HOLLISTER v. SOETORO - New filings - PETITION for Hearing en Banc, MOTION to publish

GREGORY S. HOLLISTER, et al.,
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.

I. CONFLICTS WITH THE SUPREME COURT AND OTHER CIRCUITS………………………………………………. 1

II. NO INDEPENDENT ANALYSIS: THE LOWER COURT OPINION ADOPTED: COMPLAINT ALLEGATIONS NOT TAKEN AS TRUE; THE MERITS AVOIDED ………………………… 2

IV. RULE 11 ASSESSMENT BASED ON ERRONEOUS ASSESSMENT OF LAW: NO PROPER INQUIRY: NO HEARING….. 10

The plaintiff/appellant Gregory S. Hollister and the counsel/appellant John D. Hemenway hereby move for a panel reconsideration and request a hearing en banc by the full court on their case. They begin by asserting as follows in accordance with the rules of the Court.

The decision of the Court conflicts with the following decisions of the Supreme Court: Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007); Conley v. Gibson, 355 U.S. 41 (1957); Swierkiewicz v. Sorema N. A., 534 U. S. 506 (2002); Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163 (1993); Baker v. Carr, 369 U.S. 186 (1962); Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963); Arkansas- Louisiana Gas Co. v. Department of Public Utilities, 304 U.S. 61 (1938); Liteky v. United States, 510 U.S. 540 (1994); United States v. Grinell Corp. 384 U.S. 563; Cooter & Gell v. Hartmarx Corp., 496 U.S. 384; City of Lincoln, Neb. v. Ricketts, 297 U.S. 373 (1936); Ozawa v. United States, 260 U.S. 178 (1922); Haggar v. Helvering, 308 U.S. 389 (1940); Helvering v. Hammel, 311 U.S. 504 (1941); Ohio v. Helvering, 292 U.S. 360 (1934); Minor v. Happersett, 88 (Wall.) U.S. 162 (1874); The Venus, 12 U.S. 253 (1814).

Further, there is a question of exceptional importance here where the court below acted in conflict with decisions in almost every other circuit: Schlaifer, Nance & Co. v. Estate of Warhol, 194 F.3d 323 (2nd Cir. 1999); Baker v. Alderman, 158 F.3d 516 (11th Cir.1998); Davis v. Crush, 862 F.2d 84 (6th Cir.1988); Donaldson v. Clark 819 F.2d 1551 (11th Cir.1987); Chamaikin v. Yefimov, (2nd Cir.1991); Miranda v. Southern Pacific Transportation Company, (9th Cir.1983); Eash v. Riggins Trucking Co., 757 F.2d 557 (3rd Cir.1985).

II. NO INDEPENDENT ANALYSIS: THE LOWER COURT OPINION ADOPTED: COMPLAINT ALLEGATIONS NOT TAKEN AS TRUE; THE MERITS AVOIDED

To hold that there is a failure to state a claim calls for a judgment on the merits. Baker v. Carr, supra. Yet here the lower court stated emphatically that it was abjuring and avoiding analyzing the merits of the claim at issue, the claim that the defendant/appellee Soetoro a/k/a Obama is not a “natural born citizen” under the Constitution in its opinion of March 24, 2009, stating:

In its opinion of March 5, 2009, the court below spoke of the issue as being one of the defendant Soetoro’s “citizenship,” rather than the issue being one of his meeting the specific requirement of being a “natural born citizen.” Appx. 208.

What we see here in both the opinions below as well as the view that has now been adopted by this Court without analysis is not only an avoidance of the constitutional rule of law as embodied in an important provision the Constitution but a dislike of any litigant or counsel raising that issue. This view reflects a bias clearly derived from extrajudicial sources. It is a bias that should require the judge below and now the judges of the panel that decided to adopt those biases in this court to recuse themselves under 28 U.S.C. § 455.

This bias, which is objectively an appearance of bias, and beyond that an actual bias, was reflected in the comments of the judge below in both opinions. The opinion of March 5, 2009, starts off with an initial paragraph indicating and clearly evidencing an appearance of that bias toward the case. Appx. 208. That bias continues in the opening of the second paragraph of that opinion where the court below pejoratively states that the plaintiff Hollister “says that he is a retired Air Force colonel,” suggesting that the plaintiff is possibly an imposter. This is clearly a needless insult giving the appearance of bias inasmuch as Colonel Hollister’s military papers were attached to and incorporated into the complaint. The judge below clearly knew this in making the insult in that he himself was an ROTC scholar in college who then served his required stint in the Navy. This is not a “subtle” piece of bias like the refusal in Litecky, supra, to call the plaintiff, a Maryknoll priest “father.” It is rather an overt and snide bias.

Even more overtly “extrajudicial” within the meaning of the sources of bias as described in Litecky, supra, and Grinell, supra, was what the judge below then revealed as one of the principal sources of his bias toward the end of that second paragraph, where he stated, in a statement that, thanks to the decentralized communications structure we enjoy today, is destined to go down in infamy, when the constitutional deception involved here is inevitably exposed by history:

And even more overt bias based on extrajudicial sources is exhibited in the following paragraph of the March 5, 2009 opinion below. There the bias against the plaintiff Colonel Hollister and his case is exhibited by a display of animosity toward the lawyer Philip J. Berg, who filed an earlier pro se action in the United States District Court for the Eastern District of Pennsylvania the issues of which, clearly by the lower court’s own statements, were not the same issues as in this case.

The largest portion of the opinion below that was rendered on March 5, 2009, is taken up in an attack on Philip J. Berg, an attorney from Pennsylvania who was initially involved in the case, in a matter in which he was pro se in the federal court in Pennsylvania, as stated, which, as noted had nothing to do with Colonel Hollister’s case but which clearly reflects an appearance of bias by the judge below based somehow on matters beyond the four corners of this case.

Again, as in the first opinion the court below gave a clear appearance of bias by referring, inaccurately as it turns out, to public opinion rather than the law as based on the Constitution when it said: “Many people, perhaps as many as a couple of dozen, feel deeply about this issue.” The court then referred to other cases around the country, none of which, we hasten to point out, involved the use of interpleader format. Again he portrays Philip J. Berg as a crusader and the plaintiff Hollister as a dupe.

IV. RULE 11 ASSESSMENT BASED ON ERRONEOUS ASSESSMENT OF LAW: NO PROPER INQUIRY: NO HEARING

This abdication by the lower court of its responsibility to examine the merits of the essential claim of the plaintiff Hollister, namely, that the defendant Soetoro a/k/a Obama is not a “natural born citizen” within the meaning of Article II, Section 1, Clause 5 of the Constitution, in which this Court has now joined, bears directly on the question of the assessment of the Rule 11 reprimand against the appellant Hemenway as the counsel who signed the complaint and other filings in this case.

Thus it acted in contradiction to all the cases from other circuits cited above,
Schlaifer, Nance & Co. v. Estate of Warhol, 194 F.3d 323 (2nd Cir. 1999); Baker v. Alderman, 158 F.3d 516 (11th Cir.1998); Davis v. Crush, 862 F.2d 84 (6th Cir.1988); Donaldson v. Clark 819 F.2d 1551 (11th Cir.1987); Chamaikin v. Yefimov, (2nd Cir.1991); Miranda v. Southern Pacific Transportation Company, (9th Cir.1983); Eash v. Riggins Trucking Co., 757 F.2d 557 (3rd Cir.1985).

All of these cases, as pointed out, make it clear that no Rule 11 sanction should be levied without a hearing and some say it is a violation of due process to do so and some also add that there must be a particularized notice of what justifies the sanction, which did not happen here. Donaldson even points out that sanctions, without proper process, approach denial of access to the courts.We have pointed in our briefing that the 19th Century decisions such as John Marshall’s opinion in The Venus, supra, and Minor v. Happersett, supra, point out how it was that the concept of “natural born citizen” from Vattel’s treatise on the Law of Nations was what the founders had in mind. Just recently the records have been located that reveal that George Washington himself never returned his copy of this treatise that he borrowed from the New York Library. This court is obliged to coordinate with those 19th century decisions. Without ascertaining this, the warrant in law that they assert gives a Rule 11 sanction no validity.

The plaintiff/appellant Gregory S. Hollister, and the counsel/appellant John D. Hemenway, hereby request of the Court that it publish its panel opinion in this case as handed down on March 22, 2010. Although that opinion merely adopted, without independent analysis or reasoning, the two opinions from the court below, it is a very important repudiation of cases from the 19th Century such as the opinion of Chief Justice John Marshall, joined by Mr. Justice Livingston, in The Venus, 12 U.S. 253 (1814) and the opinion in Minor v. Happersett, 88 (Wall.) U.S. 162 (1874).

Further, as set out in the accompanying Petition for Reconsideration and Suggestion for a Hearing En Banc it is a matter of great importance for the American people and the history of this nation as a nation under the Rule of Law with a paramount Constitution. This is the first man in the oval office since Chester Arthur to appear to not meet the requirement of the Constitution in Article II, Section 2, Clause 5 that to occupy the office one must be a “natural born citizen” in the sense put forward by Vattel as familiar to the founders.

Further, unlike Chester G. Arthur, this occupant of the Oval Office has engaged in outright deception about what is his actual birth certificate as part of his campaign and has spent hundreds of thousands of dollars as revealed in the public records of the Federal Election Commission, as to which this Court may take notice, to resist revealing not only his actual birth documents but also all of his passport, citizenship and school records. He is the first occupant of the Oval Office to use a State of the Union address to seek to intimidate the Supreme Court. He and his operatives, including a political force directed out of the White House, have engaged in a relentless campaign to attack and ridicule any persons who even dare to ask about his actual birth facts and documentation. At a prayer breakfast he announced by fiat that we, the public, are not allowed to inquire about his birth.

Despite this campaign the public concern over these matters has steadily increased. There is no doubt that the White House directed by the appellee has sought in every way to make judicial attention to these issues “unthinkable.” Mr. Justice Thomas has recently noted that the courts are engaged in avoiding these questions. It is not an understatement to say that the future of our constitutionally based legal system is at stake as is the belief of the American people in and their confidence in that system and its future. It is not seemly in this situation for courts to be seen as avoiding transparency with the American people.

The lower court engaged in an appearance of bias based on what it saw as blogging, texting, and twittering on the Internet. It mistakenly assessed that only a couple of dozen people are paying attention to the matters at issue here. Nothing could be further from the truth. The decentralization of not just information but of decision making itself as foreseen by Norbert Wiener in “Cybernetics” in the 1950’s has occurred and is proceeding with ever increasing size and velocity. There is a rising tide, real grassroots growing, not some big city machine Astroturf, of constitutionalism. History will have its verdicts and all shall be revealed. Ducking will be seen as ducking. Even the appearance of it should be avoided. The blogging, texting and twittering will continue, but it will not support deception where the Constitution is concern. Vetting there will be. But it is truth that will be sorted out.

The rise from status to contract that the great legal scholar and historian Sir Henry Maine described in “The Ancient Law” has been paralleled by a movement from status to liability for deception including those that involve the Constitution. Courts should not be seen to be avoiding important issues out of deference to status rather than the Rule of Law with the Constitution as the basis of that law. Transparency is important and the opinion should be published. Respectfully submitted,

Great comeback! Look, even if Obama was born in Kenya, his mother was an American citizen. Despite what you read, there would still be a Constitutional question regarding the term “natural born citizen”. You can quote what you want, but it would be open to interpretation by a left leaning Supreme Court.

If it was found that Obama was born a United States citizen, and portrayed himself as something else to advance his education, then he is gulity of FRAUD. That would mean he lied about everything, from college right through his admission to the bar.

Why is that less believable than the posiibility that Obama is not a natural born citizen?

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