HOLLISTER v SOETORO (APPEAL) - PETITION filed [1241041] by Appellant - Petition - Transport Room

8/9/2019 HOLLISTER v SOETORO (APPEAL) - PETITION filed [1241041] by Appellant - Petition - Transport Room

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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 HEARINGEN BANC

===============

John D.Hemenway D.C. Bar #379663

Counsel for Appellants

4816 Rodman Street, NW

Washington DC 20016

(202) 244-4819

[email protected]

Case: 09-5080 Document: 1241041 Filed: 04/21/2010 Page: 1
mailto:[email protected]:[email protected]


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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



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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



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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. Clark819 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 ofTwombly, supra and its correct explanation ofConley v. Gibson,

as read in light ofSwierkiewicz, supra andLeatherman, supra. In this case



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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



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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 meritsof 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. Hemenways 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 Soetoros

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 plaintiffs 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



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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 inArkansas-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



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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

Hollisters 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



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go down in infamy, when the constitutional deception involved here is

inevitably exposed by history:

The issue of the Presidents citizenship was raised, vetted,blogged, texted, twittered, and otherwise massaged by

Americas vigilant citizenry during Mr. Obamas 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 Courts 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 courts own

statements, were not the same issues as in this case. This further exhibition



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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 Hollisters 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 Constitutionseriously 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 WilliamClinton.



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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 Hollisters 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



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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 officers 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



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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



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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. Clark819 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



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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 Marshalls opinion in The Venus, supra, and Minor v. Happersett,

supra, point out how it was that the concept of natural born citizen from

Vattels 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

Counsel for Appellants

4816 Rodman Street, NW

Washington DC 20016

(202) 244-4819

[email protected]

mailto:[email protected]:[email protected]


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United States Court of AppealsFOR THE DISTRICT OF COLUMBIA CIRCUIT

____________

No. 09-5080 September Term 2009

08-cv-02254

Filed On: March 22, 2010

Gregory S. Hollister,

Appellant

v.

Barry Soetoro, in his capacity as a naturalperson; 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

J U D G M E N T

These consolidated appeals were considered on the record from the UnitedStates 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 courts orders filed March 5, 2009,

and March 24, 2009, be affirmed. The district court correctly dismissed the complaintunder Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon whichrelief 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 hadviolated Federal Rule of Civil Procedure 11(b)(2) and in imposing a reprimand as thesanction 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 noreasonable basis for questioning the impartiality of the district court judge. See Liteky v.United States, 510 U.S. 540 (1994).

Case: 09-5080 Document: 1235943 Filed: 03/22/2010 Page: 1Case: 09-5080 Document: 1241041 Filed: 04/21/2010 Page: 1


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____________


Page 2

Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerkis directed to withhold issuance of the mandate herein until seven days after resolutionof 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

Case: 09-5080 Document: 1235943 Filed: 03/22/2010 Page: 2Case: 09-5080 Document: 1241041 Filed: 04/21/2010 Page: 2


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____________


Consolidating with 09-51611:08-cv-02254-JR1:08-cv-02254

Gregory S. Hollister,

John David Hemenway,

Appellants

v.

Barry Soetoro, in his capacity as a naturalperson; 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



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President in posse, as de jure President in posse; as the de jure Vice-

President in posse. There are noAmici 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 plaintiffs 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

Counsel for Appellants4816 Rodman Street, NW

Washington DC 20016

(202) 244-4819

D.C. Bar #379663

[email protected]


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HOLLISTER v SOETORO (APPEAL) - PETITION filed [1241041] by Appellant - Petition - Transport Room