Posted on 11/21/2009 1:22:49 AM PST by rxsid
Notice Filed Hollister v Soetoro
I. JURISDICTIONAL STATEMENTConsent Motion Hollister v SoetoroA. The Basis for the District Court’s Subject Matter Jurisdiction The District Court had jurisdiction pursuant to the Federal Interpleader Act, 28 U.S.C. § 1335. Alternatively Federal Rule of Civil Procedure 22 and diversity under 28 U.S.C. § 1332 existed. In addition, in a proposed amended complaint the plaintiff Hollister asserted jurisdiction also for a direct violation of the constitutional requirement in Article II, Section 1, Clause 5 concerning the eligibility of an individual to be President of the United States if he is not, as is there stated, a “natural born citizen.” Such jurisdiction is asserted under Bivens v. Six Federal Narcotics Agents.
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II. Issues Presented for Review
1) Did the lower court err as a matter of law and/or abuse its discretion by finding the Federal Interpleader Act and/or the Federal Rule of Interpleader inapplicable when it found that the plaintiff Hollister had failed to state a claim upon which relief could be granted?.
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2) Did the lower court fail to take the factual allegations of the complaint as true and thereby err, particularly the alleging of a de facto holding of office by the defendant Soetoro a/k/a Obama that was not de jure?
3) In so finding the Federal Interpleader Act inapplicable did the lower court ignore the plain language of the Interpleader Act?
4) Did the lower court err when it dismissed the complaint for failure to state a claim because it was influenced by bias that it exhibited?
5) Did the lower court err and/or abuse its discretion by sanctioning Appellant’s Attorney, John D. Hemenway under Rule 11 and by finding the law suit “frivolous,” particularly by doing so without any inquiry into the prefiling inquiry that was made and allowing the presentation of the evidence alleged in the complaint and the law researched at a hearing and in failing to allow reprimanded counsel discovery?
6) Did the lower court err in failing to allow the amendment of the complaint, and particularly did it err in refusing the addition of a Bivens count as part of the amendment sought?
7) Did the lower court violate fundamental rights of the plaintiff and his reprimanded counsel by not having any hearing before dismissing and reprimanding, particularly when it made a finding of frivolousness?
8) Did the lower court err in the way it treated the attempt of the plaintiff to deposit an amount into the escrow of the court?
9) Did the lower court exhibit improper bias against the plaintiff and his local counsel based upon its attitude toward the two other counsel who signed filings that it exhibited in reliance upon observations from the Internet?
10) Did the lower court exhibit such an improper reliance upon unverified information from the Internet that it rendered its decision invalid and subject to being vacated with a remand?
11) Did the lower court give such an impression and appearance of improper bias that it rendered its decision invalid and subject to being vacated and create an impression of lack of impartiality and disinterest in fair adjudication?
12) Did the lower court improperly and erroneously rely upon undisclosed sources on the Internet and the web site of one of the signatory counsel it refused to admit pro hac vice as if they were some form of res judicata and exhibit reversible bias in doing so?
13) Did the lower court attack what it perceived as the politics of non-local counsel and their participation in what it perceived as a political movement or politically inspired campaign so as to exhibit political bias on its own part that showed disregard for the Constitution and the Rule of Law that was improper and in error from the outset?III. Statement of the Case
On entering the Air Force, Col. Hollister took an oath to “support and defend the Constitution of the United States against all enemies, foreign and domestic.” [Appx 9-10] He has reaffirmed that oath. This oath has been construed as one placing upon each member of the Armed Forces a legal duty to obey all lawful orders, but only lawful orders. This is reflected in the Uniform Code of Military Justice.
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For such reasons, if Col. Hollister ever receives an order recalling him to active duty issued by, or under the authority of, Defendant Barry Soetoro (a/k/a Barack Obama) under the auspices of being President of the United States and acting de facto as such, he will be entitled to know whether this or any other orders given by the said defendant are orders which he, Colonel Hollister, has a legal obligation to obey, or an order which he has a legal obligation to disobey. As an officer in the Individual Ready Reserve Col. Hollister has an especial right to the intangible property right of honest services from the said defendant as an office holder de facto or de jure and a right to know which of those two types of office holder the said defendant is. It can’t be both.
As information comes out in this legal system of this federal jurisdiction or any other jurisdiction (the courts of Hawaii, for example) that indicates more strongly that the defendant Soetoro a/k/a Obama has been all along a constitutional fraud, there is no way it can be predicted whether the defendant Biden will act responsibly to his oath to uphold and defend the Constitution or whether he will avoid that obligation as many seem to be doing at this point.
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Further, the doubt that Soetoro a/k/a Obama is constitutionally qualified has spread and may produce other interpleader complainants in the armed services. Under such circumstances the present low morale in the armed forces and the doubt that has spread through them could mestasize absent an orderly lawful resolution. Doubts, in particular could spread up and down the chains of command among the armed services and those all those all along those chains who have sworn oaths to uphold the Constitution against all enemies foreign and domestic and not to any person. There could be division within the chain of command above the plaintiff Hollister as to whether Soetoro a/k/a Obama is or is not the lawfully-constituted President and Commander-In-Chief, and all of this may have the most horrendous consequences for our country, including the possible development of a Constitutional-military legal crisis. [Appx 19, 21-22]
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The two out-of-the- jurisdiction attorneys, Philip J. Berg of Pennsylvania and Lawrence Joyce of Arizona, were characterized by the lower court as “agents provocateurs” and Philip J. Berg in particular was characterized by the lower court as “probably” the “real plaintiff” in the case. App. 209, 211. They were moved to be admitted pro hac vice but the lower court did not grant that motion. App. 220. They did sign the filings in the lower court. In any case they have now resigned from representing Colonel Hollister and are no longer involved although they, along with “blogging and twittering” on the Internet were the focus of much of the lower court’s opinion dismissing the case.
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This would be the Bauer firm that is so highly favored by Soetoro a/k/a Obama and was heavily involved in his election which Col. Hollister claims was a knowing constitutionally fraudulent exercise. (This subject law firm according to public FEC records, available over the Internet, has been paid over 1.4 million dollars at this point, a good portion of which has been for defending the fraud thus claimed, a fact which we ask the Court to take notice of.)
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If the allegations of his complaint are found to be true, the conflict between who will be entitled to enforce the “stake” of his obligation as a retired officer subject to such recall will be resolved but until then the conflict as to whom he owes his obligation remains.
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H. THE FAILURE TO EVEN CONSIDER THE AMENDED COMPLAINT
The lower court’s opinion of March 5, 2009, shows clearly that it took no notice of the amended complaint proposed by the plaintiff Hollister. This relates to Issue Presented 6. At that point no responsive pleading had been filed, only dismissal motions. Yet the court below did not consider the proposed amended complaint as one filed as a matter of right under Rule 15 (a)(1). Nor did it consider it under Rule 15 (a) (2) as a proposed amended complaint with regard to which leave to file should be “freely” given as “justice” so requires. In fact the court below, from what can be seen in the record, ignored the requirements of Rule 15 and the rule itself completely. There is no evidence that it gave any consideration to the proposed amended complaint at all. It does not even require anything except the language of the Rule itself to see that this is reversible error. It is reversible error because the proposed amended complaint sought to add a Bivens count, which the plaintiff was entitled to have considered.
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I. UNDER THE CIRCUMSTANCES A HEARING SHOULD HAVE BEEN HELD Looking to Issue Presented 7 we point out that the combination of the bias already discussed and the leaping to that bias by relying upon such things as “blogging and twittering” on the Internet by “America’s vigilant citizenry” rather than the law indicates that in this case in particular a hearing should have been held, not only because one was required for the undersigned under Rule 11 “hornbook” law but because it might have illustrated that Colonel Hollister was not some dupe of agents provocateurs as indicated by the court below it its bias. In fact, while the attorney Berg is known to be associated with Secretary of State and former Senator and first lady Hillary Clinton it is a matter of record that while Bill Clinton was serving as President Colonel Hollister protested actions by then-President Clinton that he thought were overreaching under the Constitution and took a risk in doing so. So he takes his oath very seriously indeed and that would have come out in a hearing. He was not a “foot soldier” in some campaign by Clintonite agents at all and a hearing would have clearly so revealed.
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K. OF BLOGGING AND TWITTERING
It is astonishing and even startling that a United States District Court judge would ignore the enormous body of law on res judicata in its branches of issue and claim preclusion as they are called now and indulge in excessive reliance upon such “sources” while bemoaning the fact that a veteran of the armed forces would actually think that he might go to a court to have serious doubts of constitutional eligibility of a de facto presidential office holder and even the deceptions committed in arriving at that status addressed.
http://www.scribd.com/doc/22841279/Joint Appellant Brief Hollister v Soetoro
Thus you feel compelled, it seems to disagree with Bauer, who has just withdrawn in order to become WH counsel as part of the ongoing deprivation of honest services and who has spread his tentacles into the FEC and elsewhere to keep the fraud alive and the destruction of the Constitution going. My, you are devoted to the One.
Bauer, I would note, features on his web site that his father fought against Hitler, leaving Austria after the Anschluss and doing so in 1941. John Hemenway, who was, among other things a German expert serving in East Berlin against the communists during the Cold War, is on the record as having pointed out that the Nazis were not letting people like Bauer's father out in 1941. Moreover, Jonah Goldberg, in "Liberal Fascism" points out that the Dolfuss government was itself fascist, just not Hitler's fascists, so it would be interesting to know more about in just what capacity Bauer's father was fighting Hitler and it might shed light on why he is participating in imposing socialist fascism upon us now.
What is your motivation for standing up for the constitutional fraud involved even beyond the One's own henchman? What compulsion do you feel to protect the destruction of the Constitution that is underway?
Thus you feel compelled, it seems to disagree with Bauer, who has just withdrawn in order to become WH counsel as part of the ongoing deprivation of honest services and who has spread his tentacles into the FEC and elsewhere to keep the fraud alive and the destruction of the Constitution going. My, you are devoted to the One.
Bauer, I would note, features on his web site that his father fought against Hitler, leaving Austria after the Anschluss and doing so in 1941. John Hemenway, who was, among other things a German expert serving in East Berlin against the communists during the Cold War, is on the record as having pointed out that the Nazis were not letting people like Bauer's father out in 1941. Moreover, Jonah Goldberg, in "Liberal Fascism" points out that the Dolfuss government was itself fascist, just not Hitler's fascists, so it would be interesting to know more about in just what capacity Bauer's father was fighting Hitler and it might shed light on why he is participating in imposing socialist fascism upon us now.
What is your motivation for standing up for the constitutional fraud involved even beyond the One's own henchman? What compulsion do you feel to protect the destruction of the Constitution that is underway?
“What compulsion do you feel to protect the destruction of the Constitution that is underway?”
AV:
I agree fully with Wright & Miller and believe that you persist in misrepresenting them by conflating jurisdiction and standing in an illogical manner.
I support Hemenway’s appeal of the dismissal and his attempt to gain the standing for his claim that Robertson denied him.
“From Section 1349: “”Rules 12(b)(1) through 12(b)(b) and 12(b)(7) essentially are defenses to the district court's ability to proceed with the action. They are pleas in abatement and do not go to the merits of a claim. [footnotes omitted] Rule 12(b)(6) is the successor of the common law demurrer and the code motion to dismiss and is a method of testing the sufficiency of the statement of the claim for relief.” Thus a Rule 12(b)(6) motion is not about standing and Judge Robertson's finding that he had jurisdiction is a finding of standing because it cannot have been made without assuming standing, making the Hollister case the only one in which standing has been found.”
AV:
Your conclusion above, “Thus a Rule 12(b)(6) motion is not about standing...” is not supported by the preceding Wright & Miller quote on which you base your conclusion.
The district court's “ability to proceed with the action” referred to by your W&M quote encompasses both jurisdiction of the court and standing of the plaintiff. Rule 12(b)(6) is exactly about standing.
Robertson said his court had jurisdiction, but that Hemenway did not have standing (did not state a claim that met the requirements for standing).
Hemenway is now appealing to overturn Robertson's ruling against Hemenway’s standing.
In order for your assertion to have any validity, “standing” would have to part of the merits. The quote from Wright & Miller makes it quite clear that Rule 12(b)(6) goes to the merits while Rules 12(b)(1) through (5) and (7) do not. You are the only person so far as I know to conflate standing with the merits. It is you who are erroneously “conflating.” Further, if you read some of the further material I have quoted from Wright and Miller they specifically mention “standing” as being addressed under Rule 12(b)(1) and their treatise itself cites quite a number of cases in support. It is not clear whether you are deliberately misreading what has been put before you or you don’t comprehend it. But it is clearly one or the other.
Wow, that was a great description of what the Interpleader really means. I’m married to a Lawyer and have worked with him for 23 years but we do business and corporate law, not litigation. He gave up litigation 21 years ago so I didn’t have a lot of experience with it. Just typing some court docs, affidavits, Statements of Claim etc. This is an entirely different area of the law for me. I did get some education however when my daughter got divorced. I hated it.!! That is “stress”. Divorce and custody are horrible. CO
LOL - your post #50 was awesome. CO
Fair enough, I see your reference to Berg alright. However, what is your comment to the other half of my statement? Why should not this FRAUD, HIMSELF have to prove his eligibility? Why is he hiding everything? Why is he paying so many lawyers so much money to keep everything secret? What does the pr*ck have to hide?? Every other president has shown their qualifications!! Why not this slimy fraud? CO
Mr. Lucky takes the duncecap for this thread.
He writes of the attorney’s incoherence, without himself posting anything of merit.
Mr. Lucky questions the attorney’s knowledge of grammar. I am sure Mr. Lucky aced English Comp 101 at his local community college and can craft a nifty Strunk and White sentence.
Mr. Lucky questions the attorney’s knowledge of history, and we must all be assured that Mr. Lucky took at least Western Civ.
In the meanwhile, as a matter of public record in this case, Mr. Hemenway:
” ... entered the Army of the United States during WWII and was promoted to Infantry Second Lieutenant preparing for the anticipated landings in Japan which were scheduled for November 1, 1945.
” ... studied civil engineering, then attended the U.S. Naval Academy at Annapolis, graduating with the class of 1951.
” won a Rhodes Scholarship while at Annapolis and then studied Philosophy, Politics and Economics at the University of Oxford for three years.
” was invited to join the United States Diplomatic Service after successfully passing a four day examination and then joined the United States Department of State as a foreign service officer in which capacity he became a Russian/German expert.
“...served in Moscow during the height of the cold war (1960-1962).”
Oh, yes, and went to law school and passed the bar.
So, please tell us again, Mr. Lucky, just what your qualifications are to speak about your perceptions of Mr. Hemenway’s lack of historical knowledge or grammatical proficiency.
When I was still active in the bar I always resisted taking divorce cases. The saying is true that “They bring out the worst in the best people.”
What does Philip J. fBerg’s having been formerly associated with the case as a signing attorny, although never admitted to the case, have to do with the merits of Colonel Hollister’s case? Zero, just like the One you are so anxious to protect from the exposure of his fraud. You trolls are like a pane of glass.
Do they ever - a very ugly area of the law to be involved in for sure. CO
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