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
You trolls are all the same you do an end run around the “question” by bringing up George W. Bush ALL THE DAY LONG. It’s the pat excuse to deflect ever answering the question.
The truth is, it is SOETORO’s/OBAMA’s OBLIGATION to prove to America that he is QUALIFIED to hold the office. Why would any soldier, Marine, or other military officer want to be sent to his possible death by a FRAUD? You aren’t interested in Liberty, your ilk clearly supports tyranny, deceit, and outright slavery. This is sickening. All the man has to do is show his vault birth certificate, expose his educational records, let his medical records be reviewed - What’s so difficult? Why is he spending so much money and threatening people to keep all of this secret. You have a wicked BLANK SLATE ruining your country and her wonderful people including many of my relatives. CO
AmericanVictory:
I don't see where Judge Robertson said that Hollister had “standing”. I see just the opposite.
Yes, the judge said he had jurisdiction under the interpleader statute, but that doesn't translate to automatic standing, in my non-lawyer understanding.
The judge said Hollister lacked standing (the broad definition of standing) under the very same rule you mentioned: rule 12(b)(6) due to failure to state a claim upon which relief could be granted under the interpleader statute.
That was misguided and reprehensible on his part IMHO, but then Berg turned his energy over to unmasking Obama. I am prepared to give him all the support I can in that effort and cheer him on!
It is going to take a “coalition of the willing” to take down Obama and that coalition, I expect, will ultimately include lots of folks you and I don't like, especially o the far left where there are really coming to hate Obama.
Oh me too, of course it could be the proceeding of her divorce.
Don't forget the foreclosure scam she was running.
You point to what seems to be a typo as “proof” of lack of cogency. Your seeming inability to actually characterize and discuss the arguments presented seems to point to a lack of comprehension on your part, making your argument strained and not credible. Frankly, given what you’ve demonstrated so far it seems as if you don’t grasp what is said in the brief, not that the brief, taken as a whole, is lacking in cogency. For example, I have just reviewed word by word the first 10 pages and found a mispelling of a word and two clear typos requiring the insertion of a connective word and the deletion of three words. But none of those corrections prevent the overall description from being cogent and a sound foundation for the ensuing argument. It seems likely they will be corrected before the brief is distributed.
My understanding is that jurisdiction pertains to whether a particular court has jurisdiction over a specific type of dispute. Obama’s team argued that Judge Robertson's court did not have jurisdiction to hear the interpleader brought by Hollister. This judge disagreed, but that did not give Hollister standing, it only gave the Judge's court jurisdiction over the legal dispute of the case. Judge Robertson explicitly rejected standing for the interpleader brought by Hollister.
See Wiki:
“There are three main types of judicial jurisdiction: personal (personam), territorial (locum), and subject matter (subjectam):
“Personal jurisdiction is an authority over a person, regardless of their location.
“Territorial jurisdiction is an authority confined to a bounded space, including all those present therein, and events which occur there.
“Subject Matter jurisdiction is an authority over the subject of the legal questions involved in the case.
“For jurisdiction to be complete, a court must have a concurrence of subject matter jurisdiction with either personal or territorial jurisdiction.
http://en.wikipedia.org/wiki/Jurisdiction
Jurisdiction is distinct from standing and must be met before the judge can even get to standing.
Standing concerns whether a particular plaintif has met the requirements set in the Lujan case.
See Wiki:
“There are three standing requirements:
“Injury: The plaintiff must have suffered or imminently will suffer injury - an invasion of a legally protected interest which is concrete and particularized. The injury must be actual or imminent, distinct and palpable, not abstract. This injury could be economic as well as non-economic.
“Causation: There must be a causal connection between the injury and the conduct complained of, so that the injury is fairly traceable to the challenged action of the defendant and not the result of the independent action of some third party who is not before the court.[5]
“Redressability: It must be likely, as opposed to merely speculative, that a favorable court decision will redress the injury.[6]
[6] Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).
What, pray tell, are you posting about? On what experience with federal appellate courts and their procedures are you basing your comment? Since you are so knowledgeable about crafting federal appeals briefs, why don’t you refer us to some you have written? We can send them to the author of this brief so he can improve his craft to your satisfaction.
Or, have you never read an appellate brief before? This isn’t Strunk and White or English Comp 101.
It is not Berg's belief the Bush simply failed to prevent the Attacks of 9/11 but rather that Bush and Cheney (specifically) should be arrested and prosecuted for the more than 3000 murders that resulted from the 9/11 Attacks.
The following is what Phil Berg wrote is his letter: ...investigate, arrest and prosecute the people responsible for the murders on 9/11/01, specifically including George W. Bush and Richard Cheney. ”
It was no me who brought George W. Bush into the discussion, but rather I brought in Phil Berg who wants George W. Bush to be prosecuted for the "murders" that occurred on 9/11/01.
And for some reason, there are many people here who Elect to Stand with Phil Berg, a man who believes that Bush and Cheney carried out the Attacks of 9/11.
The content of Wiki is a) authority of zero standing in the courts or anywhere else in the law, b) the least reliable source on the Internet since its content is continually altered by participants, often for political reasons. The law that recognizing subject matter jurisdiction is to grant standing to pursue a claim is so basic and well established in every aspect of the law, including literally thousands of cases, that you, frankly, are doing nothing but displaying ignorance. Try this: go find a case where a court found subject matter jurisidiction, and had, as is acknowledged in this case, personal jurisdiction and was a proper court and yet standing was not granted. Good Luck!
If you ever do become involved in litigation I suggest that you not file any briefs citing Wiki as an authoritative source of law.
Again, that is exactly what Judge Robertson did in this very case. He said his court had subject matter jurisdiction, but said Hollister had failed to state a claim. Failure to state a claim is an element of standing, not jurisdiction. Roberson clearly distinguishes between the two when he accepted jurisdiction but denied standing.
Quoting from the memorandum of dismissal:
“Those counsel have moved to dismiss,asserting both that this Court has no jurisdiction (Rule 12(b)(1) and that the plaintiff has stated a claim for which relief cannot be granted (Rule 12(b)(6).
“Plaintiff having invoked both diversity and the federal interpleader statute, 28 U.S.C. Section 1355, I do have jurisdiction. Because plaintiff’s only claim invokes the interpleader statute, however, the suit must be dismissed for failure to state a claim.”
Look it up in the law dictionaries. Standing is not having the right to make the claim. Failure to state a claim on the other hand is what it says. It means that though you may have jurisdiction to make the claim, which necessarily assumes standing, the claim as a matter of law is not one that can entitle you to any relief.
Let me quote from the foremost treatise on federal procedure, Wright & Miller, in the hopes that actual legal authority might stop this continual display of lack of knowledge of the law.
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.
Here is what Wright & Miller say in the next section after the one just quoted, Section 1350, which is a section dealing with Rule 12(b)(1) motions that are addressed to jurisdiction, and thus to standing:
"A motion to dismiss an action under Federal Rule 12(b)(1)-- a frequently invoked procedure, as the numerous illustrative citations in the note below indicate-- raises the fundamental question whether the federal district court has subject matter jurisdiction over the action before it. [extensive footnote omitted] It always must be remembered that the federal courts are courts of limited jurisdiction and only can adjudicate those cases which fall within Article III of the Constitution and a congressional authorization enacted thereunder. [long list of cases in the footnote and footnote omitted] Thus, as universally recognized by the federal courts, the objection presented by a motion under Rule 12(b)(1) challenging the court's subject matter jurisdiction is that the district judge has no authority or competence to hear and decide the case before it. [lengthy footnote omitted]"
Further on in that same section of Wright& Miller about Rule 12(b)(1), it is then specifically stated: "...there are a significant number of cases treating the matter as going to the merits of plaintiff's claim for relief, rather than the district court's lack of subject matter jurisdiction,when ...the plaintiff lacks standing to bring the particular suit before the district court."
So Judge Robertson, in finding specifically that there was a "failure to state a claim" placed his findings under Rule 12(b)(6) and not under Rule 12(b)(1). His finding that he did have jurisdiction because of the statute is a recognition that Congress in a specific statute, the federal interpleader act, had exercised its authority under Article III to create jurisdiction. The plaintiff cannot have been held to have properly invoked jurisdiction of the district court unless it was assumed that he had standing to do so. He did not separately rule on standing but he cannot have found jurisdiction of the subject matter without assuming that standing existed. If he had not made that assumption he could not have dismissed for failure to state a claim as he did without placing the case directly, as to his holding, under Rule 12(b)(6).
If it works, I will applauding! Thanks for the clarification.
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