Professional Documents
Culture Documents
GREGORY S. HOLLISTER,
Plaintiff – Appellant,
v.
I. Rule 29 Considerations
In requesting Leave to File a Brief amicus curiae in this case, this Court’s
amici are mindful of Circuit Rule 29(b) of this Court, which normally requires
Notice of the Intent to File a Brief amicus 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 the Interest of Philip J. Berg, the Third Circuit will have that issue before
it.
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).
2
Wiley 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 a prima facie sense, this change of counsel
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
this Court’s 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
November November 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
Last year I heard about legal efforts to bring to establish whether Senator
President. In the spring of 2008 a friend of mine was likewise concerned and
2
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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
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
some degree, even an inactive member, so long as that person would be subject to
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
3
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I contacted Philip J. Berg, Esquire’s 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
I did the vast majority of the research on Interpleader, including the role of
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, Esquire’s
3
Martin v. Wilks, 490 U.S. 760 (1989).
4
N.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.
contacted Mr. Berg asking if they could help. One of them was John D.
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
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
What transpired next, however, came not from this Court. Rather, Mr.
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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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.
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
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
proceed Pro 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
explained to Mr. Hemenway that Mr. Berg and I were instructed to be the decision
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 Court’s 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
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 5th. 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
I reinitiated the process of applying for admission to the Bar of this Court,
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 hadn’t gotten
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,
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
8
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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
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
mentioning to Mr. Berg or I that he was even considering filing such a thing at all
for anyone. Mr. Berg’s assistant Lisa was able to contact Mr. Hemenway, and Mr.
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.
Colonel Hollister’s end of this appeal, which Motion is still before this Court.
cases filed by another attorney, Orly Taitz, Esquire, who is also questioning the
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. Berg in this Motion, and I refer this Court to that
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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 didn’t think so, other than a couple of
emails quite a while back. I asked him where he had gotten the materials from. He
didn’t 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,
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
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 Hollister’s sole attorney just before
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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
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 Court’s Order in this case came down on October 20th
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
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.
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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.
which may substantially impact this case; this fact is discussed below in the section
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
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.
Soetoro and Biden to John’s Motion for Judicial Notice. John Hemenway,
his own Reply. I knew that as Colonel Hollister’s lead counsel, I could not let that
Hollister’s Appeal, and that to explain such Motion, I would have to spell out in
painstaking detail the indications of Mr. Hemenway’s 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 client’s own co-counsel, this would
I sent Colonel Hollister an email on the night of November 9th telling him
that, realistically, he had three options: One was to require Mr. Hemenway to send
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
John’s Reply to Soetoro’s and Biden’s Response from Hollister’s end of the
all, nor do I believe that we shall have one in the future. (This likewise pertains to
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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
counsel for Colonel Hollister, Philip J. Berg, Esquire would have sought Leave to
File this Brief in 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
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
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
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.
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 admission Pro Hac Vice. I have no attorney-client relationship with
I wish to submit this amicus Brief because how this Court decides this case
and professional reputation with respect to my previous efforts in the case at bar.
5
Berg v. Obama, 574 F. Supp. 2d 509 (E.D. Pa. 2008)
6
Berg v. Obama, 2009 U.S. App. LEXIS 24805 (3d Cir. Pa. Nov. 12, 2009)
7
Berg v. Obama, 2009 U.S. Dist. LEXIS 86189 (D.D.C. Sept. 21, 2009)
15
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Taitz, Esquire, who has brought several cases which also question the
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
Esquire and since I have my own claims to adjudicate on that point, I respectfully
ask this Honorable Court for Leave to be this Court’s amicus with this Brief.
8
Liberi, et al v. Taitz, et al, U.S. District Court for the Eastern District of PA, Case Number
09-01898-ECR
9
Barnett v. Obama, 2009 U.S. Dist. LEXIS 101206 at *56 (C.D. Cal. Oct. 29, 2009)
16
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A. Barnett v. Obama
The holding of Barnett v. Obama10 is based on the idea that, at least in 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 Court’s 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:
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
10
Barnett 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).
17
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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 in Barnett must impact the
of the Article III Courts,13 even though the Court in Barnett did 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
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
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 Hollister’s present case (or anyone else’s 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 of Barnett, 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.
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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
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 of Barnett against 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 Court’s 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
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
14
See, http://images.nictusa.com/cgi-bin/fecimg/?C00431445; see also,
http://images.nictusa.com/pdf/230/29992941230/29992941230.pdf#navpanes=0
15
Roe v. Wade, 410 U.S. 113, 125 (1973). See also, Weinstein v. Bradford, 423 U.S. 147, 149
(1975).
19
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duty, the nature of property, and the law’s recognition of Colonel Hollister’s
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
Conclusion
For the foregoing reasons, this Honorable Court’s amici requests Leave to
Respectfully submitted,
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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
21
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GREGORY S. HOLLISTER, :
:
Appellant, :
vs. : Court of Appeal Case No. 09-5080
: Consolidating No. 09-5161
BARRY SOETORO, et al. :
:
Appellees. :
ORDER
THIS CAUSE came before the United States Court of Appeals for the
Motion of Lawrence J. Joyce, Esquire and Philip J. Berg, Esquire to File a Brief
Hemenway, Esquire supporting reversal. Having reviewed the Motion and any
IT IS SO ORDERED.
1
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GREGORY S. HOLLISTER,
Plaintiff – Appellant,
v.
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 Brief Amicus Curiae was served via email this
s/ Lawrence J. Joyce
LAWRENCE J. JOYCE, ESQUIRE
Attorney for the Amici