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Opposing our motion for oral argument the appellees assert in a quite
conclusory fashion that all three reasons of Rule 34(a)(2) are met here. (Doc
No.12200734) The first prong that they assert is true here is that the present
appeal is frivolous. This is so because the judge below found that the case
was frivolous. That finding, based largely on “blogging and twittering” and
by any actual legal authority. In fact the assertion by the judge below which
drove his conclusion of frivolity seems like an obeisance to the idea of pure
democracy that the Founders went to great lengths to avoid (See Federalist
10, e.g.). The “natural born citizen” requirement of Article II, Section 1,
Clause 5 at issue here is very much a reflection of that concern which seems
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to have been almost mocked below and which is, therefore, a serious and
frivolousness, the appellees (p.2) point to a “finding” in the court below that
the appellant Hollister “had not stated a claim under the interpleader statute
directly to one of the clear errors which is a key issue presented in our
appeal, namely, the use in the Interpleader Act of the word “obligation” in
brief.
The second assertion above with which the appellees seek to bolster
one may read both of the pages referred to by the appellees in the appendix
and look there for the second asserted finding in vain. On neither page is
the appeal that the lower court, as set out on App. 210, focused exclusively
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clear language of “obligation.” App. 256, the second opinion from below at
issue, is taken up with the lower court asserting that the complaint was
frivolous because the court found it so. There is no real supporting reason.
In fact, curiously, for a court assessing a Rule 11 sanction, the court below
went out of its way to avoid discussing the merits of the case as asserted in
the complaint, that is to say, the court assessed a Rule 11 sanction without
ever considering whether there was any warrant in law or foundation in fact.
One cannot say that someone has failed to conduct a proper pre-filing
inquiry without making some assessment of what in fact they looked into,
which in and of itself would be to look into the merits that they looked or did
on in the lower court only emphasizes the need that we pointed out in
reason why oral argument would be helpful here. This pattern continues in
the next paragraph on p. 2 after the one from which we have just quoted.
There the appellees, who, as we have pointed out, took no cross-appeal from
any findings below, ignore the issues presented that we have put before the
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Court and decide for us gratuitously what our issues presented are. This is
Hollister and the undersigned as having spoken in our motion to the issue of
President one must be, in the words chosen by the Founders, a “natural born
court can prevent issues presented in a complaint from being before it and
then asserts that this Court cannot consider what was alleged in the
Clause 5, the Supreme Court has made the distinction very clear:
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appellees about citizenship, seem odd in light of the cases that we cited in
the pages of our motion referred to, cases such as Minor v. Happersett, 88
dismissal means. This confusion about Rule 12(b)(6) seems quite odd
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correctly cited the standard for a Rule 12 (b)(6) dismissal stating, p. 6, that
the benefit of all inferences that can be derived from the facts alleged. Barr
v. Clinton, 370 F.3d 1196, 1199 (D.C.Cir.2004).” Yet here the appellees
excludes from this Court’s consideration all that was contained in the
complaint as pled, whereas, logically, under the standard just quoted, this
Court would review the complaint, not exclude its allegations, to see if,
liberally construed, it can be in any way, with all inferences drawn in favor
of the plaintiff, to make out a case that should not have been dismissed. On
the point just mentioned, for example, one would look at ¶ 14. Appx. 11-12
where the failure to meet the “natural born citizen” requirement of Article II,
Thus this opposition to our motion does not seem to give sound
reasons why our appeal is frivolous. As for the other two prongs of Rule
34(a)(2), the opposition merely states that they will be shown to apply here
in its opposition that has just been filed. We will see as we analyze it. But
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Respectfully submitted,
/s/
CERTIFICATE OF SERVICE
/s/
__________________________
John D. Hemenway