Petition for Writ of Certiorari — Hollister v. Soetoro

Suprame Court

FILED uo.

10-678 Nw;

Docket No. WV 22 2010

OFFICE OF THE CLERK

In The

SUPREME COURT OF THE UNTPED STATES

o

GREGORY S. HOLLISTER, et al.,

Petitioner

V.

BARRY SOEKTORO, et al.,

Respondents.

o

On Petition for Writ of Certiorari

To the United States Court of Appeals

For the District of Columbia Circuit

— 8

PETITION FOR WRIT OF CERTIORARI

cy

John D. Hemenway

Counsel for Petitioners

4819 Rodman Street, N.W.

Washington, I.C. 20016

( 202 ) 244-4819

jphndhemenway@comceast. net

QUESTIONS PRESENTED

| Did the district court follow the rule that a

complaint should not be dismissed under Rule 12(b)(6) of

the Federal Rules of Civil Procedure “unless it appears

beyond doubt that the plaintiff can prove no set of facts

in support of his claim which would entitle him to rehef?”

2. Did the District Court) examine the

complaint of the plaintiff/petitioner Hollister as

required by the decisions of this and every other

federai court to see if it alleged facts to support its

claims?

3 Did the district court examine the words

“or being under any obligation written or unwritten

in the amount of $500 or more...” as set out

disjunctively at the end of 28 U.S.C. § 1885() as

they pertain to the plaintiff/petitioner Hollister as a

member of the Individual Ready Reserve?

4. Did the district court violate the clear

language standard for statutory interpretation?

5 Did the district court, as affirmed by the

appellate court, examine and apply the de facto

officer doctrine as required?

6. Did the district court, as affirmed by the

appellate court ignore the Nuremburg principle [V

as amphified by the Statute of Rome and improperly

fail to analyze the ability of the defendant Obama to

give a lawful order under that principal under the

allegations of the complaint?

| By refusing to consider the issue of the

defendant Obama not being a “natural born citizen”

as set out in Article Il, Section 1, Clause 5 of the

Constitution did the distmet court violate its

obligation to consider the issues raised by the

complaint?

8. Did the district court, as affirmed by the

appellate court, take into account the equitable

nature of Interpleader when there is no remedy at

law?

Q. In failing to consider and tgnoring the law

set out in 1 through 8 above, and instead relying

upon extrajudicial criteria such as an assertion that:

“The issue of the President’s citizenship was raised,

vetted, blogged, texted, twittered, twittered, and

otherwise massaged by America’s vigilant citizenry

during Mr. Obama’s two year campaign for the

presidency,...”. combined with an attack on the

petitioner plaintiff because he “wants it resolved by

a court,” and that one of the counsel involved in

signing the pleadings for the petitioner/plaintiff, a

well known Pennsylvania Democrat politician and

prominent Ilillary Clinton supporter in that state

during the primaries, who was attacked by the

district court as an “agent provocateur” and also

with sarcastic attacks on the plaintiff/petitioner

Hollister, did the district court not engage mn such

obvious political bias based upon extrajudicial

factors as to render its opinion void?

1Q. Did the district court seek to deny

petitioner Hollister his constitutional right of access

to the courts.

11. Did the U. S. Court of Appeals for the

District of Columbia Circuit adopt that bias so as to

render its affirmation of the district court also void?

iz. Did the Court of Appeals, in so adopting

the bias of the district court, cite this Court’s opinion

in Liteky v. United States, 510 U.S. 540 (1994) for

the opposite of what it holds in an attempt to

rationalize its adoption of the bias?

i: Did the Court of Appeals erroneously

apply the case law, including its own, in holding that

the petitioner/plaintiff and petitioner/counsel could

not invoke 28 U.S.C. § 455 at the appellate level?

14. Did the evident bias engaged in below

lead to a decision which ignored the law as set out

above and as a result place the

respondent/defendant Obama above that law and

the rule of law in this country) generally and

threaten the constitutional basis and very existence

of our rule of law?

L&. Did the courts below not completely

ignore the decisions of this court and the clear

language of Rule 15 of the Federal Rules of Civil

Procedure concerning amendments so as_ to

compound its biased elevation of the defendant

Obama above the rule of constitutional law?

16. Did the courts below fail to analyze and

apply the Arvens doctrine as part of placing the

defendant Obama above the rule of law in

destruction of the Constitution as the basis of that

rule of law’?

Ye In so placing the defendant Obama above

the rule of law and failing to analyze the claims of

the complaint and the facts it alleged, did the court

of appeals below err in not considering relevant and

take judicial notice of the Hawaiian territorial

statutes in effect in 1961 and the other matters

which the petitioners Hollister and Hemenway

sought judicial notice on?

LS. Did the courts below create a

constitutional rule of law crisis in this country by

refusing to consider the intent of the founders in

placing the phrase “natural born citizen” in the

Constitution as an eligibility requirement for a

person to be President?

19. Did the appellate court seek to prevent

the public from noticing the harm it was doing to the

constitutional rule of law in this country by refusing

to publish its opinion on a matter which addressed

the very legitimacy of the nation’s Commander—in

Chief?

20. Did the district court, as atfirmed,

properly assess a Rule 11 sanction against the

petitioner/counse! Hemenway in light of the case law

of this Court, particularly in the 19 Century and

the relevant discourse evidencing the framers’ intent

at the time of the founding?

(b) PARTIES : CORPORATIONS

The parties are: The petitioner Col. Gregory 5S

Hollister, who was the plaintiff in the district court,

his attorney, the petitioner John D. Hemenway, who

was sanctioned in the district court under Rule 11

for bringing suit, and the defendants in their

capacities as set out in the caption. There are two

defendants: the first 1s the respondent Barry Soetoro

a/k/a Barack H. Obama, who is an interpleader and

Bivens defendant and Joseph R. Biden, Jr., who is

also an interpleader and Bivens defendant. There

are no corporations involved so as to require

disclosure.

TABLE OF CONTENTS

(Juestions Presented l

Parties

Table of Contents V1

Table of Contents (Append.x) Vil

‘Table of Authorities 1X

REPORTS

STATEMENT OF JURISDICTION

CONSTITUTIONAL PROVISIONS,

TREATIES, STATUTES AND REGULATIONS

INVOLVED IN THE CASE

STATEMENT OF THE CASE

ARGUMENT 9

1. The failure to follow Conley v. Gibson 9

1] The de facto officer doctrine 13

lll. ‘The failure to examine the central issue 14

IV. Interpleader is an equitable remedy 15

V. ‘The failure to allow amendment

Violated Rule 15 16

VI. The central natural born citizen issue 18

VII. Birth outside the United States 19

VIII. The inappropriateness of sanctions 30

Certificate Pursuant to Rule 33.1

Certificate of Service 3<

Vi

TABLE OF CONTENTS

APPENDIX

OPINIONS, ORDERS,

FINDINGS OF FACT AND

CONCUSIONS OF LAW

USDC-DC MEMORANDUM

03/05/2009

USDC-DC Order 03/05/2009

USDC-DC Memorandum Order,

03/24/2009USCA-DC Judgment,

03/22/2010

USCA-DC Judgment, 03/22/2010

OTHER RELEVANT OPINIONS,

ORDERS

USDC-DC Order, 02/11/2009

USDC-DC Order, 02/04/2009

USCA-DC Order, 03/0/8/2010

ANY ORDER ON REHEARING

USCA-DC En Bane Order, 08/23/10

USCA-DC Spec. Panel Order, 08/23/10

CONSTITUTIONAL PROVISIONS,

STATUTES, RULES, ETC.

REQUIRED BY 1(g)@ NONE N/A

(wi) ANY OTHER MATERIAL

NECESSARY TO

UNDERSTAND FROM

DISTRICT COURT

(1) COMPLAINT, 12/31/2008 L2

(2) KXH A, DOD 12/31/2008 65

(3) AMENDED COMPLAINT 70

(4) Rule28(j) letter,05/24/2010 105

(5) MOTION FOR RECUSAL

PURSUANT 'TO 28 USC §455

05/31/10 108

Vill

TABLE OF AUTHORITIES

CASES PAGES

Berg v. Obama, 574 F.Supp.2d 509

(1o.D.Pa.2008) 5

Bivens L 15

Boddie v. Connecticut, 402 U.S. 371,

375 (1971) 25

Business Guides, Inc. v. Chromatic

Communications Enterprises, Inc.

498, U.S. 533m 11158.Ct. 922,

112 L.Ed. 2d 1140 (1991) 28

City of Lincoln, Neb. v. Ricketis, 97 U.S. 378

376, 56 S.Ct. 507, 509, 80 L.Ed. 724 (1936) g

—

Conley v. Gibson, 355 U.S. 41, 47,

78 S.Ct. 99. 102-03, 2 L.Ed.2d 80 (1957) 8.9

Forman v. Davis, 371 U.S. 178 (1962) 15

Hagegar v. Helvering, 308 U.S. 389,

60 S.Ct. 337, 84 L.Ed. 340 10)

Helvering v. Hammel, 311 U.S. 504, 510-11,

61 S.Ct. 368, 371, 85 L.Ed. 303 (1941) 9

Hollister v. Soetoro, 601 F.Supp.2d 179

(D.D.C.2009)

Hollister v. Soetoro at 258 F.R.D. J

(D.D.C.2009)

Leatherman v.Tarrant County Narcotics

and Coordination Unit, 507 U.S. 163, 164

113 S.Ct. 1160, 122 L.Ed.2d 517 (1993) LO

Liljeberg v. Health Services Acquisition Corp.,

486 U.S. 487, 108 S.Ct. 2194, 100 L.Ed.2d 855

(1988)

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

Lujan V Defenders of Wildlife. 5O4 U.S. 95D,

561, 112 S.Ct. 2130, 2135, 119 L.Ed.2d 351

(1992)

Minor v. Happersett, 88 U.S. 162

167 L168 (18 75) ]

Ohio v. Helvering, 292 U.S. 360, 370,

04 5.Ct. 725, 78 L.Ed.1307

Ozawa v. United States, 260 U.S. 178, 180,

194, 43 S.Ct. 65, 67 L.Ed. 199

Ryder v. United States, 515 U.S. 177,

115 8.Ct. 2031, 132 L.Ed.2d 136 (1995)

Shanks v. Dupont, 28 U.S. (3 Pet.) 242 (1830) L9, :

Sosa v. Alvarez-Machain. 542 U.S. 69

124 $.Ct. 2739 (2004)

Tellabs, Inc. v. Makor Issues & Rights, Ltd.,

551 U.S. 808, 328, 127 8.Ct. 2499, 2009

168 L.Ed.2d 179 (2007) 10, 18

l/nited States v. Katz, 271 U.S. 354, 302

46 S.Ct. 513. 516, 70 L. ied. 986 LO

RULES, STATUTES AND TREATESIS

Hed. R (1N }? 1?2(b)(6) .. ‘2 ‘3. 12,13

8 U.S.C. § 1401(a)(7)

IPub. L. No. 414, 66 Stat. 163, 236

(June 27. 1952)|

10 U.S.C. §§ 10101, 10102, 10103

10110, 10205; 14

20 US (.§ 455 S&S 26

28 U.S.C. § 12540)

28 U.S.C. §§ 1331, 1335 L. 3. 7. 10, 32, 12

[Immigration and Nationality Act

> o>l 1(a)(7) l. a

Constitution: Art. I], Sec. 1, Cl. 5; 1, 3, 13, 16, 18, 22

Constitution, Art. 1, Sec. 8, Cl. 4 lL, 17

Constitution, Fourteenth amendment ;

Nuremberg Convention, Principle IV 1,2, 4

Rome Statute of 1998, foundation of

[International Criminal Court, Art. 33 Se

Chpt. 57, VITAL STATISTICS,

REVISED LAWS of HAWAII 1955,

Part 1, TERRITORIAL PUBLIC HEALTH

STATISTICS ACT 1, 9, 20

Wright & Miller § 1357 (3d ed 2004

and Supp 2007) 1]

Jay, J. letter to Washington, G., July 25, 1787 2a

De Vattel, Emrich, Law of Nation 20, 21, 22, 23

Blackstone

D’Souza, Dinesh, The Roots of Obama’

Rage, “ Regnery Press, 2010

Van Doren, Carl, “The Great Rehearsal’ p. 121

REPORTS

(d) The dismissal opinion by the district court to

which this petition is addressed was reported as

Hollister v. Soetoro, 601 F.Supp.2d 179 (D.D.C.2009)

The reduced Rule 11 sanction Memorandum and

Order to which this petition is addressed was

reported as Hollister v. Soetoro at 258 F.R.D. |

(D.D.C.2009). The Court of Appeals refused to

publish its opinions, denying a motion to publish.

STATEMENT OF JURISDICTION

(c)G) The order for which review is sought was

filed on March 22, 2010. (e)Gi) Rehearing was denied

August 23, 2010. (e)Qv)This Court, petitioner

believes, has jurisdiction under 28 U.S.C. § 1254().

CONSTITUTIONAL PROVISIONS, TREATIES,

STATUTES AND REGULATIONS INVOLVED IN

THE CASE

Constitution: Art. II, Sec. 1, Cl. 5; Art. I, Sec. 8,

Cj. 4; Nuremberg Convention, Principle 1V; Rome

Statute of 1998, foundation of International

Criminal Court: Art. 33; 28 U.S.C. §§ 1331, 1335;

Rule 22. Fed. R. Civ. P.; 10 U.S.C. § 892, Art. 92; 10

U.S.C. §§ 10101, 10102, 10103, 10110, 10205,

Immigration and Nationality Act, § 301(a)(7), Pub. L.

No. 414, 66 Stat. 163, 236 (June 27, 1952) (codified

it 8&8 USC. § 1401(a(7); Chpt. 57, VITAL

STATISTICS, REVISED LAWS of HAWAII 1955,

Part 1, TERRITORIAL PUBLIC HKALTH

STATISTICS ACT; Fed. R. Civ. P. 15. See appendix

for text of each

STATEMENT OF THE CASE

Petitioner Hollister retired honorably from the

Air Force as a Colonel after a full career. He became

concerned because of evidence that had surfaced in

the media of the Internet that the respondent

Obama had run for and obtained the office of

President de facto but not de jure so as to be able to

give lawful orders as Commander in Chief under

the Constitution. Colonel Hollister is a member of

the Individual Ready Reserve whose skills could

well be needed given the current state of the war in

which the United States is engaged. APPX 67 ff

If Congress called up the Air Force Individual

Ready Reserve the respondent Obama would have to

give the order and then vive orders as to deployment

and otherwise. If, as it appears, those orders would

not be lawful, Colonel Hollister would be bound in

light of the Nuremberg Convention and the Rome

Statute establishing the International Criminal

Court to question them and look to the respondent

Biden as constitutionally next in succession, for

lawful orders. The respondent Obama would not be

an officer capable of giving such orders de jure under

the doctrine established by this Court.

Because of these concerns and his obligation as a

member of the Individual Ready Reserve, petitioner

Hollister brought suit against the respondents

Obama and Biden in the district court, invoking the

Interpleader statute and Federal Rule © of

interpleader as they incorporate the common law of

interpleader and provide for suit in the nature of

interpleader as well, relying in particular upon the

plain language of the statute in its use of the word

“obligation” and suing the respondents in_ their

various capacities and, in the case of the respondent

Obama, the alternative name he had used and been

siven for a portion of his hfe and never changed.

APPX 44 ff

The respondents moved to dismiss. The district

court found that it had jurisdiction of the case, and

therefore that petitioner Hollister had standing

because of the Interpleader act but dismissed

pursuant to Rule 12(b)(6) for failure to state a claim.

[In its analysis of Hollister’s claim, the district court

did not (and subsequently stated affirmatively that

if would not,) examine the central element of the

claim, namely whether respondent Obama was a

“natural born citizen” in the language of Art. II, Sec.

1, Cl. 5 of the Constitution.

Instead, in analyzing whether, in its opinion, the

petitioner Hollister made out a claim, the district

court focused exclusively on the concept of “property”

as addressed in the Interpleader Act. In so doing

the district court ignored the concept. of “obligation”

as stated clearly, disjunctively, in the act despite

petitioner Hollister’s claims of his duty being at

stake. The district court focused on what

interpleader was typically used for in its opinion

rather than focusing on the claims of petitioner

Hollister under the clear language of the Act to see if

he could prove any set of facts to prove his claim.

APPX 3

Thus the district court did not consider whether

there was any set of facts that the petitioner

Hollister could show that would support his claims

and instead focused upon one of his claims and

ignored others and refused to consider the central

issue of whether or not the respondent Obama a/k/a

Soetoro meets the requirement of the Constitution.

In refusing to examine” the — constitutional

presidential eligibility requirement, the district

court ignored petitioner Hollister’s concern in his

complaint of whether if called up from the

Individual Ready Reserve he would be in the

position of having to obey orders from a purported

Commander in Chief who was de jure and, who,

therefore, could not give lawful orders under the

Uniform Code of Military Justice and who would,

therefore, put the petitioner in the position of not

being able to fully comply with the Nuremburg

principles as amplified by the Statute of Rome.

While the motion to dismiss was pending, less

than 21 days after it was filed, petitioner Hollister

filed an amended complaint adding a /ivens count.

APPX 72 ff In dismissing the district court made no

mention or analysis of the amended complaint and

failed to analyze or decide upon the Brvens count. It

decided it would not allow amendment without

analysis or reasoning, ordering the respondents not

to reply to it. APPX 19

While ignoring the claims of the petitioner

Hollister as described above the district court

engaged in and based its decision upon quite

palpable bias. The most striking of these exhibitions

of overt bias was the reliance upon the factor: APPX

l

‘The issue of the President’s citizenship was raised,

vetted, blogged, texted, twittered, and otherwise

massaged by America’s vigilant citizenry during

Mr. QObama’s two year campaign for — the

presidency, but this plaintiff wants it resolved by

a court.

Thus the district court exhibited in this observation

a bias based on a completely extrajudicial factor, and

one that elevates popular will above the rule of law, but

also quite gratuitously reinforced the bias by assaulting

the petitioner Hollister for seeking to have the

constitutional rule of law apphed and thus from having

access to the courts that exist to protect that

constitutional rule of law.

A further example of this bias based on

extrajudicial factors by the district court was its

observation that a lawyer associated with = the

initiation of petitioner Hollister’s case, a prominent

Democrat in Pennsylvania who backed Hillary

Chnton in her successful primary there against

respondent Obama, though never admitted in the

case, was “probably” the “real plaintiff’ in the case

and that he and another lawyer who signed filings

but was also never admitted,, his colleague, were

“agents provocateurs’ whose efforts to raise the

issue of the respondent Obama’s constitutional

eligibility in law suits were a crusade in which the

petitioner Hollister was a dupe, a “straw plaintiff.”

APPX 1-2

The district court further exemplified this bias

by referring to the petitioner Hollister, whose Air

force papers proving what he said about being an

Air Force veteran who was in the Individual Ready

Reserve were attached to and incorporated into the

complaint, sarcastically as one “says that he is

retired Air Force colone! who continues to owe

fealty to his Commander-in—Chief....”. Thus the

district court did not take the allegations of the

complaint as true and indulged in biased sarcasm

to belittle petitioner Hollister. APPX 1

Kinally, although it had not, as pointed out,

actually fully examined the claims of the petitioner

Hollister, the district court decided that the

attorney of record for the petitioner Hollister, John

D. Hemenway, because as the district court said, it

had already twice found the case to be “frivolous,”

should be sanctioned under Rule 11 and made to

pay the entire counsel fees of the lawyers for the

respondents Obama and Biden, which, according to

public records at the Federal Election Commission,

would be hundreds of thousands of dollars. The

District Court issued a Show of Cause for attorney

Hemenway to show why he should not be made to

pay the said legal fees. AVPX 4 It is further

evidence of the bias based in extrajudicial factors

the way that this was set out, particularly since

under Rule 11 a judge acting on his own initiative

is prohibited from assessing such a penalty. In so

doing the district court made no effort and indeed

showed no interest in finding out what the pre-

filing inquiry engaged in had been.

Attorney/petitioner Hemenway then filed a

Show of Cause showing, inter alia, that Rule 11 did

not permit the assessment of such a monetary

sanction by a judge on his own volition and that

there was precedent in the opinions of this Court

for believing that the respondent Obama did not

meet the constitutional eligibility requirement. He

demanded a hearing on the’ sanctions and

requested discovery. The district court then issued

a second opinion in which it backed off of the

monetary sanction and instead imposed a non

monetary reprimand upon _— attorney/petitioner

Hemenway under Rule 11. APPX 6 ff Again, in

doing so the district court made no inquiry into

what the pre—filing inquiry had consisted of and

ignored that basic principle of Rule 11 law as far as

its actual analysis although it mentioned that pre

filing inquiry is in fact the fundamental principle of

Rule 11 law even as it failed to look for any such

inquiry.

In this opinion in which it downsized its Rule

11 sanction (AAPX 6 ff) the district court further

illustrated its extrajudicial bias about the case. [or

example it referred to many people being interested

in the eligibility question, remarking sarcastically

that maybe it was as many as a “couple of dozen.”

In fact reliable polls, even by media that worships

the respondent Obama, have shown the number of

such people to be in the tens of milhlons and

rrowing despite considerable attempts — at

suppression and ridicule. In this second opinion

the district court further illustrated its

extrajudicial bias by referring again pejoratively to

the Hillary Clinton-supporting attorney and

political figure Philip J. Berg and even giving the

URL for the latter’s web site (APPX 18) and

remarking that Berg was seeking modest donations,

implying that Hemenway was but a dupe of Berg.

In this second opinion the district court said it

was not discussing the merits, having already

decided that there was no claim under Rule 12(b)(6).

APPX 9 It nonetheless engaged in analysis of cases

on property again and though it mentioned duty

did not discuss the concept of “obligation” APPX 9 ff

as expressed in the clear language of the

Interpleader Act. In a further indication of bias it

rratuitously compared Colonel Hollister, who was

on active duty in the Air Force when President

Reagan ordered the bombing of Libya to the

Libyans under Qadaffi who sought to sue Reagan

and his successor in office for carrying out that

attack. APPX 15-6 That, of course, was a case

involving a direct assault upon the concept that

such actions are part of a President’s foreign policy

prerogative and that case had nothing to do with

interpleader.

The present petitioners then — separately

appealed from the decisions of the district court to

the United States Court of Appeals for the District

of Columbia Circuit. The petitioner/plaintiff

Hollister first appealed the district court's

dismissal of his suit and the petitioner/attorney

Hemenway then appealed the Rule 11 sanction

levied against him. The Court of Appeals joined

the two appeals.

In the appeals court the appellant there,

attorney/petitioner Hemenway formally moved for

judicial notice of, unter ala, the Hawanan

territorial statutes concerning health records in

effect when the respondent Obama was born and

unusual occurrences in the certifying of Obama’s

nomination. The appeals court demied all judicial

notice requests on grounds of irrelevance. APPX 22

The appeals court denied the appeal without

comment, affirming without analysis. APPX 21-2 It

denied any bias. Hollister and Hemenway

petitioned for reconsideration and asked for a

hearing en banc. They also moved for the recusal of

the district court judge for his bias and the vacation

of his judgments because of that bias pursuant to

28 U.S.C. § 455. APPX 110 ff The appeals court

denied the recusal motion. In the meantime the

attorney Philip J. Berg, while the case was in the

Court of Appeals, who had never been admitted,

withdrew from representing the petitioner/plaintiff

Hollister. So also did his colleague Lawrence J.

Joyce of the Arizona bar, who had been admitted at

the appellate level.

The appeals court denied reconsideration and

an en banc hearing without analysis. APPX 23-4

The appeals court approved of everything done by

the district court without additional analysis. This

petition follows.

ARGUMENT

[. The failure to follow Conley v. Gibson

In arriving at its decision in this case the district

court so far departed from the rule set down by this

Court in Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct.

99. 102-03, 2 L.Ed.2d 80 (1957) which has become

the accepted and usual course governing proceeding

in every federal court, including those involved in

these decisions, in a question of such national

significance, namely the eligibility of the man

occupying the oval office to be in that office and be

the President. that the exercise of this Court's

supervisory power is called for. Moreover, this

departure from the accepted and usual course of

judicial proceedings was based, as is seen by the

district court’s statements, upon extrajudicial

factors indicative of bias, albeit that bias was also

indicated and reinforced by comments upon matters

that were not extrajudicial.

The rule set out in Conley which was not apphed

in this case is that “a complaint should not be

dismissed for failure to state a claim unless it

appears beyond doubt that the plaintiff can prove no

set of facts in support of his claim which would

entitle him to relief.” /d. at 45-6, 78 S.Ct. at 102.

The district court did not examine the set of facts

that could have supported the claim of the plaintiff

that he had an “obligation” as that term is used as

clear language in the federal interpleader statute.

He clearly alleged in his complaint that he had such

an obligation. Yet the district court, in its analysis,

focused exclusively on concepts of “property” as that

term is used in the federal interpleader statute and

failed to analyze whether the plaintiff Hollister had

stated a claim because of the “obligation” that he has

as a member of the Air Force Individual Ready

Reserve

In doing so the district court violated another

rule set down in the decisions of this court which is

now also the accepted and usual rule governing

proceedings in the courts. That rule is the plain

meaning rule. This Court has expressed it thusly:

“We give the words their natural significance unless

that leads to unreasonable results plainly at

variance with the evident purpose of the legislation.”

City of Lincoln, Neb. v. Ricketts, 297 U.S. 373, 376,

LO

56 S.Ct. 507, 509, 80 L.Ed. 724 (1936), citing Ozawa

v. United States, 260 U.S. 178, 180, 194, 43 5.Ct. 65,

67 L.Ed. 199, Ohio v. Helvering, 292 U.S. 360, 370,

54 S.Ct. 725, 78 L.Ed.1307. See also Helvering v

Hammel 311 U.S. 504, 510-11, 61 S.Ct. 368, 371, 85

L.Ed. 303 (1941). There this Court amplified the

plain meaning rule further. It made clear that the

plain meaning of language in a statute must be

adhered to as the intent of the legislature unless (a)

lead to absurd results, citing United States v. Katz,

271 U.S. 354, 362, 46 S.Ct. 513, 516, 70 L.Ed. 986, or

(b) the plain meaning would “thwart the obvious

purpose of the statute,” citing Haggar v. Helvering,

308 U.S. 389, 60 S.Ct. 337, 84 L.Ed. 340. “...courts

are not free to reject that meaning where,..., no such

consequences follow, and,...it appears to be

consonant with the purposes of the statute.” /d

The district court in this instance completely

failed to examine the disjunctive phrase contained in

the federal interpleader statute concerning the word

“obligation” and examine its plain meaning and thu

failed to assess the ability of the plaintiff/petitione:

Hollister to prove that he had such an obligation

The disjunctive phrase in question is the last one in

28 U.S.C. § 13835(a) Further, attached to th

complaint as filed, as its first attachment, and

incorporated into it, was Col. Hollister’s discharge

form worksheet DD FORM 214. APPX 67 ff Th

form shows that Col. Hollister served honorably

(item 24) and took voluntary retirement Utem 239)

after a full career (item 28) It als oO shows (item 14)

that he is “Subject to Recall... (hus it must be

inferred that he is as he alleges in his complaint a

member of the Individual Ready Reserve The

district court mockingly failed to, as required by

another universal standard established by this

Court, accept for purposes of a dismissal motion the

allegations of the complaint as true and draw

inferences in Colonel Hollister’s favor. A court must,

“with any motion to dismiss for failure to plead a

claim on which relief can be granted, accept all

factual allegations in the complaint as true. ;

Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S.

308, 328, 127 S.Ct. 2499, 2509, 168 L.Ed.2d 179

(2007), citing Leatherman’ v.Tarrant County

Narcotics and Coordination Unit, 507 U.S. 1638, 164,

113 S.Ct. 1160, 122 L.Ed.2d 517 (1993).

Secondly, also ignored by the district court here,

the court “...must consider the complaint in its

entirety, as well as other sources courts ordinarily

consider in when ruling on 12(b) (6) motions to

dismiss, in particular, documents incorporated into

the complaint by reference, and matters of which a

court may take angrier notice.” /d. (citing Wright &

Miller § 1357 (3d ed 2004 and Supp 2007)). fd. That

accepted and universal standard was ignored here

as well as the third principle of considering

inferences in plaintiff's favor in the full context

Instead of taking what was alleged as true and

considering the attachment of Col. Holhster

discharge form in proper context, considering the

allegations and exhibits in full context at all the

district court indulged in a bit of gratuitous sarcasti

insult of Colonel Hollister, reflecting its bias based

on extrajudicial factors which we discuss further

further on. Instead of properly considering and

inferring, the district court questioned whether or

not Col. Hollister is a retired Colonel, indicating that

the plaintiff says that he is a retired Air Force

colonel...” as if there were any doubt that Col.

Hollister is what he alleged, a retired Air Force

colonel who is a member, in retirement, of the Air

Force Individual Ready Reserve.

Further, the district court here failed to assume

that the general factual allegations of the complaint

concerning matters of the lack of constitutional!

eligibility of the respondent Obama embraced those

specific facts that are necessary to support the

claims. For example, the general allegation of the

respondent Obama’s use of a misleading document

to supposedly prove his birth in Hawaii embraces

the facts that the plaintiff Hollister would develop to

show beyond a doubt that the document referred to

was not an actual birth certificate as a specific fact.

This violates the universal rule set down by this

Court. See Lujan v. Defenders of Wildlife, 504 U.S

555, 561, 112 S.Ct. 2130, 2135, 119 L.Ed.2d 351

(1992)

Il. The de facto officer doctrine

Many vears ago, in the 19t» century, this Court

et out the concept of the federal office holder who ]

de facto, but not de jure This Court set out thi

concept of the de facto officer and i early

development of the concept in the more recent

decision in Ryder v. United States, 515 U.S. 177, 115

S.Ct. 2031, 1382 L.Ed.2d 136 (1995). To be de jure an

officer and his acts must have come into being

because of the “appointment or election of the

officer” being in accord with the Constitution

Under the de facto concept the acts of the officer are

still upheld even though it is later discovered, afte)

the fact, that the appointment or election of the

officer was constitutionally deficient. In Ryder, a

Coast Guardsman who was under prosecution

within the Coast Guard legal system was able to

disqualify an appellate panel within that system as

being constitutionally deficient and thus void its

decision against him because he raised the issue of

the members of the appellate panel being not de jure

but only de facto before the panel] made its decision

in his case. And so here the plaintiff Hollister

directly addressed the issue of the respondent

Obama being not de jure but only de facto from the

outset of his case, addressing the issue even in the

captioning of his case and thus well before any

decision to recall him to active duty as a member of

the Individual Ready Reserve. Yet, again, the

district court refused to see and neglected to

examine the issue that the respondent Obama was

not de jure as alleged in the complaint to be proven

by the development of facts to support that claim

III. The failure to examine the central issue

Most importantly, however, the district court did

not and would not examine the central question of

the complaint, whether or not the respondent

Obama meets the constitutional eligibility

requirement to be President as that requirement is

set out in Article Il, Section 1, Clause 5 of the

Constitution in that it requires that, after the

passing away of those alive at the time of founding,

the person must be a “natural born citizen.” Indeed

in its further opinion on the Rule 11 Show of Cause

matter of March 25, 2009, when the district court

withdrew its attempt to impose Rule 11 attorneys’

fees and costs in violation of the clear language of

the rule the lower court openly said it had no

intention of getting into and would not get into thi:

central issuc. Yet it is quite clear that if Col.

Hollister could prove any set of facts to support this

claim his case should not have been dismissed. The

facts that he could have proven to support. his claim

were clearly alleged in the complaint. There are two

ways he could have done this. The district court did

not examine either one. We discuss this further

later on.

In the first place, however, before we examine

those two ways, we point out that the district court

was required in order to make the determination

that no claim was stated in making the claim of

constitutional lack of eligibility, as Col. Hollister did,

that the respondent Obama did not meet the

definition of this phrase and thus that there would

have been a_ resulting conflict between’ the

respondent Obama and the respondent Biden as far

as a claim upon Col. Hollhster’s obligation as a

member of the Individual Ready Reserve, to

examine what the framers meant by this phrase.

This it did not do and said it had no intention of

doing, what it was required to do to meet its

obligation imposed as a universal rule by this Court

under 12(b)(6) when a dismissal motion is filed. We

discuss the question of what the framers intended by

the phrase further later in the petition.

In the meantime we discuss two further points

about the district court’s failure to meet its

fundamental obligation when a Rule 12(b) (6)

dismissal motion is filed, to analyze and see if there

is any set of facts which the plaintiff can prove to

support his claims.

IV. Interpleader is an equitable remedy

The first such po:nt is that interpleader is an

equitable procedure, both at common law where it 1s

anciently rooted and under the federal statute

and/or rule. ‘Thus to simply conclude without proper

analysis that a claim is “frivolous” on the basis of

interim rulings as the district court did here and as

was adopted without any real further analysis by

the appellate court is to ignore the principle that

equity provides a remedy when there is not remedy

at law. In a case so important to the nation as this,

vhere the very ability of the Commander—in—Chief

to issue orders is at stake and there is a

fundamental question of a person having sought the

nation’s highest office knowing full well that his

constitutional eligibility to occupy the office was at

the very least in question this calls for the

supervision of this Court.

V. The failure to allow amendment violated Rule 15

Secondly, it must also be noted that the

dismissal by the district court in this case, as

approved by the appellate court without further

analysis, was upon motion under Rule 12(b)(6). The

respondents filed no answer, only a motion to

dismiss. Therefore, under the law of Rule 12(b) (6)

as laid down by this Court and every other federal

court, and by Ied. R. Civ. P. 15, no responsive

pleading had been filed when the case was dismissed.

Further, within 21 days after the respondents filed

their motion to dismiss, the plaintiff Hollister filed

an amended complaint. The amended complaint

added a Bivens count, which the original complaint

did not have. The plaintiff was entitled to have that

amended complaint accepted and did not have it

accepted. Instead the lower court simply ordered it

ignored, stating, in doing so, factually and legally

incorrectly, that it did not add anything new. It

plainly did add a Bivens count. This was a violation

of the clear language of Rule 15, Fed.R.Civ. P. and

the universal rule set by this Court in Foman v.

Davis, 371 U.S. 178 (1962)

Since a Bivens count is used when there is a

constitutional violation by a federal officer or officers

for which there is not statutory remedy prescribed

the district court was required to analyze this

Bivens count and did not do so. Even if the

interpleader statute did not apply, the Bivens count

may have applhed. Thus this was a further failure

on the part of the district court to carry out its

obligations under the universal procedure prescribed

by this Court when it undertakes to dismiss a

complaint under Rule 12(b)(6). Clearly the plaintiff

Hollister could have proven a set of facts that the

Constitution was violated if the facts alleged in his

amended complaint were taken as true, even if the

interpleader statute had not been found, as it was,

to give the district court jurisdiction and, thereby,

standing to Col. Holhster.

Moreover, another thing that was new in the

amended complaint was an attachment of an image

of a copy of an actual “long form” Hawaiian birth

certificate circa 1961 to dramatically illustrate the

difference between that form and the computer-

eenerated Certification of Live Birth or COLB form,

not technologically available in 1961 that, as alleged

in the complaint, was falsely used by the campaign

of the respondent Obama to supposedly be a

Hawaiian birth certificate and “prove” his birth in

Hawan. The difference between the images of the

two types of documents is quite strikingly clear and

is one of the reasons that the popular disbelief in the

eligibility of the respondent Obama has _ grown

despite the campaign of suppression and ridicule

i

directed against any who raise the question as was

exhibited by the bias of the district court in this case

as discussed further below. Under Rule 12(b) (b),

the district court was obliged to examinc that

exhibit in making its decision but clearly did not do

so. ‘This violated the universal rule set down by this

Court. See Te/lahs, Inc. and Leatherman, supra.

VI. The central natural born citizen issue

With those two points addressed we turn now to

the central issue of whether the respondent Obama

is a “natural born citizen” within the meaning of Art.

II, Sec. 1, Cl. 5 of the Constitution. If the plaintiff

Hollister could have shown that the respondent

Obama does not meet that eligibility requirement

under any set of facts he could prove in support of

his claim that the respondent Obama does not meet

that requirement then the Rule 12(b) (6) dismissal

was an error of fundamental importance to the

entire rule of law in this country. If proven true

those allegations mean that every command by the

respondent Obama and, indeed, every appointment

by the respondent Obama, including — the

appointment of the members of this and every other

court may be only de facto but not de jure. Further

his signature on every law passed while he occupies

the Oval Office is not valid if he is_ not

constitutionally eligible to occupy that office de jure.

Thus it is not hyperbole to state that the entire rule

of law based on the Constitution is at issue.

Moreover, it would indicate that the respondent

Obama ran for the office of President knowing that

his eligibility was at the very least in question.

There are two factors that are at issue if the

allegations of the complaint are taken as true in

relation to the “natural born citizen” elgibility

requirement. The first is the location where the

person was born. Was it in the United States? The

second factor is was the birth in the United States to

two parents both of whom were citizens of the

United States? The district court was required to

examine both of these factors but chose to avoid

examining either.

VII. Birth outside the United States

With regard to the first factor:

There were sufficient allegations in_ both

complaints to allege specifically under those

allegations that the respondent Obama was _ born

outside the United States and its outlying territories.

This is significant because the Constitution, in Art. I,

Sec. 8, Cl. 4 gives Congress the power to “establish

an uniform Rule of Naturalization...,” At the time of

the birth of the respondent Obama in 1961 as

alleged, Congress had done this in the Immigration

and Naturalization Act of 1952. Under the

applicable provision of that act, § 301(a)(7) the for

the respondent Obama to have been a naturalized

citizen of the United States at birth, were he born of

one U.S. citizen parent and one alien parent, as he

has alleged throughout his political career he was,

his mother would have had to have been

continuously resident in the United States for a

period of ten years preceding the date of his birth

and, most importantly, she would have had to have

resided continuously for five years preceding his

birth in the United States after she had turned

fourteen years old. Since she was only eighteen

when Obama was born, this condition was clearly

not fulfilled under the allegations of the complaint

as they were required to be examined and analyzed

under the universal rule of law as set out by the

decisions of this Court to which we have referred.

The second part of this inquiry as to the root

claim of the plaintiff Hollister in this case concerns

the meaning of the constitutional eligibility phrase

in Art. Il, See. 1, Cl. 5. In 1875, in a unanimous

decision by this Court that was written by Chief

Justice Waite, it was said of this constitutional

eligibility phrase, in the context of citizenship as a

general concept in a case that was about the state of

Missouri not allowing a woman, though she was

clearly a citizen, to vote because the franchise in

Missouri, by virtue of its state constitution, extended

only to men:

The Constitution does not, in words, say who

shall be natural born citizens. Resort must be

had elsewhere to ascertain that. At common law,

with the nomenclature of which the framers of the

Constitution were familiar, it was never doubted

that all children born in a country of parents who

were its citizens became themselves, upon their

birth, citizens also. These were natives, or

natural born citizens, as distinguished from aliens

or foreigners. Some authorities go further, and

include as citizens children born within the

jurisdiction without reference to the citizenship of

20

their parents. As to this class there have been

doubts, but never as to the first. For the purposes

of this case it is not necessary to solve these

doubts. It is sufficient for everything we have

now to consider that all children born of citizen

parents within the jurisdiction are themselves

citizens. Minor v. Happersett, 88 U.S. 162, 167-

168 (1875)

The Minor case, of course, was decided after the

adoption of the Fourteenth Amendment and was

concerned with the impact of that Amendment upon

pre-existing “privileges and immunities” as

mentioned in the Constitution prior to its adoption.

The conclusion was that those privileges and

immunities were not altered by its adoption with the

result that states that did not, historically allow

women to vote could continue to do so at that time,

as woman’s suffrage was not a privilege or immunity.

The case thus clearly established that to ascertain

the meaning of the phrase “natural born citizen” in

the Constitution as adopted one had to seek to

ascertain the intent of the framers in using the term.

It is not a “plain meaning” situation. ‘That attempt

was not made by the district court in this case,

which is another violation of the standards

established by this Court with regard to Rule 12(b)(6)

motions.. In fact, as we have pointed out, the

district court made clear that it would not even

consider the phrase, much less what was intended

by its use. One has to resort to the discourse of the

day among those who were present at the founding.

The Minor opinion did make one relevant point clear

on his score. It pointed out that the word “citizen”

was used by the founders to apprehend those who

live in a Republic as opposed to subjects of a

sovereign. It also made the point that what drove

the founders in drafting the Constitution was a

concern with allegiance to the Republic.

Another 19" century opinion deemed relevant to

the issue of the meaning of the Art. Il phrase at

issue is that of Mr. Justice Story in SAanks v.

Dupont, 28 U.S. (3 Pet.) 242 (1830). As with the

Minor opinion this case does not concern

presidential elhgibility. It concerned a dispute over

inheritance of land in the situation where two

daughters, whose children were competing for

shares of their father’s land holdings in South

Carolina. They were both born in South Carolina of

citizens there before the Revolution. One had

married a_ British officer during the British

occupation of Charleston and had returned with him

to England, there to bear children and die. It’s

significance for present purposes is that in the

opinion, Story, who was one of the giants of our

early jurisprudence, made clear the distinction

between matters of citizenship being derived from

the law of nations rather than what he termed the

“municipal” law of the common law. He said:

‘The incapacities of femes covert, provided by the

common law, apply to their civil rights, and are

for their protection and interest. But they do not

reach their political rights, nor prevent their

acquiring or losing a national character. ‘Those

political rights do not stand upon the mere

doctrines of municipal law, applicable to ordinary

transactions, but stand upon the more general

principles of the law of nations

The case was resolved based on the provisions 1n

the treaty between the U.S. and Britain entered into

after the war and the provisions it made for such

inheritance under municipal or common law

principles.

The majority opinion by Story in Shanks echoed

his concurrence in another opinion handed down by

this Court in 1814 which sheds further light on this

use and understanding of the law of nations at the

founding of the Republic, one in which the majority

opinion was by Mr. Justice Bushrod Washington, a

cousin of George Washington’s and there was an

opinion concurring in part and dissenting in part by

John Marshall, the only early justice (then Chief

Justice) who exceeds Story in stature. The case was

The Venus, 12 U.S. (8 Cranch.) 253 (1814). Bushrod

Washington, in the majority opinion referred to the

law of nations as dispositive on the issues of the case

and in particular twice cited Vattel as the authority

on the law of nations, referring to the 1756 treatise

by the Swiss author Emrich de Vattel which was

well known to and discussed by the framers. Story

stated his “entire concurrence” in the opinion. John

Marshall, C.J., concurred in part and dissented in

part. In so doing he referred also to Vattel on the

law of nations, quoting from his treatise as follows:

Vattel, who, though not very full to this point,

is more explicit and more satisfactory on it than

any other whose work has fallen into my hands,

says, “the citizens are the members of the civil

society; bound to the society by certain duties, and

subject to its authority, they equally participate

in its advantages. The natives, or indigenes, are

those born in the country of parents who are

23

citizens. Society not being able to subsist and

perpetuate itself but by the children of the

citizens, those children naturally follow the

condition of their fathers, and succeed to all their

rights.”

“The inhabitants, as distinguished from

citizens, are strangers who are permitted to settle

and stay in the country. Bound by their residence

to the society, they are subject to the laws of the

state, while they reside there, and they are

obliged to defend it, because it grants them

protection, though they do not participate in all

the rights of citizens. They enjoy only the

advantages which the law, or custom, gives them.

The perpetual inhabitants are those who have

received the right of perpetual residence. These

are a kind of citizens of an inferior order, and are

united and subject to the society, without

participating in all its advantages.”

Justice Livingston, it should be noted, concurred

with the partially concurring and _ partially

dissenting opinion of Chief Justice Marshall. ‘Thus

we see that, indeed, these matters of who might be a

sort of citizen, such as a natural born one, to persons

familiar with the discourse of the time, and

members of this Court in particular, were

determined by the law of nations, and Vattel was

looked to as authoritative in that area and that no

less a light than John Marshall saw the phrase,

quoting directly from Vattel, as referring to one born

in the country of two citizen parents, which the

respondent Obama clearly was not. Moreover, we

see how important in particular it was that the

father be a citizen, and the respondent Obama’s

father, by the statements upon which he built his

career, was not.

We note that this Court relatively recently has

explicitly recognized the importance of Vattel and

his Law of Nations in regard to the sort of matters

at issue here, among the categories for which he is

an important and authoritative reference from the

time of the framing. See Sosa v. Alvarez-Machain

542 U.S. 692, 124 S.Ct. 2739 (2004). This opinion

acknowledges the awareness of Vattel’s work in the

constitutional convention.

The petitioners Hollister and Hemenway

referred to three other authorities of the time,

including Vattel, using the same passage quoted by

John Marshall, in their Rule 28) letter in the

appeals court to show what “natural born citizen”

meant in the discourse of the time according to those

who were familiar with the framers. (APPX 107 ff)

The other authorities cited, Daniel Ramsay and St.

George Tucker, were familiar with the framers as

can be seen from the letter. Of particular note is the

explanation given by St. George Tucker in his

commentaries upon the Constitution as it related to

Blackstone in his Blackstone of the time at the place

cited. He indicates that the concern was founded in

the fear of events such as those that had occurred in

Europe as a result of European dynastic marriages

and certain marriages involving stadtholders of

Holland. This was a fear that loyalty to the country

of a parent would lead to actions not in the best

interests of the adopted

It is well established that in the constitutional

convention there were discussions of Vattel and his

concepts in his treatise The Law of Nations. Indeed

the historian Carl Van Doren records in his book on

the framing of the Constitution, citing the annals of

the convention, that on one day Mr. Martin of

Maryland read so extensively from Vattel and Locke.

Priestley and others that other members became

quite impatient. See “The Great Rehearsal” p. 121.

Another piece of valuable evidence is a letter

that John Jay sent to George Washington shortly

before the presidential eligibility qualification was

adopted. The letter was sent to Washington from

New York on July 25, 1787, and specifically urges

that the President as Commander-—in—Chief be

nothing but, in Vattel’s phrase as it was adopted, a

natural born citizen. See a copy at:

http://www.familvtales.org/dbDisplay.php?id=Itr_jo}

4101&person=)jo. Washington made evident his

concern about even commanders in his army with

dual allegiances during the war and recorded those

concerns in his journals and letters. A “thread” on

Vattel and research into the documents and

discourse of the time with a great many images of

the actual documents including correspondence and

newspaper accounts and other sources can be found.

VIL. The bias exhibited

The district judge based his decisions, not on the

required examination of the complaints that Rule

12(b) (6) mandates but rather on a bias reliant upon

extra-judicial factors. The most glaring of these

reliances was the following:

The plaintiff says that he is a retired Aur

Force colonel who continues to owe fealty to his

Commander-in-Chief (because he might possibly

be recalled to duty) and who is tortured by

uncertainty as to whether he would have to obey

orders from Barack Obama because it has not

been proven -- to his satisfaction, that Mr. Obama

is a native-born American citizen, qualified under

the Constitution to be President. The issue of the

President’s citizenship was raised, vetted, blogged,

tested, twittered, and otherwise massaged by

America’s vigilant citizenry during Mr. Obama's

two-year-campaign for the presidency, but this

plaintiff wants it resolved by a court

It is difficult to think of any factor of a judge's

decision more extra-judicial. Moreover, it seems to

express an outright denial of access to the courts

based on that factor. The combination of bias and

ridicule of a person like the plaintiff wanting his

concerns resolved by a court as being, essentially, an

“unthinkable” notion is an expressed denial of a

citizens right to access to the courts. It violates

principle set down by this Court. See, e.g., Boddie v.

Connecticut, 401 U.S. 371, 375 (1971) ‘The district

court went on to say:

The real plaintiff is probably Philip J. Berg, a

lawyer who lives in Lafayette Hill, Pennsylvania

and who has pursued his crusade elsewhere, see

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

invoking the civil rights statutes, the Iederal

Election Campaign Act, the Freedom _ of

Information Act, the Immigration and Nationality

Act, the law of promissory estoppel. That case

was the subject of a scholarly opinion by a judge

who took Mr. Berg’s claims seriously, and

dismissed them. Mr. Hollister is apparently Mr.

Berg’s fallback brainstorm, essentially a straw

plaintiff, one who could tee Mr. Berg’s native-born

issue up for decision on a new theory; If some

“value” could be assigned to the “duties” the

plaintiff thinks he might someday be called upon

to fulfill under the Commander-in-Chief, then

those “duties” could be deposited in the registry of

this Court as the res whose distribution is to be

decided by a sit in interpleader!

Col. Hollister’s DOD form shows that he is a

highly decorated career officer in a field calling for

exceptional skill and intelligence. Moreover his

Military Occupational Specialty was such that being

subject to recall is not far fetched. The Individual

Ready Reserve is a serious component of our

military capability. The mockery and pejorative use

of quotes here only illustrates the judge’s bias base?

on his dislike for the counsel! of Colonel Hollister, ai

extraneous factor. This was further evidenced when

he referred to lawyers Berg and Joyce, neither of

whom he admitted, as “agents provocateurs.” In his

later opinion on Rule 11 he referenced and gave the

URL to Berg’s web site with pejorative observations.

The appeals court refused to act upon and

correct this bias, even when petitioners moved for

recusal under 28 U.S.C. § 455. They relied upon this

Yourt’s decision in Liteky v. United States, 510 U.S.

540 (1994). Yet the facts in this case are such that

to so hold is to stand Liteky on its head. Properly

applied, it supports recusal here. In that case there

had been a trial, and a previous trial involving the

same defendant. The claimed bias that was

ultimately rejected was claimed to have derived

from the treatment of the defendant in the first trial,

which was said to have been disrespectful and from

certain remarks to counsel for the defendant, such

as admonishing him not to engage in a political

crusade in a situation where he announced that his

criminal defense would be an attack on the politics

of the government. By contrast here there were no

proceedings of any kind, not even a hearing much

less a trial, or any argument. The factors evidencing

the bias from outside any proceeding have been set

out. There were pejorative comments and uses of

language not based on any observation by the judge

Nor was there any Hitler-type figure involved as

mentioned in JLiteky. Plaintiff Holhster has an

unblemished record and character. The behavior of

the judge here violates the rule set down by this

Court and in cases cited in Liteky. Lileberg v.

Health Services Acquisition Corp., 486 U.S. 487, 108

S.Ct. 2194, 100 L.Ed.2d 855 (1988) e.g. The appeals

court adopted that bias, incorrectly asserting that

the motion was moot.

The appeals court adopted and_ affirmed

everything done by the district judge without

independent analysis, the bias included... It refused,

despite motions that it do so, to take judicial notice

of the laws of Hawaii governing the public health

statistics in question claiming, incorrectly, that they

are irrelevant. To the contrary, their laxity and

weakness in allowing what was alleged in the

complaint is highly relevant. It is a matter of record

that the district judge here and the respondent

Obama have both held management positions, on

boards of the Lawyers Committee for Civil Rights

Under Law, and thus are acquainted with each

yas

other. There is every appearance of bias here, bias

that was acted upon independently of any

opportunity to observe and form conclusions. It 1s

not hyperbole to assert that if this case stands, it

will be destructive of the constitutional rule of law.

VIII. The inappropriateness of sanctions

The effect of the bias when balanced with the

errors set out above indicate the inappropriateness

of Rule 11 sanctions in this case. Under Rule 11, as

established by its language and the holdings of this

Court, focus 1s on inquiry made prior to filing..

What is required before filing is a “reasonable

inquiry’ this Court has universally held. See

Business Guides, Inc. v. Chromatic Communications

Enterprises, Inc., 498 U.S. 533, 111 S.Ct. 12

L.Ed.2d 1140 (1991) a case in which it was found

that the corporate plaintiff could have found in an

hour of pre-filing inquiry that the case was a

“mistake.” Here the district court made no inquiry

vhatsoever into what the pre-fling inquiry was.

The district court did not analyze the required

prongs set out in the rule, or look into the factual

basis, oy Inquire as to the warrant in law or any

good faith extension of law. Yet here the petitioner

Hemenway was on the same page as Chief Justices

Waite and Marshall. Rule 11 does not indulge bias.

When so used it is a threat to the rule of law and in

conflict with the universal rule set down by this

Court for focus upon reasonable pre-filing inquiry.

Respectfully submitted,

John D. Hemenway

D.C. Bar No. 379663

Attorney for Petitioners

4816 Rodman Street, NW

Washington, DC 20016

(202) 244-4819

johndhemenway@comcast.net

CERTIFICATE PURSUANT TO RULE 33.1

IT HEREBY CERTIFY that the accompanying

PETITION FOR WRIT OF CERTIORARI contaa

8545 word

John D. Hemenway