joint appellant reply brief

8/14/2019 Joint Appellant Reply Brief

1/33

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.

==================APPELLANTS REPLY BRIEF

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

John D.Hemenway D.C. Bar #379663Counsel for Appellant

4816 Rodman Street, NWWashington DC 20016

(202) 244-4819

[email protected]

Case: 09-5080 Document: 1223831 Filed: 01/05/2010 Page: 1
mailto:[email protected]:[email protected]


2/33

Table of Contents i

Table of Authorities . ii

THE LACK OF ADVERSITY ARGUMENT IS NOT

WELL TAKEN AND NOT SUPPORTED BY THE

AUTHORITY CITED .. 1

THE SAME IS TRUE OF THE ARGUMENT THAT

THERE IS NO COGNIZABLE STAKE .. 8

ARTICLE III STANDING APART FROM INTERPLEADER ..17

THE FAILURE TO CONSIDER THE AMENDED COMPLAINT

IS GROUNDS FOR REVERSAL 21

RULE 11 SANCTIONS AND BIAS 23

CONCLUSION . 27



3/33

ii

TABLE OF AUTHORITIES

Ashcroft v. Iqbal, 129 S.Ct. 1937, 1947 (2009) .......................................................22

Bankers Trust Co. v. Mffrs. Natl. Bank of Detroit, 139 F.R.D. 302, 307

(S.D.N.Y.1991).............................................................................................. 14, 15

Barr v. Clinton, 370 F.3d 1196, 1199 (D.C.Cir.2004) ..............................................7

Bates v. Rumsfeld, 271 F.Supp. 2d 54, 62 (D.D.C.2002), .......................................19

Berg v. Obama, 574 F. Supp. 2d 509 (E.D.Pa.2008) .26

Bierman v. Marcus, 246 F.2d 200, 203 (3d Cir. 1957)..............................................4

Bivens v. Six Unknown Fed. Narcotics Agents 403 U.S. 388 (1971) ....................25

*Business Guides, Inc. v. Chromatic Communications Enterprises, Inc., 498 U.S.

533 (1991) .. 24

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 (2006) ...................................20

District of Columbia v. Air Florida, Inc.,

750 F.2d 1077, 1084 (D.C.Cir.1984).................................................. 9, 10, 11, 22

Ellipso, Inc. v. Mann, 460 F.Supp.2d 99, 103 (D.D.C.2006) ..................................22

Freeman v. B&B Assocs., 790 F.2d 145, 150-51 (D.C.Cir.`1986) ..........................20

*Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 180-

81(2000)................................................................................................................19

Indianapolis Colts v. Mayor & City Council of Balt., 733 F.2d 484, 488 (7th

Cir.1984).................................................................................................................2

Likety v. United States, 510 U.S. 540 (1994) .... 25

Linda R.S. v. Richard D.FN 22

, 410 U.S. 614 (1973))........................................ 18, 20



4/33

iii

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) ............................... 19, 22

Murphy v. Trav. Ins. Co., 534 F.2d 1155, 1159 (5th

Cir.1976)................... 12, 13, 14

*State Farm Fire & Casualty Co. v. Kathryn Tashire, 386 U.S. 523, 530,

87 S.Ct. 1199, 18 L.Ed.2d 270, 275 (1967)...........................................................2

Simon v. E. Ky. Welfare Rights, Org , 426 U.S. 26, 41-42 (1976) ................... 18, 20

Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205,

93 S.Ct. 364, 34 L.Ed.2d 415 (1972) ................................................................18

Treinies v. Sunshine Mining Co., 308 U.S. 66, 70, 84 L.Ed.

85, 89, 60 S.Ct. 44 (1939) ..................................................................................2, 6

Veg-Mix,Inc.. v. U.S. Dept of Agric., 832 F.2d 601, 607 (D.C.Cir.1987) .26

Xerox Corp. v. Nashua Corp., 314 F. Supp. 1187, 1190 (S.D.N.Y. 1970)...........5, 6

Young Americas Found. v. Gates, 573 F.3d 797, 799 (D.C.Cir.2009) ..................20

*28 U.S.C. 1335(Interpleader Act).......................................... 1, 7, 8, 9, 17, 18, 19

35 U.S.C. 291..........................................................................................................5

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

*Fed. R. Civ. P. 11

.....

23, 24, 26

*The Federal Interpleader Act of 1936: I. Zechariah Chafee, Jr.,

45 Yale L.J. 963 (1936) ................................................................................ 16, 17



5/33

iv

Article III............................................................................... 7, 17, 18, 19, 20, 21, 23



6/33

1

THE LACK OF ADVERSITY ARGUMENT IS NOT WELL TAKEN

AND NOT SUPPORTED BY THE AUTHORITY CITED

The first COUNTERSTATEMENT OF ISSUES PRESENTED in the

Opposition is

1. Whether dismissal of Hollister's complaint was properunder Fed. R. Civ. P. 12(b)(6) because he failed to state a plausibleinterpleader claim with adverse claimants and a tangible stake.

We point out that the appellees filed no cross appeal so that they have

presented no such issue. The decision below dismissing the case, on March 5,

2009, did not mention or turn on this issue. It is true, in assessing a reprimand

against the appellant John D. Hemenway in its opinion of March 25, 2009, after it

had already dismissed the complaint, the court below made the following general

observation:

Mr. Hemenways complaint did not even allege the sine qua non ofan interpleader suit - that [t]wo or more adverse claimants . . . areclaiming or may claim to be entitled to such money or property, or toany one or more of the benefits . . .arising by virtue of any suchobligation. . . . 28 U.S.C. 1335(a)(1).

The adversity issue was thus not specifically mentioned and no decision

turned upon it as such. We disagree with this general observation and it was

appealed as part of the March 25, 2009 opinion and is now joined in the general

appeal. The observation is not accurate under the required reading of the



7/33

2

complaint. The court below actually made no analysis of adversity or addressed it

with any authority.

In his opinion of March 5, 2009, Judge Robertson found that he had

jurisdiction because of the interpleader statute (App. 210). Since the statute

requires diversity of rival claimants addressed in the filing of the interpleader this

means that he found such adversity of claimants to exist. Nonetheless, to the

extent that adversity is an element of standing, the Court has an obligation to

consider it since all appellate courts have such an obligation to satisfy themselves

as to standing. They do so on their own motion; we previously have indicated the

Court is entitled and indeed obliged to do so. See State Farm Fire & Casualty Co.

v. Kathryn Tashire, 386 U.S. 523, 530, 87 S.Ct. 1199, 18 L.Ed.2d 270, 275 (1967),

citing Treinies v. Sunshine Mining Co., 308 U.S. 66, 70, 84 L.Ed. 85, 89, 60 S.Ct.

44 (1939),

In examining adversity of claims as an element of standing we would ask the

Court to exercise great care and to be wary of authority cited by the appellees that

does not truly apply. The case law authority cited by the appellees on this point is

particularly inappropros. Their lead case is Indianapolis Colts v. Mayor & City

Council of Balt., 733 F.2d 484, 488 (7th Cir.1984) The facts of that case, however,

are completely distinct from the facts of this case. Principally, there was no

interpleader jurisdiction in that case because the City of Baltimore was trying to



8/33

3

take over the Colts football team, which had left Baltimore for Indianapolis, by the

use of eminent domain. It was thus claiming the football team as a stake. The

other interpleader defendant party was the Capital Improvement Board of Marion

County, the Indiana County where Indianapolis is located.

The Capital Improvement Board was not claiming the football team. Instead

it entered a long-term lease to the football team for the use of the stadium in

Indianapolis, the Hoosier Dome. There was no interpleader jurisdiction because to

claim ownership of the team, and to lease a stadium to it, are not conflicting

claims. They are two different things. One is a claim on what the stake was in

the case; the other makes no such rival claim. There were other facts of that case

sharply different from this one. What the court found there was the creation of the

supposed conflict in claims by one of the parties as an improper way of forum

shopping, but the fact that there were not two conflicting claims upon the same

stake was the most important fact. By contrast, in this case there is only one

obligation of Colonel Hollister to serve as an active member of the armed forces if

called up as a member of the Individual Ready Reserve. Whether the defendant

Soetoro is constitutionally ineligible to serve as alleged or not its the same

obligation. If Soetoro is de jure the president it is owed to him, if not and the

defendant Soetoro is only de facto then the same obligation is owed to the



9/33

4

defendant Biden. The obligation here is the same obligation, whichever of the two

defendants it is owed to.

Even less apropos is the attempt by the appellees to compare the facts of this

case to those ofBierman v. Marcus, 246 F.2d 200, 203 (3d Cir. 1957). They cite

this last case for the proposition that "Actually, what has been done in this suit has

been to misuse interpleader, based on mere pretense of adverse claims to a fund, to

obtain jurisdiction of controversies other than entitlement to that fund.." The

actual facts of the Bierman case show that this is a highly misleading

misrepresentation. In that case the crucial fact was that the two interpleader

plaintiffs, unlike Colonel Hollister in the present case, completely controlled one of

the purported exerters of a conflicting claim. This controlled entity was one of the

two interpleader defendants with allegedly conflicting claims. This particular

interpleader defendant that they named was a corporation which they totally

controlled, which was revealed after several years of litigation. Thus, there was no

conflicting claim from this corporation because it was effectively themselves. The

court there found they were acting in bad faith, by pretending that they were

exerting a conflicting claim against themselves. There is nothing like that here.

Colonel Hollister does not in any way control either defendant in this case. Thus

the use of this case is to seek to mislead the Court. Also in that case it turned out

the real controversy was with the other named interpleader defendant, the one other



10/33

5

than the alter ego of the plaintiffs. This controversy was about a fraud perpetrated

upon this other alleged claimant. There is no such different underlying controversy

here.

More subtly misrepresentative is the attempted use by the appellants in this

same argument of Xerox Corp. v. Nashua Corp., 314 F. Supp. 1187, 1190

(S.D.N.Y. 1970). From this case they take the quote: "The court is not prepared to

cast Xerox and RCA in the role of unwilling litigants where, upon substantial

grounds, they challenge the validity of the basis upon which Nashua seeks to force

them into adversary positions, while Nashua presents only its bare conclusions in

support of its position." The argument seems to be that by mere assertion of this

mantra from that case they have correctly analogized it to this case. The reason

that we say that this is more subtle misrepresentation is because of the more

complex nature of patents and patent litigation as compared to other sorts of

litigation. In theNashua opinion the lack of actual adversarial contention that was

found was very much because of the nature of improvement patents vis--vis the

patents that they improve upon. There is no comparable doctrine in the present

case. Under the allegations of the complaint as to the lack of constitutional

eligibility for the office of President on the part of the defendant Soetoro there is

no improvement role to serve as President that the defendant Biden can fulfill in

the face of plaintiffs contentions in the complaint without being in conflict with



11/33

6

the defendant Soetoro as to the claim on the Hollister obligation. Moreover, in the

case of patent litigation, Congress, in the exercise of its power to prescribe the

jurisdiction of federal courts, has set out a statutory interference procedure in 35

U.S.C. 291 under which only holders of alleged interfering patents may maintain

suits with respect thereto. Id., 314 F.Supp. at 1190. Congress has enacted no

statute that only holders of claims to the presidential office may initiate suits with

respect to those who are constitutionally ineligible holding the office de facto,

particularly where, as here, they are accused of knowingly perpetrating deceptive

behavior in obtaining the de facto holding of the office.

Nor is the argument of the appellees supported by the Supreme Court

decision in Treinies v. Sunshine Mining Co., 308 U.S. 66, 72 (1939). (Opp. p. 14)

That case involved an alleged conflict between two state court decisions in two

different states, Washington and Idaho, as to the ownership in question. It was

held that there was no conflict between the decisions because the Idaho decision

had established a res judicata by considering the Washington decision and finding

that it had been rendered without jurisdiction over the subject matter. This

eliminated the possible conflicting claims that were alleged in the interpleader

complaint. There is no similar issue or potential hereno claimed conflicting

court decisions from different states and no res judicata.



12/33

7

Thus, these cases that the appellees cite to support their argument that no

adverse relationship is shown do not, if carefully considered support that argument.

Nor is their argument supported by their references to the complaint in this case

and their characterization of those references, (Opp. pp. 15-16). The argument of

the appellees with its references to the complaint ignores the clear language of the

federal interpleader statute where it uses the word may. At 28 U.S.C.

1335(a)(1) the statute does not just speak of claimants who are claiming. Rather,

using or as a disjunctive, it speaks of claimants who are claiming or may claim

Thus the appellants take the very possibility that the statute describes, as used by

the plaintiff here, and seek to avoid the plain language of the statute and convert

into a general standing pure Article III sort of situation where there is no

congressional prescription of jurisdiction.

Moreover, the appellees seek to do so by ignoring the rule attendant upon

dismissal motions that the words of the complaint must be construed with

inferences in favor of the plaintiff. That this is the standard the appellees

themselves state and concede (Opp. p. 7) citing Barr v. Clinton, 370 F.3d 1196,

1199 (D.C.Cir.2004) Yet they seek to have the court make inferences in disfavor

of the plaintiff. Read in its entirety, the complaint clearly sets out the facts that if

as alleged the defendant Soetoro a/k/a Obama is not capable of giving a lawful

order because his occupation of the office of the presidency is only de facto then



13/33

8

the plaintiff, Colonel Hollister, must look to the defendant Biden as the one who is

de jure the Commander-in-Chief from whom he must accept orders. This occurs

by operation of the very Constitution whose violation by the defendant Soetoro

a/k/a Obama is at issue. The defendant Biden has no choice if the lack of

constitutional eligibility of Soetoro/Obama is faced and taken cognizance of. It is

not a matter of what the defendant Biden wants to do at this point; it is what he is

required to do and must do. This is particularly made clear in the prayer of the

complaint. See paragraph H of the prayer. (App. 028)

THE SAME IS TRUE OF THE ARGUMENT THAT

THERE IS NO COGNIZABLE STAKE.

Just as we have shown that the argument of the appellees that there is no

adversity is not supported by the cases that the appellees have cited and is not well

taken, we now show that the same is true of the argument that they advance that

there is no cognizable stake under the federal interpleader statute that was

alleged or shown here. As with the first argument that we have addressed, the

defendants/appellees did not counter-appeal the finding of jurisdiction by the lower

court that was necessarily implicit in the lower courts finding that it had

jurisdiction because of the statute and thus this issue has not been presented to this

Court. Nonetheless the appellees have in essence in their Opposition asked the

court to consider this issue on its own motion. Since it is obliged to consider the

issue we address this argument.



14/33

9

A substantial part of the appellees argument on this issue is their claim that

we, the appellants, are improperly seeking to raise an issue that was not sufficiently

raised below. They are speaking of our pointing to the clear language of the

federal interpleader act at 28 U.S.C. 1335(a) where it says:

having in his or its custody or possession money or property of thevalue of $500 or more, or having issued a note, bond, or certificate,policy of insurance, or other instrument of value or amount of $500or more, or providing for the delivery or payment or the loan ofmoney or property of such value, or being under any obligation,written or unwritten in the amount of $500 or more,

Specifically, the appellees say that by emphasizing in our opening brief the

use of the word obligation in the above passage in parallel and in the disjunctive,

by the use of or, with the references to money or property and the description

of certain kinds of issued instruments, we are impermissibly introducing a new

argument into the case at the appellate level. As their authority for urging the

Court to reject what they thus characterize as a new argument which this Court is

not allowed to consider, they point to the decision in District of Columbia v. Air

Florida, Inc., 750 F.2d 1077, 1084 (D.C.Cir.1984). This is to misrepresent the

holding in that case as well as the commonly used synonym for obligation, the

word duties. When, earlier, in their now superceded Opposition, document

1204814, p. 11, the appellees used the same case, and quoted from it at the place

cited the following: It is well established that issues and legal theories not asserted

at the District Court level ordinarily will not be heard on appeal. As we pointed



15/33

10

out in reply to that use of the case, we reiterate here that that case and its authority

address, by the clear language of the opinion what was at issue were two entirely

different legal issues embodied in entirely different legal theories. One theory was

known as the Rational Cost Allocation Theory and had been argued and discussed

at length in the District Court. The other and entirely separate issue and theory

was known as the Public Trust Doctrine Theory. Despite an extensive history

stretching back into the common law and the development of our state law since

the founding of the nation, it had not been discussed or argued at all in the District

Court. Thus in that case it was held that:

While a complaint should not be dismissed unless the courtdetermines that the allegations do not support relief on any legaltheory, the complaint nonetheless must set forth sufficientinformation to suggest that there is some recognized legal theoryupon which relief may be granted. The appellants public trust

theory is a novel one. It was not presented to the District Court andthe trial judge surely had no obligation to create, unaided by theplaintiff, a new legal theory in order to support the citys complaint.

Id., 750 F.2d at 1078.

In the present case the complaint quite plainly states and alleges ( 12):

the plaintiff is in possession ofobligations he owes to the Acting President or

President (and all others above the Plaintiff in the chain of command) to receive

the performance of duties from the Plaintiff. (emphasis added). (App 011; also,

Am. Compl. App. 058) Thus the very word of the statute now alluded to, namely

obligation is in fact used in the complaint. Further, it is used in the complaint to



16/33

11

make clear that it is a counterpart of and an alternative to duties as is the case in

common parlance. Here is one of the definitions of obligation from the

Merriam-Webster online dictionary: 4 : something one is bound to do : duty,

responsibility Throughout the complaint and in numerous filings below we

spoke of the duties of Colonel Hollister as the stake in this case. (Compl, 9, App.

10; 12, App. 11; 44, App. 021; 50, App. 023; Mtn to File Interpleader, 5,

App. 039; Am.Compl. 13, App.058; 15, App. 059; 40, App. 066; 41, 42,

43, App., 067; 50, App 70, 52, App. 071, et al.) The assertion, therefore, by the

appellees, that the plaintiff Hollister did not argue that his obligations were at issue

and argued in the court below is incorrect. They were argued but were referred to

under the synonym duties. That, however, is not a substantive distinction and it

is certainly not the use of a wholly different legal theory such as was at issue in the

Air Florida case.

Thus, there is no merit to the appellees contention based on theAir Florida

case that this court should not consider our argument about the clear and plain

language of the word obligation in the interpleader statute. In fact it is the

appellees themselves who argue (Opp. p. 11) that the statutes treatment of

property versus its treatment of obligation is a distinction without a

difference. This argument is completely inconsistent with the appellees position

that obligation and duty are not definitional synonymous. That they are



17/33

12

definitional synonyms is certainly the case as regards one versus the other being

the object or stake of interpleader, whether or not they are strictly property.

The Court should not only consider the argument based on the clear language of

the statute, it should do so carefully.

As with the argument of lack of adversity, the argument for there being no

stake by the appellees relies upon cases that, when examined, do not support the

argument. Even more importantly, the appellees in this argument engage in a

logical fallacy, that of taking a part of a set and confusing it with the whole set.

While it is true that interpleader is typically used by insurance carriers to deal

with funds from a policy subject to multiple claims, it is not the case by any stretch

that that is the only use of interpleader. Nor is it the case that, because such stakes

played a significant role in the development of the interpleader statute into its

present form, that that is the only use of interpleader. That too is a logical fallacy

of equating a part with the whole. That the lower court engaged in this same

logical fallacy does not make it valid. In fact, it makes clear that there is reversible

error.

In seeking to lead the Court into paying no attention to the clear meaning of

the interpleader act in its use of the word obligation, the appellees rely heavily

upon Murphy v. Trav. Ins. Co., 534 F.2d 1155, 1159 (5th Cir.1976). In using the

quote that they chose from the Murphy case (Opp. p. 11), the appellees select a



18/33

13

quote which only deals with the language of the statute that they want the court to

consider exclusively, without taking account of the use of the word obligation or

of the duties that constitute that obligation here. The language of the quote only

refers to that part of the statute which speaks of interests evidenced by a `note,

bond, certificate, policy of insurance, or other similar intangible document of

definite ascertainable value. The question of obligation that is at issue here was

not at issue in that case. The fact pattern of the Murphy case is distinguishable

from this case in several substantive ways that make the analogy argued by the

appellees extremely flawed. To begin with, the use in the passage just quoted of an

intangible document of definite ascertainable value would definitely apply to

Colonel Hollisters situation. The salary of a Colonel is not subject to any future

ascertainment by a court; it is set by statute and regulations thereunder in a clearly

ascertainable amount. Further, the participation in the Individual Ready Reserve is

not speculative; it is definite and grows out of the original contract of service.

Moreover, what was at issue inMurphy was not whether there was a stake. There

clearly was; it was the amount of an insurance policy. The question was not what

the stake was in that case. The question was how much the deposit into the court

escrow would be and, specifically, whether it would be required to cover the

amount of possible future counsel fees to be awarded, if at all, after litigation.



19/33

14

Thus, theMurphy decision is not applicable to the present case at all in the manner

in which the appellees would have it applied.

The appellees rely upon, as their other authority for the sweeping assertion

that Colonel Hollisters obligation cannot be a stake under interpleader , upon

Bankers TrustCo. v. Mffrs. Natl. Bank of Detroit, 139 F.R.D. 302, 307

(S.D.N.Y.1991). A careful analysis of the quote that the appellees have taken from

that case (Opp. p. 10) reveals that, by the plain meaning of the language within the

quote which the appellees have chosen to emphasize within the factual context of

that case, it does not apply to this case. For that language clearly demonstrates that

in that case the reason the court rejected the particular item in question, which was

the duty to manage a fleet of rail cars, was that it was not distinct from a host of

other claims that were involved in the complex litigation in question. That is not

the case here. Here, by contrast, there is one single obligation, namely, Colonel

Hollisters obligation to serve if called up from the Individual Ready Reserve. It

was the lack of distinctness which the decision in that case turned upon. There is

no such lack in this case.

In addition there are other factors in that case upon which Judge Mukasy based his

opinion that do not obtain in this case and make a substantial difference. These

are significant factors which the appellees fail to point out. One of them is the

judges finding in that case that the interpleader plaintiff must be in possession of



20/33

15

the stake. In that case the entity filing as the interpleader plaintiff, Manufacturers

National Bank of Detroit, was not in possession of the obligation to manage the

fleet of rail cars which it claimed was the stake and, in fact, had never been in

possession of the management responsibility. Initially it belonged to another

company called Brae; the responsibility was then assigned to another company,

GERSCO. The court there made it clear that that was a substantial distinction

contributing to its decision. Id., 139 F.R.D. at 307. Thus, for that case to be

persuasive authority for this case, Colonel Hollister would have had to have filed

in interpleader, not for himself, but for some other officer who is a member of the

Individual Ready Reserve.

Also in the Bankers Trustcase the judge ruled that an important factor that

the obligations, which he did consider, ran the wrong way. He ruled that they

ran, not from Manufacturers National Bank to the actual manager of the rail fleet

but instead from that entity, GERSCO, to Manufacturers National Bank. For the

fact situation in this case to be analogous so that the authority of that case would be

persuasive the obligation here at issue would have to run from one of two appellees

to Colonel Hollister, not the other way around. Thus these two cases do not in fact

support the appellees position as to there being no stake here under the statute.

The same can also be said of the appellees use in this argument of the

authority of Professor Chafee. They take a passage from his well known article on



21/33

16

the 1936 amendments to the interpleader statute and misrepresent its meaning and

misinterpret the thrust of the article. As we pointed out in our opening brief,

because of the clear language of the statute in its use of the word obligation, the

legislative history is not looked to under controlling Supreme Court authority.

Nonetheless, in attempting to use Professor Chafees article , the appellees

misinterpret both the article in its entirety and the excerpt that they quote from the

article. The article, The Federal Interpleader Act of 1936: I. Zechariah Chafee, Jr.,

45 Yale L.J. 963 (1936) has as its thrust the enormous broadening of the

interpleader act in the bill that amended it in that year. So much is this the case

that the article, after setting out the history of how the act was once confined in its

applicability to certain specific kinds of plaintiffs, in the 1917 Act only insurance

companies could be plaintiff stakeholders. Then in the 1926 version of the act the

ability to be a stakeholder plaintiff was extended to casualty companies and surety

companies. Id., a6 964-65. Then, speaking of the breadth of the 1936 act Chafee

says that it: removes all previous limits on kinds of companies that are

permitted to file bills of interpleader. This remedy is now available to individuals

and corporations generally if they are subjected to claims by residents of two or

more states. (emphasis added) id. Then, after further history, in laying out the

basic principles of the 1936 act, he lists as its first principle: 1. The persons who

can interplead are not limited to insurance, casualty, and surety companies. Id., at



22/33

17

968. As the fourth principle in the same list he says: 4. The subject matter in

controversy is broadly defined to correspond with the extension of the persons who

can interplead. Id. The entire thrust of the article is that the sort of limitations

urged by the appellees here were removed in 1936. The appellees mistakenly

argue that the historical limitations in the interpleader act prior to 1936 are still

present.

Thus, the appellees take a passage that is about broadening and try to say

that it is narrowing and limiting. In fact, read carefully, the passage that they cite

almost says that the kind of obligation that Colonel Hollister pleads speaks of

obligations which are not embodied in formal promise to pay money, the very

kind of obligation that Colonel Hollister has. Interestingly, right at the point where

the appellees cut off their quote, the article speaks of the type of obligation where

one party has obtained a claim by fraud and deceit, which is essentially what is

alleged here.

ARTICLE III STANDING APART FROM INTERPLEADER

Without explaining why it would be relevant, the appellees make an

argument about standing under statutes other than interpleader. (Opp. p.20) They

seem to be assuming that they can argue Article III lack of standing regardless of

the prescription of the Interpleader Act. This is an incorrect assumption, as stated



23/33

18

in one of the cases that they cite in this argument, Simon v. E. Ky. Welfare Rights,

Org , 426 U.S. 26, 41-42 (1976):

Although the law of standing has been greatly changed in (recent)years, we have steadfastly adhered to the requirement that, at least inthe absence of a statute expressly conferring standing, federalplaintiffs must allege some threatened or actual injury resulting fromthe putatively illegal action before a federal court may assume

jurisdiction. Linda R.S. v. Richard D. FN 22, 410 U.S. at 617(emphasis added) (the cite of the case quoted from is 410 U.S. 614(1973))

Footnote 22 then states:

The reference in Linda R.S. to a statute expressly conferringstanding was in recognition of Congress power to create newinterests the invasion of which will confer standing. See 410 U.S., at617 n.3, 93 S.Ct. at 1148, 35 L.Ed.2d, at540; Trafficante v.Metropolitan Life Ins. Co., 409 U.S. 205, 93 S.Ct. 364, 34 L.Ed.2d415 (1972).

This entire argument of the appellees about Article III standing requirements

not being met by the plaintiff here is made without reference to the fact that in this

instance Congress has expressly conferred standing by passage of the Interpleader

Act. We have addressed in the preceding arguments why the standing as thus

conferred by Congress is present in this case. Thus the cases that the appellees cite

in this argument do not withstand scrutiny in light of the standing conferred by the

interpleader statute. To be sure Article III standing questions are still applicable,

but it is not relevant to seek to apply them, as the appellees do here, without

considering the standing conferred by Congress in the statute. This particularly



24/33

19

goes to the issue of what might otherwise be too far in the future and be too

uncertain in a straight Article III standing case where there is no such prescription

by Congress, since the statute at issue uses the word may, as pointed out above,

and specifically addresses future possibilities.

In Bates v. Rumsfeld, 271 F.Supp. 2d 54, 62 (D.D.C.2002), for example,

there was no invocation of interpleader and the most decisive prong of Article III

standing in that case, that of redressability, is not present here. Clearly, if it is

determined as a result of this case that the appellee Soetoro is only occupying the

office of the presidency de facto and not de jure as alleged in the complaint, then

the exposure of that ineligibility will redress the plaintiffs grievance because the

plaintiff will know that the defendant Soetoro cannot give a lawful order that the

plaintiff is required to obey.

The use ofFriends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S.

167, 180-81(2000) is even more puzzling, since that is a case involving a statute,

albeit a different one than the interpleader statute, that provides for citizen law

suits; in that case the plaintiffs, as does Colonel Hollister here, had made

averments that established their standing. That was as opposed to Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560 (1992) which dealt with the same statute

with the opposite result. InLujan it was found that the fact that some member of a

group devoted to the preservation of wild life might some day wander out in a



25/33

20

desert that was being developed for a purpose other than being pristine and not be

able to see the same wildlife as if the development had not taken place was not of

sufficient urgency or reality to present the possibility of real injury. We

incorporate our previous discussion ofLujan from our earlier timely reply. The

status of a lover of wildlife in such an organization is not the same as that of an

individual warrior in the reserves being called up by a Commander-in-Chief who,

under the allegations of the complaint, is an officer only de facto in violation of the

Constitution. The one is a voluntary hobby; the other is anything but that.

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 (2006) is a case in which

it was found that there was no exception to the ban on standing for a mere general

taxpayer filing suit for governmental constitutional violations. It is not relevant

where there is statutory standing. In Simon v. E. Ky. Welfare Rights, Org, supra,

there was clearly no redressability. In fact, totally unlike this case, the parties sued

were not the parties actually doing the harm complained of. The same is true of

Young Americas Found. v. Gates, 573 F.3d 797, 799 (D.C.Cir.2009). The most

puzzling of these non-relevant cites is that to Freeman v. B&B Assocs., 790 F.2d

145, 150-51 (D.C.Cir.`1986). That case holds the exact opposite of what the

appellees cite it to supposedly support. It stands for the proposition that the

appellees here, having not cross-appealed, should not be allowed to seek to upset



26/33

21

the opinion of the court below, which is exactly what they seek to do. All in all

this Article III standing argument adds nothing to the appellees case.

THE FAILURE TO CONSIDER THE AMENDED COMPLAINT

IS GROUNDS FOR REVERSAL

In an argument beginning on p. 17 the appellees first set out the accurate

observation that the amended complaint filed by the plaintiff added a new and

different cause of action. Then, having acknowledged that fact, they argue that the

amended complaint was properly ignored and the case dismissed because the

amended complaint added nothing to the original complaint. How an amended

complaint, amended once as a matter of right before any responsive pleading is

filed. can add a whole new cause of action and not add anything new they do not

explain. They merely applaud the lower court and ask this court to confirm its

clear factual error and gross abuse of discretion. They support this by citing

authority that does not deal in any way with a situation where an amended

complaint has added an entire new cause of action. As a matter of the facts of the

entries in the dockets in this case (App. 003) it can easily be seen that the motion

for dismissal that the court below granted was filed days prior to the amended

complaint filed as a matter of right and, in fact, the court below cannot possibly

have properly and accurately found the amended complaint to have added nothing

new and then ruled upon the whole new cause of action which the amended

complaint did, in fact contain. This alone is grounds for reversal. Here the normal



27/33

22

course described in Ellipso, Inc. v. Mann, 460 F.Supp.2d 99, 103 (D.D.C.2006),

the authority cited by appellees in this argument, was required to be followed and it

wasnt. Nor is it the case that the plaintiff here has not asserted an individual right

here. The right to have a Commander-in-Chief who is, under the Constitution,

legally eligible and thus qualified to give orders to a member of the military, is an

individual right for each member of the military. The court below did not examine

the question. It only, factually incorrectly, claimed it had.

It is not the case that the plaintiff here seeks to extend Bivens to a new

category of defendants as appellees argue (p.18) when they quote fromAshcroft v.

Iqbal, 129 S.Ct. 1937, 1947 (2009). When the appellee Soetoro engaged in the

violation complained of here he was a federal officer and he did it himself. It was

not a case ofrespondeat superior. Analysis was required and was not made. The

denial of anything new in the amended complaint was factually incorrect. It was

not a question of reconsideration as argued on p. 19. There was not

consideration in the first place.

A final puzzle in this argument is n. 8 on p. 19. The de facto officer

question does not relate solely to the amended complaint. It was raised from the

very opening of the initial complaint, as pointed out in our opening brief.

This issue was not raised for the first time on appeal. Unlike inAir Florida

the complaint clearly makes the allegations and speaks of the defendant Soetoro as



28/33

23

being de facto and not de jure. It alleges numerous facts establishing that and they

were repeated throughout the filings.

RULE 11 SANCTIONS AND BIAS

The Opposition assumes that the opinions below were all correct and that,

therefore, the only issue with regard to sanctions is the type of sanction. This

overlooks the possibility of any error below. Since we have shown that there was

error below, it is axiomatic that an award of sanctions of any sort was improper. In

any case, the court below did not particularize its charges of violations of Rule 11

as we pointed out in our brief is required. Nor did the court below conduct any

inquiry into what the pre-filing inquiry was with regard to any of the three prongs

of Rule 11 as required. Based on its looking into vetting, blogging and

twittering on the Internet, the court below found that the complaint and the filings

ofthe undersigned were frivolous. Thus there was no proper analysis to justify

the selection of any sanction under Rule 11.

Contrary to the assertion of appellees (Opp. pp. 23-24) Judge Robertson did

not point out unsupported arguments. What he did was take arguments that

pointed out obligations and duties and opine that they were not property. They did

represent intangible forms of property, in fact, that were obligations and duties, but

he found that not to his liking because he chose not to pay any attention to the

language of the statute in that regard. That the complaint and filings were



29/33

24

warranted by existing law we have shown in our references to 19th century cases on

the natural born citizen phrasing and the influence of Vattel on that language.

The district court did not assess the totality of the circumstances. In fact, it did

not assess the proper Rule 11 factors at all.

Nor is the assertion in the Opposition (p.25) about the advisory committee

notes to the 1993 amendments correct. There is nothing in those notes which

contradicts the case law set out by the undersigned (Appx. 243 ff.) requiring a

hearing in a case such as this, where there were no hearings or opportunity to

assess counsel or the plaintiff, and yet the court below found bad faith.

Significantly, the appellees cite no actual language from that Committee Report to

support their assertion.

In short, the heart of Rule 11 is whether or not, before filing a document, the

signer made reasonable inquiry into the facts and the law . Here the court below

made no inquiry into that inquiry and so had absolutely no basis to assess any kind

of Rule 11 sanction. Business Guides, Inc. v. Chromatic Communications

Enterprises, Inc., 498 U.S. 533 (1991).

The court below made no such inquiry and instead relied upon two things,

its ventures on to the Internet and facts outside of this case, and facts not from any

experience it had in ruling in this case. It looked to the behavior of two other

attorneys who signed the pleadings below, and Philip J. Berg in particular, in a



30/33

25

case in which he was involved, and not the plaintiff here or the undersigned. These

inquiries included Mr. Bergs website. Thus this behavior also goes to the bias

issue.

The appellees (p. 29) assert correctly the axiom that facts learned during the

conduct of the judicial proceeding do not require recusal. But the facts of the other

suits by Berg, who was not a party in this suit, and the facts of the vetting,

blogging and twittering on the Internet as a rationale for why the Constitution need

not be inquired into are not matters learned within the four corners of this case.

The clear bias indicated by the characterization by the court below of Berg and

Joyce as probably the real plaintiffs in this case and the description of them

enlisting Colonel Hollister as part of a political movement as the court below saw

it are not within the four corners of this case and clearly indicate a bias developed

from matters outside of this case. The case ofLikety v. United States, 510 U.S. 540

(1994) which the appellees cite (pp. 29-30) actually makes clear that bias need not

always be based on matters outside the four corners of the case in question but

certainly makes clear that reliance on matters outside of the four corners of the

case and letting them shape and influence opinions in the case or even give the

appearance of doing so do constitute bias.

The most glaring example of the bias resulting from improper reliance on

matters outside of the course of proceedings in this case is contained in the opinion



31/33

26

of dismissal (App. 209) in the paragraph where the court below used the

participation in apro se litigation by Philip J. Berg as a plaintiff. Berg v. Obama,

574 F. Supp. 2d 509 (E.D.Pa.2008), It used that as the basis for characterizing the

attorney Philip J. Berg as the real plaintiff in this case, and the actual plaintiff in

this case as a fallback brainstorm. It viewed Colonel Hollisters case as part of a

crusade, with clearly a pejorative meaning. Although the court below listed the

causes of action in that case, which were not in any way the same as in this case, it

nonetheless connected the two cases as part of a crusade. This gave a clear

appearance to the public that it was biased. This bias was also evident in the

attempts of the lower court, relying upon its evident distaste for Philip J. Berg and

Lawrence Joyce, to assess the entire legal costs of the appellees, which it clearly

saw as extensive, against the undersigned. This last was an effort not even

permitted by the language of Rule 11 which the court below invoked in attempting

to assess the undersigned with this steep financial burden. In this Opposition the

appellants seek to compare this evidence of the appearance of bias with the judicial

notice in exercised in the case of Veg-Mix, Inc. v. U.S. Dept of Agric., 832 F.2d

601, 607 (D.C.Cir.1987). But the two situations are not analogous. Veg-Mix was

about judicial notice. There is nothing here in theBerg case that was being taken

judicial notice of. The only reason to take note of the case was to use it to smear

the undersigned and Colonel Hollister with inappropriate guilt by association.



32/33

27

CONCLUSION

The thrust of the Opposition, with its misrepresentations, approval of bias

and pejorative mischaracterization, is to make the Court feel that if it dares to take

its oath to the Constitution as seriously as Colonel Hollister does, and apply the

law, it will be doing something unthinkable. It is not an appeal to the Rule of

Law.

Respectfully submitted,

/s/

John D. HemenwayCounsel for Appellants4816 Rodman Street, NWWashington DC 20016(202) 244-4819

[email protected]

CERTIFICATION OF COMPLIANCE WITH RULE 32(a)

Pursuant to Fed. R. App. P. 32(a) and D.C. Cir. R. 32(a), I hereby certifythat this brief contains 6,975 words, excluding the parts exempted by the rules,and has been prepared in a proportionally spaced typeface using MicrosoftWord 2003 in Times New Roman 14-point typeface.

Dated: January 5, 2010 /s/ John D. HemenwayCounsel for Appellants

mailto:[email protected]:[email protected]


33/33

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that I have caused the foregoing to be servedelectronically upon counsel of record this 5th day of January, 2010.

/s/John D. HemenwayCounsel for Appellants


joint appellant reply brief

Documents