Professional Documents
Culture Documents
No 09-5080
Consolidating No. 09-5161
Appellant,
v.
Appellees.
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APPELLANTS’ MOTION FOR AND
STATEMENT SUPPORTING ORAL ARGUMENT
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TABLE OF AUTHORITIES
CASES PAGE(S)
Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41-42 (1976) 18
i
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14th Amendment 6, 8, 20
ii
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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
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).
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allowed “in every case” unless one of the three reasons can be
“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
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
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.
and as we indicated would be done in the reply brief that was timely filed for
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
and decision. In addition, there is the fact that it is evident that the pattern of
are, at this point, requesting in this motion that there be a full oral argument
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
centered around the trial judge’s levying (albeit greatly reduced from its
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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be fees for defending cases about the eligibility for the presidency of the
understand that the “backing off” by the judge below leading to his revised
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
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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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:
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
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.
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14th Amendment, it has been made abundantly clear that “citizenship” is not
citizen.” For a United States District Court judge to assert that it is the
seem to indicate inattention to what has been pled and argued in the case.
which the meaning of the Article II, Section 1, Clause 5 of the Constitution
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
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
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.”
child’s having a parent, particularly the male parent, not be a citizen, have
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
Cranch.) 253, 289 (1814). Perhaps the greatest figure in our early
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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 §
influence upon the Founders coming from a different common law concept
distorted to be the “natural born citizen” status chosen by the Framers. For
the 19th Century see also Shanks v. Dupont, 28 U.S. 242, 245 (1830), and, as
(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.
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,
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”
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
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The best cure for such avoidance would be, we submit, vigorous
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
In this regard an attempt to clarify the doubts set out by the Supreme
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
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
withholding of oral argument in this case for the reason set out in
Procedure. That reason is: “the dispositive issue or issues have been
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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
suggest that to deny oral argument under these circumstances and certainly
and transparent analysis would not contribute to public respect for the
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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
which we alluded in our timely filed reply brief.1 There we pointed out
misrepresented the law but stated that there was not sufficient room 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
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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); …
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
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
Interpleader Act. See App. 66. So the proffered First Amended Complaint
does not drop the allegation of violation of the Interpleader Act and to
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
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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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
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
Hollister and so to say that cases brought by Philip J. Berg pro se have the
the cases involve the same issues. Neither of the pro se cases brought by
other cases pose the question of an order from the defendant Biden being
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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
(D.C.Cir.1990). Opp. p. 25 The appellees cite this case for the proposition
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
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
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
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
Alegria, 905 F.2d 545, 549 (1st Cir.1990) for the proposition that “as an
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
dictated by the lower court’s expressed bias toward Berg and Joyce which it
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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
their use of cases involving advocacy groups rather than individual plaintiffs.
These advocacy groups do not have the standing that an individual plaintiff
Ass’n v. U.S. Dept. of Health & Human Servs., 489 F.3d 1267, 1273
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.
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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:
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
there is some action of a third party, not a party to the case, that must happen
facto officeholder and not de jure, and, therefore, cannot give a lawful order
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Biden is obliged to obey the Constitution and give the order. There is not
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
Opposition brief, for example, at p.2, there is such a reference where the
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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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
best encountered by oral argument and indeed that is one of the primary
Respectfully submitted,
/s/
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CERTIFICATE OF SERVICE
/s/
__________________________
John D. Hemenway
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