Documente Academic
Documente Profesional
Documente Cultură
No 09-5080
Consolidating No. 09-5161
Appellants,
v.
Appellees.
==============
PETITION FOR RECONSIDERATION
AND
SUGGESTION FOR HEARING EN BANC
===============
TABLE OF CONTENTS
i
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TABLE OF AUTHORITIES
CASES
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) …………………………….. .1, 2, 3, 12
Cooter & Gell v. Hartmarx Corp., 496 U.S. 384 ………………………………… .…. 1, 11, 12
Eash v. Riggins Trucking Co., 757 F.2d 557 (3rd Cir.1985) ……………………….. 2, 12
ii
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STATUTES
RULES
TREATISIS
iii
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hearing en banc by the full court on their case. They begin by asserting as
The decision of the Court conflicts with the following decisions of the
Supreme Court: Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007);
Coordination Unit, 507 U.S. 163 (1993); Baker v. Carr, 369 U.S. 186
Liteky v. United States, 510 U.S. 540 (1994); United States v. Grinell Corp.
384 U.S. 563; Cooter & Gell v. Hartmarx Corp., 496 U.S. 384; City of
Lincoln, Neb. v. Ricketts, 297 U.S. 373 (1936); Ozawa v. United States, 260
U.S. 178 (1922); Haggar v. Helvering, 308 U.S. 389 (1940); Helvering v.
Hammel, 311 U.S. 504 (1941); Ohio v. Helvering, 292 U.S. 360 (1934);
Minor v. Happersett, 88 (Wall.) U.S. 162 (1874); The Venus, 12 U.S. 253
1
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court below acted in conflict with decisions in almost every other circuit:
Schlaifer, Nance & Co. v. Estate of Warhol, 194 F.3d 323 (2nd Cir. 1999);
Baker v. Alderman, 158 F.3d 516 (11th Cir.1998); Davis v. Crush, 862 F.2d
In its decision of March 22, 2010, the Court affirmed the two
Court adopted any errors as well as any correct aspects of those decisions.
Thus, the court has effectively adopted the error of the lower court in finding
2
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the United States. Yet the court below did not treat these allegations as true
and this Court has adopted that clear error without analysis. The court
below did not treat the referenced allegations as true and even went beyond
that and found them to be frivolous to the extent of coming under Rule 11,
albeit with no inquiry whatsoever into what was known by counsel prior to
fling of the complaint as alleged. Indeed, in doing so the court below had to
ignore the clear facts set out in the complaint as just mentioned, which were
the merits. Baker v. Carr, supra. Yet here the lower court stated
emphatically that it was abjuring and avoiding analyzing the merits of the
claim at issue, the claim that the defendant/appellee Soetoro a/k/a Obama is
3
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not a “natural born citizen” under the Constitution in its opinion of March 24,
2009, stating:
I have said nothing, and have nothing to say, about the merits
of the “natural born Citizen” question that the Mssrs.
Hemenway, Berg, et al., have sought to present here. I have
no business addressing the merits, because, having found that
Mr. Hemenway’s interpleader suit failed to state a claim upon
which relief can be granted, I have dismissed it. Appx. 256
This Court has now adopted that abjuration and avoidance of the merits as
To make clear that it was not going to treat the actual merits as raised
by the complaint the court below even went so far as to mischaracterize the
principal question of meeting the eligibility requirement set out in Article II,
court below spoke of the issue as being one of the defendant Soetoro’s
“citizenship,” rather than the issue being one of his meeting the specific
This abjuring and avoiding of the merits of the plaintiff’s cause held
erroneously not to have been stated directly contradicts the holding set out
Constitution is a law for rulers as well as for the people. Although the
4
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required, make clear that he is not eligible under the Constitution to hold that
pointed out the plaintiff/appellant Hollister takes his oath to preserve and
Although the rule is well established that courts should not pass on a
Utilities, supra, the necessary converse is equally binding upon every court:
of the case and thus must be decided in order to dispose of the case it is the
What we see here in both the opinions below as well as the view that
has now been adopted by this Court without analysis is not only an
provision the Constitution but a dislike of any litigant or counsel raising that
issue. This view reflects a bias clearly derived from extrajudicial sources. It
is a bias that should require the judge below and now the judges of the panel
that decided to adopt those biases in this court to recuse themselves under 28
5
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beyond that an actual bias, was reflected in the comments of the judge below
in both opinions. The opinion of March 5, 2009, starts off with an initial
toward the case. Appx. 208. That bias continues in the opening of the
second paragraph of that opinion where the court below pejoratively states
that the plaintiff Hollister “says that he is a retired Air Force colonel,”
complaint. The judge below clearly knew this in making the insult in that he
himself was an ROTC scholar in college who then served his required stint
in the Navy. This is not a “subtle” piece of bias like the refusal in Litecky,
of bias as described in Litecky, supra, and Grinell, supra, was what the
judge below then revealed as one of the principal sources of his bias toward
the end of that second paragraph, where he stated, in a statement that, thanks
6
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There has scarcely ever been revealed in a reported case a more overt exhibit
of an extrajudicial bias than this passage exemplifies, and this Court’s panel
now adopts it without comment. It not only exhibits a bias against the
plaintiff and his case, it exhibits a depressing bias that citizens should not
have access to the courts to protect and defend against the Constitution, a
right long since embraced by the Supreme Court as very fundamental to the
in the following paragraph of the March 5, 2009 opinion below. There the
bias against the plaintiff Colonel Hollister and his case is exhibited by a
display of animosity toward the lawyer Philip J. Berg, who filed an earlier
pro se action in the United States District Court for the Eastern District of
statements, were not the same issues as in this case. This further exhibition
7
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judge makes clear that he views Colonel Hollister as a dupe rather than one
The effect of this bias was then made evident when the court below, in
the its Opinion of March 5, 2009, ignored the language and law of Rule 11
and sought to make Colonel Hollister’s counsel pay for the legal bills of the
which this Court may take judicial notice in filings at the Federal Election
dollars. The court below had to drop the effort to exact counsel fees when
then confronted with the language and law of Rule 11 in the Show of Cause
The largest portion of the opinion below that was rendered on March
8
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had nothing to do with Colonel Hollister’s case but which clearly reflects an
second opinion below that was rendered on March 24, 2009. Again, as in
the first opinion the court below gave a clear appearance of bias by referring,
inaccurately as it turns out, to public opinion rather than the law as based on
dozen, feel deeply about this issue.” The court then referred to other cases
around the country, none of which, we hasten to point out, involved the use
the plaintiff Hollister as a dupe. Appx. 254-255. The court below then
illustrated its bias even more concretely and did so rubbing salt into the
wound of a man who served a full 30 years in the military with distinction
and retired honorably and, even when on active duty, had displayed as a
matter of public record the same high level of concern for the Constitution
and the fealty of keeping his oath to protect and preserve it against those
foreign and domestic who do not honor it and seek to undermine it. The
9
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case concerned an act by the Air Force when Colonel Hollister was serving
honorably in it, namely the attack on Libya when Colonel Qadafy attacked
responsible for an act deemed necessary to national security and was thus
quite frivolous. The case was brought by Libyans who claimed to have
suffered in the bombing runs. The case at bar has nothing to do with a
doctrine that attempts to hold our government liable for an act of national
security. The Col. Qadafy case was in truth hopeless from the beginning.
The same cannot be said of an officer’s attempt to assure that the de facto
office de jure when there is information indicating that he does not. Appx.
262-63.
merits of the essential claim of the plaintiff Hollister, namely, that the
defendant Soetoro a/k/a Obama is not a “natural born citizen” within the
10
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Court has now joined, bears directly on the question of the assessment of the
signed the complaint and other filings in this case. In Cooter & Gill, supra,
view of the law. Id. 496 U.S. at 405. Here, since the lower court chose not
to examine the central issue in the case it cannot have taken a correct view of
the law to base its Rule 11 reprimand upon such a view. And this Court has
The lower court based its dismissal solely upon its assessment of the
use of the interpleader statute and hence its Rule 11 reprimand was based
upon that procedural matter. But that assessment was clearly erroneous in
that it focused solely upon the concept of property and not the clear word of
the statute “obligation,” as pointed out in the briefing. The complaint clearly
alleged “obligation” and “duty,” both concepts that are in the clear language
of the statute and hence to be taken in their ordinary sense. By ignoring this,
the lower court took an erroneous view of the law. Hence, as pointed out the
lower court violated Ozawa, supra, Ohio v. Helvering, supra, City of Lincoln,
11
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Twombly, supra and Conley v. Gibson, supra and was clearly an erroneous
view of the law by the lower court which has now been endorsed by this
court.
Further, it was also made clear in Cooter & Gell that Rule 11
mandates that a judge applying it must conduct an inquiry into the facts of
the pre-filing inquiry made by counsel. Here the lower court made
absolutely no effort to make such an inquiry and this Court has now adopted
that position. The lower court based its rule 11 reprimand solely upon its
erroneous view and did not inquire into the law at issue. Therefore, its
have a hearing to find out what the pre-filing inquiry had been and asked no
Thus it acted in contradiction to all the cases from other circuits cited
above, Schlaifer, Nance & Co. v. Estate of Warhol, 194 F.3d 323 (2nd Cir.
1999); Baker v. Alderman, 158 F.3d 516 (11th Cir.1998); Davis v. Crush,
862 F.2d 84 (6th Cir.1988); Donaldson v. Clark 819 F.2d 1551 (11th
Co., 757 F.2d 557 (3rd Cir.1985). All of these cases, as pointed out, make it
12
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clear that no Rule 11 sanction should be levied without a hearing and some
say it is a violation of due process to do so and some also add that there must
happen here. Donaldson even points out that sanctions, without proper
We have pointed in our briefing that the 19th Century decisions such
supra, point out how it was that the concept of “natural born citizen” from
Vattel’s treatise on the Law of Nations was what the founders had in mind.
Just recently the records have been located that reveal that George
Washington himself never returned his copy of this treatise that he borrowed
from the New York Library. This court is obliged to coordinate with those
19th century decisions. Without ascertaining this, the warrant in law that
Respectfully submitted,
13
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CERTIFICATE OF SERVICE
/s/
John D. Hemenway
Case: 09-5080 Document: 1241041
1235943 Filed: 04/21/2010
03/22/2010 Page: 1
Appellant
v.
Appellees
------------------------------
JUDGMENT
These consolidated appeals were considered on the record from the United
States District Court for the District of Columbia and on the briefs filed by the parties.
See Fed. R. App. P. 34(a)(2); D.C. Cir. Rule 34(j). It is
ORDERED AND ADJUDGED that the district court’s orders filed March 5, 2009,
and March 24, 2009, be affirmed. The district court correctly dismissed the complaint
under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which
relief could be granted. Hollister v. Soetoro, 601 F. Supp. 2d 179 (D.D.C. 2009).
Moreover, the district court did not abuse its discretion in determining that counsel had
violated Federal Rule of Civil Procedure 11(b)(2) and in imposing a reprimand as the
sanction for his part in preparing, filing, and prosecuting a legally frivolous complaint.
Hollister v. Soetoro, 258 F.R.D. 1 (D.D.C. 2009). Appellants have provided no
reasonable basis for questioning the impartiality of the district court judge. See Liteky v.
United States, 510 U.S. 540 (1994).
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1235943 Filed: 04/21/2010
03/22/2010 Page: 2
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk
is directed to withhold issuance of the mandate herein until seven days after resolution
of any timely petition for rehearing or petition for rehearing en banc. See Fed. R. App.
P. 41(b); D.C. Cir. Rule 41.
Per Curiam
Page 2
Case: 09-5080 Document: 1241041 Filed: 04/21/2010 Page: 1
Gregory S. Hollister,
John David Hemenway,
Appellants
v.
(A) Parties and Amici: The plaintiff below and the principal
counsel for Colonel Hollister below who is appealing his reprimand in that
The defendants below and the appellees in this court are Barry Soetoro a/k/a
Barack Hussein Obama who was sued in his capacity as a natural person, de
1
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which were made by Judge James Robertson in the court below are: (1)
file a Show of Cause why it should not be enforced against him. App. 222;
2009. App. 216; (3) MEMORANDUM ORDER of March 24, 2009. App.
262; (3) ORDER of February 26, 2009. App. 203; (4) ORDER TO SHOW
CAUSE of February 25, 2009. App. 157; (4) ORDER of February 11, 2009.
Federal Supplement.
Respectfully submitted,
/s/
_______________________
John D. Hemenway
Counsel for Appellants
4816 Rodman Street, NW
Washington DC 20016
(202) 244-4819
D.C. Bar #379663
johndhemenway@comcast.net