HOLLISTER V SOETORO - OPEN DOCUMENT - CORRECTED MOTION Filed (1217859) by Mr. Lawrence J Joyce, Esquire and Philip J Berg, Esquire - Transport Room

Case: 09-5080 Document: 1217859 Filed: 11/27/2009 Page: 1
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
_____________ Ο _____________
GREGORY S. HOLLISTER,
Plaintiff – Appellant,
v.
BARRY SOETORO, et al,

Respondents – Appellees.
_____________ Ο _____________
CORRECTED
EMERGENCY MOTION OF LAWRENCE J. JOYCE, ESQUIRE and
PHILIP J. BERG, ESQUIRE TO FILE A BRIEF AMICUS CURIAE IN
SUPPORT OF APPELLANTS HOLLISTER AND HEMENWAY,
SUPPORTING REVERSAL
_____________________
Lawrence J. Joyce, Esquire

1517 N. Wilmot Road,
Suite 215
Tucson, 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
TABLE OF CONTENTS
Page(s)
TABLE OF CONTENTS………………………………………………..………….i
TABLE OF AUTHORITIES………………………………………………..…..ii-iii
ARGUMENT…………………………………………………….………...…... 1-20
I. Rule 29 Considerations……………………….……...……………..1-2
II. Background…………………………………………………….….2-17
A. Interest of Lawrence J. Joyce, Esquire…………….…….....2-14
B. Interest of Philip J. Berg, Esquire…………………...…….14-17
III. Contents of The Brief……………………………………………17-20
A. Barnett v. Obama………………………………………….17-20
B. Additional Materials in the Brief……………………………..20
CONCLUSION………………………………………………………….………..21
CERTIFICATION OF COMPLIANCE WITH RULE 32(a)…………………..…22
CERTIFICATE OF SERVICE……………………….………………………..23-24
Attachment Number One

Erratum and Appellant Hollister’s Reply Brief.......…Attachments 1-1 through 1-42
Attachment Number Two

April 3, 2009 Letter from Robert Bauer to John D. Hemenway……Attachment 2-1
i
TABLE OF AUTHORITIES
Page(s)
Cases
United States Supreme Court
Andrus v. Charlestone Stone Products, Inc., 436 U.S. 604 (1978)……..……..….17
Bender v. Williamsport Area School Dist., 475 U.S. 534 (1986)…………....……17
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)..………………………..…...18
Martin v. Wilks, 490 U.S. 760 (1989)…………………………………...…..…..…4
N.O.W. v. Scheidler, 510 U.S. 249 (1994)………………………………....………4
Roe v. Wade, 410 U.S. 113 (1973)………………………………………………..20
Sosna v. Iowa, 419 U.S. 393 (1975)………………………………………………18
Court of Appeals: All Other Circuits
Berg v. Obama, 2009 U.S. App. LEXIS 24804 (3d Cir. Pa. Nov. 12, 2009)…..…15
Wiley S. Drake, et al v. Barack H. Obama, et al

U.S. Court of Appeals for the Ninth Circuit, Case No. 09=56827…………………1
United States District Court
Barnett v. Obama,
2009 U.S. Dist. LEXIS 10126 (C.D. Cal. Oct. 29, 2009)………….1, 16, 17, 18, 19
Berg v. Obama, 574 F. Supp. 2d 509 (E.D. Pa. 2008)…………………….……...15
ii
TABLE OF AUTHORITIES - Continued
Page(s)
Cases
United States District Court - Continued
Berg v. Obama, 2009 U.S. App. LEXIS 86189 (D.D.C. Sept. 21, 2009)……...…..15
Liberi, et al v. Taitz, et al, U.S. District Court for the Eastern District of PA,
Case Number 09-01898-ECR………………………………………………..…….16
FEDERAL RULES OF APPELLATE PROCEDURE
District of Columbia Circuit Rule 29(b)……………………………………..……..1
UNITED STATES CONSTITUTION
Article III…………………………………………………………………….……18
First Amendment………………………………………………………………….20
iii
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.
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).
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
1
[60] day deadline. We believe that, in a prima 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. However, for the reasons stated below, we believe this change in
representation could nonetheless result in a truly less-than-sufficient presentation
of all issues for 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 have Berg and Joyce as counsel once again. Once it was
ascertained that this would not happen, we notified counsel for Soetoro and Biden
by email on 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
Soetoro and Biden, 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
2
President. In the spring of 2008 a friend of mine was likewise concerned and
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 Soetoro’s 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.
3
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 Mr. Berg 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 Mr. Berg 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 and N.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 once have 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).
4
office. Also, with my permission, in the Brief filed in this Court on August 5,
2009, John D. 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.
Hemenway’s behavior began to change.
John D. 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
5
Greatest Generation, and a child of the Great Depression, he served as a Second
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
proceed Pro Hac Vice in the District Court, and with there being little prospect that
6
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 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
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 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,
7
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 D. 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
hadn’t gotten around to it because my gaining admission to the Bar of this Court
supposedly wouldn’t be necessary. 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, and I filed the
Original Reply Brief of Hollister, and served it on counsel for all parties.
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.
8
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.
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 D.
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. Berg’s assistant Lisa Liberi 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 Hollister’s end of this appeal, which Motion is still before this Court.
The materials in question filed by John D. 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
9
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
statement of Mr. Berg. I was aware of much of the background development of
those problems at the time that John D. Hemenway, Esquire filed the said
materials.
Aside from the fact that I was shocked by the fact that any materials were
filed by John D. 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, and again he wasn’t 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
10
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
he filed those things. He said he didn’t 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 Ms. Liberi 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
John D. 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 Hollister’s 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,
11
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
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 Mr. Hemenway’s Motion for Judicial Notice. John D.
Hemenway, Esquire’s Reply was denominated as Plaintiffs/Appellants’ Reply,
instead of just as his own Reply. I knew that as Colonel Hollister’s lead counsel, I
12
could not let that stand. I would be forced to move to Withdraw that Reply as it
pertained to Colonel 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 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 place me in a legally and professionally untenable
position.
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
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
John D. Hemenway’s Reply to Soetoro’s and Biden’s Response from Hollister’s
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 D. Hemenway, Esquire.)
13
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 Hollister’s counsel to argue this case, I cannot be confident
that John D. Hemenway, Esquire will be able to represent Colonel Hollister
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 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
himself in 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.
14
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
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 admission Pro Hac Vice. I have no attorney-client relationship with
Colonel Hollister or John D. Hemenway, Esquire, and I have no prospects or
intention of entering into one with either of them.
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
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.
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 Soetoro’s Constitutional qualifications to be President with Orly Taitz,
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
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.
Respectfully submitted,
Dated: November 27, 2009 s/ Philip J. Berg

_____________________
Philip J. Berg, Esquire
III. Contents Of The Brief
A. Barnett v. Obama
The holding of Barnett 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 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
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
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
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
concept of mootness, which is likewise a matter of the subject matter jurisdiction
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
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 Hollister’s present case (or anyone else’s new claim) can still be
12 Marbury v. Madison, 5 U.S. (1 Cranch) 137, 167 (1803).

13 Sosna v. Iowa, 419 U.S. 393, 398-399 (1975).
18
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.
As to the election of 2012, we first wish to note that Soetoro’s 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 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
14
See, http://images.nictusa.com/cgi-bin/fecimg/?C00431445; see also,
http://images.nictusa.com/pdf/230/29992941230/29992941230.pdf#navpanes=0
19
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
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
which relief can be granted was in fact well-pleaded, if at all possible. These
arguments all supplement the arguments raised in Hollister’s Original Reply Brief.
Counsel herein incorporates by reference as Attachment One of this Motion
Hollister’s Original Reply Brief filed with this Court September 22, 2009 as if
fully set forth herein. With respect to the First Amendment considerations, we also
make an argument pertaining to Attachment Two, April 3, 2009 Letter from Robert
Bauer to John D. Hemenway, which counsel herein incorporates by reference as if
fully set forth herein.
15
Roe v. Wade, 410 U.S. 113, 125 (1973). See also, Weinstein v. Bradford, 423 U.S. 147, 149
(1975).
20
Conclusion
For the foregoing reasons, this Honorable Court’s amici requests Leave to
File their Brief Amicus Curiae.
Respectfully submitted,
Dated: November 27, 2009 s/ Lawrence J. Joyce

LAWRENCE J. JOYCE, ESQUIRE
Attorney for the Amici
1517 N. Wilmot Rd., #215
Tucson, AZ 85712
(520) 584-0236
21
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 5,021words, excluding the parts exempted by the
rules, and has been prepared in a proportionally spaced typeface using Microsoft
Word 2003 in Times New Roman 14-point typeface.
Dated: November 27, 2009 s/ Lawrence J. Joyce

Amicus Curiae for himself In Pro Se and,
Counsel for Amicus Philip J. Berg, Esquire
1517 N. Wilmot Road, Suite 215
Tucson, AZ 85712
(520) 584-0236
Email: barmemberlj@earthlink.net
D.C. Circuit Bar Number 52501
22

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 BRIEF AMICUS 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 Brief Amicus Curiae is GRANTED.
IT IS SO ORDERED.
Dated: November _____, 2009. Hon. _________________________
1
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

_____________ Ο _____________
GREGORY S. HOLLISTER,
Plaintiff – Appellant,
v.
BARRY SOETORO, et al,

Respondents – Appellee.
_____________ Ο _____________
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 27th day of November, 2009 upon the following:
John D. Hemenway, Esquire

HEMENWAY & ASSOCIATES
4816 Rodman Street NW
Washington, D.C. 20016
Email: JohnDHemenway@comcast.net
Attorney for Appellant, Gregory S. Hollister
23
Marc Elias Esquire

PERKINS COIE
607 Fourteenth St., N.W.
Washington, D.C. 20005-2003
melias@perkinscoie.com
Attorney for Appellees, Barry Soetoro and Joseph Biden
Andrew Harris Werbrock

PERKINS COIE
607 14th Street, NW
Suite 800
Washington, DC 20005-2003
awerbrock@perkinscoie.com
R. Craig Lawrence, Assistant U.S. Attorney

U.S. Attorney's Office
(USA) Appellate Division, Civil Unit
555 4th Street, NW
Washington, DC 20530
Email: craig.lawrence@usdoj.gov
s/ Lawrence J. Joyce
LAWRENCE J. JOYCE, ESQUIRE
Attorney for the Amici
24

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Case: 09-5080 Document: 1217859 Filed: 11/27/2009 Page: 1

U.S. District Court

Court of Appeals Case No. 09-5080

UNITED STATES COURT OF APPEALS

BARRY SOETORO, et al,

Lawrence J. Joyce, Esquire

As In Pro Se Amicus for himself

A. Interest of Lawrence J. Joyce, Esquire…………….…….....2-14

B. Interest of Philip J. Berg, Esquire…………………...…….14-17

III. Contents of The Brief……………………………………………17-20

B. Additional Materials in the Brief……………………………..20

CERTIFICATION OF COMPLIANCE WITH RULE 32(a)…………………..…22

Attachment Number One

Attachment Number Two

United States Supreme Court

Andrus v. Charlestone Stone Products, Inc., 436 U.S. 604 (1978)……..……..….17

Bender v. Williamsport Area School Dist., 475 U.S. 534 (1986)…………....……17

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)..………………………..…...18

Martin v. Wilks, 490 U.S. 760 (1989)…………………………………...…..…..…4

N.O.W. v. Scheidler, 510 U.S. 249 (1994)………………………………....………4

Roe v. Wade, 410 U.S. 113 (1973)………………………………………………..20

Sosna v. Iowa, 419 U.S. 393 (1975)………………………………………………18

Court of Appeals: All Other Circuits

Wiley S. Drake, et al v. Barack H. Obama, et al

United States District Court

Berg v. Obama, 574 F. Supp. 2d 509 (E.D. Pa. 2008)…………………….……...15

TABLE OF AUTHORITIES - Continued

United States District Court - Continued

FEDERAL RULES OF APPELLATE PROCEDURE

District of Columbia Circuit Rule 29(b)……………………………………..……..1

UNITED STATES CONSTITUTION

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

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

representation could nonetheless result in a truly less-than-sufficient presentation

Soetoro and Biden, either.

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.

John McCain and Appellee Barry Soetoro are Constitutionally qualified to be

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

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

Forces would likewise be affected by Soetoro’s potential disqualification to at least

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.

seeking to be President, rather than on the Plaintiff.

behalf of Appellant Gregory S. Hollister as the sole Plaintiff.

Martin v. Wilks3 and N.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

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

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

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

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

immediately filed a Notice of Appeal.

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

Hemenway’s behavior began to change.

Greatest Generation, and a child of the Great Depression, he served as a Second

Lieutenant in World War II. He is a Rhodes Scholar. At one point, as a private