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CASE BEING CONSIDERED FOR TREATMENT PURSUANT TO RULE 34(j) OF

THE COURT’S RULES [MOTION FOR ORAL ARGUMENT FILED]
__________________________________________________

No 09-5080
Consolidating No. 09-5161
_______________________

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

GREGORY S. HOLLISTER, et al.,

Plaintiff-Appellants,

v.

BARRY SOETORO,
in his capacity as a natural person; de facto President in posse; and as de jure
President in posse, also known as Barack Obama, et al.

Appellees.

On Appeal from the United States Court

for the District of Columbia: Case Below 08-2254 JR
___________________________________________

CORRECTED
APPELLANTS’ REPLY BRIEF

John D. Hemenway D.C. Bar #379663

Counsel for Appellants
4816 Rodman Street, NW
Washington DC 20016
September 18, 2009 (202) 244-4819
December 9, 2009 (Corrected)
 Case: 09-5080 Document: 1219842 Filed: 12/09/2009 Page: 2

TABLE OF CONTENTS

Summary of Argument 1

The Tactic of Misrepresenting

The Classical Exposition of “Standing”
Under The Facts of This Case 2

LUJAN AND ITS ELEMENTS 3

STANDING WAS ANALYZED AND FOUND 8

WHAT IS “USUALLY” THE CASE IS NOT EXCLUSIVE 11

NO NEW THEORY: INTERPLEADER THROUGHOUT 14

RULE 11: NO INQUIRY INTO PRE-FILING INQUIRY;

A HEARING STILL REQUIRED 16

CERTIFICATE OF SERVICE 18

CERTIFICATION OF COMPLIANCE WITH RULE 32(a) 18

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TABLE OF AUTHORITIES

CASES PAGE(S)

Bankers Trust Co. v. Mfrs. Nat’l Bank of Detroit,

139 F.R.D. 302 (S.D.N.Y. 1991) 11, 12

Berg v. Obama, 574 F.Supp.2d 509 (E.D.Pa. 2008) 8

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 242 (2006) 8

Dist. of Columbia v. Air Florida, Inc. 750 F.2d 1077,

(D.C.Cir.1984) 15

Lujan v. Defenders of Wildlife 504 U.S. 555, 562,

112 S.Ct. 2130, 1191 L.Ed.2d 351. (Opp. Brief p. 21) 1, 3, 7, 8

Murphy v. Travelers Insurance Company,

534 F.2d 1155 (5th Cir.1976) 12

STATUTES, RULES and TREATISES

*28 U.S.C. § 1335 (“Interpleader Act”) 1, 2, 3, 5, 6, 9, 10, 11, 12, 13, 14, 15

Fed.R.Civ.P. Rule 11 1, 16, 17

Fed.R.Civ.P. Rule 12(b)(6) 1

* Fed.R.Civ.P. Rule 22 10

The Federal Interpleader Act of 1936, by Zecharia Chafee, Jr.

“DISPUTED SUBJECT MATTER” number 3, Yale Law
Journal, April 1936 13

CONSTITUTIONAL PROVISIONS

Article III 2

Article III, Section 2 2

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SUMMARY OF ARGUMENT

The defendants/appellees Soetoro a/k/a Obama and Biden

misrepresent by argument from cases that involve only general standing as a

citizen member of the public or as a mere taxpayer and thus ignore the

specific prescription of standing in the Federal Interpleader Act. This is to

ignore the clear language of the Constitution. They also ignore that this case

does not involve a third party or parties but the plaintiff himself. In so

ignoring the prescription of the statute in question the defendants/appellees

ignore the three elements of standing set out in Lujan v. Defenders of

Wildlife 504 U.S. 555, 562, 112 S.Ct. 2130, 1191 L.Ed.2d 351. All three

are met here when one considers the prescription of the statute and its clear

language and the function of the ready reserve in the context of the

Interpleader Act, particularly the use of the word “may” in the statute.

The lower court did not fail to analyze whether it had standing or not.

It specifically found that it had subject matter jurisdiction because of the

Federal Interpleader Act and then chose, based on that analysis, to dismiss

pursuant to Rule 12(b)(6) as raised in the motion to dismiss based on what it

described as a failure to state a claim for which relief could be granted. This

means necessarily that it analyzed standing and found it to exist. Referring

to other cases as if they created res judicata without adhering to the well-

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known principles governing the law of res judicata does not create or

demonstrate any aspect of that doctrine and is to take note of inapplicable

matters.

The defendants/appellees misrepresent virtually every case they cite.

In doing so they again ignore the clear language of the Federal Interpleader

Act, particularly that statute’s use of the word “obligation,” which is clearly

what the plaintiff Hollister possesses that is at issue here.

THE TACTIC OF MISREPRESENTING

THE CLASSICAL EXPOSITION OF “STANDING”
UNDER THE FACTS OF THIS CASE

The brief of the appellees purposefully creates confusion by

continually citing cases involving Article III standing where there is no

specific grant of jurisdiction to the federal courts by Congress under Article

III as there is if one actually applies the Interpleader Act in this case.

Article III, Section 2 of the Constitution states: “The judicial Power shall

extend to all Cases, in Law and Equity, arising under this Constitution, the

laws of the United States,….” Obviously, if the Framers had intended cases

in which Jurisdiction of the federal courts was dependent upon the

Constitution alone as opposed to the “laws of the United States” to be

lumped together, then the Framers would have worded the Constitution

accordingly. They did not do so, but these appellees misrepresent the three

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elements of the classical exposition of “standing” by the Supreme Court

when one applies the Interpleader Act principles in this case. They do so in

the apparent hope that the disregard for the Constitution by those whom they

defend would be echoed by members of this court despite their oath to

uphold it against all enemies foreign and domestic.

LUJAN AND ITS ELEMENTS

One of the most significant attempts to confuse matters in the

appellees’ brief is their citation and use of a leading case where the question

is whether a remedy exists for a particular plaintiff or group representing

particular plaintiffs where the law or prescription of Congress was not aimed

at the person or group of persons but rather was the “government’s allegedly

lawful regulation (or lack of regulation) of someone else,…” Lujan v.

Defenders of Wildlife 504 U.S. 555, 562, 112 S.Ct. 2130, 1191 L.Ed.2d 351.

(Opp. Brief p. 21). Here the question is whether Colonel Hollister is entitled

to invoke the Interpleader Act and/or Rule not whether he can invoke some

government law or regulation aimed at someone else.

Further, having cited Lujan the appellees then proceed to ignore what

it holds with regard to the most important aspect of the present case. In the

classic prescription for standing Lujan sets out three elements, Id., 504 U.S.

at 561:

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First, the plaintiff must have suffered an “injury in fact”-an

invasion of a legally protected interest which is (a) concrete and
particularized,…and (b) “actual or imminent, not `conjectural’
or `hypothetical,’.…Second, there must be a causal connection
between the injury and the conduct complained of-the injury
has to be “fairly…trace[able] to the challenged action of the
defendant and not…th[e] result [of] the independent action of
some third party not before the court.”….Third, it must be
“likely” as opposed to merely “speculative,” that the injury will
be “redressed by a favorable decision.” (citations omitted)

We address these three classic elements of standing in reverse order in

order to elucidate the confusion being attempted here by the appellees. As

to the third element:

It is clearly the case that the injury complained of by Colonel Hollister

is that if, as there is evidence suggesting, the defendant Soetoro a/k/a Obama

was not constitutionally qualified to run for President and is not

constitutionally qualified to be President (And the allegations of fact in that

regard in the complaint were not treated as true by the lower court, contrary

to the law) then there are conflicting claims upon his obligation to serve if

called because if Soetoro a/k/a Obama can only give orders that Colonel

Hollister is required under the principles that we established at Nuremberg

after World War II then he must instead obey orders from the other

Interpleader defendant, Joseph Biden, who, under the Constitution, must

immediately step in if it turns out that Soetoro a/k/a Obama cannot give

legitimate orders to call up members of the Individual Ready Reserve. The

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conflicting claims that are the injury complained of will thus be “redressed.”

There is nothing speculative about that being the case, the “redress[ing]” of

the injury complained of.

Since the injury complained of under the Interpleader Act is the

conflicting claims upon the obligation of Colonel Hollister to serve if called

up as a member of the Individual Ready Reserve as between a man who was

elected as and is serving as President despite information indicating that he

was not constitutionally eligible to run for President and is not

constitutionally qualified to serve, on the one hand, and Joe Biden on the

other hand, there is a direct causal connection “between the injury and the

conduct complained of.” The “conduct complained of” is the defendant

Soetoro a/k/a Obama’s running for President being (and knowing that he

was) constitutionally unqualified and then taking the oath and serving in that

office. That conduct has led directly to the injury which Colonel Hollister

has alleged. Thus the second classic element of standing is met.

Proceeding back to element number 1 in our taking up the 3 elements

in reverse order, we note that it in turn has two subcomponents after a

prefatory condition leading to those two subcomponents. The prefatory

condition of element 1 is that there must be “an invasion of a legally

protected interest.” In passing the Interpleader Act and approving the

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Interpleader Rule Congress “created a legally protected interest.” That is

what congressional enactments do, by definition, they create a legally

protected interest. Further, that legally protected interest is created

specifically for situations where there are conflicting claims upon either one

of several kinds of property or upon an “obligation,” or upon both. That, as

stated, is what we have here. Either Soetoro a/k/a Obama has a claim upon

the obligation of Colonel Hollister as Commander-in-Chief, or Biden does.

Both cannot at the same time be Commander-in-Chief. Having addressed

the prefatory condition of element 1 we now address the two subcomponents

that follow that prefatory condition, (a) and (b).

Subcomponent (a) of the first element of the classical exposition of

“standing” is that the invasion of the legally protected interest complained of

must be “concrete and particularized.” Given that the legally protected

interest is that the interest that any conflicting claims upon property and/or

an obligation be resolved and that quite frequently, as is contemplated in the

Interpleader Act, the claims are foreseeable but have not actually yet

occurred, nothing could be more “concrete” than to have to participate, in

any one or more of number of necessary and coordinated roles, either

directly or in support in such things as bombing missions, air-to-air combat

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or troop and material transport in support of fighting or strategic positioning.

Likewise, nothing could be more “particularized” than such an obligation.

Finally we turn to subcomponent (b) of classical element 1 of the 3

elements of standing. Subcomponent (b) is that the “legally protected

interest” is “actual or imminent and not ‘conjectural’ or ‘hypothetical.’”

Given that the jurisdiction created by the Interpleader Act and/or Rule

includes the situation routinely where the holder of the property and/or

obligation submits the conflict to the court before the claims have actually

been made in the situation where the conflict can be seen to exist when the

claims are made, the argument advanced by the appellees in this regard

seems deliberately designed to confuse. The obligation of a member of the

Individual Ready Reserve such as Colonel Hollister is created by law and,

given a legitimate Commander-in-Chief, is not the least bit “conjectural” or

“hypothetical.” If a legitimate order is given by a legitimate Commander-in-

Chief the individual must report. There is no uncertainty about it. Moreover

note, in the classical exposition set out in Lujan that the disjunctive “or” is

used. That is, the invasion of the legally protected interest must be “actual

or imminent” not “actual and imminent.” The appellees, echoing the judge

below, argue that the invasion of the legally protected interest must be

imminent as if that were the only option. They thus misrepresent and seek to

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confuse, in an obvious belief that they have the political clout to force such

confusion and misrepresentation upon the Court in lieu of a reasoned

analysis and an application of the law and the Constitution.

STANDING WAS ANALYZED AND FOUND

Thus the appellees (p. 21) assert:

The district court assumed, without analysis, that it had

jurisdiction over Hollister’s claims. (App. 219). In making its
ruling the district court did not address President Obama’s and
Vice President Biden’s argument that Hollister lacked
constitutional standing to pursue his claims. (App. 47-48)
Standing “is an essential and unchanging part of the case-or-
controversy requirement of Article III.” (citing Lujan)

The appellees then go on to say: “…and this Court may address it sua sponte.

See DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 242 (2006).” The

DaimlerChrysler case, we would note, involves what has come to be known

as “the general prohibition on taxpayer standing.” Id., 547 U.S. at 345-347.

That is true of almost every other case cited by appellees in their opposition

brief, including those filed by or on behalf of Philip J. Berg other than the

present case. See, for example the reference to the filing pro se by Mr. Berg

of a case in the Eastern District of Pennsylvania. (Opp. pp. 3,5) Berg v.

Obama, 574 F.Supp.2d 509 (E.D.Pa. 2008). In fact there are a very large

number of references to other cases in this opposition brief almost all of

which relied upon general taxpayer standing or ordinary citizen standing, not

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upon any specific prescription of Congress like the Interpleader Act. In fact

the appellees do not cite a single other case that asserted jurisdiction based

on the Interpleader Act. That is apparently because there is not another filed

case that invokes its jurisdiction. Thus to maintain that all these other cases

are “related” is to misrepresent, systematically, the facts of the cases and the

law, apparently on the belief that this Court can be politically intimidated

into ignoring the well established law of issue and claim preclusion and the

vast body of such law about res judicata. To invoke, in effect, res judicata,

by simply naming cases without putting forth anything that would establish

any principle of res judicata is misrepresentative. It is an attempt to

improperly influence the Court. We urge its rejection as of a piece with the

reliance of the judge below upon “blogging and twittering” on the Internet

rather than upon proper analysis and application of the law.

Because almost every case cited by the appellees is cited in the same

mispresentative way as the examples just given, and because there are so

many such misrepresentations, we think it emphasizes the mistake this Court

has made in, preliminarily at least, deciding not to have oral argument on

this case. Oral argument is the only way to make clear all the

misrepresentation that is involved, there is so much of it. We are, therefore,

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following on the heels of the filing of this reply brief, filing a motion to have

oral argument, which we hereby incorporate by reference.

Having looked extensively at the standing issue which the appellees

brought up, we look to the “clear language” of the Interpleader Act, and why

it applies here. In this area also we see a lot of misrepresentation. Most

importantly, as emphasized in our opening brief we see a continuing pattern

of misrepresentation in the appellees’ ignoring the import of the clear

language of the statute 28 U.S.C. § 1335(a) that there is jurisdiction where

the Interpleader plaintiff owns or has “any obligation, written or unwritten,

to the amount of $500 or more,…” It is acknowledged that the statute

articulates the long established practice of Interpleader that existed in the

law since from long before the statute was enacted. There was no diversity

analysis below and if the statute does not apply then Rule 22 does, and it

also embodies the long standing practice of Interpleader before it was ever

adopted. There is clearly diversity as between Colonel Hollister and the

Interpleader defendants. Both the Act and the Rule were invoked and

alleged and the court below was bound to consider both in any case by

statute as pointed out in our opening brief.

The appellees attempt to get around the clear language of the statute

as incorporated also in the Rule by, again, a pattern of misrepresentation.

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For example, on p. 9 they create in their heading for their subsection B. 1. a

concept not actually known in Interpleader law and not found in the Act, the

Rule, or the predecessor common law and equity practice, something that

they call an “intangible duty” The statute does not use the word “duty” and

we must assume that Congress chose the word it wanted used and obeyed.

We assure those who may not be familiar with the facts of being ordered to

serve in the military, as may be the case here, that there is nothing

“intangible” about the obligation to serve if ordered to do so. It is very

tangible and very real. After thus misrepresenting and misleading in the

title of the subsection the appellees then proceed in the text of the subsection

to quote the actual language of the statute to include the part about an

“obligation” but then ignore that part of the Act and focus only upon the

preceding part naming notes, bonds and other instruments. Then the

appellees seek to get around this glaring omission of language that they

themselves quote and then seek to ignore by again misrepresenting some

case law.

WHAT IS “USUALLY” THE CASE IS NOT EXCLUSIVE

The case law that the appellees misrepresent at that point in their

argument starts with the opinion in Bankers Trust Co. v. Mfrs. Nat’l Bank of

Detroit, 139 F.R.D. 302 (S.D.N.Y. 1991). That opinion, like the judge

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below in this case, focuses upon what is “usually” the case. But what is

usually the case does not determine the law when the clear language of the

statute or, for that matter, clear established law, of what may be sometimes

the case although it is not, statistically, the most common situation. The

Bankers Trust case involved a case that was one case out of an enormous

interrelated set of cases concerning the ownership of pledged assets

consisting of a fleet of railroad cars operating nationwide the supposed stake

of the interpleading party was the “duty” to manage the fleet of railcars.

That is quite complex and the court in that case held that the entire complex

of litigations could not be resolved in a single Interpleader action. The duty

to report for active duty if ordered to do so by a purported Commander-in-

Chief whose eligibility under the Constitution to give such an order is, by

the admitted facts of his life, “in doubt” is not a single part of an enormous

interlocking series of complex litigations. Nor is it an “inchoate” obligation.

It is clear cut and simple. Either one is obliged to obey the order when it

comes or one is not.

Another misrepresentation at this point concerns the case of Murphy v.

Travelers Insurance Company, 534 F.2d 1155 (5th Cir.1976). What was

“inchoate” in that case and thus not subject to Interpleader were certain

contingent counsel fees. The main dispute was over an irrevocable

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assignment of rights in a California property settlement agreement in a

divorce. Thus that part of the case to which Interpleader was held not to be

applicable did not resemble the obligation of Colonel Hollister in the present

situation. There is nothing contingent about the obligation of Colonel

Hollister and other members of the Individual Ready Reserve. If they are

called up they are called up. This is a clear language question and thus there

is no need for legislative history to be resorted to. An “obligation” clearly

means an obligation within the commonly understood meaning of the word.

The Individual Ready Reserve is created by law and the members of the

military who have retired and are subject to that obligation are required to do

so by their contracts of service. The court below, as part of its general

failure to delve into the facts as required, did not examine these matters,

though duty bound to do so if it had any question.

And, we point out, the legislative history pointed to by the appellees

by its own language refers to the “broad” meaning of the word in the very

passages cited by the appellees. That history speaks of examples and makes

no claim to give an exhaustive list. Moreover, to the extent that the

subsequent writings of Zechariah Chafee, Jr. are to be considered, they

emphasize the extremely broad nature of the amendments under discussion.

At “DISPUTED SUBJECT MATTER” number 3, for example, Chafee

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states, after speaking of all kinds of instruments, that “obligations” includes

“other obligations.” It then gives three examples of such obligations but

makes no attempt to claim that the three examples are anything but

representative and thus makes clear that all “obligations” are included.

On p. 9 of their brief, the appellees argue that the complaint of

Colonel Hollister does not allege “facts” to support his claiming Interpleader.

This is simply incorrect. It is misrepresentative. Colonel Hollister has

named two defendants, one of whom he has reason to believe in the facts he

has alleged, may not be able to give a legitimate order under the principles

that we established at Nuremberg and the other of whom would have to give

the order to call him up if in fact Soetoro a/k/a Obama is not eligible to

legitimately give him an order. Those are the clearly alleged facts of the two

conflicting claimants to his obligation. He alleged that he is duty bound to

obey one or the other and he asks the court to resolve which it is. The

necessary facts are not complicated and they are alleged.

NO NEW THEORY: INTERPLEADER THROUGHOUT

It is also because of the clear allegations of Colonel Hollister in the

complaint that it is misrepresentative of us, the appellants, to argue now that

we are referring to an obligation, to be distinguished from “property” as if

that were a new “legal theory” per the opinion of Judge Edwards of this

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Court in Dist. of Columbia v. Air Florida, Inc. 750 F.2d 1077

(D.C.Cir.1984). That is not, by any stretch a valid comparison. That case

arose out of the crash of an Air Florida flight, on a cold icy day when the

Potomac was covered with ice, into the 14th Street Bridge, a terrible tragedy

which all who were here well remember. The District sued Air Florida on

the theory that it held title to the stretch of the Potomac at issue in the crash,

as ceded from Maryland when the District was founded and that, therefore, it

could hold the airline responsible for negligence. It lost in the trial court

because it was shown that the stretch of the Potomac and its real and

personal property at issue belonged to the federal government, not the

District. On appeal, for the first time, the District raised a new and very

novel legal theory that because it had an obligation to remove impediments

on the river it was a trustee for that section of the river and could, therefore,

sue the airline. This was a truly new and novel theory. But Interpleader has

been the theory of this case from the beginning and throughout. There is no

new “legal theory.” “Legal theory” and emphasis in argument are not the

same thing. Indeed, as we say, we are filing on the heels of this brief a

motion for oral argument because of the extensive number of

misrepresentations in the appellees’ brief. We could only hope that Judge

Edwards would be on the panel that might consider our motion. If there is

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one judge on this court, in our experience, who will apply the law without

fear or favor and takes his oath to uphold the Constitution seriously it is

Judge Edwards.

RULE 11: NO INQUIRY INTO PRE-FILING INQUIRY; A HEARING

STILL REQUIRED

With these things said I turn briefly to my own personal appeal, the

issuance of the reprimand against me after the withdrawal of the threat of

harsher Rule 11 sanctions. It is the case that nothing is pointed out in the

opposing brief or in the analysis of the judge below that shows any inquiry

into any prefiling inquiry that I made or didn’t make. Yet the same is

necessary in order to levy any sanction under Rule 11. Our arguments show

that, particularly because we have shown that by the holding of the Supreme

Court and the facts that the defendant Soetoro has stated throughout his

political career, that his father was not a citizen, his status as a “natural born

citizen” is “in doubt.” At the very least, when the Supreme Court has held

that an issue is “in doubt,” seeking to have that doubt clarified is a good faith

extension of existing law. There were no hearings and the judge never had

any opportunity to observe my demeanor and conduct. He refused to have a

hearing on the sanctions although I showed in my Show of Cause,

particularly my supplemental, that I was entitled to a hearing and more than

likely to discovery. (App. 223 ff. and 252 ff.) Again here we see sleight of

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hand and misrepresentation. On p. 26 appellees cite notes to the 1993

amendments to Rule 11 and state that the court may act on its own initiative.

True, but beside the point as to these requirements.

The appellees cite authority that this Court may take notice of matters

in related proceedings, pointing to proceedings that are not truly related. But

we take a leaf from their notebook and point out that evidence has surfaced

from related proceedings recently. In another case what may be the actual

birth certificate has been filed. In an eligibility proceeding proof of

deception as to the “natural born” status has been located. We will file these

documents separately.

Respectfully submitted,

/s/

JOHN D. HEMENWAY
John D. Hemenway D.C. Bar #379663
Counsel for Appellants
4816 Rodman Street, NW
Washington DC 20016
(202) 244-4819

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that I have caused the foregoing Appellants

Corrected Reply Brief to be served electronically upon counsel of record this
9th day of December, 2009, upon:

Marc Erik Elias, Esq.

Andrew Harris Werbrock, Esq.
Perkins Coie LLP
607 14th Street, NW
Suite 800
Washington, DC 20005-2003

and

R. Craig Lawrence, Assistant U.S. Attorney

U.S. Attorney's Office
(USA) Appellate Division, Civil Unit
555 4th Street, NW
Washington, DC 20530

/s/

John D. Hemenway

CERTIFICATION OF COMPLIANCE WITH RULE 32(a)

Pursuant to Fed. R. App. P. 32(a) and D.C. Cir. R. 32(a), I hereby

certify that this brief contains 4080 words, excluding the parts exempted by
the rules, and has been prepared in a proportionally spaced typeface using
Microsoft Word 2003 in Times New Roman 14-point typeface.

/s/
___________________
John D. Hemenway

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