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

Scribd ^ | 4/21/2010 | Hemenway

[rxsid]

"IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

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.

PETITION FOR RECONSIDERATION
AND
SUGGESTION FOR HEARING EN BANC

TABLE OF CONTENTS

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

III. EXTRAJUDICIAL SOURCES OF EVIDENT BIAS ………………. 5

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.

I. CONFLICTS WITH THE SUPREME COURT AND OTHER CIRCUITS

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:

I have said nothing, and have nothing to say, about the merits of the “natural born Citizen” question that the Mssrs. Hemenway, Berg, et al., have sought to present here. I have no business addressing the merits, because, having found that Mr. Hemenway’s interpleader suit failed to state a claim upon which relief can be granted, I have dismissed it. Appx. 256

This Court has now adopted that abjuration and avoidance of the merits as set out in that self-contradictory statement without further analysis.

...

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.

...

III. EXTRAJUDICIAL SOURCES OF EVIDENT BIAS

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:

The issue of the President’s citizenship was raised, vetted, blogged, texted, twittered, and otherwise massaged by America’s vigilant citizenry during Mr. Obama’s two-yearcampaign for the presidency, but this plaintiff wants it resolved by a court.

There has scarcely ever been revealed in a reported case a more overt exhibit of an extrajudicial bias than this passage exemplifies, and this Court’s panel now adopts it without comment. It not only exhibits a bias against the plaintiff and his case, it exhibits a depressing bias that citizens should not have access to the courts to protect and defend against the Constitution, a right long since embraced by the Supreme Court as very fundamental to the rule of law in this country.

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.

Respectfully submitted,
John D.Hemenway"

Complete Petition for Hearing en Banc

 

MOTION TO PUBLISH

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,

/s/
John D. Hemenway

http://www.scribd.com/doc/30446363/MOTION-to-Publish-4-21-2010

[Emphasis added]

[rxsid]

Ping!

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

[classified]

Please explain this!

[rxsid]

HOW CAN A NATURAL BORN CITIZEN'S STATUS BE "GOVERNED" BY GREAT BRITAIN?

“When Barack Obama Jr. was born on Aug. 4,1961, in Honolulu, Kenya was a British colony, still part of the United Kingdom’s dwindling empire. As a Kenyan native, Barack Obama Sr. was a British subject whose citizenship status was governed by The British Nationality Act of 1948. That same act governed the status of Obama Sr.‘s children.

http://fightthesmears.com/articles/5/birthcertificate.html

Factcheck.org goes on to say this about Obama Sr., Jr. and the British Nationality Act of 1948:

In other words, at the time of his birth, Barack Obama Jr. was both a U.S. citizen (by virtue of being born in Hawaii) and a citizen of the United Kingdom and Colonies (or the UKC) by virtue of being born to a father who was a citizen of the UKC.

http://www.factcheck.org/askfactcheck/does_barack_obama_have_kenyan_citizenship.html

 

Even the modern day State Department rules discusses the problems associated with dual citizenship:

7 FAM 081: U.S. Policy on Dual Nationality:

(e)While recognizing the existence of dual nationality, the U.S. Government does not encourage it as a matter of policy because of the problems it may cause. Dual nationality may hamper efforts by the U.S. Government to provide diplomatic and consular protection to individuals overseas. When a U.S. citizen is in the other country of their dual nationality, that country has a predominant claim on the person.

...

the U.S. Supreme Court has stated that dual nationality is a "status long recognized in the law" and that "a person may have and exercise rights of nationality in two countries and be subject to the responsibilities of both." See Kawakita v. United States, 343 U.S. 717 (1952).

http://www.state.gov/documents/organization/86563.pdf

So, back to the question: "HOW CAN A NATURAL BORN CITIZEN'S STATUS BE "GOVERNED" BY GREAT BRITAIN?"
It can't. Of course not. Yet, right there, on his campaign web site F.T.S., it's stated that a foreign government "governed" Barry from birth and the reason it did, was that Barry inherited that foreign citizenship by way of his foreign national father (no matter where he was born), a fact backed up by Factcheck.org. Assuming, of course, that Sr. was his legal father at birth.
How, then, could he possibly be a "Natural Born Citizen" of the U.S.?
Barry Soetoro, the divided citizen at birth!

Barack Obama a/k/a Barry Soetoro *	NOT Obama / Soetoro
* This assumes HI birth.

http://www.jeffersonsrebels.blogspot.com

Furthermore:  Hawaii's Territorial Law, Chapter 57 - "VITAL STATISTICS, I", shown beginning pg 23 of 29, (the law in effect in 1961) allowed the parents (or grandparents or other relative) of baby's born anywhere in the world to be eligible to apply for a Hawaiian birth certificate. A mailed-in form (without mention of a hospital, doctor, or midwife) signed by one of his grandparents (who forged the parent signature(s)) would have been enough to set up a birth record and a birth certificate at the Dept of Health. The Dept of Health would (presumably) then have automatically sent the names of the parents, their address as given on the mailed-in form , the gender of the child, and the date of birth to the Honolulu Advertiser and Star-Bulletin. The address given for the parents in the newspaper announcements is actually, however, the August 1961 home address of Obama’s maternal grandparents Stanley and Madelyn Dunham [6085 Kalanianaole Highway], and not the 1961 home address of Barack Obama, Sr. [625 11th Ave].) This notification would then have automatically generated the newspaper announcements. (This was the practice of the Honolulu Advertiser and Star-Bulletin at the time).

Bottom line: Even IF (big IF) he was born in HI, he inherited his father's foreign citizenship as well, making him a US citizen by US law and the subject of the crown of her majesty the Queen of England by inheritance and England's law. He could not be considered a Natural Born Citizen as known by and as intended by the framers.

[Red Steel]

I ‘Twittered it’ Robertson is one dumb butt judge.

[webheart]

A lot of people want to just ignore the whole birth certificate issue. I would have no problem with Obama’s eligibility if he were born in any state of the US, ragrdless of who his father was, or his father’s citizenship status. I do believe that there is something strange going on, because I am naturally paranoid, and because a lot of avoiding is being done. If someone, today, wanted to see my birth certificate, I could have it in five minutes, and would have no qualms about showing it to any Joe Bozo on the street.

Maybe someone could put up a website where people could scan their own birth certificates and let the whole world see them. If identity theft were anm issue, the images could be degraded. I would put mine on there.

As a child, I always thought I would never be allowed to be President because I was born in Japan, even though my parents were both from California, and my Dad was in the Air Force. I was always aware of that fact, even if I was wrong.

[JoSixChip]

"If someone, today, wanted to see my birth certificate, I could have it in five minutes"

I'm starting a new job on Monday and I have to bring my BC with me on the first day. I'm happy to do it, but then I am a Natural Born American citizen with nothing to hide. I just wish the person claiming to be POTUS felt the same way.

[STARWISE]

~~Ping!

[Domandred]

If someone, today, wanted to see my birth certificate, I could have it in five minutes

Haha beat you. 15 seconds to find it in my desk drawer file.

[Cyclone59]

Personally, I don’t understand why COB’s are so secretive, in reality they don’t show much of anything sensitive in nature. Mom, Dad, day of birth and your name. Am I missing something here or over simplifying.

[ButThreeLeftsDo]

You Know The Drill
Click the Pic

Hey! FReepers!
Help Fill The Tank!
How About It? Huh?
It Ain't Askin' Too Much
Ya Know....

[Josa]

A certificate of live birth (COLB) which is what obama posted on the web is insufficient documentation for any U.S. citizen to receive a passport.

[PubliusMM]

Excellent! Keep the heat on him. The truth will come out...

Excellent arguments, as well.

[bgill]

I would have no problem with Obama’s eligibility if he were born in any state of the US, ragrdless of who his father was, or his father’s citizenship status.

So, you wouldn't have a problem with an anchor baby? No problem at all with foreigners who birthed him on vacation or just passing through the country? What a sad state of affairs we've come to. If he were birthed in the middle of the Lincoln Bedroom, he would be ineligible because of this father's citizenship.

[wintertime]

An honest man would be **HONORED** to promptly prove with all of the best evidence that he was a natural born citizen.
A GUILTY man wastes the resources and time of the Department of Justice and its U.S. attorneys to block the release of common documents that ordinary citizens provide every day.

Obama WASTED Department of Justice resources and attorney time when plots were being laid to KILL our soldiers on their bases and recruitment centers, and blow planes out of the sky! If his motivation is to play a political “gotcha” on the birthers, I don’t think the American public will be amused.

[SatinDoll]

Just, WOW!

What many people do not understand is that a person to be considered a Natural Born Citizen, must first be a native born citizen.

There are only three types of citizenship and all have equal rights: native born citizenship; naturalized citizenship; and, citizenship-by-statute. Note: Natural Born Citizenship IS NOT a type of citizenship. It is only a circumstance of birth required for eligibility to be President of the United States.

Native born citizenship (jus solis) was created by the United States v. Wong Kim Ark, 169 U.S. 649 (1898):

Wong Kim Ark was the son of two resident Chinese aliens, (who were unable to attain citizenship due to a treaty with the Emperor of China), and who claimed U.S. Citizenship because of his birth on U.S. soil. He was vindicated by the Supreme Court on the basis of the 14th Amendment.

On the basis of the 14th Amendment the majority opinion coined a new definition for “native citizen”, as anyone who was born in the U.S.A. (jus solis) under the jurisdiction of the United States. The Court thus extended citizenship to all born in the country (excepting those born of ambassadors and foreign armies etc.) but it DID NOT extend the meaning of the term “natural born citizen” to those whose parents were not citizens at the time of the child’s birth.

Naturalized citizenship is granted to those born in a foreign land who become U.S.citizens, such as Gov. Arnold Schwarznegger, for example.

Citizenship-by-statute is granted to those born overseas to U.S. citizens (jus sanquinas). There is a whole array of legal statutes covering this, but this type of citizenship has the same rights as the other two types.

Since there is NO RIGHT to be President, the eligibility requirement of Natural Born Citizenship (jus solis + jus sanguinas: born in the U.S. to U.S. citizen parents) must be viewed as a means to prevent split allegience for any President of the United States.

[cumbo78]

My gut still tells me that this is not about his being a citizen, but rather his fraudulently portraying himself as a foreign student to gain funding and sponsorship for his education.

[bgill]

Personally, I don’t understand why COB’s are so secretive, in reality they don’t show much of anything sensitive in nature. Mom, Dad, day of birth and your name. Am I missing something here or over simplifying.

What you're missing is that a Certification of Live Birth (COLB) is a different animal than a Birth Certificate. One is a certificaTION and the other is a certificate. One says there was a live birth while the other gives the official documentation details of the birth. One can be based on a lie while the other presents witness signatures attesting to a fact. One isn't worth the bandwidth required to photocopy and post it and the other is required to obtain a passport, marriage license, driver's license, and employment.

What is secretive is perhaps the file number and the possible 2007 amendments made to the original BC.

[Two Kids' Dad]

The “father” portion of Zerobama’s long-form birth certificate is what I’d most like to see. It could be that he’s an American born to two American parents and Obama Sr. isn’t his biological daddy. Makes him eligible to be president, but also makes him a bastard and a huge part of his life story becomes a lie.

Until he produces the long-form he’s nothing more than a fraud in my eyes.

[Misterioso]

Gut instinct? Don’t you have a brain?