Hollister - Appellants Reply Brief (2009-09-22)
Hollister - Appellants Reply Brief (2009-09-22)
GREGORY S. HOLLISTER,
Plaintiff - Appellant,
v.
Defendants - Appellees.
_________________O_________________
that oral argument will assist the Court in deciding this appeal, which
involves a number of important legal issues. Oral Argument will enable the
i
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TABLE OF CONTENTS
Page(s)
ARGUMENT………………………………………………………….…1-26
ii
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Page(s)
CONCLUSION………………………………………………………...27, 28
CERTIFICATE OF SERVICE……………………………………………..30
iii
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TABLE OF AUTHORITIES
Page(s)
Cases
iv
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Page(s)
Cases
Murphy v. Travelers Ins. Co., 534 F.2d 1155 (5th Cir. 1976)………………23
v
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Page(s)
Cases
Pure Country, Inc. v. Sigma Chi Fraternity, 312 F.3d 952 (8th Cir. 2002).…4
vi
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Page(s)
Cases
Rule 32(a)……………………………………………………………….…29
STATUTES
28 U.S.C. § 1335…………………………………………………….……..19
Fourth Amendment……………………………….……………..…………25
Fifth Amendment…………………………………………………..………25
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Even if everything which Appellees Soetoro and Biden have said in their
brief were found to be true, Appellant Col. Greg Hollister was never afforded any
hearing at all in the District Court. In fact, with respect to the motion to proceed
pro hac vice to which Soetoro and Biden refer,1 the District Court itself said that
there would be a hearing on the question of good faith and the legal basis for
By contrast, the Supreme Court of the United States has said, “The core of
Nonetheless, the District Court apparently felt quite comfortable making its
“Even in its relatively short life the case has excited the blogosphere
and the conspiracy theorists. The right thing to do is to bring it to an
early end …. 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.”
(Appendix 217-220). “Many people, perhaps as many as a couple of
dozen, feel deeply about this issue.” (Appendix 221-222)
1
Br. Of Appellees at 28.
2 Appendix 65.
3
All filings by the Plaintiff-Appellant in the District Court were signed by counsel of record in
that Court John Hemenway, a member of the bar of that Court.
1
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In that light, we again refer this Court to the Supreme Court of the United
States:
“We have frequently recognized the importance of the facts and the
factfinding process in constitutional adjudication. (‘How the facts are
found will often dictate the decision of federal claims’); (‘It is the
typical, not the rare, case in which constitutional claims turn upon the
resolution of contested factual issues’).” Bender v. Williamsport Area
School Dist., 475 U.S. 534, 542, n. 5 (1986) (citations omitted)
(emphasis supplied).
All in all, the District Court was apparently unaware of the admonition of
the Seventh Circuit that courts must resist the temptation “… to disregard
discretion.
II. The District Court Improperly Denied Col. Hollister’s Request That He Be
Allowed To File A Second Amended Complaint
For reasons stated later herein, we maintain that the District Court
mention the issue of the denial of his request to file a Second Amended Complaint
(while his First Amended Complaint was still pending)5 separately because that
Court could not have been more clear: Foman v. Davis, 371 U.S. 178, 192 (1962).
4
United States v. Board of School Commissioners, 128 F.3d 507, 512 (7th Cir. 1997).
5
Opp. to Mot. to Dismiss [Dkt. #13] at 18
2
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Of course, we expect Soetoro and Biden to maintain that there was bad faith
or other aggravating circumstances. But it was nonetheless reversible error for the
District Court to dismiss this case without giving Col. Hollister any hearing at all
on point.
Under Foman v. Davis, 371 U.S. 178, (1962) the refusal to allow
III. The District Court Improperly Refused To Consider Col. Hollister’s First
Amended Complaint
We told the District Court that under James v. Hurson Assocs., Inc. v.
Glickman, 229 R.3d 277, 282-283 (D.C. Cir. 2000) this Circuit recognizes a
We also noted for the District Court that the same case recognizes that a
motion to dismiss is not a responsive pleading. Ibid. (Opp. to Mot. to Dismiss [Dkt.
#13] at 9-10.) Soetoro and Biden filed no responsive pleading at all in the District
Court, and the District Court dismissed this case only after the First Amended
by saying that the duties he owes are obligations (as mentioned by the federal
3
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Bivens claim. Yet, when Appellant Hollister filed his First Amended Complaint,
The District Court simultaneously said that the First Amended Complaint
was not “responsive to the Appellees’ motion to dismiss”, and gave Appellant
Hollister only two days in which to file the response to the Motion to Dismiss.6
(Appendix 118) (The response was timely filed.) We tried to point out the error of
such procedure to the District Court, but to no avail, citing to authority on point
from the District of the District of Columbia, and to one particularly on point from
the Eighth Circuit: McAlister v. Potter (J. Collyer), 570 F.Supp.2d 24, n. 3 (D.D.C.
2008); Pure Country Inc. v. Sigma Chi Fraternity, 312 F.3d 952 (8th Cir. 2002).
Under Foman v. Davis, 371 U.S. 178, (1962) the District Court’s refusal to
IV. The District Court Decided This Case By Reference To Political Factors
Rather Than To The Law Exclusively
This case is inherently political just on the facts themselves. The decision of
the District Court to make its findings of fact from the political speech of the
internet, instead of at a hearing, makes it even more so. And the dismissal of this
6
Appendix 87; see Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971)
4
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case, and the reprimand of John Hemenway, are now published opinions, open for
the political realm to see.7 The danger is that if the Article III courts are perceived
as participating in the political process every bit as much as the other two
considerations of this case; in their brief they said, “Hollister’s claims fail as a
the Natural Born Citizenship Clause.” (Br. Of Appellees at 5.) The thing is, in
order for Col. Hollister’s interest in this matter to be a pretext, he would have to
have no true interest otherwise at all, and his interest would have to be political
only.
Defense Perry about his concerns.9 In sending that letter to the Secretary Perry,
7
Hollister v. Soetoro, et al., 601 F.Supp.2d 179 (D.D.C. 2009); Hollister v. Soetoro, et al., 258
F.R.D. 1 (D.D.C. 2009).
8 See, Planned Parenthood v. Casey, 505 U.S. 833, 866-867 (1992).
9 See Appendix “A”, Col. Hollister wished to hold this letter in reserve in the District Court for a
hearing in case his testimony would be impeached on the grounds that he was politically
motivated, but the District Court’s decision to dismiss without a hearing left him unable to
5
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Hollister put his career on the line for the sake of his duty. He risked never being
mistreatment anyone along his entire chain of command might wish to visit upon
him for raising the issue. Yet his sense of duty compelled him to act.
When his concerns were addressed, and his superiors thought there was no
further need for investigation, he did what any good, conscientious member of the
Armed Forces should do: He accepted the decision of his superiors, and no more
was said or done about it. Yet now Soetoro and Biden themselves have dragged up
the political end of this issue by alleging that Col. Hollister’s concern is but a
political pretext, and nothing more than that. (Br. Of Appellees at 5.) They thus fail
to grasp that this thing which they call a pretext is in fact the very substance of Col.
Hollister’s claim, and Col. Hollister was not even given an opportunity at a hearing
to explain that.
We mention all this to establish that, for Col. Hollister, this is no political
matter. When he thinks it his duty to bring to light the possibility of such an
establish the contents of the letter in the record. Regarding the addition of new material on
appeal, see, Colbert v. Potter, 471 F.3d 158, 165-166 (D.C. Cir. 2006).
6
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We also mention this to point out that if Col. Hollister ever feels the need to
act upon such concerns again, he shall certainly do so again. But this time, as Col.
Hollister alleged to the District Court, the basis for questioning the current
that if he receives an order returning him to active duty, that such order will be an
This places him at risk for court-martial and with it, all that such portends:
of pay and benefits (including pension), and potential civil liability. Such is not the
concern … and at that, from someone who has an established track record of
expressing such concerns, when he has them, in a way which illustrates that he can
keep his political preferences separate from his duty as an officer in the United
If all of the above were not bad enough, the District Court, at the behest of
Soetoro and Biden,11 even went so far as to make the following remarks in
10 Complaint, [Dkt. #1], ¶¶ 14-47; First Amended Complaint, [Dkt. #11], ¶¶ 17-53; see also,
United States v. Calley, 22 USCMA 534, 48 CMR 19 (1973).
11 Motion to Dismiss [Dkt. #9] at 3-4.
7
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Thus, here we have an instance of a federal judge actually reaching out from
beyond the legal aspects of a case to prejudice the rights and claim of a plaintiff by
making reference to an entirely different case in which counsel for the plaintiff is a
party in that other case. And the end goal of such behavior by the District Court, by
all appearances, was to punish counsel Berg indirectly by actually punishing Col.
In addition, all of this completely ignores the relief which Col. Hollister
asked for. He asked for relief in the alternative, depending upon what findings of
fact the District Court would make an a hearing, seeking either an order from the
District Court ordering him to refrain from recognizing Soetoro as the rightful
relief which Col. Hollister asks for is not simply one which favors one side of the
12Complaint at ¶¶ E, F, and G of Prayer for Relief in First Cause of Action, and First Amended
Complaint at ¶¶ E, F, and G of Prayer for Relief in Count One and ¶¶ E, F, and G of Prayer for
Relief in Count Two.
8
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competent authority one way or the other, as he did during the administration of
Bill Clinton, and nothing more than that. This is about as nonpolitical a form of
Furthermore, the District Court’s reprimand of counsel simply pours salt into
the political wound already opened by the District Court. Col. Hollister himself, we
first note, did not speak out politically on the issue of Bill Clinton’s constitutional
eligibility, nor did he do so regarding the same issue for Soetoro. But as between
two persons who, years from now, might wish to pursue some unrelated claim that
could also have political overtones, if either of them has been politically active,
and has publicly expressed political opinions, if the use of political speech on the
internet is allowed to stand as a substitute for a hearing in a court of law, then that
person who has spoken out on political issues may be suspect in the eyes of the
court for having improper motives, whereas the one who has had fewer or no
political interests, or who has maintained silence concerning such opinions, will
not be so prejudiced. This is effectively prior restraint, not even limited to the
given subject matter of this case, and is a violation of First Amendment principles
press association had to sue a judge of the District Court of the State of Nebraska
concerning an order he had entered restraining the news media from making
certain statements about a trial. (The courthouse wherein this Court sits was, in
9
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fact, named for lead counsel for the press in that case.) The Supreme Court of the
the District Court should have issued a reprimand when Col. Hollister cited to
Nichols in his original Complaint and in his First Amended Complaint, and when
counsel John Hemenway had likewise cited to Nichols in his Response to Order to
Show Cause.14
13
Talamini v. Allstate Insurance Co., 470 U.S. 1067, 1070-71 (1985).
14
Complaint, [Dkt. #1], ¶ 37; First Amended Complaint, [Dkt. #11], ¶ 43; Response to Order to
Show Cause [Dkt. # 23] at 10.
10
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The Judge’s decision to use First Amendment Political speech off the
Stuart, 427 U.S. 539 (1976); Foman v. Davis, 371 U.S. 178, (1962).
In his Complaint, Col. Hollister alleged both statutory Interpleader and Rule
22 Interpleader. As the Eighth Circuit has noted, these two forms of Interpleader
are so similar that it deems case authority for one to be likewise case authority for
the other.15 We likewise deem this to be so, except to the extent that the two forms
Standing for purposes of Interpleader and Bivens is different from that of all
other federal claims. Appellees state that the allegations of the Complaint are too
speculative for an Article III Court to have jurisdiction (Br. Of Appellees at 21-23.)
They state that supposedly, Plaintiff Hollister must show 1.) injury in fact; and, 2.)
a causal connection between the injury in fact and the conduct complained of; and,
3.) a substantial likelihood that the requested relief will be redressed by a favorable
decision. Ibid. We agree that this is the normal rule for ascertaining standing in the
15 Underwriters At Lloyd’s v. Nichols, 363 F.2d 357, 361 (8th Cir. 1966)
11
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Article III courts, but Soetoro and Biden fail to understand that the normal rule has
harm. As we pointed out in the Complaint, courts have recognized that all that
need be shown is a real, reasonable, bona fide fear of exposure to multiple claims
or the hazards and vexation of conflicting claims.16 As Col. Hollister told the
District Court, he knows he owes his duties to Soetoro or Biden, and that he must
the two, but not to or with both simultaneously; he filed this suit to find out
whether it is Soetoro or Biden who may properly claim all this from him.17
only was there a speculative question of a factual element which would have to be
satisfied first in order for the Interpleader plaintiff to face a definite, concrete
threat, but also there was an open, speculative question of law on which the
16 Complaint, [Dkt. #1], ¶ 37; First Amended Complaint, [Dkt. #11], ¶ 43.) See also, State of
Texas v. State of Florida, 306 U.S. 398, 410-411 (1939).
17
Complaint, [Dkt. #1], ¶¶ 9-47; First Amended Complaint, [Dkt. #11], ¶¶ 11-53.
18
Underwriters at Lloyd’s v. Nichols, 363 F.2d 357 (8th Cir. 1966) (holding that a court has a
duty to allow Interpleader liberally).
12
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Interpleader element hinged as well. The question of fact depended on whether the
Interpleader plaintiff, an insurance company, would ever face liability at all, since
it would face liability if and only if a judgment was ever entered against the
insured. The Eastern District of Arkansas thus found that the insurance company’s
concerns were “double contingent”, and for that reason were to speculative to
allow Interpleader; simultaneously, the open question of law was whether the
sum available under its policy in judgments with plaintiffs in the first cases to be
Notwithstanding all that uncertainty, the Eighth Circuit reversed the Eastern
District of Arkansas, quoting from an opinion written by His Honor Judge J. Skelly
Wright, while Judge Wright was still serving as a judge of the Eastern District of
Louisiana, saying,
“We are in accord with the statement of the Third Circuit … when it
speaks ‘* * of the normal duty of a district court to permit interpleader
liberally to relieve parties of the hazards and vexations of conflicting
13
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Appellees simply fail to appreciate the fact that Interpleader is for those
cases in which the threat of harm is speculative as well as for those cases in which
the threat of harm is direct and immediate. This addresses both point one (1) and
point two (2) of Appellees’ three-part test, since if injury or an immediate threat of
As for the third part of the Appellees’ test, in Interpleader, relief consists of
the Court’s dispelling of the fear of multiple claims, and of the potential hazards
and vexations thereof. Given the fact that the relief we have requested will do
precisely that if granted as pleaded (Complaint at Prayer for Relief A-J, pp. 19-21;
First Amended Complaint at Prayer for Relief A-J, pp. 20-22), there is a substantial
sufficient facts to establish a concern under Interpleader that Soetoro may not be
14
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With respect to these facts, Soetoro and Biden make much about the fact that
Biden himself has made no claim to the duties, relationships, and obligations of
Col. Hollister.21 They miss the point in two respects. First of all, we repeat here for
20 Complaint, [Dkt. #1], ¶¶ 9-47; First Amended Complaint, [Dkt. #11], ¶¶ 11-53.
21 Br. Of Appellees at 14 and 15.
15
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in assuming the Office of President from now on, this would not change the fact
that there might be multiple divisions at multiple points along Col. Hollister’s
Biden. In fact, given that the Constitution would operate in such a way as to
require Col. Hollister and his fellow members of the Armed Services to recognize
makes judicial resolution of this issue even more emphatically needed, not less so,
as Soetoro and Biden contend. For if the Constitution, by operation of law, makes
Biden the rightful Commander-In-Chief right now, that is a status which he cannot
In this respect, consider the oath which Col. Hollister took to become an
officer in the United States Air Force, and which others entering the Armed Forces
likewise take. As he alleged in the District Court, under this oath, he swore that he
would “… support and defend the Constitution of the United States against all
enemies, foreign and domestic; that I will bear true faith and allegiance to the same
22
Complaint, [Dkt. #1], ¶ 44; First Amended Complaint, [Dkt. #11], ¶ 56.
16
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…” In the same oath he also swore that he would “… obey the orders of the
President of the United States and the orders of the officers appointed over me,
God.”23
The natural sense of these two duties within the oath is that they should be
read together and not be in conflict with each other, of course. But what if they are
in conflict, and cannot be read together? If, for instance, Col. Hollister’s superiors
should happen to develop the opinion that someone possesses prima facie evidence
that Soetoro is not a natural-born citizen, and is blackmailing him into making
decisions adverse to the United States (as they see it), would the duty to defend the
Constitution against all enemies, foreign and domestic, be in conflict with the duty
to obey the orders of the President of the United States? And what would be the
case if there were one or more divisions on point along the chain of command
above Col. Hollister? He has brought this suit to keep just such an issue from
arising (which, if it did arise, could very well be in time of a national crisis). True,
Interpleader is for every bit as much as concrete, immediate threats. And at that,
this is one type of scenario which the nation would be best off knowing it would
23
Complaint, [Dkt. #1], ¶ 7; First Amended Complaint, [Dkt. #11], ¶ 7.
17
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a.) This Court’s Holding In New v. Cohen, And The Supreme Court’s
Holding In Nguyen v. United States, Impact The Degree Of
Speculation
The District Court also failed to appreciate the point raised in the Complaint
about the significance of United States ex rel. New v. Cohen, 129 F.3d 639 (D.C.
Cir. 1997), cert. den., 523 U.S. 1048. (Complaint at ¶¶ 41-42; First Amended
things that are too speculative must be considered in light of the fact that by Act of
active duty, from that moment on the Article III courts are closed to him under the
precedent of this very Court itself. Accordingly, this is the only chance which
himself and his superiors as to what may or may not be an illegal order that he is
obligated to disobey, or a legal order which he must obey; and right now---before
his reactivation---is the only window of time available to him to straighten this
potential conflict out before such a confrontation can happen, with potentially
devastating consequences for him and for others. Col. Hollister, we ask the Court
to keep in mind, has a present-tense status, right now, of being someone who is
subject to a recall order. Thus, the Act of Congress which bars active duty
members of the Armed Forces from having access to this Court right now hangs
like a Sword of Damocles over Plaintiff Hollister’s head. That is not speculative.
18
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Likewise, as we told the District Court, in both the military and civilian
sectors, the holding of the Supreme Court of the United States in Nguyen v. United
States24 impacts Col. Hollister’s concern that at least some of the official acts of a
1.) The “Property” And “Obligation” Elements Are Not Part Of Rule 22
Interpleader
Soetoro and Biden contend that there is but one difference between statutory
and Rule 22 Interpleader, i.e., that statutory Interpleader (i.e., Interpleader under 28
U.S.C. § 1335) gives the District Court jurisdiction, whereas Rule 22 does not. (Br.
Of Appellees at 8-9). There is, however, an additional difference between the two
the Western District of Missouri found that a duty can be the proper subject of
24
Nguyen v. United States, 539 U.S. 69, 77-81 (2003); see, Complaint, [Dkt. #1], ¶ 43; First
Amended Complaint, [Dkt. #11], ¶ 49.
25
See, United States v. Calley, 22 USCMA 534, 48 CMR 19 (1973).
26
Bank of Neosho v. Colcord, 8 F.R.D. 621 (W.D. Mo. 1949).
19
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Interpleader. This is at odds with the findings of the District Court in the case at
bar, but a simple look at Colcord will establish our point. After first noting that the
case was a case in strict Interpleader,27 the Western District of Missouri said,
This language belies the conclusion of the District Court in the instant case
that, supposedly, in its decision, the Colcord Court was “… deciding nothing more
than that a cross-claim for the ‘duty’ of specific performance would lie in the same
case because it involved the same subject matter as the underlying interpleader
action.” (Mem. Order [Dkt. #27] at 6) (emphasis supplied). For the above-quoted
language from the Western District of Missouri was not merely obiter dicta:
27
Bank of Neosho v. Colcord, 8 F.R.D. at 622.
20
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“To adjudicate the issues here presented, the Court will be compelled
to consider … the obligations and duties assumed by the stakeholder
…” Colcord, 8 F.R.D. at 623. (emphasis supplied).
relationships as being a proper subject of Interpleader despite the fact that we had
apprised the District Court of two key cases from the U.S. Supreme Court on
statutory construction: Martin v. Wilks, 490 U.S. 760 (1989) and N.O.W. v.
Scheidler, 510 U.S. 249 (1994). [Dkt. #1] at ¶¶ 10-11; First Am. Compl. [Dkt.
Not only does Rule 22 not even state a requirement that the res of
requirement that the property or obligation be tangible. Thus, under Martin and
violates Supreme Court precedent. Yet Soetoro and Biden continue to press the
idea that such is not the case. Curiously, in support of their position, they cite
Bankers Trust Co. v. Manufacturers National Bank, 139 F.R.D. 302 (S.D.N.Y.
(Scheidler had not yet been decided), Martin is not mentioned in Bankers Trust,
21
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and in all probability, it was not even brought to the attention of the Court. In that
Like the case at bar, Bankers Trust was a case brought under both statutory
and Rule 22 Interpleader. Bankers Trust, 139 F.R.D. at 306. And granted, in
potential conflict with the Western District of Missouri in Colcord, the Court in
Bankers Trust said that a duty to manage a fleet of railcars is not a “stake” for
purposes of Interpleader. Bankers Trust, 139 F.R.D. at 307. But this was obiter
dicta, for the Southern District of New York found that if anyone could be said to
be the stakeholder in that case, it would be a different corporate entity than the
Interpleader plaintiff, Manufacturers National Bank (MNB). Ibid. Thus, MNB did
not even have standing to assert a right to Interpleader in the first place.
It is also curious that Soetoro and Biden should cite to Bankers Trust
because the Court therein referred to one of the cases the Appellees rely on for
support, Xerox Corp. v. Nashua Corp., and cited with approval to the fact that in
Xerox, the Court held that “… Rule 22 does not require a formal stake or fund …”
Ibid (citing Xerox Corp. v. Nashua Corp., 314 F.Supp. 1187, 1189 (S.D.N.Y.
1970).) What is more, the Court in Bankers Trust found that the “Interpleader”
plaintiff had Interpleader completely backwards, and was, in essence, trying to use
22
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Interpleader to determine from which of two or more entities Bankers Trust itself
could claim a right to receive something rather than to determine to which of two
or more entities Bankers Trust might owe something. Ibid. Bankers Trust, 139
F.R.D. at 307.
As to Murphy v. Travelers Ins. Co., 534 F.2d 1155 (5th Cir. 1976), to which
Soetoro and Biden cite, that case was decided before either Martin or Scheidler
were decided. With respect to Bierman v. Marcus, 246 F.2d 200 (3rd Cir. 1957), the
Court there noted that the Interpleader “plaintiff” knew for a fact that there was no
possible way that it could be faced with conflicting claims. Bierman, 246 F.2d at
203. With respect to Xerox, supra, the Court found that there was no factual basis
upon which Nashua Corp. could possibly believe that there was any potential for
its being subject to multiple claims, and also found that the corporation in essence
wanted the District Court to force Xerox Corp. and RCA (which otherwise was not
even a party to the case) to sue each other over a patent. Xerox, 314 F.Supp. at
1189. As to Treinies v. Sunshine Mining Co., 308 U.S. 66 (1939) and Indianapolis
Colts v. Mayor & City Council, 733 F.2d 484 (7th Cir. 1984), those two cases
U.S. ___, 129 S.Ct. 1937 (2009) and United States v. High Technology Products,
23
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Inc., 497 F.3d 637 (6th Cir. 2007), neither of those cases states anything
incompatible with what Col. Hollister has been alleging all along.
Perhaps strangest of all is the reference of Soetoro and Biden to the fact that,
For this point they make supports our argument not theirs.
Soetoro and Biden argue that Col. Hollister cannot now discuss the
District Court.28 But the “obligations” element was alleged in the First Amended
consider. Incredibly, Soetoro and Biden now argue that because Hollister had filed
a First Amended Complaint, this Court can no longer consider the original
Complaint, meaning, by implication, that the First Amended Complaint, with its
allegation of the duties as “obligations”, must be good after all. (Br. Of Appellees
at 20).
Soetoro and Biden also apparently wish to have this Court believe that
28
Br. Of Appellees at 11.
29
First Amended Complaint, [Dkt. #11], ¶¶ 13-15, 56, 76.
24
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supposed substitute for the “property” element,30 but the brief of Hemenway,
than they are for ordinary cases. To obtain injunctive relief, one must simply show
that the ordinary criteria for bringing a Bivens claim are met,31 and that one quite
naturally fears that a federal officer will violate a protected constitutional right.32
include the Fourth Amendment right against and unreasonable search and seizure
(i.e., Bivens itself) and against a deprivation of a Fifth Amendment right against a
deprivation of property without due process.33 Col. Hollister does not claim a right
under the “Natural Born Citizen” Clause of the Constitution. But as may be plainly
reactivation to active duty, tried and incarcerated, and deprived of rights, pay, and
30
Br. Of Appellees at 11
31
Schweiker v. Chilicky, 487 U.S. 412, 421 (1988).
32
Farmer v. Brennan, 511 U.S. 825, 830, 845-846 (1994).
33
Davis v. Passman, 442 U.S. 228, 234-236 (1979).
25
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Appellant Hollister does not base his claim on the Constitution per se, but
Appellant’s entire claim does stem from a provision of the Constitution regarding
President. Rather, the converse is the case: there is a presumption that one seeking
to become President is not eligible to that office. Consequently, the wording of the
President. And such is likewise the nature of Interpleader and Bivens, once the
Other cases pertaining to this same subject matter have indeed been
dismissed. But in how many of them were the plaintiffs able to establish their
standing? And in how many of them did Soetoro (and Biden) have the burden of
proof?
26
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“It is firmly established in our cases that the absence of a valid (as
opposed to arguable) cause of action does not implicate subject-matter
jurisdiction …. Dismissal for lack of subject-matter jurisdiction
because of the inadequacy of the federal claim is proper only when the
claim is ‘so insubstantial, implausible, foreclosed by prior decisions of
this Court, or otherwise completely devoid of merit as not to involve a
federal controversy.’”34
substitute its own sense of whether Col. Hollister’s claim would eventually be
lower Court’s finding that Hollister failed to state a cause of action which relief
could be granted, Barr v. Clinton 370 F.3d 1196, 1199 (D.C. Cir. 2004)
VI. Conclusion
For the foregoing reasons, the judgment of the District Court should be
reversed, and this case remanded to that Court with instructions to accept
34
Steel Co. v. Citizens For A Better Environment, 523 U.S. 83, 89 (1998) (citations omitted).
27
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allow Hollister to amend again, or at least to hold a hearing on the basis for
Hollister’s claim.
Respectfully submitted,
28
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Pursuant to Fed. R. App. P. 32(a) and D.C. Circuit Rule 32)a), I hereby
certify that this brief contains 6,638 words, excluding the parts exempted by the
rules, and has been prepared in a proportionally spaced typeface using Microsoft
29
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GREGORY S. HOLLISTER, :
:
Appellant, :
vs. : Court of Appeal Case No. 09-5080
: Consolidating No. 09-5161
BARRY SOETORO, et al. :
:
Appellees. :
CERTIFICATE OF SERVICE
Joseph R. Biden’s Appellees Brief was served via electronic filing this 20th day of
s/ Lawrence J. Joyce
_______________________
Lawrence J. Joyce, Esquire
1517 N. Wilmot Road,
Suite 215
Tucson, AZ 85712
D.C. Circuit Bar number 52501
Attorney for Appellant
30
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APPENDIX “A”
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Sir, I am writing to ask your assistance to obtain an answer from the Attorney General
(Tab 1) regarding section 3 of the 14th Amendment of the Constitution and how it may
apply to Mr. Clinton. I have been seeking a direct answer to this question since February
1993.
1. Section 3 of the 14th Amendment and Mr. Clinton’s letter of December 1969 to
Colonel Eugene Holmes of Arkansas ROTC appear to make Mr. Clinton’s
Presidency suspect unless and until a vote is taken by the House and the Senate.
3. Griffin 11 Fed Case page 24 as regards section 3 of the 14th Amendment states
“The Amendment applies to all the states of the union, to all offices under the
United States or under any state, and to all persons in the category of the
prohibition, and for all time present and future.”
4. American Jurisprudence 2d Edition, page 88, describes aid and comfort as “aid
and comfort are given whenever overt acts are committed which, in their natural
consequence, if successful would encourage and advance the interests of the
enemy.” Mr. Clinton’s acts of organizing protests while a student in England
after he signed up for ROTC falls into this category. Additionally, Admiral
Stockdale is on record as characterizing Mr. Clinton’s acts of that time as aiding
the North Vietnamese effort. (A copy of Mr. Clinton’s letter is a part of the
Congressional record – read in during the September/October ’92 time frame.)
5. The case of Stephan vs. the U.S. describes the enemy as “subjects of a foreign
power in open hostility with the U.S. No declaration of war is required to
categorize a nation or a people as an enemy.
6. In Gillars vs. U.S. speaking into a microphone and causing a record to be made
that is to be used as propaganda were held to constitute aid and comfort. Again, a
parallel can be drawn to Mr. Clinton’s actions as outlined in his December 1969
letter as documented in the Congressional Record.
Case: 09-5080 Document: 1207621 Filed: 09/22/2009 Page: 41
7. Mr. Clinton had also taken an oath as a staffer prior to his aid and comfort actions
(see Tab 5 page 2)
Mr. Secretary, I want you to understand this is not about Mr. Clinton becoming
President, remaining, or never having been President. It is about the Constitution and
my oath of office. It is also not about me being right or wrong. It is about ensuring
the integrity of the principles and ideals embodied in the Constitution remain intact
and credible. Failure to clarify this matter places in question the very essence, the
bedrock, upon which our nation and way of life are based. If section 3 of the 14th
Amendment is Constitutionally and legally no longer applicable then the Constitution
should be changed accordingly. If this is not done, the entire Constitution becomes
suspect – what is or is not applicable any longer? Do we only “support and defend”
certain sections and ignore others? What of our oaths of office? How can they be
considered binding or meaningful in any manner if we collectively care little for the
accuracy or credibility of the Constitution?
I have tabbed out letters with information sent to the Attorney General, the Supreme
Court, Congress, and an attorney for your review prior to consultation with the
Attorney General. I have not and will not discuss this issue with any active duty
member. It would not be appropriate. This is an issue for our civilian leadership to
grapple with and resolve. I respectfully request your assistance to obtain rulings from
the Attorney General in a formal, legal, and professional manner on all the issues
addressed in this letter and the attached packages.