Case: 09-5080 Document: 1222250 Filed: 12/24/2009 Page: 1

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. )

REPLY OF THE APPELLANTS TO THE OPPOSITION TO

THEIR MOTION FOR ORAL ARGUMENT
(Document No. 1218455)

Opposing our motion for oral argument the appellees assert in a quite

conclusory fashion that all three reasons of Rule 34(a)(2) are met here. (Doc

No.12200734) The first prong that they assert is true here is that the present

appeal is frivolous. This is so because the judge below found that the case

was frivolous. That finding, based largely on “blogging and twittering” and

“vetting” on the Internet by America’s “vigilant” people, was not supported

by any actual legal authority. In fact the assertion by the judge below which

drove his conclusion of frivolity seems like an obeisance to the idea of pure

democracy that the Founders went to great lengths to avoid (See Federalist

10, e.g.). The “natural born citizen” requirement of Article II, Section 1,

Clause 5 at issue here is very much a reflection of that concern which seems

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to have been almost mocked below and which is, therefore, a serious and

non-frivolous matter for an appeal.

This reliance upon “blogging and twittering” and “vetting” on the

Internet, although raised by us in our issues presented, is, needless to say,

not mentioned in this opposition. Instead, to support the accusation of

frivolousness, the appellees (p.2) point to a “finding” in the court below that

the appellant Hollister “had not stated a claim under the interpleader statute

because he failed to allege a cognizable stake and failed to meet

interpleader’s adversity requirement.” The first of these assertions points

directly to one of the clear errors which is a key issue presented in our

appeal, namely, the use in the Interpleader Act of the word “obligation” in

disjunctive parallel. We have pointed to this clear language in our opening

brief.

The second assertion above with which the appellees seek to bolster

there conclusory assertion of frivolousness founders on the simple fact that

one may read both of the pages referred to by the appellees in the appendix

and look there for the second asserted finding in vain. On neither page is

there any mention of and certainly no finding of a lack of adversity.

Moreover, to return to the first asserted example of frivolousness, it is part of

the appeal that the lower court, as set out on App. 210, focused exclusively

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on a concept of intangible property, almost obsessively, and ignored the

clear language of “obligation.” App. 256, the second opinion from below at

issue, is taken up with the lower court asserting that the complaint was

frivolous because the court found it so. There is no real supporting reason.

In fact, curiously, for a court assessing a Rule 11 sanction, the court below

went out of its way to avoid discussing the merits of the case as asserted in

the complaint, that is to say, the court assessed a Rule 11 sanction without

ever considering whether there was any warrant in law or foundation in fact.

One cannot say that someone has failed to conduct a proper pre-filing

inquiry without making some assessment of what in fact they looked into,

which in and of itself would be to look into the merits that they looked or did

not look into.

This sort of mischaracterization and misrepresentation of what went

on in the lower court only emphasizes the need that we pointed out in

making the motion for an oral argument that the pattern of

mischaracterization and misrepresentation constantly engaged in is a good

reason why oral argument would be helpful here. This pattern continues in

the next paragraph on p. 2 after the one from which we have just quoted.

There the appellees, who, as we have pointed out, took no cross-appeal from

any findings below, ignore the issues presented that we have put before the

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Court and decide for us gratuitously what our issues presented are. This is

mere unsupported argumentation of counsel and should be ignored.

The next paragraph of the opposition, which begins at the bottom of p.

2 and continues on to p. 3, continues this pattern and further illustrates why

there should be an oral argument in this case. It speaks of the plaintiff

Hollister and the undersigned as having spoken in our motion to the issue of

“citizenship” in passages in which we were not speaking of being a citizen,

as defined in the Fourteenth Amendment, but rather of the specific

requirement of Article II, Section 1, Clause 5 that to be eligible to be a

President one must be, in the words chosen by the Founders, a “natural born

citizen.” These are two different matters. Then, astonishingly, the

opposition asserts that by entering a dismissal under Rule 12(b)(6) a district

court can prevent issues presented in a complaint from being before it and

then asserts that this Court cannot consider what was alleged in the

dismissed complaint to see if there was error in the dismissal.

As to the first point—the confusion between straight citizenship and

the eligibility requirement imposed upon presidents by Article II, Section 1,

Clause 5, the Supreme Court has made the distinction very clear:

We start from the premise that the rights of citizenship of the

native born and of the naturalized person are of the same
dignity and are coextensive. The only difference drawn by the

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Constitution is that only the “natural born” citizen is eligible

to be President. Art. II, § 1.

While the rights of citizenship of the native born derive from

§1 of the Fourteenth Amendment and the rights of the
naturalized citizen derive from satisfying, free of fraud, the
requirements set by Congress, the latter, apart from the
exception noted, “becomes a member of the society,
possessing all the rights of a native citizen, and standing, in
the view of the constitution, on the footing of a native. The
constitution does not authorize Congress to enlarge or
abridge those rights. The simple power of the national
Legislature, is to prescribe a uniform rule of naturalization,
and the exercise of this power exhausts it, so far as respects
the individual.”

Schneider v. Rusk, 377 U.S. 163, 165-66 (1964) (quoting

Osborn v. Bank of U.S., 22 U.S. (9 Wheat.) 738, 827 (1824));
see also Osborn, 22 U.S. (9 Wheat.) at 827-28 (“[The
naturalized citizen] is distinguishable in nothing from a native
citizen, except so far as the constitution makes the
distinction. The law makes none.”).

The confusion and mischaracterization exhibited in the remarks of the

appellees about citizenship, seem odd in light of the cases that we cited in

the pages of our motion referred to, cases such as Minor v. Happersett, 88

U.S..(Wall.) 162 (1874). Our discussion of several pages clearly focused on

the Article II requirement for presidential eligibility, that of being a “natural

born citizen.” The confusion is then greatly compounded in the opposition

by the mischaracterization of Rule 12 (b)(6) and what a Rule 12 (b)(6)

dismissal means. This confusion about Rule 12(b)(6) seems quite odd

because in its original Opposition brief, Document 1204814, the appellees

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correctly cited the standard for a Rule 12 (b)(6) dismissal stating, p. 6, that

“This Court reviews the district court’s ruling on a Fed.R.Civ.P. 12(b)(6)

motion to dismiss, construing the complaint liberally, and granting plaintiff

the benefit of all inferences that can be derived from the facts alleged. Barr

v. Clinton, 370 F.3d 1196, 1199 (D.C.Cir.2004).” Yet here the appellees

seem to be arguing that when a judge dismisses under Rule 12 (b)(6) it

excludes from this Court’s consideration all that was contained in the

complaint as pled, whereas, logically, under the standard just quoted, this

Court would review the complaint, not exclude its allegations, to see if,

liberally construed, it can be in any way, with all inferences drawn in favor

of the plaintiff, to make out a case that should not have been dismissed. On

the point just mentioned, for example, one would look at ¶ 14. Appx. 11-12

where the failure to meet the “natural born citizen” requirement of Article II,

Section 1, Clause 5 is clearly alleged.

Thus this opposition to our motion does not seem to give sound

reasons why our appeal is frivolous. As for the other two prongs of Rule

34(a)(2), the opposition merely states that they will be shown to apply here

in its opposition that has just been filed. We will see as we analyze it. But

so far what we see is a consistent pattern of mischaracterization and

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misrepresentation that would seem to indicate that an oral hearing would be

a good idea to clear up the confusion that may well result.

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

CERTIFICATE OF SERVICE

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

electronically upon counsel of record this 24th day of December, 2009.

/s/

__________________________
John D. Hemenway