 54, 62 (D.D.C.2002), .......................................18

Berg v. Obama, 574 F. Supp. 2d 509 (E.D.Pa.2008) ...25, 26

Bierman v. Marcus, 246 F.2d 200, 203 (3d Cir. 1957)..........................................4, 5

Bivens v. Six Unknown Fed. Narcotics Agents 403 U.S. 388 (1971) ....................22

*Business Guides, Inc. v. Chromatic Communications Enterprises, Inc.,

498 U.S. 533 (1991) ..... 24

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 (2006) ...................................20

District of Columbia v. Air Florida, Inc.,750 F.2d 1077, 1084 (D.C.Cir.1984)........................................................ 9, 11, 22

Ellipso, Inc. v. Mann, 460 F.Supp.2d 99, 103 (D.D.C.2006) ..................................21

Freeman v. B&B Assocs., 790 F.2d 145, 150-51 (D.C.Cir.`1986) ..........................20

*Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 180-

81(2000)................................................................................................................19

Indianapolis Colts v. Mayor & City Council of Balt., 733 F.2d 484, 488 (7th

Cir.1984).................................................................................................................2

Likety v. United States, 510 U.S. 540 (1994) .... 25

Linda R.S. v. Richard D.FN 22

, 410 U.S. 614 (1973))........................................ 17, 18



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iii

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) ......................................19

Murphy v. Trav. Ins. Co., 534 F.2d 1155, 1159 (5th

Cir.1976)......................... 12, 13

*State Farm Fire & Casualty Co. v. Kathryn Tashire, 386 U.S. 523, 530,87 S.Ct. 1199, 18 L.Ed.2d 270, 275 (1967)...........................................................2

Simon v. E. Ky. Welfare Rights, Org , 426 U.S. 26, 41-42 (1976) ................... 17, 20

Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205,

93 S.Ct. 364, 34 L.Ed.2d 415 (1972) ................................................................18

Treinies v. Sunshine Mining Co., 308 U.S. 66, 70, 84 L.Ed.

85, 89, 60 S.Ct. 44 (1939)..................................................................................... 6

Veg-Mix,Inc.. v. U.S. Dept of Agric., 832 F.2d 601, 607 (D.C.Cir.1987) .26

Xerox Corp. v. Nashua Corp., 314 F. Supp. 1187, 1190 (S.D.N.Y. 1970)...............5

Young Americas Found. v. Gates, 573 F.3d 797, 799 (D.C.Cir.2009) ..................20

*28 U.S.C. 1335(Interpleader Act).................................... 2, 7, 8, 9, 12, 16, 17, 18

35 U.S.C. 291..........................................................................................................6

Fed. R. Civ. P. 12(b)(6)..............................................................................................1

*Fed. R. Civ. P. 11 1, 22, 23 24, 26

*The Federal Interpleader Act of 1936: I. Zechariah Chafee, Jr.,45 Yale L.J. 963 (1936) ................................................................................. 15, 16

Article III........................................................................................ 1,7, 17, 18, 19, 20



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SUMMARY OF ARGUMENT

The lack of adversity argument is not well taken and is not supported by the

authority cited. The same is true of the argument that there is no cognizable

interpleader stake. The argument that there is no Article III standing is flawed

and unsupported. Some of the authority cited supports appellants position. The

court below was wrong about saying that the amended complaint filed before any

responsive pleading as a matter of course introduced nothing new into the case.

The court below failed to investigate the pre-filing inquiry and failed to establish

any basis for a Rule 11 violation. It exhibited bias based on factors outside of the

four corners of the case.

THE LACK OF ADVERSITY ARGUMENT IS NOT WELL TAKEN

AND NOT SUPPORTED BY THE AUTHORITY CITED

The first COUNTERSTATEMENT OF ISSUES PRESENTED in the

Opposition is

1. Whether dismissal of Hollister's complaint was properunder Fed. R. Civ. P. 12(b)(6) because he failed to state a plausibleinterpleader claim with adverse claimants and a tangible stake.

The appellees filed no cross appeal so that they have presented no such

issue. The decision below dismissing the case, on March 5, 2009, did not mention

or turn on this issue. It is true, in assessing a reprimand against the appellant John



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D. Hemenway in its opinion of March 25, 2009, after it had already dismissed the

complaint, the court below made the following general observation:

Mr. Hemenways complaint did not even allege the sine qua non ofan interpleader suit - that [t]wo or more adverse claimants . . . areclaiming or may claim to be entitled to such money or property, or toany one or more of the benefits . . .arising by virtue of any suchobligation. . . . 28 U.S.C. 1335(a)(1).

The adversity issue was not specifically mentioned; no decision turned upon

it as such. We disagree with this general observation; it was appealed as part of the

March 25, 2009 opinion and is now joined in the appeal. The observation is not

accurate under the required reading of the complaint. The court below made no

analysis of adversity or addressed it with any authority.

In his opinion of March 5, 2009, Judge Robertson found that he had

jurisdiction because of the interpleader statute (App. 210). Since the statute

requires diversity of rival claimants addressed in the filing of the interpleader this

means that he found such adversity of claimants to exist. To the extent that

adversity is an element of standing, this Court has an obligation to consider it since

all appellate courts have such an obligation to satisfy themselves as to standing.

They do so on their own motion; we previously have indicated the Court is obliged

to do so. State Farm Fire & Casualty Co. v. Kathryn Tashire, 386 U.S. 523, 530,

87 S.Ct. 1199, 18 L.Ed.2d 270, 275 (1967).



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In examining adversity of claims as an element of standing we would ask the

Court to exercise great care and to be wary of authority cited by the appellees that

does not truly apply. The case law authority cited by the appellees on this point is

particularly inappropros. Their lead case is Indianapolis Colts v. Mayor & City

Council of Balt., 733 F.2d 484, 488 (7th Cir.1984) The facts of that case, however,

are completely distinct from this case. Principally, there was no interpleader

jurisdiction in that case. The City of Baltimore was trying to take over the Colts

football team, which had left Baltimore for Indianapolis, by the use of eminent

domain. It was thus claiming the football team as a stake. The other interpleader

defendant party was the Capital Improvement Board of Marion County, Indiana,

where Indianapolis is located.

The Capital Improvement Board was not claiming the football team. Instead

it entered a long-term lease to the football team for the use of the stadium in

Indianapolis, the Hoosier Dome. There was no interpleader jurisdiction because to

claim ownership of the team, and to lease a stadium to it, are not conflicting

claims. They are two different things. One is a claim on what the stake was in

the case; the other makes no such rival claim. There were other facts of that case

sharply different from this one. What that court found was the creation of the

supposed conflict in claims by one of the parties as an improper way of forum

shopping, but the fact that there were not two conflicting claims upon the same



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stake was the most important fact. By contrast, in this case there is only one

obligation of Colonel Hollister to serve as an active member of the armed forces if

called up as a member of the Individual Ready Reserve. Whether the defendant

Soetoro is constitutionally ineligible to serve as alleged or not its the same

obligation. If Soetoro is de jure the president it is owed to him, if not and the

defendant Soetoro is only de facto, then the same obligation is owed to the

defendant Biden. The obligation here is the same obligation, whichever of the two

defendants it is owed to.

Even less apropos is the attempt by the appellees to compare the facts of this

case to those ofBierman v. Marcus, 246 F.2d 200, 203 (3d Cir. 1957). They cite

this case for the proposition that "Actually, what has been done in this suit has

been to misuse interpleader, based on mere pretense of adverse claims to a fund, to

obtain jurisdiction of controversies other than entitlement to that fund." The facts

of the Bierman case show that this is highly misleading. In that case the crucial

fact was that the two interpleader plaintiffs, unlike Colonel Hollister in the present

case, completely controlled one of the purported exerters of a conflicting claim.

This controlled entity was one of the two interpleader defendants with allegedly

conflicting claims. This particular interpleader defendant that they named was a

corporation which they totally controlled, which was revealed after several years of

litigation. Thus, there was no conflicting claim from this corporation because it



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comparable doctrine in the present case. Under the allegations of the complaint as

to the lack of constitutional eligibility for the office of President of the defendant

Soetoro there is no improvement role to serve as President that the defendant

Biden can fulfill in the face of plaintiffs contentions in the complaint without

being in conflict with the defendant Soetoro as to the claim on the Hollister

obligation. Moreover, in the case of patent litigation, Congress, in the exercise of

its power to prescribe the jurisdiction of federal courts, has set out a statutory

interference procedure in 35 U.S.C. 291 under which only holders of alleged

interfering patents may maintain suits with respect thereto. Id., 314 F.Supp. at

1190. Congress has enacted no statute that only holders of claims to the

presidential office may initiate suits with respect to those who are constitutionally

ineligible holding the office de facto, particularly where, as here, they are accused

of knowingly perpetrating deceptive behavior in obtaining the de facto holding of

the office.

Nor is the argument of the appellees supported by the Supreme Court

decision in Treinies v. Sunshine Mining Co., 308 U.S. 66, 72 (1939). (Opp. p. 14)

That case involved an alleged conflict between two state court decisions in two

different states, Washington and Idaho, as to the ownership in question. It was

held that there was no conflict between the decisions because the Idaho decision

had established a res judicata by considering the Washington decision and finding



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(D.C.Cir.2004). Yet they seek to have the court make inferences in disfavor of the

plaintiff. Read in its entirety, the complaint clearly sets out the facts that if as

alleged the defendant Soetoro a/k/a Obama is not capable of giving a lawful order

because his occupation of the office of the presidency is only de facto, then the

plaintiff, Colonel Hollister, must look to the defendant Biden as the de jure

Commander-in-Chief from whom he must accept orders. This occurs by operation

of the very Constitution whose violation by the defendant Soetoro a/k/a Obama is

at issue. The defendant Biden has no choice if the lack of constitutional eligibility

of Soetoro/Obama is faced and taken cognizance of. It is not a matter of what the

defendant Biden wants to do at this point; it is what he is required to do and must

do. This is particularly made clear in the prayer of the complaint. See paragraph

H of the prayer. (App. 028)

THE SAME IS TRUE OF THE ARGUMENT THAT

THERE IS NO COGNIZABLE STAKE.

Just as we have shown that the argument of the appellees that there is no

adversity is not supported by the cases that the appellees have cited and is not well

taken, we now show that the same is true of the argument that they advance that

there is no cognizable stake under the federal interpleader statute that was

alleged or shown here. As with the first argument, the defendants/appellees did not

counter-appeal the finding of jurisdiction by the lower court that was necessarily

implicit in the lower courts finding that it had jurisdiction because of the statute



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appellees used the same case, and quoted from it at the place cited, the following:

It is well established that issues and legal theories not asserted at the District

Court level ordinarily will not be heard on appeal. As we pointed out in reply to

that use of the case, we reiterate here that that case and its authority address, by the

clear language of the opinion, what was at issue were two entirely different legal

issues embodied in entirely different legal theories. One theory was known as the

Rational Cost Allocation Theory and had been argued and discussed at length in

the District Court. The other and entirely separate issue and theory was known as

the Public Trust Doctrine Theory. Despite an extensive history stretching back

into the common law and the development of our state law since the founding of

the nation, it had not been discussed or argued at all in the District Court. In that

case it was held that:

While a complaint should not be dismissed unless the courtdetermines that the allegations do not support relief on any legaltheory, the complaint nonetheless must set forth sufficientinformation to suggest that there is some recognized legal theoryupon which relief may be granted. The appellants public trusttheory is a novel one. It was not presented to the District Court andthe trial judge surely had no obligation to create, unaided by theplaintiff, a new legal theory in order to support the citys complaint.

Id., 750 F.2d at 1078.

In the present case the complaint quite plainly states and alleges ( 12):

the plaintiff is in possession ofobligations he owes to the Acting President or

President (and all others above the Plaintiff in the chain of command) to receive



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the performance of duties from the Plaintiff. (emphasis added). (App 011; also,

Am. Compl. App. 058) The very word of the statute now alluded to, namely

obligation is in fact used in the complaint. Further, it is used in the complaint to

make clear that it is a counterpart of and an alternative to duties as is the case in

common parlance. Here is one of the definitions of obligation from the

Merriam-Webster online dictionary: 4 : something one is bound to do : duty,

responsibility Throughout the complaint and in numerous filings below we

spoke of the duties of Colonel Hollister as the stake in this case. (Compl, 9, App.

10; 12, App. 11; 44, App. 021; 50, App. 023; Mtn to File Interpleader, 5,

App. 039; Am.Compl. 13, App.058; 15, App. 059; 40, App. 066; 41, 42,

43, App., 067; 50, App 70, 52, App. 071, et al.) The assertion by the appellees

that plaintiff Hollister did not argue that his obligations were at issue and argued in

the court below is incorrect. They were argued but were referred to under the

synonym duties. That is not a substantive distinction; it is certainly not the use

of a wholly different legal theory such as was at issue in theAir Florida case.

There is no merit to the appellees contention based on the Air Florida case

that this court should not consider our argument about the clear and plain language

of the word obligation in the interpleader statute. In fact it is the appellees

themselves who argue (Opp. p. 11) that the statutes treatment of property versus

its treatment of obligation is a distinction without a difference. This argument



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is completely inconsistent with the appellees position that obligation and duty

are not definitional synonymous. That they are definitional synonyms is certainly

the case as regards one versus the other being the object or stake of interpleader,

whether or not they are strictly property. The Court should not only consider the

argument based on the clear language of the statute, it should do so carefully.

As with the argument of lack of adversity, the argument for there being no

stake by the appellees relies upon cases that, when examined, do not support the

argument. The appellees in this argument engage in a logical fallacy, that of taking

a part of a set and confusing it with the whole set. While it is true that interpleader

is typically used by insurance carriers to deal with funds from a policy subject to

multiple claims, it is not the case that that is the only use of interpleader. Nor is it

the case, because such stakes played a significant role in the development of the

interpleader statute into its present form, that that is the only use of interpleader.

That too is a logical fallacy of equating a part with the whole. That the lower court

engaged in this same logical fallacy does not make it valid. In fact, it makes clear

that there is reversible error.

In seeking to lead the Court into paying no attention to the clear meaning of

the interpleader act in its use of the word obligation, the appellees rely heavily

upon Murphy v. Trav. Ins. Co., 534 F.2d 1155, 1159 (5th Cir.1976). In using the

quote that they chose from the Murphy case (Opp. p. 11), the appellees select a



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quote which only deals with the language of the statute that they want the court to

consider exclusively, without taking account of the use of the word obligation or

of the duties that constitute that obligation here. The language of the quote only

refers to that part of the statute which speaks of interests evidenced by a `note,

bond, certificate, policy of insurance, or other similar intangible document of

definite ascertainable value. The question of obligation that is at issue here was

not at issue in that case. The fact pattern of the Murphy case is distinguishable

from this case in several substantive ways that make the analogy argued by the

appellees extremely flawed. The passage just quoted of an intangible document

of definite ascertainable value would definitely apply to Colonel Hollisters

situation. The salary of a Colonel is not subject to any future ascertainment by a

court; it is set by statute and regulations in a clearly ascertainable amount.

Participation in the Individual Ready Reserve is not speculative; it is definite and

grows out of the original contract of service. Moreover, what was at issue in

Murphy was not whether there was a stake. There clearly was; it was the amount

of an insurance policy. The question was not what the stake was in that case. The

question was how much the deposit into the court escrow would be and,

specifically, whether it would be required to cover the amount of possible future

counsel fees to be awarded, if at all, after litigation. The Murphy decision is not



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applicable to the present case at all in the manner the appellees would have it

applied.

The appellees rely upon, as their other authority for the sweeping assertion

that Colonel Hollisters obligation cannot be a stake under interpleader, Bankers

TrustCo. v. Mffrs. Natl. Bank of Detroit, 139 F.R.D. 302, 307 (S.D.N.Y.1991). A

careful analysis of the quote that the appellees have taken from that case (Opp. p.

10) reveals that, by its plain language, within the factual context of that case, it

does not apply to this case. That language clearly demonstrates that the reason the

court rejected the particular item in question, which was the duty to manage a fleet

of rail cars, was that it was not distinct from a host of other claims that were

involved in the complex litigation in question. That is not the case here. Here, by

contrast, there is one single obligation: Colonel Hollisters obligation to serve if

called up from the Individual Ready Reserve. It was the lack of distinctness which

the decision in that case turned upon. There is no such lack in this case.

In addition there are other factors in that case upon which Judge Mukasy

based his opinion that do not obtain in this case and make a substantial difference.

These are significant factors which the appellees fail to point out. One of them is

the judges finding that the interpleader plaintiff must be in possession of the stake.

In that case the entity filing as the interpleader plaintiff, Manufacturers National

Bank of Detroit, was not in possession of the obligation to manage the fleet of rail



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cars which it claimed was the stake; in fact, it had never been in possession of the

management responsibility. Initially it belonged to another company called Brae;

the responsibility was then assigned to another company, GERSCO. The court

made it clear that that was a substantial distinction contributing to its decision. Id.,

139 F.R.D. at 307. For that case to be persuasive authority for this case, Colonel

Hollister would have had to file in interpleader, not for himself, but for another

officer who is a member of the Individual Ready Reserve.

Also in the Bankers Trustcase the judge ruled that an important factor that

the obligations, which he did consider, ran the wrong way. He ruled that they

ran, not from Manufacturers National Bank to the actual manager of the rail fleet

but instead from that entity, GERSCO, to Manufacturers National Bank. For the

fact situation in this case to be analogous for that authority to be persuasive, the

obligation here would have to run from one of two appellees to Colonel Hollister,

not the other way around. These two cases do not in fact support the appellees

position as to there being no stake here under the statute.

The same can also be said of the appellees use of the authority of Professor

Chafee. They take a passage from his well known article on the 1936 amendments

to the interpleader statute and misrepresent its meaning and misinterpret the thrust

of the article. Because of the clear language of the statute in its use of the word

obligation, the legislative history is not looked to under controlling Supreme



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Court authority. Nonetheless, in attempting to use Professor Chafees article, the

appellees misinterpret both the article in its entirety and the excerpt that they quote

from the article. The article, The Federal Interpleader Act of 1936: I. Zechariah

Chafee, Jr., 45 Yale L.J. 963 (1936) has as its thrust the enormous broadening of

the interpleader act in the bill that amended it that year. So much is this the case

that the article, after setting out the history of how the act was once confined in its

applicability to certain specific kinds of plaintiffs, in the 1917 Act only insurance

companies could be plaintiff stakeholders. In 1926, the ability to be a stakeholder

plaintiff was extended to casualty companies and surety companies. Id., a6 964-

65. Then, speaking of the breadth of the 1936 act Chafee says that it: removes

all previous limits on kinds of companies that are permitted to file bills of

interpleader. This remedy is now available to individuals and corporations

generally if they are subjected to claims by residents of two or more states.

(emphasis added) id. After further history, in laying out the basic principles of the

1936 act, he lists as its first principle: 1. The persons who can interplead are not

limited to insurance, casualty, and surety companies. Id., at 968. As the fourth

principle he says: 4. The subject matter in controversy is broadly defined to

correspond with the extension of the persons who can interplead. Id. The entire

thrust of the article is that the limitations urged by the appellees here were removed



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in 1936. The appellees mistakenly argue that the historical limitations in the

interpleader act prior to 1936 are still present.

The appellees take a passage that is about broadening and say that it is

narrowing and limiting. In fact, read carefully, the passage cited says that the kind

of obligation that Colonel Hollister pleads speaks of obligations which are not

embodied in formal promise to pay money, the very kind of obligation that

Colonel Hollister has. Interestingly, at the point where the appellees cut off their

quote, the article speaks of the type of obligation where one party has obtained a

claim by fraud and deceit, which is essentially what is alleged here.

ARTICLE III STANDING APART FROM INTERPLEADER

Without explaining why it would be relevant, the appellees make an

argument about standing under statutes other than interpleader. (Opp. p.20) They

seem to be assuming that they can argue Article III lack of standing regardless of

the prescription of the Interpleader Act. This is an incorrect assumption, as stated

in one of the cases that they cite in this argument, Simon v. E. Ky. Welfare Rights,

Org , 426 U.S. 26, 41-42 (1976):

Although the law of standing has been greatly changed in (recent)

years, we have steadfastly adhered to the requirement that, at least inthe absence of a statute expressly conferring standing, federalplaintiffs must allege some threatened or actual injury resulting fromthe putatively illegal action before a federal court may assume

jurisdiction. Linda R.S. v. Richard D. FN 22, 410 U.S. at 617(emphasis added) (the cite of the case quoted from is 410 U.S. 614(1973))



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allegations of the complaint, is an officer only de facto in violation of the

Constitution. One is a voluntary hobby; the other is anything but.

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 (2006) is a case in which

it was found that there was no exception to the ban on standing for a mere general

taxpayer filing suit for governmental constitutional violations. It is not relevant

where there is statutory standing. In Simon v. E. Ky. Welfare Rights, Org, supra,

there was clearly no redressability. In fact, unlike this case, the parties sued were

not the parties doing the harm complained of. The same is true of Young

Americas Found. v. Gates, 573 F.3d 797, 799 (D.C.Cir.2009). The most puzzling

of these non-relevant cites is Freeman v. B&B Assocs., 790 F.2d 145, 150-51

(D.C.Cir.`1986). That case holds the exact opposite of what the appellees cite it to

support. It stands for the proposition that the appellees here, having not cross-

appealed, should not be allowed to seek to upset the opinion of the court below,

which is exactly what they seek to do. This Article III standing argument adds

nothing to the appellees case.

THE FAILURE TO CONSIDER THE AMENDED COMPLAINT

IS GROUNDS FOR REVERSAL

In an argument beginning on p. 17 the appellees first set out the accurate

observation that the amended complaint filed by the plaintiff added a new and

different cause of action. Then, having acknowledged that fact, they argue that the

amended complaint was properly ignored and the case dismissed because the



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amended complaint added nothing to the original complaint. How an amended

complaint, amended once as a matter of right before any responsive pleading is

filed, can add a whole new cause of action and not add anything new they do not

explain. They merely applaud the lower court and ask this court to confirm its

clear factual error and gross abuse of discretion. They support this by citing

authority that does not deal in any way with a situation where an amended

complaint has added an entire new cause of action. As a matter of the facts of the

entries in the dockets in this case (App. 003) it can easily be seen that the motion

for dismissal that the court below granted was filed days prior to the amended

complaint filed as a matter of right and, in fact, the court below cannot possibly

have properly and accurately found the amended complaint to have added nothing

new and then ruled upon the whole new cause of action which the amended

complaint did, in fact, contain. This alone is grounds for reversal. Here the normal

course described in Ellipso, Inc. v. Mann, 460 F.Supp.2d 99, 103 (D.D.C.2006),

the authority cited by appellees in this argument, was required to be followed and it

wasnt. Nor is it the case that the plaintiff here has not asserted an individual right.

The right to have a Commander-in-Chief who is, under the Constitution, legally

eligible and thus qualified to give orders to a member of the military, is an

individual right for each member of the military. The court below did not examine

the question. It only, factually incorrectly, claimed it had.



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It is not the case that the plaintiff here seeks to extend Bivens to a new

category of defendants as appellees argue (p.18) when they quote fromAshcroft v.

Iqbal, 129 S.Ct. 1937, 1947 (2009). When the appellee Soetoro engaged in the

violation complained of here he was a federal officer and he did it himself. It was

not a case ofrespondeat superior. Analysis was required and was not made. The

denial of anything new in the amended complaint was factually incorrect. It was

not a question of reconsideration as argued on p. 19. There was not

consideration in the first place.

A final puzzle in this argument is n. 8 on p. 19. The de facto officer

question does not relate solely to the amended complaint. It was raised from the

very opening of the initial complaint, as pointed out in our opening brief.

This issue was not raised for the first time on appeal. Unlike inAir Florida,

the complaint clearly makes the allegations and speaks of the defendant Soetoro as

being de facto and not de jure. It alleges numerous facts establishing that; they

were repeated throughout the filings.

RULE 11 SANCTIONS AND BIAS

The Opposition assumes that the opinions below were all correct and that,

therefore, the only issue with regard to sanctions is the type of sanction. This

overlooks the possibility of any error below. Since we have shown that there was

error below, it is axiomatic that an award of sanctions of any sort was improper.



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hearing in a case such as this, where there were no hearings or opportunity to

assess counsel or the plaintiff, and yet the court below found bad faith. The

appellees cite no actual language from that Committee Report to support their

assertion.

The heart of Rule 11 is whether or not, before filing a document, the signer

made reasonable inquiry into the facts and the law. Here the court below made

no inquiry into that inquiry and so had absolutely no basis to assess any kind of

Rule 11 sanction. Business Guides, Inc. v. Chromatic Communications

Enterprises, Inc., 498 U.S. 533 (1991).

The court below made no such inquiry and instead relied upon two things,

its ventures on to the Internet and facts outside of this case, and facts not from any

experience it had in ruling in this case. It looked to the behavior of two other

attorneys who signed the pleadings below, and Philip J. Berg in particular, in a

case in which he was involved, and not the plaintiff here or the undersigned. These

inquiries included Mr. Bergs website. This behavior also goes to the bias issue.

The appellees (p. 29) assert correctly the axiom that facts learned during the

conduct of the judicial proceeding do not require recusal. But the facts of the other

suits by Berg, who was not a party in this suit, and the facts of the vetting,

blogging and twittering on the Internet as a rationale for why the Constitution need

not be inquired into are not matters learned within the four corners of this case.



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The clear bias indicated by the characterization by the court below of Berg and

Joyce as probably the real plaintiffs in this case and the description of them

enlisting Colonel Hollister as part of a political movement as the court below saw

it are not within the four corners of this case and clearly indicate a bias developed

from matters outside of this case. Likety v. United States, 510 U.S. 540 (1994)

which the appellees cite (pp. 29-30) actually makes clear that bias need not always

be based on matters outside the four corners of the case in question but certainly

makes clear that reliance on matters outside of the four corners of the case and

letting them shape and influence opinions in the case or even give the appearance

of doing so do constitute bias.

The most glaring example of the bias resulting from improper reliance on

matters outside of the course of proceedings in this case is contained in the opinion

of dismissal (App. 209) in the paragraph where the court below used the

participation in apro se litigation by Philip J. Berg as a plaintiff. Berg v. Obama,

574 F. Supp. 2d 509 (E.D.Pa.2008). It used that as the basis for characterizing the

attorney Philip J. Berg as the real plaintiff in this case, and the actual plaintiff in

this case as a fallback brainstorm. It viewed Colonel Hollisters case as part of a

crusade, with clearly a pejorative meaning. Although the court below listed the

causes of action in that case, which were not in any way the same as here, it

nonetheless connected the two cases as part of a crusade. This gave a clear



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appearance to the public that it was biased. This bias was also evident in the

attempts of the lower court, relying upon its evident distaste for Philip J. Berg and

Lawrence Joyce, to assess the entire legal costs of the appellees, which it saw as

extensive, against the undersigned. This last was an effort not even permitted by

the language of Rule 11 which the court below invoked in attempting to assess the

undersigned with this steep financial burden. In this Opposition the appellants

seek to compare this evidence of the appearance of bias with the judicial notice in

exercised in the case ofVeg-Mix, Inc. v. U.S. Dept of Agric., 832 F.2d 601, 607

(D.C.Cir.1987). But the two situations are not analogous. Veg-Mix was about

judicial notice. There is nothing here in theBerg case that was being taken judicial

notice of. The only reason to take note of the case was to use it to smear the

undersigned and Colonel Hollister with inappropriate guilt by association.

CONCLUSION

The thrust of the Opposition, with its misrepresentations, approval of bias

and pejorative mischaracterization, is to make the Court feel that if it dares to take

its oath to the Constitution as seriously as Colonel Hollister does, and apply the

law, it will be doing something unthinkable. It is not an appeal to the Rule of

Law.

Respectfully submitted,

/s/



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John D. HemenwayCounsel for Appellants4816 Rodman Street, NW

Washington DC 20016(202) [email protected]

CERTIFICATION OF COMPLIANCE WITH RULE 32(a)

Pursuant to Fed. R. App. P. 32(a) and D.C. Cir. R. 32(a), I hereby certifythat this corrected brief contains 6,870 words, excluding the parts exempted by the

rules, and has been prepared in a proportionally spaced typeface using MicrosoftWord 2003 in Times New Roman 14-point typeface.

Dated: January 7, 2010 /s/ John D. HemenwayCounsel for Appellants

mailto:[email protected]:[email protected]


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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that I have caused the foregoing CORRECTED

APPELLANTS BRIEF to be served electronically upon counsel of record this 7th

day of January, 2010.

/s/John D. HemenwayCounsel for Appellants


Documents

HOLLISTER v SOETORO (Appeal) - Corrected Appellants Reply (1/7/2010)