Case: 09-5080

Document: 1207620

Filed: 09/22/2009

Page: 1

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

GREGORY S. HOLLISTER,

: : Appellant, : vs. : Court of Appeal Case No. : Consolidating No. BARRY SOETORO, et al. : : Appellees. :

09-5080 09-5161

APPELLANT’S EMERGENCY MOTION FOR LEAVE TO FILE HIS REPLY BRIEF NUNC PRO TUNC AS TIMELY OR IN THE ALTERNATIVE, FOR AN EXTENSION OF TIME UNTIL SEPTEMBER 22, 2009 PURSUANT TO F.R.A.P. 26(b) TO FILE HIS REPLY BRIEF Appellant, Gregory S. Hollister, by and through his undersigned Counsel, hereby requests Leave of Court to file his Reply Brief as timely or in the alterative, for an extension of time to September 22, 2009 to ensure Appellant’s Reply Brief is timely filed on the following grounds:

Appellant, Gregory S. Hollister’s Attorney, Lawrence J. Joyce was recently admitted to practice law before this Honorable Court and had not received his ECF log-in, in order to file electronically; The Court Clerk gave misleading information when Counsel inquired into filing Counsel’s Entry of Appearance and Appellant’s Reply Brief; Appellees will not suffer any prejudice if relief is granted; and Appellant will be severely prejudiced if relief is not granted.

• •

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WHEREFORE, Appellant, Gregory S. Hollister, respectfully requests this Honorable Court to grant him leave to file his Reply Brief nunc pro tunc as timely or in the alternative an extension of time to September 22, 2009 so his Reply is timely. Respectfully submitted,

Dated: September 22, 2009

s/Lawrence J. Joyce _____________________ Lawrence J. Joyce 1517 N. Wilmot Road, Suite 215 Tucson, AZ 85712 D.C. Circuit Bar No. 52501 (520) 584-0236

Attorney for Appellant, Gregory S. Hollister

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Case: 09-5080

Document: 1207620

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UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

GREGORY S. HOLLISTER,

: : Appellant, : vs. : Court of Appeal Case No. : Consolidating No. BARRY SOETORO, et al. : : Appellees. :

09-5080 09-5161

APPELLANT’S BRIEF IN SUPPORT OF HIS EMERGENCY MOTION FOR LEAVE TO FILE HIS REPLY BRIEF AS TIMELY OR IN THE ALTERNATIVE, FOR AN EXTENSION OF TIME UNTIL SEPTEMBER 22, 2009 PURSUANT TO F.R.A.P. 26(b) TO FILE HIS REPLY BRIEF

A.

OVERVIEW The Appeal herein was commenced on March 18, 2009 as Appeal Case No.

09-5080 and John D. Hemenway’s Appeal was commenced on April 30, 2009 as Appeal Case No. 09-5161. Appeal Case No. 09-5161 was consolidated with Appeal Case No. 09-5080 on May 11, 2009. A scheduling Order was issued, which John D. Hemenway, Esquire never received and he was Attorney of Record for the Appellant, Col. Hollister at that time. On August 5, 2009 Appellant filed a Motion for an Extension of Time to file his Opening Brief as a result of John D. Hemenway, Esquire, Counsel of Record at the time, not receiving the Court’s Briefing schedule. To date, this Motion has not been granted or denied.
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In the meantime John D. Hemenway, Esquire filed an opening brief regarding his appeal on the sanction issue and then filed another brief to incorporate Appellant, Col. Hollister’s issues into his brief. Unfortunately, some very important factors pertaining to Col. Hollister’s appeal were not properly addressed and/or addressed at all for that matter. Lawrence J. Joyce was admitted to practice before the United States Court of Appeals for the District of Columbia on or about Tuesday, September 15, 2009, at which time Mr. Joyce agreed to take over the representation of Appellant, Col. Hollister. It was brought to Mr. Joyce’s attention that a proper Opening Brief had not been filed on behalf of Col. Hollister nor had the Motion for an Extension of Time been ruled upon. Based on this, Mr. Joyce felt it imperative to file a Reply on behalf of Col. Hollister to the Appellees’ Brief. Otherwise, without doing so, Appellant Col. Hollister would be severely prejudiced. Being that September 18, 2009 was a Friday, and the Court’s ECF division is not open over the weekend and the fact that Appellant, Col. Hollister’s Reply Brief was due on or before September 18, 2009, Lisa Liberi contacted this Court’s Clerk’s Office and spoke to Mark to see what the filing options were. Ms. Liberi’s concern was the fact the Reply Brief for Hollister was due, Mr. Joyce had just been

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admitted and Counsel was without access to the ECF filing system. Lisa Liberi, pp. 1-2, ¶ 3].

[Decl. of

Mark explained to Ms. Liberi that since Mr. Joyce is an out-of-state Attorney, recently admitted, Counsel’s Entry of Appearance and Appellant’s Reply Brief could be filed via email to the ECF division at ECFHelp@cadc.uscourts.gov, due to the time sensitivity, if Counsel and/or his staff were unable to access the ECF filing system or if they had any complications in filing the documents. Mark assured Ms. Liberi that if the documents were filed after hours or before Monday, they would be deemed filed Friday, September 18, 2009 just as if they had been placed in the after hours drop box. [Decl. of Lisa Liberi, p. 2, ¶ 4]. Unfortunately, Counsel and his staff did have difficulties with the ECF filing system and the system would not accept Mr. Joyce’s log-in or password. At this time, it was after this Court had closed. Therefore, as stated that we could do by the Court’s Clerk, Mark, Counsel’s Entry of Appearance Form and Appellant, Col. Hollister’s Reply Brief was emailed for filing to the email address provided by Mark. A confirmation email was received by Ms. Liberi after her submission of the documents to the ECF division. On Monday, September 21, 2009, Ms. Liberi contacted this Court’s Clerk’s Office and spoke with a young woman. Ms. Liberi informed the Clerk that

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documents had been submitted for filing; however, they did not appear on PACER. The Clerk informed Ms. Liberi that the documents should appear on PACER within two (2) days and they would show being filed Friday, September 18, 2009. [Decl. of Lisa Liberi, p. 3, ¶ 8]. On Tuesday, September 22, 2009, Mr. Joyce and the Office Ms. Liberi works in, received a phone call from Tiara, in the Operations division of the Court stating Appellant must file a Motion for Leave to file Appellant’s Reply Brief as timely. Ms. Liberi contacted Tiara back and explained the circumstances regarding Mark’s directions for the filing of the documents. Tiara was extremely apologetic for the wrong information provided by Mark in the Clerk’s Office and stated Appellant, Col. Hollister brief was not timely filed, which was due to Clerk error. Tiara stated a Motion for Leave to file the Appellant’s Reply Brief as timely needed to be filed and all the circumstances regarding the wrong information provided by the Court should be explained. Due to the fact that an appropriate Brief has not been filed with this Court on behalf of Appellant Col. Hollister and the fact the issues raising the reason for Appeal have not been addressed, it is imperative, that his Reply Brief be allowed to be filed as timely to address his issues on Appeal.

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No parties will be prejudiced by the allowance of Appellant, Col. Hollister’s Reply Brief to be filed as timely. However, Appellant, Col. Hollister will be severely prejudiced if his request is denied. For the above aforementioned reasons, Appellant, Col. Hollister respectfully requests this Court to grant him leave to file his Reply Brief as timely or in the alternative an extension of time until September 22, 2009 so the filing of his Reply Brief shows as timely. B. GOOD CAUSE EXISTS TO GRANT APPELLANT, COL. HOLLISTER LEAVE TO FILE HIS REPLY BRIEF AS TIMELY OR IN THE ALTERNATIVE TO GRANT HIM AN EXTENSION OF TIME UNTIL SEPTEMBER 22, 2009 SO HIS REPLY BRIEF SHOWS TIMELY FILED:

Federal Rules of Appellate Procedure, Rule 26(b) states in pertinent part: “For good cause, the court may extend the time prescribed by these rules or by its order to perform any act, or may permit an act to be done after the time expires…” The mere fact that Counsel for Appellant was misinformed by the Clerk’s Office of this Honorable Court is good cause to grant Appellant, Col. Hollister his requested relief. As this Court is aware, pursuant to F.R.A.P. 26(b), it is always within appellate court's discretion to permit late filing of brief for good cause; exercise of that discretion is especially appropriate where there is no suggestion of prejudice. Hutchinson v Pfeil (2000, CA10 Okla) 211 F3d 515, 54 USPQ2d 1323, 2000-1

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CCH Trade Cases P 72878, 2000 Colo J C A R 1858, cert den (2000) 531 US 959, 121 S Ct 384, 148 L Ed 2d 296. Counsel for Appellant, Col. Hollister was limited on time to file Appellant’s Reply Brief due to only being Admitted with this Court three (3) days prior to the deadline date to file Appellant’s Reply Brief. Appellant, Col. Hollister’s Counsel was diligent in attempting to timely file and ensure Appellant’s Reply Brief was received by the Court and timely filed. Appellant, Col. Hollister will be severely prejudiced if he is not granted his requested relief. C. CONCLUSION

For the reasons stated herein and for good cause shown, Appellant, Col. Hollister respectfully requests this Honorable court to grant his Motion for Leave to file his Reply Brief as timely, or in the alternative, for an Extension of Time until September 22, 2009 so Appellant, Col. Hollister’s Reply Brief is deemed to have been filed timely. Respectfully submitted,
s/Lawrence J. Joyce _____________________ Lawrence J. Joyce 1517 N. Wilmot Road, Suite 215 Tucson, AZ 85712 D.C. Circuit Bar No. 52501 (520) 584-0236 Attorney for Appellant, Gregory S. Hollister
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Dated: September 22, 2009

Case: 09-5080

Document: 1207620

Filed: 09/22/2009

Page: 9

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

GREGORY S. HOLLISTER,

: : Appellant, : vs. : Court of Appeal Case No. : Consolidating No. BARRY SOETORO, et al. : : Appellees. : CERTIFICATE OF SERVICE

09-5080 09-5161

I, Lawrence J. Joyce, Esquire, hereby certify that Appellant, Gregory S. Hollister’s, Motion for Leave to file his Reply Brief as timely or in the alternative for an Extension of Time until September 22, 2009 was served via electronic filing this 22nd day of September 2009 upon the following: Robert F. Bauer, Esquire PERKINS COIE 607 Fourteenth Street, N.W. Washington, D.C. 20005-2003 RBauer@perkinscoie.com Attorney for Appellees John D. Hemenway Hemenway & Associates Attorney in pro se 4816 Rodman Street NW Washington, D.C. 20016 (Served by U.S.P.S. Mail – Postage fully prepaid)
s/Lawrence J. Joyce _______________________ Lawrence J. Joyce, Esquire
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UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

GREGORY S. HOLLISTER,

: : Appellant, : vs. : Court of Appeal Case No. : Consolidating No. BARRY SOETORO, et al, : : Appellees. : DECLARATION OF LISA LIBERI

09-5080 09-5161

I, Lisa Liberi, am over the age of eighteen (18) and not a party to the within action. If called to do so, I could and would competently testify to the facts stated herein. 1. Lawrence J. Joyce, Esquire, an out-of-state Attorney was recently

admitted to practice Law in this Honorable Court. Upon Admittance by this Court, Mr. Joyce took over the representation of Appellant, Gregory S. Hollister in the within Appeal. 2. Appellant’s Reply Brief was due on or before September 18, 2009.

Out of concern, I contacted this Honorable Court, Clerks Office at (202) 2167380 and spoke to a gentleman by the name of “Mark”. 3. My concern was the fact Mr. Joyce had just been admitted to practice

law in this Court; Mr. Joyce had not been issued ECF access as of Friday, September 18, 2009; and the fact Mr. Joyce is located outside the District of
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Columbia.

I wanted to ensure that Mr. Joyce’s Entry of Appearance and

Appellant, Mr. Hollister’s, Reply Brief were timely filed, and asked for instruction from Mark in this Court’s Clerk’s Office on how to accomplish this timely. 4. email The Clerk stated if we had trouble filing electronically, we could the documents to the ECF division at email address

ECFHelp@cadc.uscourts.gov. This was not unusual to me as this is how the U.S. District Court, District of Columbia and other Court’s handle electronic filings when the ECF registration has not been processed or for some reason the log-in attempts into the system for filing fails. 5. Mark stated the Court also has a night drop box and as long as the

Entry of Appearance and Reply Brief were filed in the drop box it would be collected and filed on Monday, September 21, 2009 with a filing date of September 18, 2009, even if filed after hours. 6. I attempted to electronically file Mr. Joyce’s Entry of Appearance and

Appellant’s Reply Brief to no avail. The ECF filing system was rejecting Mr. Joyce’s log-in and password. 7. I followed the Clerk’s advice and emailed the documents for filing to

the ECF email address provided to me and received back a confirmation from the ECF Division.

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8.

On Monday, September 21, 2009 I contacted this Court’s Clerk’s

Office and asked when we would be able to see the filing of Mr. Joyce’s Entry of Appearance Form as well Appellant, Mr. Hollister’s Reply Brief. The young lady I spoke with stated it should show on Pacer in a couple of days. I again reasked to ensure it was timely what the date of filing would show. The Clerk stated it would show filed September 18, 2009. 9. On Tuesday, September 22, 2009, Mr. Joyce and our Office received

a phone call from Tiara, in the Operations division of the Court stating that we must now file a Motion for Leave to file Appellant’s Reply Brief as timely. I contacted Tiara back and explained the above circumstances. Tiara was

extremely apologetic for the wrong information provided by Mark in the Clerk’s Office. Tiara stated a Motion for Leave to file the Appellant’s Reply Brief as timely needed to be filed and I should explain the above to the Court. I declare under the penalty of perjury of the laws of the United States the foregoing is true and correct to the best of my knowledge and belief. Respectfully submitted,

Dated: September 22, 2009

s/ Lisa Liberi _________________________ LISA LIBERI

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