HOLLISTER V SOETORO (APPEAL) - PETITION Filed (1241041) by Appellant - Petition - Transport Room

Case: 09-5080 Document: 1241041 Filed: 04/21/2010 Page: 1
No 09-5080
Consolidating No. 09-5161
IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT
GREGORY S. HOLLISTER, et al., Case Below 08-2254 JR
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.
==============
PETITION FOR RECONSIDERATION
AND
SUGGESTION FOR HEARING EN BANC
===============
John D.Hemenway D.C. Bar #379663

Counsel for Appellants
4816 Rodman Street, NW
Washington DC 20016
(202) 244-4819
johndhemenway@comcast.net
TABLE OF CONTENTS
I. CONFLICTS WITH THE SUPREME COURT

AND OTHER CIRCUITS ………………………………………………. 1
II. NO INDEPENDENT ANALYSIS: THE LOWER COURT

OPINION ADOPTED: COMPLAINT ALLEGATIONS NOT
TAKEN AS TRUE; THE MERITS AVOIDED ………………………… 2
III. EXTRAJUDICIAL SOURCES OF EVIDENT BIAS ………………. 5
IV. RULE 11 ASSESSMENT BASED ON ERRONEOUS

ASSESSMENT OF LAW: NO PROPER INQUIRY: NO HEARING ….. 10
i
TABLE OF AUTHORITIES
CASES
Arkansas-Louisiana Gas Co. v. Department of Public Utilities,

304 U.S. 61 (1938) ……………………………………………………………………………….. 1, 5
Baker v. Alderman, 158 F.3d 516 (11th Cir.1998) …………………………………… 2, 12
Baker v. Carr, 369 U.S. 186 (1962) ………………………………………………………… 1, 3
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) …………………………….. .1, 2, 3, 12
Chamaikin v. Yefimov, (2nd Cir.1991) ………………………..………………………….. 2, 12
City of Lincoln, Neb. v. Ricketts, 297 U.S. 373 (1936) …………………………….. 1, 11
Conley v. Gibson, 355 U.S. 41 (1957) …………………………………………………….. 1, 2, 12
Cooter & Gell v. Hartmarx Corp., 496 U.S. 384 ………………………………… .…. 1, 11, 12
Davis v. Crush, 862 F.2d 84 (6th Cir.1988) ………………………………………………. 2, 12
Donaldson v. Clark 819 F.2d 1551 (11th Cir.1987) …………………………………… 2, 12, 13
Eash v. Riggins Trucking Co., 757 F.2d 557 (3rd Cir.1985) ……………………….. 2, 12
Haggar v. Helvering, 308 U.S. 389 (1940) ……………………………………………… 1, 11
Helvering v. Hammel, 311 U.S. 504 (1941) …………………………………………… 1, 11
Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963) ……………………………… 1, 4
Leatherman v. Tarrant County Narcotics Intelligence

and Coordination Unit, 507 U.S. 163 (1993) ………………………………………… 1, 2
Liteky v. United States, 510 U.S. 540 (1994) …………………………………………… 1, 6
Minor v. Happersett, 88 (Wall.) U.S. 162 (1874) ………………………………..……1, 13
ii
Miranda v. Southern Pacific Transportation Company, (9th Cir.1983) ……… 2, 12
Ohio v. Helvering, 292 U.S. 360 (1934) …………………………………………………… 1, 11
Ozawa v. United States, 260 U.S. 178 (1922) ………………………………………….. 1, 11
Schlaifer, Nance & Co. v. Estate of Warhol,

194 F.3d 323 (2nd Cir. 1999) ……………..……………………………………………………… 2, 12
Swierkiewicz v. Sorema N. A., 534 U. S. 506 (2002) …………………………………. 1, 2
The Venus, 12 U.S. 253 (1814) ……………………………………………………………….. 1, 13
United States v. Grinell Corp. 384 U.S. 563 ……………………………………………... 1, 6
CONSTITUTION OF THE UNITED STATES
Article II, Section 1, Clause 5 ………………………………….………………………………. 3, 4, 11
STATUTES
28 U.S.C. § 455 ………………………………………………………………………………………….. 5
RULES
Rule 11, FRAP ……………………………………….……………………………………………8, 10, 11, 12
TREATISIS
The Law of Nations, de Vattel, Emmerich (1756) …………………………………….. 13
iii
The plaintiff/appellant Gregory S. Hollister and the counsel/appellant
John D. Hemenway hereby move for a panel reconsideration and request a
hearing en banc by the full court on their case. They begin by asserting as
follows in accordance with the rules of the Court.
I. CONFLICTS WITH THE SUPREME COURT AND OTHER CIRCUITS
The decision of the Court conflicts with the following decisions of the
Supreme Court: Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007);
Conley v. Gibson, 355 U.S. 41 (1957); Swierkiewicz v. Sorema N. A., 534 U.
S. 506 (2002); Leatherman v. Tarrant County Narcotics Intelligence and
Coordination Unit, 507 U.S. 163 (1993); Baker v. Carr, 369 U.S. 186
(1962); Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963); Arkansas-
Louisiana Gas Co. v. Department of Public Utilities, 304 U.S. 61 (1938);
Liteky v. United States, 510 U.S. 540 (1994); United States v. Grinell Corp.
384 U.S. 563; Cooter & Gell v. Hartmarx Corp., 496 U.S. 384; City of
Lincoln, Neb. v. Ricketts, 297 U.S. 373 (1936); Ozawa v. United States, 260
U.S. 178 (1922); Haggar v. Helvering, 308 U.S. 389 (1940); Helvering v.
Hammel, 311 U.S. 504 (1941); Ohio v. Helvering, 292 U.S. 360 (1934);
Minor v. Happersett, 88 (Wall.) U.S. 162 (1874); The Venus, 12 U.S. 253
(1814). Consideration by the full court or at least reconsideration by the
1
panel is therefore necessary to conform the opinion of this Court which is
addressed with those decisions.
Further, there is a question of exceptional importance here where the
court below acted in conflict with decisions in almost every other circuit:
Schlaifer, Nance & Co. v. Estate of Warhol, 194 F.3d 323 (2nd Cir. 1999);
Baker v. Alderman, 158 F.3d 516 (11th Cir.1998); Davis v. Crush, 862 F.2d
84 (6th Cir.1988); Donaldson v. Clark 819 F.2d 1551 (11th Cir.1987);
Chamaikin v. Yefimov, (2nd Cir.1991); Miranda v. Southern Pacific
Transportation Company, (9th Cir.1983); Eash v. Riggins Trucking Co., 757
F.2d 557 (3rd Cir.1985).
II. NO INDEPENDENT ANALYSIS: THE LOWER COURT OPINION

ADOPTED: COMPLAINT ALLEGATIONS NOT TAKEN AS TRUE;
THE MERITS AVOIDED
In its decision of March 22, 2010, the Court affirmed the two
decisions below without any independent discussion or analyses. Thus, the
Court adopted any errors as well as any correct aspects of those decisions.
Thus, the court has effectively adopted the error of the lower court in finding
a failure to state a claim which finding is in direct contradiction to the
holdings of Twombly, supra and its correct explanation of Conley v. Gibson,
as read in light of Swierkiewicz, supra and Leatherman, supra. In this case
2
there is a set of allegations in the complaint which can be summarized so as
to support the claim for relief at issue. Twombly, supra.
Here, paragraphs of the complaint, among others, 15, 17-23, Appx.
12-14, when summarized, support, if inferred in favor of the plaintitf/
appellant Hollister as required, support the conclusion that the
defendant/appellee Soetoro a/k/a Obama, is not a “natural born citizen”
within the meaning and intendment of Article II, Section 1, Clause 5 as it
uses that phrase so as to be eligible to be elected and serve as President of
the United States. Yet the court below did not treat these allegations as true
and this Court has adopted that clear error without analysis. The court
below did not treat the referenced allegations as true and even went beyond
that and found them to be frivolous to the extent of coming under Rule 11,
albeit with no inquiry whatsoever into what was known by counsel prior to
fling of the complaint as alleged. Indeed, in doing so the court below had to
ignore the clear facts set out in the complaint as just mentioned, which were
clearly known to counsel before filing the complaint.
To hold that there is a failure to state a claim calls for a judgment on
the merits. Baker v. Carr, supra. Yet here the lower court stated
emphatically that it was abjuring and avoiding analyzing the merits of the
claim at issue, the claim that the defendant/appellee Soetoro a/k/a Obama is
3
not a “natural born citizen” under the Constitution in its opinion of March 24,
2009, stating:
I have said nothing, and have nothing to say, about the merits
of the “natural born Citizen” question that the Mssrs.
Hemenway, Berg, et al., have sought to present here. I have
no business addressing the merits, because, having found that
Mr. Hemenway’s interpleader suit failed to state a claim upon
which relief can be granted, I have dismissed it. Appx. 256
This Court has now adopted that abjuration and avoidance of the merits as
set out in that self-contradictory statement without further analysis.
To make clear that it was not going to treat the actual merits as raised
by the complaint the court below even went so far as to mischaracterize the
principal question of meeting the eligibility requirement set out in Article II,
Section 1, Clause 5 of the Constitution. In its opinion of March 5, 2009, the
court below spoke of the issue as being one of the defendant Soetoro’s
“citizenship,” rather than the issue being one of his meeting the specific
requirement of being a “natural born citizen.” Appx. 208.
This abjuring and avoiding of the merits of the plaintiff’s cause held
erroneously not to have been stated directly contradicts the holding set out
by the Supreme Court in Kennedy v. Mendoza-Martinez, supra that the
Constitution is a law for rulers as well as for the people. Although the
defendant/appellee Soetoro a/k/a Obama is de facto a ruler over us at this
time, the allegations of the complaint, as thus properly summarized as
4
required, make clear that he is not eligible under the Constitution to hold that
office and that he does so in a fraud upon that Constitution. As we have
pointed out the plaintiff/appellant Hollister takes his oath to preserve and
protect the Constitution quite seriously. This abjuration and avoidance
raises a question as to whether the members of this Court do so.
Although the rule is well established that courts should not pass on a
constitutional question unless that is necessary for the disposition of a
pending as set out in Arkansas-Louisiana Gas Co. v. Department of Public
Utilities, supra, the necessary converse is equally binding upon every court:
when, as here, a constitutional issue is directly raised as the principal issue
of the case and thus must be decided in order to dispose of the case it is the
duty of the court to decide upon it.
III. EXTRAJUDICIAL SOURCES OF EVIDENT BIAS
What we see here in both the opinions below as well as the view that
has now been adopted by this Court without analysis is not only an
avoidance of the constitutional rule of law as embodied in an important
provision the Constitution but a dislike of any litigant or counsel raising that
issue. This view reflects a bias clearly derived from extrajudicial sources. It
is a bias that should require the judge below and now the judges of the panel
that decided to adopt those biases in this court to recuse themselves under 28
5
U.S.C. § 455. This bias, which is objectively an appearance of bias, and
beyond that an actual bias, was reflected in the comments of the judge below
in both opinions. The opinion of March 5, 2009, starts off with an initial
paragraph indicating and clearly evidencing an appearance of that bias
toward the case. Appx. 208. That bias continues in the opening of the
second paragraph of that opinion where the court below pejoratively states
that the plaintiff Hollister “says that he is a retired Air Force colonel,”
suggesting that the plaintiff is possibly an imposter. This is clearly a
needless insult giving the appearance of bias inasmuch as Colonel
Hollister’s military papers were attached to and incorporated into the
complaint. The judge below clearly knew this in making the insult in that he
himself was an ROTC scholar in college who then served his required stint
in the Navy. This is not a “subtle” piece of bias like the refusal in Litecky,
supra, to call the plaintiff, a Maryknoll priest “father.” It is rather an overt
and snide bias.
Even more overtly “extrajudicial” within the meaning of the sources
of bias as described in Litecky, supra, and Grinell, supra, was what the
judge below then revealed as one of the principal sources of his bias toward
the end of that second paragraph, where he stated, in a statement that, thanks
to the decentralized communications structure we enjoy today, is destined to
6
go down in infamy, when the constitutional deception involved here is
inevitably exposed by history:
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.
There has scarcely ever been revealed in a reported case a more overt exhibit
of an extrajudicial bias than this passage exemplifies, and this Court’s panel
now adopts it without comment. It not only exhibits a bias against the
plaintiff and his case, it exhibits a depressing bias that citizens should not
have access to the courts to protect and defend against the Constitution, a
right long since embraced by the Supreme Court as very fundamental to the
rule of law in this country.
And even more overt bias based on extrajudicial sources is exhibited
in the following paragraph of the March 5, 2009 opinion below. There the
bias against the plaintiff Colonel Hollister and his case is exhibited by a
display of animosity toward the lawyer Philip J. Berg, who filed an earlier
pro se action in the United States District Court for the Eastern District of
Pennsylvania the issues of which, clearly by the lower court’s own
statements, were not the same issues as in this case. This further exhibition
7
of bias is accentuated by another gratuitous insult to Colonel Hollister.1 The
judge makes clear that he views Colonel Hollister as a dupe rather than one
who may make a competent decision about a question concerning
constitutional eligibility. Appx. 209.
The effect of this bias was then made evident when the court below, in
the its Opinion of March 5, 2009, ignored the language and law of Rule 11
and sought to make Colonel Hollister’s counsel pay for the legal bills of the
defendant Soetoro a/k/a Obama. These bills as a matter of public record of
which this Court may take judicial notice in filings at the Federal Election
Commission by the Obama campaign amount to hundreds of thousands of
dollars. The court below had to drop the effort to exact counsel fees when
then confronted with the language and law of Rule 11 in the Show of Cause
which it ordered, and reduce its Rule 11 sanction to a reprimand but,
nonetheless proceeded to exact a reprimand under Rule 11 without heeding
the controlling precedent of the Supreme Court controlling any sanction
under that rule.
The largest portion of the opinion below that was rendered on March
5, 2009, is taken up in an attack on Philip J. Berg, an attorney from

1
This insult was particularly offensive to Colonel Hollister, whose history was clearly
not known to the judge below, because in fact he has a history of taking the Constitution
seriously with regard to persons occupying the office of President that is revealed in the
public record going back to when he was on active duty during the presidency of William
Clinton.
8
Pennsylvania who was initially involved in the case, in a matter in which he
was pro se in the federal court in Pennsylvania, as stated, which, as noted
had nothing to do with Colonel Hollister’s case but which clearly reflects an
appearance of bias by the judge below based somehow on matters beyond
the four corners of this case.
Statements revealing this extrajudicial bias then continued in the
second opinion below that was rendered on March 24, 2009. Again, as in
the first opinion the court below gave a clear appearance of bias by referring,
inaccurately as it turns out, to public opinion rather than the law as based on
the Constitution when it said: “Many people, perhaps as many as a couple of
dozen, feel deeply about this issue.” The court then referred to other cases
around the country, none of which, we hasten to point out, involved the use
of interpleader format. Again he portrays Philip J. Berg as a crusader and
the plaintiff Hollister as a dupe. Appx. 254-255. The court below then
illustrated its bias even more concretely and did so rubbing salt into the
wound of a man who served a full 30 years in the military with distinction
and retired honorably and, even when on active duty, had displayed as a
matter of public record the same high level of concern for the Constitution
and the fealty of keeping his oath to protect and preserve it against those
foreign and domestic who do not honor it and seek to undermine it. The
9
judge below chose to compare Colonel Hollister to the plaintiff in a case
which was groundless because it sought to hold our military as commanded
by the Commander-in-Chief in an act of war liable in damages. It fact the
case concerned an act by the Air Force when Colonel Hollister was serving
honorably in it, namely the attack on Libya when Colonel Qadafy attacked
us by terrorist acts in a German night club frequented by American service
personnel. That case involved an attempt to hold our government
responsible for an act deemed necessary to national security and was thus
quite frivolous. The case was brought by Libyans who claimed to have
suffered in the bombing runs. The case at bar has nothing to do with a
doctrine that attempts to hold our government liable for an act of national
security. The Col. Qadafy case was in truth hopeless from the beginning.
The same cannot be said of an officer’s attempt to assure that the de facto
Commander-in-Chief has actual authority to exercise the functions of that
office de jure when there is information indicating that he does not. Appx.
262-63.
IV. RULE 11 ASSESSMENT BASED ON ERRONEOUS ASSESSMENT

OF LAW: NO PROPER INQUIRY: NO HEARING
This abdication by the lower court of its responsibility to examine the
merits of the essential claim of the plaintiff Hollister, namely, that the
defendant Soetoro a/k/a Obama is not a “natural born citizen” within the
10
meaning of Article II, Section 1, Clause 5 of the Constitution, in which this
Court has now joined, bears directly on the question of the assessment of the
Rule 11 reprimand against the appellant Hemenway as the counsel who
signed the complaint and other filings in this case. In Cooter & Gill, supra,
the Supreme Court stated unequivocally that it is an abuse of discretion for a
judge to rule that there was a violation of Rule 11 based on an erroneous
view of the law. Id. 496 U.S. at 405. Here, since the lower court chose not
to examine the central issue in the case it cannot have taken a correct view of
the law to base its Rule 11 reprimand upon such a view. And this Court has
adopted the abuse of discretion of the lower court without comment.
The lower court based its dismissal solely upon its assessment of the
use of the interpleader statute and hence its Rule 11 reprimand was based
upon that procedural matter. But that assessment was clearly erroneous in
that it focused solely upon the concept of property and not the clear word of
the statute “obligation,” as pointed out in the briefing. The complaint clearly
alleged “obligation” and “duty,” both concepts that are in the clear language
of the statute and hence to be taken in their ordinary sense. By ignoring this,
the lower court took an erroneous view of the law. Hence, as pointed out the
lower court violated Ozawa, supra, Ohio v. Helvering, supra, City of Lincoln,
supra, Helvering v. Haggar, supra, and Hammel v. Helvering, supra. The
11
ignoring of the assertions of obligation and duty in the complaint violated
Twombly, supra and Conley v. Gibson, supra and was clearly an erroneous
view of the law by the lower court which has now been endorsed by this
court.
Further, it was also made clear in Cooter & Gell that Rule 11
mandates that a judge applying it must conduct an inquiry into the facts of
the pre-filing inquiry made by counsel. Here the lower court made
absolutely no effort to make such an inquiry and this Court has now adopted
that position. The lower court based its rule 11 reprimand solely upon its
erroneous view and did not inquire into the law at issue. Therefore, its
assessment of any Rule 11 sanction was clearly erroneous. It refused to
have a hearing to find out what the pre-filing inquiry had been and asked no
questions at all about that inquiry.
Thus it acted in contradiction to all the cases from other circuits cited
above, Schlaifer, Nance & Co. v. Estate of Warhol, 194 F.3d 323 (2nd Cir.
1999); Baker v. Alderman, 158 F.3d 516 (11th Cir.1998); Davis v. Crush,
862 F.2d 84 (6th Cir.1988); Donaldson v. Clark 819 F.2d 1551 (11th
Cir.1987); Chamaikin v. Yefimov, (2nd Cir.1991); Miranda v. Southern
Pacific Transportation Company, (9th Cir.1983); Eash v. Riggins Trucking
Co., 757 F.2d 557 (3rd Cir.1985). All of these cases, as pointed out, make it
12
clear that no Rule 11 sanction should be levied without a hearing and some
say it is a violation of due process to do so and some also add that there must
be a particularized notice of what justifies the sanction, which did not
happen here. Donaldson even points out that sanctions, without proper
process, approach denial of access to the courts.
We have pointed in our briefing that the 19th Century decisions such
as John Marshall’s opinion in The Venus, supra, and Minor v. Happersett,
supra, point out how it was that the concept of “natural born citizen” from
Vattel’s treatise on the Law of Nations was what the founders had in mind.
Just recently the records have been located that reveal that George
Washington himself never returned his copy of this treatise that he borrowed
from the New York Library. This court is obliged to coordinate with those
19th century decisions. Without ascertaining this, the warrant in law that
they assert gives a Rule 11 sanction no validity.
Respectfully submitted,
John D.Hemenway D.C. Bar #379663

Washington DC 20016
(202) 244-4819
13
CERTIFICATE OF SERVICE
I hererby certify that I have caused the foregoing Petition for

Reconsideration and Suggestion for Hearing En Banc to be served electronically
upon counsel of record this 21st day of April, 2010. Paper copies will be delivered
to the office of the clerk within two business days as required by the Rules.
/s/
John D. Hemenway
Case: 09-5080 Document: 1241041
1235943 Filed: 04/21/2010
03/22/2010 Page: 1
United States Court of Appeals

F OR T HE D ISTRICT OF C OLUMBIA C IRCUIT
____________
No. 09-5080 September Term 2009
08-cv-02254
Filed On: March 22, 2010
Gregory S. Hollister,
Appellant
v.

person; de facto President in posse; and as de
jure President in posse, also known as Barack
Obama, et al.,
Appellees
------------------------------
Consolidated with 09-5161
ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA
BEFORE: Henderson, Tatel, and Garland, Circuit Judges
JUDGMENT
These consolidated appeals were considered on the record from the United
States District Court for the District of Columbia and on the briefs filed by the parties.
See Fed. R. App. P. 34(a)(2); D.C. Cir. Rule 34(j). It is
ORDERED AND ADJUDGED that the district court’s orders filed March 5, 2009,
and March 24, 2009, be affirmed. The district court correctly dismissed the complaint
under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which
relief could be granted. Hollister v. Soetoro, 601 F. Supp. 2d 179 (D.D.C. 2009).
Moreover, the district court did not abuse its discretion in determining that counsel had
violated Federal Rule of Civil Procedure 11(b)(2) and in imposing a reprimand as the
sanction for his part in preparing, filing, and prosecuting a legally frivolous complaint.
Hollister v. Soetoro, 258 F.R.D. 1 (D.D.C. 2009). Appellants have provided no
reasonable basis for questioning the impartiality of the district court judge. See Liteky v.
United States, 510 U.S. 540 (1994).
Case: 09-5080 Document: 1241041
1235943 Filed: 04/21/2010
03/22/2010 Page: 2

F OR T HE D ISTRICT OF C OLUMBIA C IRCUIT
____________
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk
is directed to withhold issuance of the mandate herein until seven days after resolution
of any timely petition for rehearing or petition for rehearing en banc. See Fed. R. App.
P. 41(b); D.C. Cir. Rule 41.
Per Curiam
Page 2

FOR THE DISTRICT OF COLUMBIA CIRCUIT
____________
Consolidating with 09-5161
1:08-cv-02254-JR
1:08-cv-02254
Gregory S. Hollister,
John David Hemenway,
Appellants
v.

person; de facto President in posse; and as
de jure President in posse, also known as
Barack Hussein Obama, et al.
Appellees
CERTIIFICATE AS TO PARTIES, RULINGS AND RELATED CASES
(A) Parties and Amici: The plaintiff below and the principal
appellant in this Court is Colonel Gregory S. Hollister (U.S.A.F. Ret.). The
counsel for Colonel Hollister below who is appealing his reprimand in that
court and is thus an appellant in this Court is John D. Hemenway, Esquire.
The defendants below and the appellees in this court are Barry Soetoro a/k/a
Barack Hussein Obama who was sued in his capacity as a natural person, de
facto President in posse; and as de jure President in posse and Joseph R.
Biden, Jr., sued in his capacity as a natural person, as de jure Acting
1
President in posse, as de jure President in posse; as the de jure Vice-
President in posse. There are no Amici and there are no intervenors.
(B) Rulings Under Review: The Rulings under review, all of
which were made by Judge James Robertson in the court below are: (1)
ORDER of March 5, 2009, dismissing the plaintiff’s case and assessing a
Rule 11 violation against John D. Hemenway, Esquire and ordering him to
file a Show of Cause why it should not be enforced against him. App. 222;
(2) MEMORANDUM containing rulings accompanying Order of March 5,
2009. App. 216; (3) MEMORANDUM ORDER of March 24, 2009. App.
262; (3) ORDER of February 26, 2009. App. 203; (4) ORDER TO SHOW
CAUSE of February 25, 2009. App. 157; (4) ORDER of February 11, 2009.
App. 118; (5) ORDER of February 4, 2009. App. 65.
None of the rulings, opinions or memoranda were reported in the
Federal Supplement.
Respectfully submitted,
/s/
_______________________
John D. Hemenway
Washington DC 20016
(202) 244-4819
D.C. Bar #379663

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Case: 09-5080 Document: 1241041 Filed: 04/21/2010 Page: 1

IN THE UNITED STATES COURT OF APPEALS

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

Barry Soetoro, in his capacity as a natural

John D.Hemenway D.C. Bar #379663

I. CONFLICTS WITH THE SUPREME COURT

II. NO INDEPENDENT ANALYSIS: THE LOWER COURT

III. EXTRAJUDICIAL SOURCES OF EVIDENT BIAS ………………. 5

IV. RULE 11 ASSESSMENT BASED ON ERRONEOUS

Arkansas-Louisiana Gas Co. v. Department of Public Utilities,

Baker v. Alderman, 158 F.3d 516 (11th Cir.1998) …………………………………… 2, 12

Baker v. Carr, 369 U.S. 186 (1962) ………………………………………………………… 1, 3

Chamaikin v. Yefimov, (2nd Cir.1991) ………………………..………………………….. 2, 12

City of Lincoln, Neb. v. Ricketts, 297 U.S. 373 (1936) …………………………….. 1, 11

Conley v. Gibson, 355 U.S. 41 (1957) …………………………………………………….. 1, 2, 12

Davis v. Crush, 862 F.2d 84 (6th Cir.1988) ………………………………………………. 2, 12

Donaldson v. Clark 819 F.2d 1551 (11th Cir.1987) …………………………………… 2, 12, 13

Haggar v. Helvering, 308 U.S. 389 (1940) ……………………………………………… 1, 11

Helvering v. Hammel, 311 U.S. 504 (1941) …………………………………………… 1, 11

Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963) ……………………………… 1, 4

Leatherman v. Tarrant County Narcotics Intelligence

Liteky v. United States, 510 U.S. 540 (1994) …………………………………………… 1, 6

Minor v. Happersett, 88 (Wall.) U.S. 162 (1874) ………………………………..……1, 13

Miranda v. Southern Pacific Transportation Company, (9th Cir.1983) ……… 2, 12

Ohio v. Helvering, 292 U.S. 360 (1934) …………………………………………………… 1, 11

Ozawa v. United States, 260 U.S. 178 (1922) ………………………………………….. 1, 11

Schlaifer, Nance & Co. v. Estate of Warhol,

Swierkiewicz v. Sorema N. A., 534 U. S. 506 (2002) …………………………………. 1, 2

The Venus, 12 U.S. 253 (1814) ……………………………………………………………….. 1, 13

United States v. Grinell Corp. 384 U.S. 563 ……………………………………………... 1, 6

CONSTITUTION OF THE UNITED STATES

Article II, Section 1, Clause 5 ………………………………….………………………………. 3, 4, 11

28 U.S.C. § 455 ………………………………………………………………………………………….. 5

Rule 11, FRAP ……………………………………….……………………………………………8, 10, 11, 12

The Law of Nations, de Vattel, Emmerich (1756) …………………………………….. 13

The plaintiff/appellant Gregory S. Hollister and the counsel/appellant

John D. Hemenway hereby move for a panel reconsideration and request a

follows in accordance with the rules of the Court.

I. CONFLICTS WITH THE SUPREME COURT AND OTHER CIRCUITS

Conley v. Gibson, 355 U.S. 41 (1957); Swierkiewicz v. Sorema N. A., 534 U.

S. 506 (2002); Leatherman v. Tarrant County Narcotics Intelligence and

(1962); Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963); Arkansas-

Louisiana Gas Co. v. Department of Public Utilities, 304 U.S. 61 (1938);

(1814). Consideration by the full court or at least reconsideration by the

panel is therefore necessary to conform the opinion of this Court which is

addressed with those decisions.

Further, there is a question of exceptional importance here where the

84 (6th Cir.1988); Donaldson v. Clark 819 F.2d 1551 (11th Cir.1987);

Chamaikin v. Yefimov, (2nd Cir.1991); Miranda v. Southern Pacific

Transportation Company, (9th Cir.1983); Eash v. Riggins Trucking Co., 757

F.2d 557 (3rd Cir.1985).

II. NO INDEPENDENT ANALYSIS: THE LOWER COURT OPINION

decisions below without any independent discussion or analyses. Thus, the

a failure to state a claim which finding is in direct contradiction to the

holdings of Twombly, supra and its correct explanation of Conley v. Gibson,

as read in light of Swierkiewicz, supra and Leatherman, supra. In this case

there is a set of allegations in the complaint which can be summarized so as

to support the claim for relief at issue. Twombly, supra.

Here, paragraphs of the complaint, among others, 15, 17-23, Appx.

12-14, when summarized, support, if inferred in favor of the plaintitf/

appellant Hollister as required, support the conclusion that the

defendant/appellee Soetoro a/k/a Obama, is not a “natural born citizen”

within the meaning and intendment of Article II, Section 1, Clause 5 as it