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Case: 09-5080 Document: 1218455 Filed: 12/01/2009 Page: 1

No 09-5080
Consolidating No. 09-5161

IN THE UNITED STATES COURT OF APPEALS


FOR THE DISTRICT OF COLUMBIA CIRCUIT

GREGORY S. HOLLISTER, Case Below 08-2254 JR

Appellant,

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.

=========
APPELLANTS’ MOTION FOR AND
STATEMENT SUPPORTING ORAL ARGUMENT
=========

John D.Hemenway D.C. Bar #379663


Counsel for AppellantS
4816 Rodman Street, NW
Washington DC 20016
(202) 628-4819
johndhemenway@comcast.net
Case: 09-5080 Document: 1218455 Filed: 12/01/2009 Page: 2

TABLE OF AUTHORITIES

CASES PAGE(S)

Ex Parte Reynolds, 5 Dill. 394, 402 (1879) 8

Figueroa-Ruiz v. Alegria, 905 F.2d 545, 549 (1st Cir.1990) 16

Fletcher v. Evening Star Newspaper Co., 133 F.3d 395,


395 (D.C.Cir..1942) 14

Hilton Hotels Corporation v. Banov, 899 F.2d 40, 46 (D.C.Cir.1990) 15, 16

Keith v. U.S., 8 Okla. 446, 58 P. 507 (1899) 8

Linda R.S. v. Richard D., 410 U.S. at 617, 93 S.Ct.,


at 1148, 35 L.Ed.2d, at 540 18

*Minor v. Happersett, 88 U.S. 162, 167-68 (1874) 6, 8, 10

Owens v. Republic of Sudan, 412 F.Supp.2d 99,


117 (D.D.C.2006) 13, 14

Renal Physicians Ass’n v. U.S. Dept. of Health & Human Servs.,


489 F.3d 1267, 1273 (D.C.Cir.2007) 17

Shanks v. Dupont, 28 U.S. 242, 245 (1830) 8

Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41-42 (1976) 18

*The Venus, 12 U.S. (8 Cranch.) 253, 289 (1814) 7

United States v. Ward, 42 F. 320 (C.C.S.D.Cal.1890) 8

U.S. v. Wong Kim Ark, 169 U.S. 649 (1898) 8

Veg-Mix, Inc. v. U.S. Dept. of Agric., 832 F.2d 601,


607 (D.C.Cir. 1987) 14

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Case: 09-5080 Document: 1218455 Filed: 12/01/2009 Page: 3

CONSTITUTION OF THE UNITED STATES

Article II, Section 1, Clause 5 5, 6, 8, 15

14th Amendment 6, 8, 20

STATUTES, RULES AND TREATISES

28 U.S.C. § 1335 (“Interpleader Act”) 11, 12, 13, 18

*F.R.A.P. 34(a)(2) 1, 10, 11, 12

*Fed.R.Civ. P. Rule 11 3, 4, 11, 16

Fed.R.Civ. P. Rule 12(b)(6) 9, 11

Fed.R.Civ. P. Rule 12 (b)(1) 17

Vattel, The Law of Nations, bk. 1, ch. 19 § 212 8

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Case: 09-5080 Document: 1218455 Filed: 12/01/2009 Page: 4

IN THE UNITED STATES COURT OF APPEALS


FOR THE DISTRICT OF COLUMBIA CIRCUIT

GREGORY S. HOLLISTER, et al. ) Case Below 08-2254 JR


Appellants, )
)
v. ) No 09-5080
) Consolidating No. 09-5161
BARRY SOETORO, et al. )
Appellees. )

MOTION FOR AND STATEMENT SUPPORTING ORAL ARGUMENT

In its Order of June 26, 2009, the Court indicated its adoption of a

briefing schedule and in doing so noted the following, namely that to the

Court it was “appearing that this case might be suitable for disposition

without oral argument,” (emphasis added). In so doing, the Court then

requested that the parties consult Fed.R.App.P. 34(a)(2). Upon examining

that rule as requested, appellants note that it states that oral argument “must

be allowed in every case unless a panel of three judges who have examined

the briefs and record unanimously agrees that oral argument is unnecessary

for” any of three reasons that are then listed. (emphasis added).

The heading of paragraph 34(a)(2) indicates that these three reasons

are “Standards.” So the question of whether an oral argument will be

denied in light of this positive admonition that oral argument “must” be

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allowed “in every case” unless one of the three reasons can be

“unanimously” found establishes that each of the three reasons is a

“standard” and that, therefore, the actual facts of this case must be measured

against each of the three reasons in turn until one is found against which the

facts of this case can be measured and found wanting.

Because in its Order of June 26 the Court stated: “…it appearing that

this case might be suitable for disposition without oral argument, (emphasis

added) the Court did not indicate anything more than an “appear[ance]” that

this case “might” be suitable for such disposition. The Court did not say that

the case was suitable for presentation without oral argument or that at that

point, when the order was issued, such a possibility was more than an

“appear[ance].” Thus, it would seem that the type of thorough examination

and analysis required for a panel “unanimous” opinion can not yet have yet

been undertaken. This is particularly so when, as has now become the case,

the entire matter has had to be briefed anew under a new schedule.

Because of the intimation of this language of the rule as just discussed,

and as we indicated would be done in the reply brief that was timely filed for

the undersigned and for Colonel Hollister, and because, as we indicated in

that reply brief, of the very substantial number of misrepresentations

contained in the opposition brief of the appellees, which will now have to

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redone, were too many to be all dealt with in that timely filed reply brief, we

ask for oral argument unless there is a valid standard that dictates that it

should not be allowed. This would require a unanimous panel consideration

and decision. In addition, there is the fact that it is evident that the pattern of

misrepresentation thus exhibited will continue. The appellants, both of them

are, at this point, requesting in this motion that there be a full oral argument

so that all questions about the misrepresentations can be adequately

addressed. They do so because they maintain that none of the three reasons

for not having an oral argument as set out above in the Rule obtains here.

The first of the three reasons, paragraph (A), provides that the Court

may omit oral argument if the appeal is “frivolous.” The use of the word

“frivolous” would seem to echo the language that has been used for years in

applying. Since the individual appeal of the undersigned in this case is

centered around the trial judge’s levying (albeit greatly reduced from its

original form) of a Rule 11 sanction, one of a “reprimand,” it would seem

that the present appeal could hardly be frivolous in light of the fact that the

judge below originally sought to impose upon the undersigned the full costs

of the defense of the appellees to include counsel fees. Since we know from

Federal Election Commission filings, of which this Court may take judicial

notice, the fees to the appellees’ law firm now exceed one million and four

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hundred thousand dollars ($1,400,000) of which the greater amount seem to

be fees for defending cases about the eligibility for the presidency of the

appellee Soetoro/Obama, Further, such a Rule 11 sanction would be

ruinous to the average attorney, particularly one in solo practice. We can

understand that the “backing off” by the judge below leading to his revised

Rule 11 sanction was quite substantial. Yet, nonetheless, a Rule 11 sanction

remains, as has been acknowledged by the appellees Soetoro a/k/a Obama

and Biden in their filings heretofore.

It seems to have been a withdrawal of an attempt by the lower court to

ruin an attorney who had the temerity to bring such a suit. We say this

because the sanction that was thus initially proposed by the lower court was

clearly erroneous in several ways. Two of the most important of those errors

were (A) that a Rule 11 sanction that is proposed by a judge clearly, under

established law, cannot include such counsel fees and (B) it is hornbook law

that such an award under Rule 11 entitles the attorney thus attacked to a

hearing. While, in drawing back as he did, the judge below, clearly

eliminated the violation of (A), he did not eliminate the violation of the

hornbook law (B) and that cause for an appeal that is clearly not frivolous

remains.

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Further, many, many examinations of Rule 11 have considered and

established what “frivolity” in legal filings consists of, They have focused

upon what is known as “pre-filing inquiry.” Here the judge below did not

even begin to inquire what pre-filing inquiry the undersigned or the plaintiff

and appellant Colonel Gregory S. Hollister did or did not consist of. Instead

of inquiring into, or allowing any presentation of, what the pre-filing inquiry

in this case consisted of, the court below instead relied upon the following

pronunciamiento:

The issue of the President’s citizenship was raised, vetted,


blogged, texted, twittered, and otherwise massaged by
America’s vigilant citizenry during Mr. Obama’s two-year-
campaign for the presidency, but this plaintiff wants it
resolved by a court. App. 218

The question of “citizenship” was manifestly not what was at issue.

Under the clear allegations of the complaint, as well as all of the filings of

the plaintiffs/appellants below, what was at issue was whether the defendant

Soetoro/Obama met one of the basic requirements imposed upon the person

who wanted to legitimately qualify as the President. The Constitution in

Article II, Section 1, Clause 5 states that the person who would seek that

High Office be a “natural born citizen.” Clearly if what had been intended

by the Founders was to require mere citizenship, they would have said so.

Repeatedly in our history, particularly at the time of the enactment of the

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14th Amendment, it has been made abundantly clear that “citizenship” is not

the same as the specific constitutional requirement of being a “natural born

citizen.” For a United States District Court judge to assert that it is the

“citizenship” of Soetoro/Obama that is at issue is not only error; it would

seem to indicate inattention to what has been pled and argued in the case.

As we have pointed out in our reply brief, there is an occasion in

which the meaning of the Article II, Section 1, Clause 5 of the Constitution

was discussed as a coherent part of a lengthy discussion by the Supreme

Court. That was in its 1874 decision in Minor v. Hapersett, 88 U.S. 162.

The case was about suffrage and not about citizenship; the discussion of

citizenship and of the phrase “natural born citizen” in Article II was by way

of setting the scene for the discussion of suffrage which was what was

directly at issue. In setting that background at the outset of the case then

Chief Justice Waite, for a unanimous court, discussed the state of affairs of

who was a citizen under the law prior to the adoption of the 14th Amendment.

In that context the court discussed how “additions” might be made in those

early days, speaking of there being two routes to becoming a U. S. Citizen,

by birth and by naturalization. After mentioning the two routes, the court by

way of illustrating how one becomes a citizen by birth, quoted the Article II,

Section 1, Clause 5 phrase and in doing so, discussed the ways of being a

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natural born citizen as known at the time of our founding. The court pointed

out that at common law “it was never doubted that all children born in a

country of parents who were its citizens became themselves, upon their birth,

citizens also. These were natives, or natural born citizens…” The high

court then went on to say that there were those who went “further” and

include as “citizens” (but not as “natural born citizens”) “children born

within the jurisdiction without reference to the citizenship of their parents.”

The court then held that “As to this class there have been doubts but never as

to the first.” It then declared that for purposes of that case it was not

necessary to resolve the doubts, reaffirming “that all children born of citizen

parents [plural] within the jurisdiction [of the United States] are themselves

citizens.”

In addition to that decision in 1874, there have been other Supreme

Court decisions in which the question of the “divided loyalty” created by a

child’s having a parent, particularly the male parent, not be a citizen, have

been discussed. In several of these cases the influence of the writer on

international law, Vattel, as having been known to and an influence upon our

Founders, was discussed. One of the most prominent of these was by no less

a figure than John Marshall himself, writing in The Venus, 12 U.S. (8

Cranch.) 253, 289 (1814). Perhaps the greatest figure in our early

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jurisprudence made it abundantly clear that it was the opinions of Vattel’s

1758 treatise that should be considered when reflecting on the intent of the

constitutional framers such as what was meant by a phrase that they chose

such as “natural born citizen.” Vattel, The Law of Nations, bk. 1, ch. 19 §

212. Marshall’s concurring opinion, in which he was joined by Justice

Livingston, went on for several pages in distinguishing these considerations

of Vattel from what later came to be erroneously pointed to by some as an

influence upon the Founders coming from a different common law concept

in which merely being born in a country conferred citizenship that could be

distorted to be the “natural born citizen” status chosen by the Framers. For

the importance of the natural born citizenship requirement in this regard in

the 19th Century see also Shanks v. Dupont, 28 U.S. 242, 245 (1830), and, as

we have previously pointed out Minor v. Happersett, 88 U.S. 162, 167-68

(1874). And see also, where the significance of Vattel is also mentioned: Ex

Parte Reynolds, 5 Dill. 394, 402 (1879) and United States v. Ward, 42 F.

320 (C.C.S.D.Cal.1890). Also see Keith v. U.S., 8 Okla. 446, 58 P. 507

(1899). To see clearly the distinction between “citizenship” derived from

being born in the country and the phrase “natural born citizen” as used in

Article II by the Framers, see the dissenting opinion of Chief Justice Fuller

in U.S. v. Wong Kim Ark, 169 U.S. 649 (1898), which was only about being

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naturally born into citizenship under the 14th Amendment and not about the

Article II phrase “natural born citizen.” Chief Justice Fuller, in his dissent,

emphasized that distinction as it was clearly understood in those days.

In his Memorandum Order of March 24, 2009, the judge below, at p.

4 states that he has “no business” addressing the merits, and states that he

refuses to address them because he is dismissing the case under Rule 12(b)(6)

for failure to state a claim. He does not state how a judge can find that a

claim makes no case without deciding that the claim as presented make a

case that has no merit. His heavy reliance upon “blogging and twittering”

on the Internet having constituted a “vet[ting]” of the defendant Soetoro

a/k/a Obama by “America’s vigilant citizenry” would seem to those familiar

with the history of our founding like kowtowing to the kind of easily

susceptible pure democracy that was the Founder’s inspiration for creating a

constitutional republic. Indeed the refusal to face the paramount issue in the

case would seem to be the very “usurpation” of the Constitution that George

Washington warned about in his farewell address. One wonders what the

“vigilant citizenry,” or at least those citizens who truly are vigilant think

about judges who are sworn to uphold the Constitution and then assiduously

avoid its enforcement.

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The best cure for such avoidance would be, we submit, vigorous

questioning by a panel at an oral argument. Far from being frivolous this

appeal presents issues going to our very survival as a constitutional republic.

They echo Ben Franklin’s reported concern at the close of the constitutional

convention when he said to a woman on the street, “We have given you a

Republic, Madam, if you can keep it?”

In this regard an attempt to clarify the doubts set out by the Supreme

Court in Minor, supra, is not “frivolous” by definition; it is an attempt to get

clarified what the Supreme Court unanimously held to be in doubt and

reserved to be decided on a later day. Therefore, a fortiori, an appeal from a

decision in which a lower court refuses to allow such clarification based, not

upon anything in the law, but rather upon “blogging and twittering” and

vetting on the internet cannot itself be frivolous in any non-erroneous legal

sense. We would implore the Court to examine what we have set out above

and explain its position if is going to say that this appeal is “frivolous” as a

reason for not having an oral argument.

The above discussion of the 1874 decision also eliminates the

withholding of oral argument in this case for the reason set out in

subparagraph (B) of Rule 34 (a)(2) of the Federal Rules of Appellate

Procedure. That reason is: “the dispositive issue or issues have been

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authoritatively decided.” Clearly they have not been authoritatively decided

in the context of the events of the presidential election of 2008. No other

case involves the use of 28 U.S.C. § 1335 (“Interpleader”) and no other case

is one in which subject matter jurisdiction has been found in this context and

the case decided and dismissed under Rule 12(b)(6) for failure to state a

claim.

The lower court, echoing the defendants, recited other cases, including

another case brought by the attorney Berg pro se but it made no actual

analysis of actual issue or claim preclusion, not could it have under the

circumstances. Thus that too was more evidence of bias and error than an

actual legal analysis. It is self evident that “blogging and twittering” and

vetting on the internet do not preclusion make. This has resulted in the

Judge below being characterized across the conservative and

constitutionalist internet (as opposed to the Soetoro/Obama, Soros financed

“astroturfing” internet) as the “blogging and twittering” judge. We would

suggest that to deny oral argument under these circumstances and certainly

to do so without a unanimous panel decision based upon sound and rational

and transparent analysis would not contribute to public respect for the

neutrality of the courts but rather to the opposite conclusion.

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This brings us to the third reason that a U. S. Court of Appeals may

find under FRAP 34(a)(2)(C), which is: “(C) the facts and legal arguments

are adequately presented in the briefs and record, and the decisional process

would not be significantly aided by oral argument.” It is this reason to

which we alluded in our timely filed reply brief.1 There we pointed out

certain cases used by the appellees in their Opposition which badly

misrepresented the law but stated that there was not sufficient room in the

Reply to deal with many other such misrepresentations so that we would

deal with them in this separate statement and motion.

A particularly egregious example of such a misrepresentation in the

appellees’ Opposition is the use of the case that appellees cite as the one

they would have the Court put “first” in affirming the dismissal below. Here

is what the appellees said, at Opp. p.20:

First, in his Amended Complaint, Hollister dropped his


rule Interpleader claim. (See App. at 83-85). Hollister
acknowledges this point in his brief. See Br. at 8 (stating “the
allegations of proceeding under Rule 22 are in the record and
but were then dropped out but they are in the record and
should have been considered.”) Once Hollister amended his
1
We filed a reply brief timely after the Court’s adoption of electronic filing and have stamped copies
proving that filing. This was after we filed a timely opening brief and an opposition was filed to that. Our
timely filed reply brief was at first in the docket and then was withdrawn. We have now found out the
reason and have been instructed how to rectify the situation. It was only after that that, unbeknownst to the
undersigned, the attorney Joyce, having then recently been admitted to this Court under the sponsorship of
the undersigned, filed what purported to be a reply brief for the plaintiff Colonel Hollister that the
undersigned had not been advised of or given an opportunity as local counsel to review ahead of time. It is
this untimely filing that the Court has, by its Order setting a new briefing schedule, refused to accept. So
the undersigned, in filing this motion, is keeping commitments made in the Reply brief which he timely
filed and which has not been rejected and which will now be reinstated.

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complaint, that claim had no legal effect, and the district was
not obligated to address it. See, e.g., Owens v. Republic of
Sudan, 412 F.Supp.2d 99, 117 (D.D.C.2006); …

This is, of course, a straight-out misrepresentation of the events in this

case. Colonel Hollister moved to have his complaint amended, but that

motion was never granted. Indeed it was never, so far as can be told,

considered. See App. 118. And see Statement of Issues filed on 4/17/09

[1176499] Issues nos. 3, 4 and 5. Had the proffered amended complaint

been accepted there would have been no need to raise these issues in this

appeal. Further, the actual proffered First Amended Complaint alleges in its

very first numbered paragraph that is being brought pursuant to the

Interpleader Act. See App. 66. So the proffered First Amended Complaint

does not drop the allegation of violation of the Interpleader Act and to

represent that it does is factually inaccurate.

Even further, there is no indication in the opinion dismissing the case

below (App. 219) that the Interpleader Act was not at issue and that opinion

indicates clearly that the Interpleader Act claim is the only claim at issue and

is the only claim that the court was considering.

Because of this factual misrepresentation, the appellees misrepresent

the law of the Owens case. That case, at the page referred to in the above-

quoted passage, does refer to situations, unlike this case, where an amended

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complaint has been accepted, where it clearly drops an earlier cause of

action and is what is being ruled upon. It is a misrepresentation to assert that

the Owens case represents law that applies to this case.

Equally misrepresentative in a very similar vein is the use by the

defendants/appellees in their Opposition of September 4, 2009, p. 28, of this

court’s decision in Veg-Mix, Inc. v. U.S. Dept. of Agric., 832 F.2d 601, 607

(D.C.Cir. 1987) and tin turn to cite as further support for the same

contention the decision in Fletcher v. Evening Star Newspaper Co., 133 F.3d

395, 395 (D.C.Cir..1942). In citing these two cases the defendants/appellees

use them to seek to justify the references by the lower court to cases brought

by Philip J. Berg pro se with the false assertion that they are cases between

the same parties. Manifestly, Philip J. Berg is not Colonel Gregory S.

Hollister and so to say that cases brought by Philip J. Berg pro se have the

same parties as a case in which he is an attorney working for plaintiff

Colonel Greg S. Hollister is simply false and a misrepresentation. Nor do

the cases involve the same issues. Neither of the pro se cases brought by

Philip J. Berg involves any use of interpleader. Neither do either of the

other cases pose the question of an order from the defendant Biden being

lawful as opposed to an order from the defendant Soetoro a/k/a Obama.

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Similarly, the defendants/appellees made misrepresentations with

regard to the assessment of the Rule 11 reprimand against the undersigned.

They seek to justify the lower court’s taking this step as an exercise of

allowable discretion by the lower court and cite in support the decision by

this Court in Hilton Hotels Corporation v. Banov, 899 F.2d 40, 46

(D.C.Cir.1990). Opp. p. 25 The appellees cite this case for the proposition

that the “virtually untrammeled” discretion allowed there is “appropriate to

the fact of [this] case.” That is quite a misrepresentation. In that case the

sanctions were approved upon motion of the defendant against the plaintiff’s

attorney because he never investigated prior to filing to see if the words that

were the subject of the defamation claim made in the complaint had in fact

been uttered. As we have seen, the fact here that the defendant Soetoro a/k/a

Obama’s father was Kenyan is not even denied. And that alone casts his

status as a “natural born citizen” under Article II, Section 1, Clause 5 in

doubt. Further as far as the evidence cited in the complaint that he was not

born in Hawaii, to make this case comparable it would have to be the case

that the plaintiff and his counsel, prior to filing, could have ferreted out the

actual “long form” birth certificate of Soetoro a/k/a Obama. Since he has

expended hundreds of thousands of dollars keeping anyone from seeing it

and has refused to reveal it, this is not a comparable dilatation at all to that in

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Banov. In fact, as we have pointed out, here the lower court made

absolutely no inquiry into what the pre-filing inquiry was or was not. And it

had no hearing and in failing to do so, as we have pointed out, violated the

hornbook requirement where, as here, it had had absolutely no opportunity

to assess the demeanor of the undersigned and what the undersigned had or

had not done as he could have been brought out at a hearing in looking into

such matters as the failure to produce an actual birth certificate while falsely

claiming to have done so.

In addition the defendants/appellants also cite Figueroa-Ruiz v.

Alegria, 905 F.2d 545, 549 (1st Cir.1990) for the proposition that “as an

alternative to monetary sanctions, district courts may admonish or reprimand

attorneys who violate Rule 11 where such a course is appropriate.” The

misrepresentation with this was that in the Figueroa-Ruiz case the lower

court had not done that. In fact that was one of four possible routes the court

of appeals in that case pointed out the lower court could have taken when in

fact, as in this case, the lower court failed to properly investigate and analyze

Rule 11 at all. If anything, that case indicates why any Rule 11 sanction was

error here. Here the Rule 11 assessment was an exercise in name-calling

dictated by the lower court’s expressed bias toward Berg and Joyce which it

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decided to exercise upon the undersigned with no authority to support such a

transposition or transference of bias.

Even though the finding of the lower court here that there was subject

matter jurisdiction and, hence, necessarily standing, and even though the

defendants Soetoro a/k/a Obama and Biden sought dismissal for lack of

standing under Rule 12 (b) (1) and failed, they did not appeal that decision

against them. So, at this point standing is not an issue that has been placed

before this Court. Nonetheless, undeterred, the defendants/appellees argued

it in their now superseded Opposition. And in doing so, as we might expect,

they engaged in misrepresentation. The most obvious example of this is

their use of cases involving advocacy groups rather than individual plaintiffs.

These advocacy groups do not have the standing that an individual plaintiff

might have. The defendants/appellees couple that with further

misrepresentations. For example they cite the case of Renal Physicians

Ass’n v. U.S. Dept. of Health & Human Servs., 489 F.3d 1267, 1273

(D.C.Cir.2007) for the proposition that the standard of review of standing is

de novo. But that was where it was specifically appealed that there was no

standing. Here standing was found and that finding was not appealed by the

defendants/appellees. So they chose not to put the issue before the Court.

They further misrepresent that cases where there is no specific statutory

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mandate and general, broad Article III standing of all citizens is being relied

upon. For example, they cite, at p. 22, Simon v. E. Ky. Welfare Rights Org.,

426 U.S. 26, 41-42 (1976). In doing so they fail to point out that in that

decision the Supreme Court specifically mentioned that the lack of standing

it found there was precisely because there was no specific statute involved

such as the federal Interpleader Act involved here. Here is what the

Supreme Court said in that case, quoting from another of its decisions:

“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., (footnote omitted) , 410 U.S. at 617, 93 S.Ct., at
1148, 35 L.Ed.2d, at 540. [emphasis added]

When a statute expressly confers standing there still must be injury but the

statute defines the type of injury that creates the standing, as the federal

Interpleader Act does. The defendants/appellees engage in further

misrepresentation by falsely asserting, along with cases on that point, that

there is some action of a third party, not a party to the case, that must happen

here. That is false. If the defendant Soetoro a/k/a Obama is not

constitutionally eligible to hold the office he claims and is in fact only a de

facto officeholder and not de jure, and, therefore, cannot give a lawful order

to a member of the individual ready reserve, then the interpleader defendant

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Biden is obliged to obey the Constitution and give the order. There is not

another party that need be involved.

In fact it can be accurately said that the defendants/appellees have

followed a pattern of throwing a large number of misrepresentations out in

the hopes that there will be so many that we will be overwhelmed to the

point of not being able to respond to them all. It is for that reason that we

believe that the Court must grant oral argument so that we can respond to

any such misrepresentation that any member of the panel has a question

about. Many of the misrepresentations are quite obvious once the case cited

is read but there are so many that it will not likely be possible to counter

them all in a reply brief.

Finally, there are factual misrepresentations consisting of gratuitous

slurs against the plaintiff, Colonel Gregory S. Hollister. In their opening

Opposition brief, for example, at p.2, there is such a reference where the

defendants/appellees Soetoro a/k/a Obama and Biden refer to the plaintiff as

an alleged Colonel who is retired and a member of the Individual Ready

Reserve. Yet these facts are clearly established as such by the DOD Form

214 which is the attachment to the complaint. App. 30-31 Thus this is the

sort of snide misrepresentation that also cries out for oral argument. In fact

the entire assault of these appellees, like much of their activity on the

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Case: 09-5080 Document: 1218455 Filed: 12/01/2009 Page: 23

Internet and through the media that are subservient to them, consists of name

calling and ridicule, as if taking the Constitution and the oath to uphold and

protect it were frivolous just because these appellees have their counsel call

the charges made here by that and similar adjectives. Colonel Hollister

wishes it emphasizes that his concern, far from being frivolous or absurd, is

evidenced by his entire record of service to his country. As has been pointed

out, his concern over the Constitution being upheld was sufficiently serious

during his active duty when William Jefferson Clinton was President that it

is a matter of public record that he wrote to then Secretary of Defense Perry

about concerns he had about the applicability of Section 3 of the 14th

Amendment to events then in progress. These misrepresentative tactics are

best encountered by oral argument and indeed that is one of the primary

purposes of having such argument, so that questions that may be created by

such tactics can be answered and false impressions corrected.

Respectfully submitted,

/s/

John D. Hemenway D.C. Bar No. 379663


Counsel for Appellants
4816 Rodman Street, NW
Washington DC 20016
(202) 628-4819
johndhemenway@comcast.net

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Case: 09-5080 Document: 1218455 Filed: 12/01/2009 Page: 24

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that I have caused the foregoing to be served


electronically upon counsel of record this1st day of December, 2009.

/s/

__________________________

John D. Hemenway

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