HOLLISTER V SOETORO (Appeal) - Corrected Appellants Reply (1/7/2010)

Case: 09-5080 Document: 1224425 Filed: 01/07/2010 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.
======================
CORRECTED
APPELLANTS REPLY BRIEF
======================
John D. Hemenway D.C. Bar #379663

Counsel for Appellant
4816 Rodman Street, NW
Washington DC 20016
(202) 244-4819
(202) 538-0005
johndhemenway@comcast.net
TABLE OF CONTENTS
Table of Contents ………………………………………………………… i
Table of Authorities ………………………………………………………ii
SUMMARY OF ARGUMENT …………………………………………. 1
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 ……………………………………… 20
RULE 11 SANCTIONS AND BIAS ………………………………. ….. 22
CONCLUSION …………………………………………………………. 26
i
TABLE OF AUTHORITIES
Cases
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1947 (2009).......................................................22
Bankers Trust Co. v. Mffrs. Nat’l. 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), .......................................18
Berg v. Obama, 574 F. Supp. 2d 509 (E.D.Pa.2008) ……………..………….25, 26
Bierman v. Marcus, 246 F.2d 200, 203 (3d Cir. 1957)..........................................4, 5
Bivens v. Six Unknown Fed. Narcotics Agents 403 U.S. 388 (1971) ....................22
*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, 11, 22
Ellipso, Inc. v. Mann, 460 F.Supp.2d 99, 103 (D.D.C.2006) ..................................21
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))........................................ 17, 18
ii
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) ......................................19
Murphy v. Trav. Ins. Co., 534 F.2d 1155, 1159 (5th Cir.1976)......................... 12, 13
*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) ................... 17, 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)..................................................................................... 6
Veg-Mix,Inc.. v. U.S. Dep’t 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
Young America’s Found. v. Gates, 573 F.3d 797, 799 (D.C.Cir.2009) ..................20
Statutes
*28 U.S.C. § 1335(Interpleader Act).................................... 2, 7, 8, 9, 12, 16, 17, 18
35 U.S.C. § 291..........................................................................................................6
Rules
Fed. R. Civ. P. 12(b)(6)..............................................................................................1

*Fed. R. Civ. P. 11 ……………………… …………………………………1, 22, 23 24, 26
Treatises
*The Federal Interpleader Act of 1936: I. Zechariah Chafee, Jr.,

45 Yale L.J. 963 (1936) ................................................................................. 15, 16
Constitutional Provisions
Article III........................................................................................ 1,7, 17, 18, 19, 20
iii
SUMMARY OF ARGUMENT
The lack of adversity argument is not well taken and is not supported by the
authority cited. The same is true of the argument that there is no cognizable
interpleader “stake.” The argument that there is no Article III standing is flawed
and unsupported. Some of the authority cited supports appellants’ position. The
court below was wrong about saying that the amended complaint filed before any
responsive pleading as a matter of course introduced nothing new into the case.
The court below failed to investigate the pre-filing inquiry and failed to establish
any basis for a Rule 11 violation. It exhibited bias based on factors outside of the
four corners of the case.
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 proper

under Fed. R. Civ. P. 12(b)(6) because he failed to state a plausible
interpleader claim with adverse claimants and a tangible stake.
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
1
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. Hemenway’s complaint did not even allege the sine qua non of
an interpleader suit -– that “[t]wo or more adverse claimants . . . are
claiming or may claim to be entitled to such money or property, or to
any one or more of the benefits . . .arising by virtue of any such
obligation. . . .” 28 U.S.C. § 1335(a)(1).
The adversity issue was not specifically mentioned; no decision turned upon
it as such. We disagree with this general observation; it was appealed as part of the
March 25, 2009 opinion and is now joined in the appeal. The observation is not
accurate under the required reading of the complaint. The court below 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. To the extent that
adversity is an element of standing, this 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 obliged
to do so. 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
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 this case. Principally, there was no interpleader
jurisdiction in that case. The City of Baltimore was trying to 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, Indiana,
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 that court found 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
3
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 it’s 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
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 of Bierman v. Marcus, 246 F.2d 200, 203 (3d Cir. 1957). They cite
this 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 facts
of the Bierman case show that this is highly misleading. 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
4
was effectively themselves. That court 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 control either defendant in this
case. The use of Bierman 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 than the alter ego of the plaintiffs. The Bierman 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. This is a more
subtle misrepresentation because of the more complex nature of patents and patent
litigation as compared to other sorts of litigation. In the Nashua opinion the lack
of actual adversarial contention that was found was because of the nature of
improvement patents vis-à-vis the patents that they improve upon. There is no
5
comparable doctrine in the present case. Under the allegations of the complaint as
to the lack of constitutional eligibility for the office of President of the defendant
Soetoro there is no “improvement” role to serve as President that the defendant
Biden can fulfill in the face of plaintiff’s contentions in the complaint without
being in conflict with 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
6
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 here—no claimed conflicting
court decisions from different states and no res judicata.
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 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. This is the standard the appellees themselves
state and concede (Opp. p. 7) citing Barr v. Clinton, 370 F.3d 1196, 1199
7
(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 the
plaintiff, Colonel Hollister, must look to the defendant Biden as the de jure
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, the defendants/appellees did not
counter-appeal the finding of jurisdiction by the lower court that was necessarily
implicit in the lower court’s finding that it had jurisdiction because of the statute
8
and thus this issue has not been presented to this Court. Nonetheless the appellees
in their Opposition have asked the court to consider this issue on its own motion.
Since it is obliged to consider the issue we address this argument.
A substantial part of the appellees’ argument on this issue is their claim that
we are improperly seeking to raise an issue that was not sufficiently raised below.
They speak 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 the

value of $500 or more, or having issued a note, bond, or certificate,
policy of insurance, or other instrument of value or amount of $500
or more, or providing for the delivery or payment or the loan of
money 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 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.” In their now superceded Opposition, document 1204814, p. 11, the
9
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 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. In that
case it was held that:
While a complaint should not be dismissed unless the court

determines that the allegations do not support relief on any legal
theory, the complaint nonetheless must set forth sufficient
information to suggest that there is some recognized legal theory
upon which relief may be granted. The appellant’s public trust
theory is a novel one. It was not presented to the District Court and
the trial judge surely had no obligation to create, unaided by the
plaintiff, a new legal theory in order to support the city’s complaint.
Id., 750 F.2d at 1078.
In the present case the complaint quite plainly states and alleges (¶ 12):
“…the plaintiff is in possession of obligations he owes to the Acting President or
President (and all others above the Plaintiff in the chain of command) to receive
10
the performance of duties from the Plaintiff.” (emphasis added). (App 011; also,
Am. Compl. App. 058) 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
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 by the appellees
that 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 is not a substantive distinction; it is certainly not the use
of a wholly different legal theory such as was at issue in the Air Florida case.
There is no merit to the appellees’ contention based on the Air 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 statute’s treatment of “property” versus
its treatment of “obligation” is a “distinction without a difference.” This argument
11
is completely inconsistent with the appellees’ position that “obligation” and “duty”
are not definitional synonymous. That they are 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. 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 that that is the only use of interpleader. Nor is it
the case, 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
12
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. The passage just quoted of an “intangible document
of definite ascertainable value” would definitely apply to Colonel Hollister’s
situation. The salary of a Colonel is not subject to any future ascertainment by a
court; it is set by statute and regulations in a clearly ascertainable amount.
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 in
Murphy 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. The Murphy decision is not
13
applicable to the present case at all in the manner the appellees would have it
applied.
The appellees rely upon, as their other authority for the sweeping assertion
that Colonel Hollister’s obligation cannot be a stake under interpleader, Bankers
Trust Co. v. Mffrs. Nat’l. 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 its plain language, within the factual context of that case, it
does not apply to this case. That language clearly demonstrates that 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: Colonel Hollister’s 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 judge’s finding that the interpleader plaintiff must be in possession of 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
14
cars which it claimed was the stake; in fact, it 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
made it clear that that was a substantial distinction contributing to its decision. Id.,
139 F.R.D. at 307. For that case to be persuasive authority for this case, Colonel
Hollister would have had to file in interpleader, not for himself, but for another
officer who is a member of the Individual Ready Reserve.
Also in the Bankers Trust case 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 for that authority to be persuasive, the
obligation here would have to run from one of two appellees to Colonel Hollister,
not the other way around. 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 of the authority of Professor
Chafee. They take a passage from his well known article on the 1936 amendments
to the interpleader statute and misrepresent its meaning and misinterpret the thrust
of the article. 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
15
Court authority. Nonetheless, in attempting to use Professor Chafee’s 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 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. In 1926, 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. 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 968. As the fourth
principle 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 limitations urged by the appellees here were removed
16
in 1936. The appellees mistakenly argue that the historical limitations in the
interpleader act prior to 1936 are still present.
The appellees take a passage that is about broadening and say that it is
narrowing and limiting. In fact, read carefully, the passage cited 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, 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
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 in
the absence of a statute expressly conferring standing, federal
plaintiffs must allege some threatened or actual injury resulting from
the 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))
17
Footnote 22 then states:
The reference in Linda R.S. to “a statute expressly conferring

standing” was in recognition of Congress’ power to create new
interests the invasion of which will confer standing. See 410 U.S., at
617 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.2d
415 (1972).
This entire argument 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 conferred by
Congress is present in this case. The cases that the appellees cite in this argument
do not withstand scrutiny in light of the standing conferred by the interpleader
statute. 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 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. 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), there was no
invocation of interpleader; the most decisive prong of Article III standing in that
18
case, 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 plaintiff’s grievance because the plaintiff will know
that the defendant Soetoro cannot give a lawful order that the plaintiff is required
to obey.
The use of Friends 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. In Lujan it was found that the fact that some member of a
group devoted to the preservation of wildlife might someday wander out in a 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 discussion of Lujan 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
19
allegations of the complaint, is an officer only de facto in violation of the
Constitution. One is a voluntary hobby; the other is anything but.
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, unlike this case, the parties sued were
not the parties doing the harm complained of. The same is true of Young
America’s Found. v. Gates, 573 F.3d 797, 799 (D.C.Cir.2009). The most puzzling
of these non-relevant cites is 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
support. It stands for the proposition that the appellees here, having not cross-
appealed, should not be allowed to seek to upset the opinion of the court below,
which is exactly what they seek to do. 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
20
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
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
wasn’t. Nor is it the case that the plaintiff here has not asserted an individual right.
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.
21
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 from Ashcroft 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 of respondeat 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 in Air Florida,
the complaint clearly makes the allegations and speaks of the defendant Soetoro as
being de facto and not de jure. It alleges numerous facts establishing that; 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.
22
The court below did not particularize its charges of violations of Rule 11 as 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 of the 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. That the complaint and filings were 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
23
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. The
appellees cite no actual language from that Committee Report to support their
assertion.
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
case in which he was involved, and not the plaintiff here or the undersigned. These
inquiries included Mr. Berg’s website. 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.
24
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. Likety 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
of dismissal (App. 209) in the paragraph where the court below used the
participation in a pro 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 Hollister’s 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 here, it
nonetheless connected the two cases as part of a “crusade.” This gave a clear
25
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 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. Dep’t 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 the Berg 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.
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/
26
John D. Hemenway
Counsel for Appellants
4816 Rodman Street, NW
Washington DC 20016
(202) 538-0005
johndhemenway@comcast.net
CERTIFICATION OF COMPLIANCE WITH RULE 32(a)
Pursuant to Fed. R. App. P. 32(a) and D.C. Cir. R. 32(a), I hereby certify
that this corrected brief contains 6,870 words, excluding the parts exempted by the
rules, and has been prepared in a proportionally spaced typeface using Microsoft
Word 2003 in Times New Roman 14-point typeface.
Dated: January 7, 2010 /s/

John D. Hemenway
27
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I have caused the foregoing CORRECTED

APPELLANTS BRIEF to be served electronically upon counsel of record this 7th
day of January, 2010.
/s/
John D. Hemenway
28

HOLLISTER V SOETORO (Appeal) - Corrected Appellants Reply (1/7/2010)

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HOLLISTER V SOETORO (Appeal) - Corrected Appellants Reply (1/7/2010)

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Case: 09-5080 Document: 1224425 Filed: 01/07/2010 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

Table of Contents ………………………………………………………… i

Table of Authorities ………………………………………………………ii

SUMMARY OF ARGUMENT …………………………………………. 1

THE LACK OF ADVERSITY ARGUMENT IS NOT

THE SAME IS TRUE OF THE ARGUMENT THAT

ARTICLE III STANDING APART FROM INTERPLEADER ………..17

THE FAILURE TO CONSIDER THE AMENDED COMPLAINT

RULE 11 SANCTIONS AND BIAS ………………………………. ….. 22

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

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), .......................................18

Berg v. Obama, 574 F. Supp. 2d 509 (E.D.Pa.2008) ……………..………….25, 26

Bierman v. Marcus, 246 F.2d 200, 203 (3d Cir. 1957)..........................................4, 5

*Business Guides, Inc. v. Chromatic Communications Enterprises, Inc.,

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

District of Columbia v. Air Florida, Inc.,

Ellipso, Inc. v. Mann, 460 F.Supp.2d 99, 103 (D.D.C.2006) ..................................21

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

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

Linda R.S. v. Richard D. FN 22, 410 U.S. 614 (1973))........................................ 17, 18

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

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

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

*28 U.S.C. § 1335(Interpleader Act).................................... 2, 7, 8, 9, 12, 16, 17, 18

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

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

four corners of the case.

THE LACK OF ADVERSITY ARGUMENT IS NOT WELL TAKEN

The first “COUNTERSTATEMENT OF ISSUES PRESENTED” in the

1. Whether dismissal of Hollister's complaint was proper

complaint, the court below made the following general observation:

analysis of adversity or addressed it with any authority.

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

adversity is an element of standing, this Court has an obligation to consider it since

all appellate courts have such an obligation to satisfy themselves as to standing.

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

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

where Indianapolis is located.

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

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

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 it’s the same

defendants it is owed to.

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

case, completely controlled one of the purported exerters of a conflicting claim.

different underlying controversy here.

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

Soetoro there is no “improvement” role to serve as President that the defendant

obligation. Moreover, in the case of patent litigation, Congress, in the exercise of

interference procedure in 35 U.S.C. § 291 under which only holders of alleged

of knowingly perpetrating deceptive behavior in obtaining the de facto holding of

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

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

complaint. There is no similar issue or potential here—no claimed conflicting

court decisions from different states and no res judicata.

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

argument. Nor is their argument supported by their references to the complaint in