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Joint Appellant Reply Brief

Joint Appellant Reply Brief

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Case: 09-5080

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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., 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. Case Below 08-2254 JR

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APPELLANTS REPLY BRIEF

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John D.Hemenway D.C. Bar #379663 Counsel for Appellant 4816 Rodman Street, NW Washington DC 20016 (202) 244-4819 johndhemenway@comcast.net

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Table of Contents ………………………………………………………

i

Table of Authorities ……………………………………………………. ii 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 ……………………………………… 21 RULE 11 SANCTIONS AND BIAS …………………………………… 23 CONCLUSION …………………………………………………………. 27

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TABLE OF AUTHORITIES

Ashcroft v. Iqbal, 129 S.Ct. 1937, 1947 (2009).......................................................22 Bankers Trust Co. v. Mffrs. Nat’l. 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), .......................................19 Berg v. Obama, 574 F. Supp. 2d 509 (E.D.Pa.2008) …………………………….26 Bierman v. Marcus, 246 F.2d 200, 203 (3d Cir. 1957)..............................................4 Bivens v. Six Unknown Fed. Narcotics Agents 403 U.S. 388 (1971) ....................25 *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, 10, 11, 22 Ellipso, Inc. v. Mann, 460 F.Supp.2d 99, 103 (D.D.C.2006) ..................................22 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, 18081(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))........................................ 18, 20
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Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) ............................... 19, 22 Murphy v. Trav. Ins. Co., 534 F.2d 1155, 1159 (5th Cir.1976)................... 12, 13, 14 *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) ................... 18, 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)..................................................................................2, 6 Veg-Mix,Inc.. v. U.S. Dep’t 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, 6 Young America’s Found. v. Gates, 573 F.3d 797, 799 (D.C.Cir.2009) ..................20

*28 U.S.C. § 1335(Interpleader Act).......................................... 1, 7, 8, 9, 17, 18, 19 35 U.S.C. § 291..........................................................................................................5

Fed. R. Civ. P. 12(b)(6)..............................................................................................1 *Fed. R. Civ. P. 11 ……………………… ………………………………….....…23, 24, 26

*The Federal Interpleader Act of 1936: I. Zechariah Chafee, Jr., 45 Yale L.J. 963 (1936) ................................................................................ 16, 17

iii

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Article III............................................................................... 7, 17, 18, 19, 20, 21, 23

iv

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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 proper under Fed. R. Civ. P. 12(b)(6) because he failed to state a plausible interpleader claim with adverse claimants and a tangible stake. We point out that 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 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. Hemenway’s complaint did not even allege the sine qua non of an interpleader suit -– that “[t]wo or more adverse claimants . . . are claiming or may claim to be entitled to such money or property, or to any one or more of the benefits . . .arising by virtue of any such obligation. . . .” 28 U.S.C. § 1335(a)(1). The adversity issue was thus not specifically mentioned and no decision turned upon it as such. We disagree with this general observation and it was appealed as part of the March 25, 2009 opinion and is now joined in the general appeal. The observation is not accurate under the required reading of the

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complaint. The court below actually 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. Nonetheless, to the extent that adversity is an element of standing, the 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 entitled and indeed obliged to do so. See State Farm Fire & Casualty Co. v. Kathryn Tashire, 386 U.S. 523, 530, 87 S.Ct. 1199, 18 L.Ed.2d 270, 275 (1967), citing Treinies v. Sunshine Mining Co., 308 U.S. 66, 70, 84 L.Ed. 85, 89, 60 S.Ct. 44 (1939), 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 the facts of this case. Principally, there was no interpleader jurisdiction in that case because the City of Baltimore was trying to
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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, the Indiana County 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 the court found there 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 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 it’s 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

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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 of Bierman v. Marcus, 246 F.2d 200, 203 (3d Cir. 1957). They cite this last 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 actual facts of the Bierman case show that this is a highly misleading misrepresentation. 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 was effectively themselves. The court there found they were acting in bad faith, by pretending that they were exerting a conflicting claim against themselves. There is nothing like that here. Colonel Hollister does not in any way control either defendant in this case. Thus the use of this case is to seek to mislead the Court. Also in that case it turned out the real controversy was with the other named interpleader defendant, the one other
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than the alter ego of the plaintiffs. This controversy was about a fraud perpetrated upon this other alleged claimant. There is no such different underlying controversy here. More subtly misrepresentative is the attempted use by the appellants in this same argument of Xerox Corp. v. Nashua Corp., 314 F. Supp. 1187, 1190 (S.D.N.Y. 1970). From this case they take the quote: "The court is not prepared to cast Xerox and RCA in the role of unwilling litigants where, upon substantial grounds, they challenge the validity of the basis upon which Nashua seeks to force them into adversary positions, while Nashua presents only its bare conclusions in support of its position." The argument seems to be that by mere assertion of this mantra from that case they have correctly analogized it to this case. The reason that we say that this is more subtle misrepresentation is because of the more complex nature of patents and patent litigation as compared to other sorts of litigation. In the Nashua opinion the lack of actual adversarial contention that was found was very much because of the nature of improvement patents vis-à-vis the patents that they improve upon. There is no comparable doctrine in the present case. Under the allegations of the complaint as to the lack of constitutional

eligibility for the office of President on the part of the defendant Soetoro there is no “improvement” role to serve as President that the defendant Biden can fulfill in the face of plaintiff’s contentions in the complaint without being in conflict with
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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 that it had been rendered without jurisdiction over the subject matter. This

eliminated the possible conflicting claims that were alleged in the interpleader complaint. There is no similar issue or potential here—no claimed conflicting court decisions from different states and no res judicata.

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Thus, these cases that the appellees cite to support their argument that no adverse relationship is shown do not, if carefully considered support that argument. Nor is their argument supported by their references to the complaint in this case and their characterization of those references, (Opp. pp. 15-16). The argument of the appellees with its references to the complaint ignores the clear language of the federal interpleader statute where it uses the word “may.” At 28 U.S.C. §

1335(a)(1) the statute does not just speak of claimants who “are claiming.” Rather, using or as a disjunctive, it speaks of claimants who “are claiming or may claim…” Thus the appellants take the very possibility that the statute describes, as used by the plaintiff here, and seek to avoid the plain language of the statute and convert into a “general standing” pure Article III sort of situation where there is no congressional prescription of jurisdiction. Moreover, the appellees seek to do so by ignoring the rule attendant upon dismissal motions that the words of the complaint must be construed with inferences in favor of the plaintiff. That this is the standard the appellees

themselves state and concede (Opp. p. 7) citing Barr v. Clinton, 370 F.3d 1196, 1199 (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
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the plaintiff, Colonel Hollister, must look to the defendant Biden as the one who is de jure the 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 that we have addressed, the defendants/appellees did not counter-appeal the finding of jurisdiction by the lower court that was necessarily implicit in the lower court’s finding that it had jurisdiction because of the statute and thus this issue has not been presented to this Court. Nonetheless the appellees have in essence in their Opposition asked the court to consider this issue on its own motion. Since it is obliged to consider the issue we address this argument.
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A substantial part of the appellees’ argument on this issue is their claim that we, the appellants, are improperly seeking to raise an issue that was not sufficiently raised below. They are speaking of our pointing to the clear language of the federal interpleader act at 28 U.S.C. § 1335(a) where it says: …having in his or its custody or possession money or property of the value of $500 or more, or having issued a note, bond, or certificate, policy of insurance, or other instrument of value or amount of $500 or more, or providing for the delivery or payment or the loan of money or property of such value, or being under any obligation, written or unwritten in the amount of $500 or more,… Specifically, the appellees say that by emphasizing in our opening brief the use of the word “obligation” in the above passage in parallel and in the disjunctive, by the use of “or,” with the references to “money or property” and the description of certain kinds of issued instruments, we are impermissibly introducing a new “argument” into the case at the appellate level. As their authority for urging the Court to reject what they thus characterize as a new “argument” which this Court is not allowed to consider, they point to the decision in District of Columbia v. Air Florida, Inc., 750 F.2d 1077, 1084 (D.C.Cir.1984). This is to misrepresent the holding in that case as well as the commonly used synonym for “obligation,” the word “duties.” When, earlier, in their now superceded Opposition, document 1204814, p. 11, the 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
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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. Thus in that case it was held that: While a complaint should not be dismissed unless the court determines that the allegations do not support relief on any legal theory, the complaint nonetheless must set forth sufficient information to suggest that there is some recognized legal theory upon which relief may be granted. The appellant’s public trust theory is a novel one. It was not presented to the District Court and the trial judge surely had no obligation to create, unaided by the plaintiff, a new legal theory in order to support the city’s complaint. Id., 750 F.2d at 1078. In the present case the complaint quite plainly states and alleges (¶ 12): “…the plaintiff is in possession of obligations he owes to the Acting President or President (and all others above the Plaintiff in the chain of command) to receive the performance of duties from the Plaintiff.” (emphasis added). (App 011; also, Am. Compl. App. 058) Thus 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
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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, therefore, by the appellees, that the 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, however, is not a substantive distinction and it is certainly not the use of a wholly different legal theory such as was at issue in the Air Florida case. Thus, 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 statute’s treatment of “property” versus its treatment of “obligation” is a “distinction without a difference.” This argument is completely inconsistent with the appellees’ position that “obligation” and “duty” are not definitional synonymous.
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That they are

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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. Even more importantly, 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 by any stretch that that is the only use of interpleader. Nor is it the case that, 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. To begin with, the use in the passage just quoted of an “intangible document of definite ascertainable value” would definitely apply to Colonel Hollister’s situation. The salary of a Colonel is not subject to any future ascertainment by a court; it is set by statute and regulations thereunder in a clearly ascertainable amount. Further, the 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.

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Thus, the Murphy decision is not applicable to the present case at all in the manner in which the appellees would have it applied. The appellees rely upon, as their other authority for the sweeping assertion that Colonel Hollister’s obligation cannot be a stake under interpleader, upon Bankers Trust Co. v. Mffrs. Nat’l. 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 the plain meaning of the language within the quote which the appellees have chosen to emphasize within the factual context of that case, it does not apply to this case. For that language clearly demonstrates that in that case 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, namely, Colonel Hollister’s 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 judge’s finding in that case that the interpleader plaintiff must be in possession of
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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 cars which it claimed was the stake and, in fact, 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 there made it clear that that was a substantial distinction contributing to its decision. Id., 139 F.R.D. at 307. Thus, for that case to be persuasive authority for this case, Colonel Hollister would have had to have filed in interpleader, not for himself, but for some other officer who is a member of the Individual Ready Reserve. Also in the Bankers Trust case 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 so that the authority of that case would be persuasive the obligation here at issue would have to run from one of two appellees to Colonel Hollister, not the other way around. Thus 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 in this argument of the authority of Professor Chafee. They take a passage from his well known article on
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the 1936 amendments to the interpleader statute and misrepresent its meaning and misinterpret the thrust of the article. As we pointed out in our opening brief, 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 Court authority. Nonetheless, in attempting to use Professor Chafee’s 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 in 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. Then in the 1926 version of the act 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. Then, 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
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968. As the fourth principle in the same list 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 sort of limitations urged by the appellees here were removed in 1936. The appellees mistakenly argue that the historical limitations in the interpleader act prior to 1936 are still present. Thus, the appellees take a passage that is about broadening and try to say that it is narrowing and limiting. In fact, read carefully, the passage that they cite almost 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, right 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

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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 in the absence of a statute expressly conferring standing, federal plaintiffs must allege some threatened or actual injury resulting from the 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)) Footnote 22 then states: The reference in Linda R.S. to “a statute expressly conferring standing” was in recognition of Congress’ power to create new interests the invasion of which will confer standing. See 410 U.S., at 617 n.3, 93 S.Ct. at 1148, 35 L.Ed.2d, at540; Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 93 S.Ct. 364, 34 L.Ed.2d 415 (1972). This entire argument of the appellees about Article III standing requirements not being met by the plaintiff here is made without reference to the fact that in this instance Congress has expressly conferred standing by passage of the Interpleader Act. We have addressed in the preceding arguments why the standing as thus conferred by Congress is present in this case. Thus the cases that the appellees cite in this argument do not withstand scrutiny in light of the standing conferred by the interpleader statute. To be sure Article III standing questions are still applicable, but it is not relevant to seek to apply them, as the appellees do here, without considering the standing conferred by Congress in the statute. This particularly
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goes to the issue of what might otherwise be too far in the future and be too uncertain in a straight Article III standing case where there is no such prescription by Congress, since the statute at issue uses the word “may,” as pointed out above, and specifically addresses future possibilities. In Bates v. Rumsfeld, 271 F.Supp. 2d 54, 62 (D.D.C.2002), for example, there was no invocation of interpleader and the most decisive prong of Article III standing in that case, that of redressability, is not present here. Clearly, if it is determined as a result of this case that the appellee Soetoro is only occupying the office of the presidency de facto and not de jure as alleged in the complaint, then the exposure of that ineligibility will redress the plaintiff’s grievance because the plaintiff will know that the defendant Soetoro cannot give a lawful order that the plaintiff is required to obey. The use of Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 180-81(2000) is even more puzzling, since that is a case involving a statute, albeit a different one than the interpleader statute, that provides for citizen law suits; in that case the plaintiffs, as does Colonel Hollister here, had made averments that established their standing. That was as opposed to Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560 (1992) which dealt with the same statute with the opposite result. In Lujan it was found that the fact that some member of a group devoted to the preservation of wild life might some day wander out in a
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desert that was being developed for a purpose other than being pristine and not be able to see the same wildlife as if the development had not taken place was not of sufficient urgency or reality to present the possibility of real injury. We

incorporate our previous discussion of Lujan from our earlier timely reply. The status of a lover of wildlife in such an organization is not the same as that of an individual warrior in the reserves being called up by a Commander-in-Chief who, under the allegations of the complaint, is an officer only de facto in violation of the Constitution. The one is a voluntary hobby; the other is anything but that. 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, totally unlike this case, the parties sued were not the parties actually doing the harm complained of. The same is true of Young America’s Found. v. Gates, 573 F.3d 797, 799 (D.C.Cir.2009). The most puzzling of these non-relevant cites is that to 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 supposedly support. It stands for the proposition that the appellees here, having not cross-appealed, should not be allowed to seek to upset

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the opinion of the court below, which is exactly what they seek to do. All in all 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 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
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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 wasn’t. Nor is it the case that the plaintiff here has not asserted an individual right here. 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. 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 from Ashcroft 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 of respondeat 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. 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 in Air Florida the complaint clearly makes the allegations and speaks of the defendant Soetoro as
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being de facto and not de jure. It alleges numerous facts establishing that and 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. In any case, the court below did not particularize its charges of violations of Rule 11 as we pointed out in our brief is required. Nor did the court below conduct any inquiry into what the pre-filing inquiry was with regard to any of the three prongs of Rule 11 as required. Based on its looking into “vetting, blogging and

twittering” on the Internet, the court below found that the complaint and the filings of the undersigned were “frivolous.” Thus there was no proper analysis to justify the selection of any sanction under Rule 11. Contrary to the assertion of appellees (Opp. pp. 23-24) Judge Robertson did not point out unsupported arguments. What he did was take arguments that

pointed out obligations and duties and opine that they were not property. They did represent intangible forms of property, in fact, that were obligations and duties, but he found that not to his liking because he chose not to pay any attention to the language of the statute in that regard.
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warranted by existing law we have shown in our references to 19th century cases on the “natural born citizen” phrasing and the influence of Vattel on that language. The district court did not assess the “totality of the circumstances.” In fact, it did not assess the proper Rule 11 factors at all. Nor is the assertion in the Opposition (p.25) about the advisory committee notes to the 1993 amendments correct. There is nothing in those notes which contradicts the case law set out by the undersigned (Appx. 243 ff.) requiring a 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. Significantly, the appellees cite no actual language from that Committee Report to support their assertion. In short, 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
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case in which he was involved, and not the plaintiff here or the undersigned. These inquiries included Mr. Berg’s website. Thus 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. 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. The case of 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
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of dismissal (App. 209) in the paragraph where the court below used the participation in a pro 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 Hollister’s 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 in this case, it nonetheless connected the two cases as part of a “crusade.” This gave a clear 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 clearly 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 of Veg-Mix, Inc. v. U.S. Dep’t 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 the Berg 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.
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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/ John D. Hemenway Counsel for Appellants 4816 Rodman Street, NW Washington DC 20016 (202) 244-4819 johndhemenway@comcast.net

CERTIFICATION OF COMPLIANCE WITH RULE 32(a) Pursuant to Fed. R. App. P. 32(a) and D.C. Cir. R. 32(a), I hereby certify that this brief contains 6,975 words, 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: January 5, 2010 /s/ John D. Hemenway Counsel for Appellants

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CERTIFICATE OF SERVICE I HEREBY CERTIFY that I have caused the foregoing to be served electronically upon counsel of record this 5th day of January, 2010.

/s/ John D. Hemenway Counsel for Appellants

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