Professional Documents
Culture Documents
No 09-5080
Consolidating No. 09-5161
_______________________
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
TABLE OF CONTENTS
Summary of Argument 1
CERTIFICATE OF SERVICE 18
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TABLE OF AUTHORITIES
CASES PAGE(S)
*28 U.S.C. § 1335 (“Interpleader Act”) 1, 2, 3, 5, 6, 9, 10, 11, 12, 13, 14, 15
* Fed.R.Civ.P. Rule 22 10
CONSTITUTIONAL PROVISIONS
Article III 2
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SUMMARY OF ARGUMENT
citizen member of the public or as a mere taxpayer and thus ignore the
ignore the clear language of the Constitution. They also ignore that this case
does not involve a third party or parties but the plaintiff himself. In so
Wildlife 504 U.S. 555, 562, 112 S.Ct. 2130, 1191 L.Ed.2d 351. All three
are met here when one considers the prescription of the statute and its clear
language and the function of the ready reserve in the context of the
Interpleader Act, particularly the use of the word “may” in the statute.
The lower court did not fail to analyze whether it had standing or not.
Federal Interpleader Act and then chose, based on that analysis, to dismiss
described as a failure to state a claim for which relief could be granted. This
to other cases as if they created res judicata without adhering to the well-
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known principles governing the law of res judicata does not create or
matters.
In doing so they again ignore the clear language of the Federal Interpleader
Act, particularly that statute’s use of the word “obligation,” which is clearly
III as there is if one actually applies the Interpleader Act in this case.
Article III, Section 2 of the Constitution states: “The judicial Power shall
extend to all Cases, in Law and Equity, arising under this Constitution, the
laws of the United States,….” Obviously, if the Framers had intended cases
lumped together, then the Framers would have worded the Constitution
accordingly. They did not do so, but these appellees misrepresent the three
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when one applies the Interpleader Act principles in this case. They do so in
the apparent hope that the disregard for the Constitution by those whom they
appellees’ brief is their citation and use of a leading case where the question
particular plaintiffs where the law or prescription of Congress was not aimed
at the person or group of persons but rather was the “government’s allegedly
Defenders of Wildlife 504 U.S. 555, 562, 112 S.Ct. 2130, 1191 L.Ed.2d 351.
(Opp. Brief p. 21). Here the question is whether Colonel Hollister is entitled
to invoke the Interpleader Act and/or Rule not whether he can invoke some
Further, having cited Lujan the appellees then proceed to ignore what
it holds with regard to the most important aspect of the present case. In the
classic prescription for standing Lujan sets out three elements, Id., 504 U.S.
at 561:
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is that if, as there is evidence suggesting, the defendant Soetoro a/k/a Obama
regard in the complaint were not treated as true by the lower court, contrary
to the law) then there are conflicting claims upon his obligation to serve if
called because if Soetoro a/k/a Obama can only give orders that Colonel
after World War II then he must instead obey orders from the other
immediately step in if it turns out that Soetoro a/k/a Obama cannot give
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conflicting claims that are the injury complained of will thus be “redressed.”
There is nothing speculative about that being the case, the “redress[ing]” of
constitutionally qualified to serve, on the one hand, and Joe Biden on the
other hand, there is a direct causal connection “between the injury and the
Soetoro a/k/a Obama’s running for President being (and knowing that he
was) constitutionally unqualified and then taking the oath and serving in that
office. That conduct has led directly to the injury which Colonel Hollister
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specifically for situations where there are conflicting claims upon either one
stated, is what we have here. Either Soetoro a/k/a Obama has a claim upon
interest is that the interest that any conflicting claims upon property and/or
Interpleader Act, the claims are foreseeable but have not actually yet
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Given that the jurisdiction created by the Interpleader Act and/or Rule
includes the situation routinely where the holder of the property and/or
obligation submits the conflict to the court before the claims have actually
been made in the situation where the conflict can be seen to exist when the
claims are made, the argument advanced by the appellees in this regard
Chief the individual must report. There is no uncertainty about it. Moreover
note, in the classical exposition set out in Lujan that the disjunctive “or” is
used. That is, the invasion of the legally protected interest must be “actual
or imminent” not “actual and imminent.” The appellees, echoing the judge
below, argue that the invasion of the legally protected interest must be
imminent as if that were the only option. They thus misrepresent and seek to
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confuse, in an obvious belief that they have the political clout to force such
The appellees then go on to say: “…and this Court may address it sua sponte.
See DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 242 (2006).” The
That is true of almost every other case cited by appellees in their opposition
brief, including those filed by or on behalf of Philip J. Berg other than the
present case. See, for example the reference to the filing pro se by Mr. Berg
Obama, 574 F.Supp.2d 509 (E.D.Pa. 2008). In fact there are a very large
which relied upon general taxpayer standing or ordinary citizen standing, not
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upon any specific prescription of Congress like the Interpleader Act. In fact
the appellees do not cite a single other case that asserted jurisdiction based
on the Interpleader Act. That is apparently because there is not another filed
case that invokes its jurisdiction. Thus to maintain that all these other cases
are “related” is to misrepresent, systematically, the facts of the cases and the
law, apparently on the belief that this Court can be politically intimidated
into ignoring the well established law of issue and claim preclusion and the
vast body of such law about res judicata. To invoke, in effect, res judicata,
by simply naming cases without putting forth anything that would establish
improperly influence the Court. We urge its rejection as of a piece with the
reliance of the judge below upon “blogging and twittering” on the Internet
Because almost every case cited by the appellees is cited in the same
mispresentative way as the examples just given, and because there are so
has made in, preliminarily at least, deciding not to have oral argument on
this case. Oral argument is the only way to make clear all the
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following on the heels of the filing of this reply brief, filing a motion to have
brought up, we look to the “clear language” of the Interpleader Act, and why
law since from long before the statute was enacted. There was no diversity
analysis below and if the statute does not apply then Rule 22 does, and it
also embodies the long standing practice of Interpleader before it was ever
Interpleader defendants. Both the Act and the Rule were invoked and
alleged and the court below was bound to consider both in any case by
The appellees attempt to get around the clear language of the statute
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concept not actually known in Interpleader law and not found in the Act, the
Rule, or the predecessor common law and equity practice, something that
they call an “intangible duty” The statute does not use the word “duty” and
we must assume that Congress chose the word it wanted used and obeyed.
We assure those who may not be familiar with the facts of being ordered to
serve in the military, as may be the case here, that there is nothing
tangible and very real. After thus misrepresenting and misleading in the
title of the subsection the appellees then proceed in the text of the subsection
to quote the actual language of the statute to include the part about an
“obligation” but then ignore that part of the Act and focus only upon the
preceding part naming notes, bonds and other instruments. Then the
appellees seek to get around this glaring omission of language that they
case law.
The case law that the appellees misrepresent at that point in their
argument starts with the opinion in Bankers Trust Co. v. Mfrs. Nat’l Bank of
Detroit, 139 F.R.D. 302 (S.D.N.Y. 1991). That opinion, like the judge
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below in this case, focuses upon what is “usually” the case. But what is
usually the case does not determine the law when the clear language of the
statute or, for that matter, clear established law, of what may be sometimes
the case although it is not, statistically, the most common situation. The
Bankers Trust case involved a case that was one case out of an enormous
of the interpleading party was the “duty” to manage the fleet of railcars.
That is quite complex and the court in that case held that the entire complex
Chief whose eligibility under the Constitution to give such an order is, by
the admitted facts of his life, “in doubt” is not a single part of an enormous
It is clear cut and simple. Either one is obliged to obey the order when it
Travelers Insurance Company, 534 F.2d 1155 (5th Cir.1976). What was
“inchoate” in that case and thus not subject to Interpleader were certain
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divorce. Thus that part of the case to which Interpleader was held not to be
applicable did not resemble the obligation of Colonel Hollister in the present
Hollister and other members of the Individual Ready Reserve. If they are
called up they are called up. This is a clear language question and thus there
The Individual Ready Reserve is created by law and the members of the
military who have retired and are subject to that obligation are required to do
failure to delve into the facts as required, did not examine these matters,
by its own language refers to the “broad” meaning of the word in the very
passages cited by the appellees. That history speaks of examples and makes
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makes no attempt to claim that the three examples are anything but
representative and thus makes clear that all “obligations” are included.
Colonel Hollister does not allege “facts” to support his claiming Interpleader.
named two defendants, one of whom he has reason to believe in the facts he
has alleged, may not be able to give a legitimate order under the principles
that we established at Nuremberg and the other of whom would have to give
the order to call him up if in fact Soetoro a/k/a Obama is not eligible to
legitimately give him an order. Those are the clearly alleged facts of the two
obey one or the other and he asks the court to resolve which it is. The
that were a new “legal theory” per the opinion of Judge Edwards of this
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arose out of the crash of an Air Florida flight, on a cold icy day when the
Potomac was covered with ice, into the 14th Street Bridge, a terrible tragedy
which all who were here well remember. The District sued Air Florida on
the theory that it held title to the stretch of the Potomac at issue in the crash,
as ceded from Maryland when the District was founded and that, therefore, it
could hold the airline responsible for negligence. It lost in the trial court
because it was shown that the stretch of the Potomac and its real and
District. On appeal, for the first time, the District raised a new and very
on the river it was a trustee for that section of the river and could, therefore,
sue the airline. This was a truly new and novel theory. But Interpleader has
been the theory of this case from the beginning and throughout. There is no
new “legal theory.” “Legal theory” and emphasis in argument are not the
same thing. Indeed, as we say, we are filing on the heels of this brief a
Edwards would be on the panel that might consider our motion. If there is
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one judge on this court, in our experience, who will apply the law without
fear or favor and takes his oath to uphold the Constitution seriously it is
Judge Edwards.
With these things said I turn briefly to my own personal appeal, the
harsher Rule 11 sanctions. It is the case that nothing is pointed out in the
opposing brief or in the analysis of the judge below that shows any inquiry
into any prefiling inquiry that I made or didn’t make. Yet the same is
necessary in order to levy any sanction under Rule 11. Our arguments show
that, particularly because we have shown that by the holding of the Supreme
Court and the facts that the defendant Soetoro has stated throughout his
political career, that his father was not a citizen, his status as a “natural born
citizen” is “in doubt.” At the very least, when the Supreme Court has held
that an issue is “in doubt,” seeking to have that doubt clarified is a good faith
extension of existing law. There were no hearings and the judge never had
likely to discovery. (App. 223 ff. and 252 ff.) Again here we see sleight of
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amendments to Rule 11 and state that the court may act on its own initiative.
The appellees cite authority that this Court may take notice of matters
in related proceedings, pointing to proceedings that are not truly related. But
we take a leaf from their notebook and point out that evidence has surfaced
from related proceedings recently. In another case what may be the actual
deception as to the “natural born” status has been located. We will file these
documents separately.
Respectfully submitted,
/s/
JOHN D. HEMENWAY
John D. Hemenway D.C. Bar #379663
Counsel for Appellants
4816 Rodman Street, NW
Washington DC 20016
(202) 244-4819
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CERTIFICATE OF SERVICE
and
/s/
John D. Hemenway
/s/
___________________
John D. Hemenway
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