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ATTACHMENT NUMBER ONE [1]

Erratum
And
Appellant Hollister’s Reply Brief
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U.S. District Court

for the District of Columbia Case No. 1:08-cv-02254 JR

Court of Appeals Case No. 09-5080

Consolidating No. 09-5161

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA
_____________ Ο _____________

GREGORY S. HOLLISTER,
Plaintiff – Appellant,
v.
BARRY SOETORO, et al,
Respondents – Appellee.
_____________ Ο _____________
ERRATUM
_____________________

The oath of office given as that of Appellant Hollister in his Original

Reply Brief expressly states a duty to obey orders. This, in fact, is expressly

stated in the oath of enlisted personnel, but is not expressly stated in the oath

of officers, as officers are presumed to fulfill their duty to obey orders in

accordance with military law. The undersigned apologizes to the Court, to

the parties, and to counsel for the error.

s/ Lawrence J. Joyce
LAWRENCE J. JOYCE, ESQUIRE
Attorney for the Amici
1517 N. Wilmot Rd., #215
Tucson, AZ 85712
(520) 584-0236

ATTACHMENT NO. 1-1

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U.S. District Court,

District of Columbia Case Number 1:08-cv-02254 JR

Court of Appeals No. 09-5080

Consolidating No. 09-5161

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA
_________________O_________________

GREGORY S. HOLLISTER,

Plaintiff - Appellant,

v.

BARRY SOETORO, et al.

Defendants - Appellees.

_________________O_________________

REPLY BRIEF OF APPELLANT,

GREGORY S. HOLLISTER
_________________O_________________

Lawrence J. Joyce, Esquire

1517 N. Wilmot Road,
Suite 215
Tucson, AZ 85712
D.C. Circuit Bar No. 52501
(520) 584-0236
Email: barmemberlj@earthlink.net
September 18, 2009 Attorney for Appellant,
Gregory S. Hollister

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Reasons Why Oral Argument Should Be Heard

Pursuant to Federal Rule of Appellate Procedure 34(a), counsel for

Appellant, Col. Hollister respectfully requests oral argument. We believe

that oral argument will assist the Court in deciding this appeal, which

involves a number of important legal issues. Oral Argument will enable the

parties to address these issues adequately and respond to the Court’s

questions and concerns.

i
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TABLE OF CONTENTS

Page(s)

REQUEST FOR ORAL ARGUMENT……………………………………...i

TABLE OF CONTENTS……………………………………………......ii, iii

TABLE OF AUTHORITIES…………………………………………..iv - vii

ARGUMENT………………………………………………………….…1-26

I. The Overriding Issue is the Lack of any Hearing……………...1

A. Dismissal without Holding a Hearing was a Denial

of Due Process………………………………………..1, 2

II. The District Court Improperly Denied Col. Hollister’s

Request that he be Allowed to file a Second Amended
Complaint………….………………………………………..2, 3

III. The District Court Improperly Refused to Consider Col.

Hollister’s First Amended Complaint………………………3, 4

IV. The District Court Decided this Case by Reference to

Political Factors Rather than to the Law exclusively…..…..4-11

V. The Standing of Hollister Establishes that Interpleader

and Bivens were Well-Pleaded, and that He Stated a
Claim upon which Relief can be Granted………………...11-27

A. Hollister had Standing under Interpleader…………11-19

1.) The Foundation of Standing in Interpleader

was established in the Complaint and in the
First Amended Complaint……………………..12-14

2) The Facts Establish Col. Hollister’s Standing

under Interpleader………………..……………14-17

ii
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TABLE OF CONTENTS, Continued

Page(s)

a.) This Court’s Holding in New v. Cohen,

and the Supreme Court’s Holding in
Nguyen v. United States, Impact the
Degree of Speculation………………18-19

B. Hollister Stated a Claim Upon which Relief can

be Granted…………………………………………19- 25

1.) The “Property” and “Obligation” Elements

are not Part of Rule 22 Interpleader……………19-21

2.) The “Property” or “Obligation”

Requirement of Statutory Interpleader
must be Considered in light of Martin v. Wilks
and N.O.W. v. Scheidler…………………….…21-24

3.) The “Obligation” Element was alleged

in the First Amended Complaint………………24-25

C. Hollister had standing Under Bivens……………........25

D. Interpleader and Bivens Most closely Parallel

the Text and Framework of the Constitution………..…26

E. The Supreme Court has Noted an Important

Difference between “Valid” Claims and
“Arguable” Claims for Purposes of a Motion
to Dismiss……………………………………………...27

CONCLUSION………………………………………………………...27, 28

CERTIFICATION OF COMPLIANCE WITH RULE 32(a)………….......29

CERTIFICATE OF SERVICE……………………………………………..30

APPENDIX I - Appendix “A” Filed with the Brief

iii
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TABLE OF AUTHORITIES

Page(s)

Cases

United States Supreme Court

Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937 (2009)………….………..23

Bender v. Williamsport Area School Dist., 475 U.S. 534 (1986)…………....2

Bivens v. Six Unknown Named Agents,

403 U.S. 388, 91 S. Ct. 1999, 28 L.Ed.2d 619 (1971)………4, 11, 12, 25, 26

Davis v. Passman, 442 U.S. 228 (1979)……………………………………25

Farmer v. Brennan, 511 U.S. 825 (1994)…………………………….……25

Foman v. Davis, 371 U.S. 178 (1962)…………………………...……2-4, 11

LaChance v. Erickson, 522 U.S. 262, (1988)……………..…………………1

Martin v. Wilks, 490 U.S. 760 (1989)……………………..…………...21, 23

Nebraska Press Ass’n. v. Stuart, 427 U.S. 539 (1976)…………...…...…9-11

Nguyen v. United States, 539 U.S. 69 (2003)………………...………...18, 19

N.O.W. v. Scheidler, 510 U.S. 249 (1994)…………………..………....21, 23

Planned Parenthood v. Casey, 505 U.S. 833 (1992)………………………..5

Schweiker v. Chilicky, 487 U.S. 412 (1988)…………………………..……25

State of Texas v. State of Florida, 306 U.S. 398 (1939)………..…………..12

Steel Co. v Citizens For A Better Environment, 523 U.S. 83 (1998)………27

iv
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TABLE OF AUTHORITIES, Continued

Page(s)
Cases

United States Supreme Court, Continued

Talamini v. Allstate Insurance Co., 470 U.S. 1067 (1985)……..………….10

Treinies v. Sunshhine Mining Co., 308 U.S. 66 (1939)…...………………..23

Webster v. Fall, 266 U.S. 507,

45 S.Ct. 148, 149, 69 L.Ed. 411 (1925)……………………………………22

Court of Appeals: District of Columbia Circuit

Barr v. Clinton, 370 F.3d 1196 (D.C. Cir. 2004)…………………………..27

Colbert v. Potter, 471 F.3d 158 (D.C. Cir. 2006)…………………………...6

James v. Hurson Assocs., Inc. v. Glickman,

229 R.3d 277 (D.C. Cir. 2000)…………………………………...………….3

United States ex rel. New v. Cohen,

129 F.3d 639 (D.C. Cir. 1997), cert. den., 523 U.S. 1048……………...….18

Court of Appeals: All Other Circuits

Bierman v. Marcus, 246 F.2d 200 (3rd Cir. 1957)……………...…………..23

Indianapolis Colts v. Mayor & City Council,

733 F.2d 484 (7th Cir. 1984)……………………………..…………………23

Murphy v. Travelers Ins. Co., 534 F.2d 1155 (5th Cir. 1976)………………23

v
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TABLE OF AUTHORITIES, Continued

Page(s)
Cases

Court of Appeals: All Other Circuits, Continued

Pure Country, Inc. v. Sigma Chi Fraternity, 312 F.3d 952 (8th Cir. 2002).…4

Underwriters at Lloyd’s v. Nichols, 363 F.2d 357 (8th Cir. 1966)….......10-15

United States v. Board of School Commissioners,

128 F.3d 507 (7th Cir. 1997)………………………………………….……...2

United States v. High Technology Products, Inc.,

497 F.3d 637 (6th Cir. 2007)……………………………………….……….23

United States District Courts

Bank of Neosho v. Colcord, 8 F.R.D. 621 (W.D. Mo. 1949)…...……....19-22

Bankers Trust Co. v. Manufacturers National Bank,

139 F.R.D. 302 (S.D.N.Y. 1991)……………………………………….21-23

Berg v. Obama, et al.. 574 F. Supp. 2d 509 (E.D. Pa 2008)………..……….8

Hollister v. Soetoro, et al, 601 F.Supp.2d 179 (D.D.C. 2009)………………5

Hollister v. Soetoro, et al, 258 F.R.D. 1 (D.D.C. 2009)………………..……5

McAlister v. Potter (J. Collyer), 570 F.Supp.2d 24 (D.D.C. 2008)……….…4

Pan American fire & Cas. Co. v. Revere,

188 F.Supp. 474 (E.D. La 1960)……………………………………….13, 15

Xerox Corp. v. Nashua Corp., 314 F.Supp. 1187 (S.D.N.Y. 1970)…....22, 23

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TABLE OF AUTHORITIES, Continued

Page(s)

Cases

United States Court of Military Appeals

United States v. Calley, 22 USCMA 534, 48 CMR 19 (1973)…….……7, 19

FEDERAL RULES OF CIVIL PROCEDURE

Rule 22…………………………………………………………11, 19, 21, 22

Rule 32(a)……………………………………………………………….…29

STATUTES

28 U.S.C. § 1335…………………………………………………….……..19

UNITED STATES CONSTITUTION

Article II, Sect. I, Cl. 5………………………………………..……………26

Article III…………………………………….…………………..5, 11, 12, 18

Fourth Amendment……………………………….……………..…………25

Fifth Amendment…………………………………………………..………25

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I. The Overriding Issue Is The Lack Of Any Hearing

A. Dismissal Without Holding A Hearing Was A Denial Of Due Process

Even if everything which Appellees Soetoro and Biden have said in their

brief were found to be true, Appellant Col. Greg Hollister was never afforded any

hearing at all in the District Court. In fact, with respect to the motion to proceed

pro hac vice to which Soetoro and Biden refer,1 the District Court itself said that

there would be a hearing on the question of good faith and the legal basis for

bringing the suit,2 but then never held that hearing.3

By contrast, the Supreme Court of the United States has said, “The core of

due process is the right to notice and a meaningful opportunity to be heard.”

LaChance v. Erickson, 522 U.S. 262, 266 (1998).

Nonetheless, the District Court apparently felt quite comfortable making its

findings of fact by its readings on the internet:

“Even in its relatively short life the case has excited the blogosphere
and the conspiracy theorists. The right thing to do is to bring it to an
early end …. 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-year-campaign
for the presidency, but this plaintiff wants it resolved by a court.”
(Appendix 217-220). “Many people, perhaps as many as a couple of
dozen, feel deeply about this issue.” (Appendix 221-222)

1
Br. Of Appellees at 28.
2 Appendix 65.
3
All filings by the Plaintiff-Appellant in the District Court were signed by counsel of record in
that Court John Hemenway, a member of the bar of that Court.

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In that light, we again refer this Court to the Supreme Court of the United

States:

“We have frequently recognized the importance of the facts and the
factfinding process in constitutional adjudication. (‘How the facts are
found will often dictate the decision of federal claims’); (‘It is the
typical, not the rare, case in which constitutional claims turn upon the
resolution of contested factual issues’).” Bender v. Williamsport Area
School Dist., 475 U.S. 534, 542, n. 5 (1986) (citations omitted)
(emphasis supplied).

All in all, the District Court was apparently unaware of the admonition of

the Seventh Circuit that courts must resist the temptation “… to disregard

procedural niceties, all in fulfillment of a confident sense of mission.”4

Dismissal without holding any hearing was reversible error as an abuse of

discretion.

II. The District Court Improperly Denied Col. Hollister’s Request That He Be
Allowed To File A Second Amended Complaint

For reasons stated later herein, we maintain that the District Court

improperly refused to consider Col. Hollister’s First Amended Complaint. We

mention the issue of the denial of his request to file a Second Amended Complaint

(while his First Amended Complaint was still pending)5 separately because that

denial involves a violation of different precedents. In such cases, the Supreme

Court could not have been more clear: Foman v. Davis, 371 U.S. 178, 192 (1962).

4
United States v. Board of School Commissioners, 128 F.3d 507, 512 (7th Cir. 1997).
5
Opp. to Mot. to Dismiss [Dkt. #13] at 18

2
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Of course, we expect Soetoro and Biden to maintain that there was bad faith

or other aggravating circumstances. But it was nonetheless reversible error for the

District Court to dismiss this case without giving Col. Hollister any hearing at all

on point.

Under Foman v. Davis, 371 U.S. 178, (1962) the refusal to allow

Appellant’s Amended Complaint was an abuse of discretion.

III. The District Court Improperly Refused To Consider Col. Hollister’s First
Amended Complaint

We told the District Court that under James v. Hurson Assocs., Inc. v.

Glickman, 229 R.3d 277, 282-283 (D.C. Cir. 2000) this Circuit recognizes a

plaintiff’s “absolute right” to amend prior to the filing of a responsive pleading

(Opp. to Mot. to Dismiss [Dkt. #13] at 9.)

We also noted for the District Court that the same case recognizes that a

motion to dismiss is not a responsive pleading. Ibid. (Opp. to Mot. to Dismiss [Dkt.

#13] at 9-10.) Soetoro and Biden filed no responsive pleading at all in the District

Court, and the District Court dismissed this case only after the First Amended

Complaint was filed.

Col. Hollister’s First Amended Complaint added to his original Complaint

by saying that the duties he owes are obligations (as mentioned by the federal

Interpleader statute), and also by adding an entirely new, additional Count: a

3
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Bivens claim. Yet, when Appellant Hollister filed his First Amended Complaint,

the District Court said only this:

“Plaintiff’s amended complaint [#11] adds nothing to the original

complaint except rhetoric and legal theory and creates no obligation
upon the defendants to respond to it. …. Unless points and authorities
in opposition to the motion to dismiss are filed by 2/13/09, the motion
will be treated as conceded and granted.” (Appendix 118)

The District Court simultaneously said that the First Amended Complaint

was not “responsive to the Appellees’ motion to dismiss”, and gave Appellant

Hollister only two days in which to file the response to the Motion to Dismiss.6

(Appendix 118) (The response was timely filed.) We tried to point out the error of

such procedure to the District Court, but to no avail, citing to authority on point

from the District of the District of Columbia, and to one particularly on point from

the Eighth Circuit: McAlister v. Potter (J. Collyer), 570 F.Supp.2d 24, n. 3 (D.D.C.

2008); Pure Country Inc. v. Sigma Chi Fraternity, 312 F.3d 952 (8th Cir. 2002).

Under Foman v. Davis, 371 U.S. 178, (1962) the District Court’s refusal to

consider the First Amended Complaint was an abuse of discretion.

IV. The District Court Decided This Case By Reference To Political Factors
Rather Than To The Law Exclusively

This case is inherently political just on the facts themselves. The decision of

the District Court to make its findings of fact from the political speech of the

internet, instead of at a hearing, makes it even more so. And the dismissal of this

6
Appendix 87; see Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971)

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case, and the reprimand of John Hemenway, are now published opinions, open for

the political realm to see.7 The danger is that if the Article III courts are perceived

as participating in the political process every bit as much as the other two

departments of government, instead of being a neutral arbitrator, the judiciary will

have lost much of what it was called to do.8

Now, in addition, Soetoro and Biden would enhance the political

considerations of this case; in their brief they said, “Hollister’s claims fail as a

matter of law because he used Interpleader as a pretext to try to obtain a ruling on

the Natural Born Citizenship Clause.” (Br. Of Appellees at 5.) The thing is, in

order for Col. Hollister’s interest in this matter to be a pretext, he would have to

have no true interest otherwise at all, and his interest would have to be political

only.

During the administration of President Bill Clinton, while Hollister was

serving as an active-duty lieutenant colonel in the United States Air Force, he

became concerned that then-President Bill Clinton might be constitutionally

disqualified from serving as President. He wrote a letter to then-Secretary of

Defense Perry about his concerns.9 In sending that letter to the Secretary Perry,

7
Hollister v. Soetoro, et al., 601 F.Supp.2d 179 (D.D.C. 2009); Hollister v. Soetoro, et al., 258
F.R.D. 1 (D.D.C. 2009).
8 See, Planned Parenthood v. Casey, 505 U.S. 833, 866-867 (1992).
9 See Appendix “A”, Col. Hollister wished to hold this letter in reserve in the District Court for a

hearing in case his testimony would be impeached on the grounds that he was politically
motivated, but the District Court’s decision to dismiss without a hearing left him unable to

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Hollister put his career on the line for the sake of his duty. He risked never being

promoted to full colonel (which he eventually was), along with whatever

mistreatment anyone along his entire chain of command might wish to visit upon

him for raising the issue. Yet his sense of duty compelled him to act.

When his concerns were addressed, and his superiors thought there was no

further need for investigation, he did what any good, conscientious member of the

Armed Forces should do: He accepted the decision of his superiors, and no more

was said or done about it. Yet now Soetoro and Biden themselves have dragged up

the political end of this issue by alleging that Col. Hollister’s concern is but a

political pretext, and nothing more than that. (Br. Of Appellees at 5.) They thus fail

to grasp that this thing which they call a pretext is in fact the very substance of Col.

Hollister’s claim, and Col. Hollister was not even given an opportunity at a hearing

to explain that.

We mention all this to establish that, for Col. Hollister, this is no political

matter. When he thinks it his duty to bring to light the possibility of such an

exceptionally important matter as the constitutional qualifications of the

Commander-In-Chief of the Armed Forces of the United States, he does so.

establish the contents of the letter in the record. Regarding the addition of new material on
appeal, see, Colbert v. Potter, 471 F.3d 158, 165-166 (D.C. Cir. 2006).

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We also mention this to point out that if Col. Hollister ever feels the need to

act upon such concerns again, he shall certainly do so again. But this time, as Col.

Hollister alleged to the District Court, the basis for questioning the current

Commander-In-Chief’s qualifications are so much more substantial than they were

with respect to Bill Clinton, Col. Hollister is of the opinion---tentatively, at least---

that if he receives an order returning him to active duty, that such order will be an

order he will be legally obligated to disobey.10

This places him at risk for court-martial and with it, all that such portends:

incarceration, demotion, a dishonorable discharge, damage to his reputation, loss

of pay and benefits (including pension), and potential civil liability. Such is not the

stuff of a political pretext. Rather, such is the stuff of a concrete, nonpolitical

concern … and at that, from someone who has an established track record of

expressing such concerns, when he has them, in a way which illustrates that he can

keep his political preferences separate from his duty as an officer in the United

States Air Force.

If all of the above were not bad enough, the District Court, at the behest of

Soetoro and Biden,11 even went so far as to make the following remarks in

dismissing the case:

10 Complaint, [Dkt. #1], ¶¶ 14-47; First Amended Complaint, [Dkt. #11], ¶¶ 17-53; see also,
United States v. Calley, 22 USCMA 534, 48 CMR 19 (1973).
11 Motion to Dismiss [Dkt. #9] at 3-4.

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“The real plaintiff is probably Philip J. Berg, a lawyer who lives in

Lafayette Hill, Pennsylvania, and who has pursued his crusade
elsewhere. see Berg v. Obama, 574 F. Supp. 2d 509 (E.D. Pa. 2008)
…. That case was … dismissed …. Mr. Hollister is apparently Mr.
Berg’s fallback brainstorm, essentially a straw plaintiff, one who
could tee Mr. Berg’s native-born [sic] issue up for decision on a new
theory …” (Dismissal [Dkt. #21] at 2.)

Thus, here we have an instance of a federal judge actually reaching out from

beyond the legal aspects of a case to prejudice the rights and claim of a plaintiff by

making reference to an entirely different case in which counsel for the plaintiff is a

party in that other case. And the end goal of such behavior by the District Court, by

all appearances, was to punish counsel Berg indirectly by actually punishing Col.

Hollister directly instead.

In addition, all of this completely ignores the relief which Col. Hollister

asked for. He asked for relief in the alternative, depending upon what findings of

fact the District Court would make an a hearing, seeking either an order from the

District Court ordering him to refrain from recognizing Soetoro as the rightful

Commander-In-Chief or, in the alternative, an order requiring Col. Hollister to

recognize Soetoro as being in fact the rightful Commander-In-Chief.12 Thus, the

relief which Col. Hollister asks for is not simply one which favors one side of the

political equation or the other. He simply seeks resolution of this issue by

12Complaint at ¶¶ E, F, and G of Prayer for Relief in First Cause of Action, and First Amended
Complaint at ¶¶ E, F, and G of Prayer for Relief in Count One and ¶¶ E, F, and G of Prayer for
Relief in Count Two.

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competent authority one way or the other, as he did during the administration of

Bill Clinton, and nothing more than that. This is about as nonpolitical a form of

relief as one could ask for.

Furthermore, the District Court’s reprimand of counsel simply pours salt into

the political wound already opened by the District Court. Col. Hollister himself, we

first note, did not speak out politically on the issue of Bill Clinton’s constitutional

eligibility, nor did he do so regarding the same issue for Soetoro. But as between

two persons who, years from now, might wish to pursue some unrelated claim that

could also have political overtones, if either of them has been politically active,

and has publicly expressed political opinions, if the use of political speech on the

internet is allowed to stand as a substitute for a hearing in a court of law, then that

person who has spoken out on political issues may be suspect in the eyes of the

court for having improper motives, whereas the one who has had fewer or no

political interests, or who has maintained silence concerning such opinions, will

not be so prejudiced. This is effectively prior restraint, not even limited to the

given subject matter of this case, and is a violation of First Amendment principles

through intimidation of free speech. We are in fact reminded of a case in which a

press association had to sue a judge of the District Court of the State of Nebraska

concerning an order he had entered restraining the news media from making

certain statements about a trial. (The courthouse wherein this Court sits was, in

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fact, named for lead counsel for the press in that case.) The Supreme Court of the

United States said in response,

“The thread running through all these cases is that prior

restraints on speech and publication are the most serious and the least
tolerable infringement on First Amendment rights. A criminal penalty
or a judgment in a defamation case is subject to the whole panoply of
protections afforded by deferring the impact of the judgment until all
avenues of appellate review have been exhausted. Only after judgment
has become final, correct or otherwise, does the law’s sanction
become fully operative.
“A prior restraint, by contrast and by definition, has an
immediate and irreversible sanction. If it can be said that a threat of
criminal or civil sanctions after publication ‘chills’ speech, prior
restrain ‘freezes’ it at least for the time.
“The damage can be particularly great when the prior restraint
falls upon the communication of news and commentary on current
events.” Nebraska Press Ass’n. v. Stuart, 427 U.S. 539, (1976).

It is no wonder then that such unrestrained issuance of any form of sanction

is frowned upon by the Supreme Court.13 In fact, it is particularly egregious that

the District Court should have issued a reprimand when Col. Hollister cited to

Nichols in his original Complaint and in his First Amended Complaint, and when

counsel John Hemenway had likewise cited to Nichols in his Response to Order to

Show Cause.14

13
Talamini v. Allstate Insurance Co., 470 U.S. 1067, 1070-71 (1985).
14
Complaint, [Dkt. #1], ¶ 37; First Amended Complaint, [Dkt. #11], ¶ 43; Response to Order to
Show Cause [Dkt. # 23] at 10.

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The Judge’s decision to use First Amendment Political speech off the

internet in lieu of a hearing is a clear abuse of discretion, Nebraska Press Ass’n. v.

Stuart, 427 U.S. 539 (1976); Foman v. Davis, 371 U.S. 178, (1962).

V. The Standing Of Hollister Establishes That Interpleader And Bivens Were

Well-Pleaded, And That He Stated A Claim Upon Which Relief Can Be
Granted

A. Hollister Had Standing Under Interpleader

In his Complaint, Col. Hollister alleged both statutory Interpleader and Rule

22 Interpleader. As the Eighth Circuit has noted, these two forms of Interpleader

are so similar that it deems case authority for one to be likewise case authority for

the other.15 We likewise deem this to be so, except to the extent that the two forms

specifically differ: i.e., regarding whether jurisdiction is conferred, and whether

there is a “property” or “obligation” requirement.

Standing for purposes of Interpleader and Bivens is different from that of all

other federal claims. Appellees state that the allegations of the Complaint are too

speculative for an Article III Court to have jurisdiction (Br. Of Appellees at 21-23.)

They state that supposedly, Plaintiff Hollister must show 1.) injury in fact; and, 2.)

a causal connection between the injury in fact and the conduct complained of; and,

3.) a substantial likelihood that the requested relief will be redressed by a favorable

decision. Ibid. We agree that this is the normal rule for ascertaining standing in the

15 Underwriters At Lloyd’s v. Nichols, 363 F.2d 357, 361 (8th Cir. 1966)

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Article III courts, but Soetoro and Biden fail to understand that the normal rule has

no application to Interpleader and to Bivens claims. And thus, such statements of

Soetoro and Biden demonstrate a lack of knowledge of the fundamentals of

Interpleader and Bivens.

1.) The Foundation Of Standing In Interpleader Was Established In The

Complaint And In The First Amended Complaint

In Interpleader, a plaintiff need not show harm or an immediate threat of

harm. As we pointed out in the Complaint, courts have recognized that all that

need be shown is a real, reasonable, bona fide fear of exposure to multiple claims

or the hazards and vexation of conflicting claims.16 As Col. Hollister told the

District Court, he knows he owes his duties to Soetoro or Biden, and that he must

share in the employer/employee and superior/subordinate relationships with one of

the two, but not to or with both simultaneously; he filed this suit to find out

whether it is Soetoro or Biden who may properly claim all this from him.17

Significantly, in one of those cases we cited to in the District Court,18 not

only was there a speculative question of a factual element which would have to be

satisfied first in order for the Interpleader plaintiff to face a definite, concrete

threat, but also there was an open, speculative question of law on which the

16 Complaint, [Dkt. #1], ¶ 37; First Amended Complaint, [Dkt. #11], ¶ 43.) See also, State of
Texas v. State of Florida, 306 U.S. 398, 410-411 (1939).
17
Complaint, [Dkt. #1], ¶¶ 9-47; First Amended Complaint, [Dkt. #11], ¶¶ 11-53.
18
Underwriters at Lloyd’s v. Nichols, 363 F.2d 357 (8th Cir. 1966) (holding that a court has a
duty to allow Interpleader liberally).

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Interpleader element hinged as well. The question of fact depended on whether the

Interpleader plaintiff, an insurance company, would ever face liability at all, since

it would face liability if and only if a judgment was ever entered against the

insured. The Eastern District of Arkansas thus found that the insurance company’s

concerns were “double contingent”, and for that reason were to speculative to

allow Interpleader; simultaneously, the open question of law was whether the

insurance company would be liable to plaintiffs in later cases if it exhausted the

sum available under its policy in judgments with plaintiffs in the first cases to be

brought to final judgment against the insured.19

Notwithstanding all that uncertainty, the Eighth Circuit reversed the Eastern

District of Arkansas, quoting from an opinion written by His Honor Judge J. Skelly

Wright, while Judge Wright was still serving as a judge of the Eastern District of

Louisiana, saying,

“The key to the clause requiring exposure to ‘double or multiple

liability’ is in the words ‘may be.’ The danger need not be immediate;
any possibility of having to pay more than is justly due, no matter how
improbable or remote, will suffice.” Nichols, 363 F.2d at 364, quoting
Pan American Fire & Cas. Co. v. Revere, 188 F.Supp. 474, 480
(E.D.La. 1960) (emphasis supplied by the Eighth Circuit).

The Eighth Circuit went on to say,

“We are in accord with the statement of the Third Circuit … when it
speaks ‘* * of the normal duty of a district court to permit interpleader
liberally to relieve parties of the hazards and vexations of conflicting

19 Nichols, 363 F.2d at 360, and at 363.

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claims against them.’ We hold interpleader to be justified in the

present situation.” Nichols, 363 F.2d at 365-366. (citation omitted).

Appellees simply fail to appreciate the fact that Interpleader is for those

cases in which the threat of harm is speculative as well as for those cases in which

the threat of harm is direct and immediate. This addresses both point one (1) and

point two (2) of Appellees’ three-part test, since if injury or an immediate threat of

injury need not be shown, it would be irrational to require Plaintiff Hollister to

establish a causal connection between an injury and the Appellees’ conduct.

As for the third part of the Appellees’ test, in Interpleader, relief consists of

the Court’s dispelling of the fear of multiple claims, and of the potential hazards

and vexations thereof. Given the fact that the relief we have requested will do

precisely that if granted as pleaded (Complaint at Prayer for Relief A-J, pp. 19-21;

First Amended Complaint at Prayer for Relief A-J, pp. 20-22), there is a substantial

likelihood that the requested relief will be redressed by a favorable decision.

2.) The Facts Establish Col. Hollister’s Standing Under Interpleader

As we mentioned above, in the District Court Col. Hollister alleged

sufficient facts to establish a concern under Interpleader that Soetoro may not be

constitutionally qualified to be President of the United States, and thus, that

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Hollister himself may be subject to multiple, conflicting claims pertaining to his

duties, relationships, and obligations.20

With respect to these facts, Soetoro and Biden make much about the fact that

Biden himself has made no claim to the duties, relationships, and obligations of

Col. Hollister.21 They miss the point in two respects. First of all, we repeat here for

emphasis what we have already pointed out,

“The key to the clause requiring exposure to ‘double or multiple

liability’ is in the words ‘may be.’ The danger need not be immediate;
any possibility of having to pay more than is justly due, no matter how
improbable or remote, will suffice.” Nichols, 363 F.2d at 364, quoting
Pan American Fire & Cas. Co. v. Revere, 188 F.Supp. 474, 480
(E.D.La. 1960) (emphasis supplied by the Eighth Circuit).

Second, as we said to the District Court,

“Plaintiff is in need of the assistance of this Court. Without a

determination by competent authority as to whether Soetoro is or isn’t
constitutionally eligible to be President, the Plaintiff will be left on his
own to determine his duties should he receive what is purported to be
his reactivation orders from Soetoro, or conflicting orders from his
superiors in the chain of command, or orders which may conflict with
his duty to support and defend the Constitution …. Accordingly, if
this Court does find that Soetoro is indeed constitutionally qualified to
hold the Office of President, Plaintiff will need for this Court to base
such a finding upon a clear showing by affirmative evidence,
consistent with Soetoro’s burden of proof under Interpleader, that
Soetoro is indeed a ‘natural born’ United States citizen and qualified
to be President in order to reduce any possibility that the deference to
this Court might start to weaken among those above them [i.e., him]
in the chain of command with respect to this most crucial issue

20 Complaint, [Dkt. #1], ¶¶ 9-47; First Amended Complaint, [Dkt. #11], ¶¶ 11-53.
21 Br. Of Appellees at 14 and 15.

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concerning the various duties of all members of the Armed Forces of

the United States.”22 (emphasis supplied).

Consequently, even if Biden were to become forever personally disinterested

in assuming the Office of President from now on, this would not change the fact

that there might be multiple divisions at multiple points along Col. Hollister’s

chain of command as to whether the rightful Commander-In-Chief is Soetoro or

Biden. In fact, given that the Constitution would operate in such a way as to

require Col. Hollister and his fellow members of the Armed Services to recognize

Biden as the rightful Commander-In-Chief if in fact he is so, the apparent

reluctance of Biden to consider complying with the Constitution in this regard

makes judicial resolution of this issue even more emphatically needed, not less so,

as Soetoro and Biden contend. For if the Constitution, by operation of law, makes

Biden the rightful Commander-In-Chief right now, that is a status which he cannot

disavow without resigning from office.

In this respect, consider the oath which Col. Hollister took to become an

officer in the United States Air Force, and which others entering the Armed Forces

likewise take. As he alleged in the District Court, under this oath, he swore that he

would “… support and defend the Constitution of the United States against all

enemies, foreign and domestic; that I will bear true faith and allegiance to the same

22
Complaint, [Dkt. #1], ¶ 44; First Amended Complaint, [Dkt. #11], ¶ 56.

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…” In the same oath he also swore that he would “… obey the orders of the

President of the United States and the orders of the officers appointed over me,

according to regulations and the Uniform Code of Military Justice. So help me

God.”23

The natural sense of these two duties within the oath is that they should be

read together and not be in conflict with each other, of course. But what if they are

in conflict, and cannot be read together? If, for instance, Col. Hollister’s superiors

should happen to develop the opinion that someone possesses prima facie evidence

that Soetoro is not a natural-born citizen, and is blackmailing him into making

decisions adverse to the United States (as they see it), would the duty to defend the

Constitution against all enemies, foreign and domestic, be in conflict with the duty

to obey the orders of the President of the United States? And what would be the

case if there were one or more divisions on point along the chain of command

above Col. Hollister? He has brought this suit to keep just such an issue from

arising (which, if it did arise, could very well be in time of a national crisis). True,

this is speculative. But as we said above, speculative scenarios are what

Interpleader is for every bit as much as concrete, immediate threats. And at that,

this is one type of scenario which the nation would be best off knowing it would

never have to face.

23
Complaint, [Dkt. #1], ¶ 7; First Amended Complaint, [Dkt. #11], ¶ 7.

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a.) This Court’s Holding In New v. Cohen, And The Supreme Court’s
Holding In Nguyen v. United States, Impact The Degree Of
Speculation

The District Court also failed to appreciate the point raised in the Complaint

about the significance of United States ex rel. New v. Cohen, 129 F.3d 639 (D.C.

Cir. 1997), cert. den., 523 U.S. 1048. (Complaint at ¶¶ 41-42; First Amended

Complaint at ¶¶ 47-48.) Any argument about Col. Hollister’s Complaint alleging

things that are too speculative must be considered in light of the fact that by Act of

Congress (as construed by this Court in New v. Cohen), if Hollister is recalled to

active duty, from that moment on the Article III courts are closed to him under the

precedent of this very Court itself. Accordingly, this is the only chance which

Appellant Hollister has to prevent a potentially catastrophic confrontation between

himself and his superiors as to what may or may not be an illegal order that he is

obligated to disobey, or a legal order which he must obey; and right now---before

his reactivation---is the only window of time available to him to straighten this

potential conflict out before such a confrontation can happen, with potentially

devastating consequences for him and for others. Col. Hollister, we ask the Court

to keep in mind, has a present-tense status, right now, of being someone who is

subject to a recall order. Thus, the Act of Congress which bars active duty

members of the Armed Forces from having access to this Court right now hangs

like a Sword of Damocles over Plaintiff Hollister’s head. That is not speculative.

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Likewise, as we told the District Court, in both the military and civilian

sectors, the holding of the Supreme Court of the United States in Nguyen v. United

States24 impacts Col. Hollister’s concern that at least some of the official acts of a

constitutionally unqualified Commander-In-Chief might be void, and that it may be

illegal to follow orders from the Commander-In-Chief in such circumstances.25

B. Hollister Stated A Claim Upon Which Relief Can Be Granted

1.) The “Property” And “Obligation” Elements Are Not Part Of Rule 22
Interpleader

Soetoro and Biden contend that there is but one difference between statutory

and Rule 22 Interpleader, i.e., that statutory Interpleader (i.e., Interpleader under 28

U.S.C. § 1335) gives the District Court jurisdiction, whereas Rule 22 does not. (Br.

Of Appellees at 8-9). There is, however, an additional difference between the two

forms of Interpleader: statutory Interpleader states a requirement that the subject of

Interpleader involve some sort of “property” or “obligation”, whereas Rule 22

Interpleader states no such requirement.

With that in mind, we direct this Court’s attention to Bank of Neosho v.

Colcord,26 a case in Rule 22 Interpleader, not in statutory Interpleader. In that case

the Western District of Missouri found that a duty can be the proper subject of

24
Nguyen v. United States, 539 U.S. 69, 77-81 (2003); see, Complaint, [Dkt. #1], ¶ 43; First
Amended Complaint, [Dkt. #11], ¶ 49.
25
See, United States v. Calley, 22 USCMA 534, 48 CMR 19 (1973).
26
Bank of Neosho v. Colcord, 8 F.R.D. 621 (W.D. Mo. 1949).

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Interpleader. This is at odds with the findings of the District Court in the case at

bar, but a simple look at Colcord will establish our point. After first noting that the

case was a case in strict Interpleader,27 the Western District of Missouri said,

“In strict interpleader actions, the subject-matter thereof is the fund,

thing, or duty to which the parties make adverse claims. 48 C.J.S.,
Interpleader, § 13, p. 49. In the case at bar, it is apparent from the
pleadings that the ‘thing’ which the adverse claimants here demand of
the disinterested stakeholder is the performance of a ‘duty’ imposed
upon it which arises by virtue of a written contract executed by the
adverse claimants. The duty of the stakeholder under that contract
was, to retain the fund in question and to apply it ‘upon the purchase
price consideration upon the final closing of (the) transaction,’ by said
parties …. The duty so imposed upon the stakeholder, by such
contract, is the subject-matter of this action …. To adjudicate the
issues here presented, the Court will be compelled to consider … the
obligations and duties assumed by the stakeholder …

“The establishment of the facts … will relieve the stakeholder of the

‘duty’ imposed on it by the contract …” Colcord, 8 F.R.D. at 623-
624. (emphasis supplied).

This language belies the conclusion of the District Court in the instant case

that, supposedly, in its decision, the Colcord Court was “… deciding nothing more

than that a cross-claim for the ‘duty’ of specific performance would lie in the same

case because it involved the same subject matter as the underlying interpleader

action.” (Mem. Order [Dkt. #27] at 6) (emphasis supplied). For the above-quoted

language from the Western District of Missouri was not merely obiter dicta:

27
Bank of Neosho v. Colcord, 8 F.R.D. at 622.

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“To adjudicate the issues here presented, the Court will be compelled
to consider … the obligations and duties assumed by the stakeholder
…” Colcord, 8 F.R.D. at 623. (emphasis supplied).

2.) The “Property” Or “Obligation” Requirement Of Statutory

Interpleader Must Be Considered In Light Of Martin v. Wilks And
N.O.W. v. Scheidler

The District Court refused to recognize Col. Hollister’s duties and

relationships as being a proper subject of Interpleader despite the fact that we had

apprised the District Court of two key cases from the U.S. Supreme Court on

statutory construction: Martin v. Wilks, 490 U.S. 760 (1989) and N.O.W. v.

Scheidler, 510 U.S. 249 (1994). [Dkt. #1] at ¶¶ 10-11; First Am. Compl. [Dkt.

#11] at ¶¶ 12 and 14.)

Not only does Rule 22 not even state a requirement that the res of

Interpleader be either property or an obligation, but even statutory Interpleader

(which does have a “property” or “obligation” requirement) does not state a

requirement that the property or obligation be tangible. Thus, under Martin and

Scheidler, reading such a requirement into the required elements of Interpleader

violates Supreme Court precedent. Yet Soetoro and Biden continue to press the

idea that such is not the case. Curiously, in support of their position, they cite

Bankers Trust Co. v. Manufacturers National Bank, 139 F.R.D. 302 (S.D.N.Y.

1991). With respect to the application of Martin to Interpleader in that case

(Scheidler had not yet been decided), Martin is not mentioned in Bankers Trust,

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and in all probability, it was not even brought to the attention of the Court. In that

light we ask the Court to consider the following:

“Questions which merely lurk in the record, neither brought to the

attention of the court nor ruled upon, are not to be considered as
having been so decided as to constitute precedents.” Webster v. Fall,
266 U.S. 507, 511, 45 S.Ct. 148, 149, 69 L.Ed. 411, 413 (1925).

Like the case at bar, Bankers Trust was a case brought under both statutory

and Rule 22 Interpleader. Bankers Trust, 139 F.R.D. at 306. And granted, in

potential conflict with the Western District of Missouri in Colcord, the Court in

Bankers Trust said that a duty to manage a fleet of railcars is not a “stake” for

purposes of Interpleader. Bankers Trust, 139 F.R.D. at 307. But this was obiter

dicta, for the Southern District of New York found that if anyone could be said to

be the stakeholder in that case, it would be a different corporate entity than the

Interpleader plaintiff, Manufacturers National Bank (MNB). Ibid. Thus, MNB did

not even have standing to assert a right to Interpleader in the first place.

It is also curious that Soetoro and Biden should cite to Bankers Trust

because the Court therein referred to one of the cases the Appellees rely on for

support, Xerox Corp. v. Nashua Corp., and cited with approval to the fact that in

Xerox, the Court held that “… Rule 22 does not require a formal stake or fund …”

Ibid (citing Xerox Corp. v. Nashua Corp., 314 F.Supp. 1187, 1189 (S.D.N.Y.

1970).) What is more, the Court in Bankers Trust found that the “Interpleader”

plaintiff had Interpleader completely backwards, and was, in essence, trying to use

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Interpleader to determine from which of two or more entities Bankers Trust itself

could claim a right to receive something rather than to determine to which of two

or more entities Bankers Trust might owe something. Ibid. Bankers Trust, 139

F.R.D. at 307.

As to Murphy v. Travelers Ins. Co., 534 F.2d 1155 (5th Cir. 1976), to which

Soetoro and Biden cite, that case was decided before either Martin or Scheidler

were decided. With respect to Bierman v. Marcus, 246 F.2d 200 (3rd Cir. 1957), the

Court there noted that the Interpleader “plaintiff” knew for a fact that there was no

possible way that it could be faced with conflicting claims. Bierman, 246 F.2d at

203. With respect to Xerox, supra, the Court found that there was no factual basis

upon which Nashua Corp. could possibly believe that there was any potential for

its being subject to multiple claims, and also found that the corporation in essence

wanted the District Court to force Xerox Corp. and RCA (which otherwise was not

even a party to the case) to sue each other over a patent. Xerox, 314 F.Supp. at

1189. As to Treinies v. Sunshine Mining Co., 308 U.S. 66 (1939) and Indianapolis

Colts v. Mayor & City Council, 733 F.2d 484 (7th Cir. 1984), those two cases

focused more heavily on diversity of citizenship than on the substance of what

constitutes adversity between potential claimants. And as to Ashcroft v. Iqbal, ___

U.S. ___, 129 S.Ct. 1937 (2009) and United States v. High Technology Products,

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Inc., 497 F.3d 637 (6th Cir. 2007), neither of those cases states anything

incompatible with what Col. Hollister has been alleging all along.

Perhaps strangest of all is the reference of Soetoro and Biden to the fact that,

according to their own authority, an inchoate thing such as a right to borrow on an

insurance policy can be a proper subject of Interpleader. (Br. Of Appellees at 12.)

For this point they make supports our argument not theirs.

3.) The “Obligation” Element Was Alleged In The First Amended

Complaint

Soetoro and Biden argue that Col. Hollister cannot now discuss the

“obligation” element of statutory Interpleader because it was not argued in the

District Court.28 But the “obligations” element was alleged in the First Amended

Complaint,29 which, as we have said, the District Court improperly refused to

consider. Incredibly, Soetoro and Biden now argue that because Hollister had filed

a First Amended Complaint, this Court can no longer consider the original

Complaint, meaning, by implication, that the First Amended Complaint, with its

allegation of the duties as “obligations”, must be good after all. (Br. Of Appellees

at 20).

Soetoro and Biden also apparently wish to have this Court believe that

Counsel John Hemenway made reference to the “obligation” element as a

28
Br. Of Appellees at 11.
29
First Amended Complaint, [Dkt. #11], ¶¶ 13-15, 56, 76.

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supposed substitute for the “property” element,30 but the brief of Hemenway,

properly construed, refers to “obligation” as being simply one of the statutory

alternative ways of establishing an Interpleader res.

C. Hollister Had Standing Under Bivens

Likewise, in a Bivens claim, the grounds to establish standing are different

than they are for ordinary cases. To obtain injunctive relief, one must simply show

that the ordinary criteria for bringing a Bivens claim are met,31 and that one quite

naturally fears that a federal officer will violate a protected constitutional right.32

Rights which have been recognized as being protected by Bivens claims

include the Fourth Amendment right against and unreasonable search and seizure

(i.e., Bivens itself) and against a deprivation of a Fifth Amendment right against a

deprivation of property without due process.33 Col. Hollister does not claim a right

under the “Natural Born Citizen” Clause of the Constitution. But as may be plainly

seen by notice pleading, he does fear that he may be personally seized by

reactivation to active duty, tried and incarcerated, and deprived of rights, pay, and

benefits, all in violation of his Fourth and Fifth Amendment rights.

30
Br. Of Appellees at 11
31
Schweiker v. Chilicky, 487 U.S. 412, 421 (1988).
32
Farmer v. Brennan, 511 U.S. 825, 830, 845-846 (1994).
33
Davis v. Passman, 442 U.S. 228, 234-236 (1979).

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D. Interpleader And Bivens Most Closely Parallel The Text And

Framework Of The Constitution

Appellant Hollister does not base his claim on the Constitution per se, but

Appellant’s entire claim does stem from a provision of the Constitution regarding

the qualifications to become President, a provision which states in pertinent part,

“No Person except a natural born Citizen, or a Citizen of the

United States, at the time of the Adoption of this Constitution, shall be
eligible to the Office of President … ” U.S. Const., Art. II, Sect. I, Cl.
5. (emphasis supplied)

Notice, please, that the Constitution does not say,

“A Person shall be eligible to the Office of President unless

such Person is not a natural born Citizen …”

In other words, there is no presumption that one is eligible to become

President. Rather, the converse is the case: there is a presumption that one seeking

to become President is not eligible to that office. Consequently, the wording of the

Constitution itself places the burden of proof on someone seeking to become

President. And such is likewise the nature of Interpleader and Bivens, once the

threshold requirement of showing a reasonable fear of injury has been met.

Other cases pertaining to this same subject matter have indeed been

dismissed. But in how many of them were the plaintiffs able to establish their

standing? And in how many of them did Soetoro (and Biden) have the burden of

proof?

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E. The Supreme Court Has Noted An Important Difference Between

“Valid” Claims And “Arguable”Claims For Purposes Of A Motion
To Dismiss

The Supreme Court of the United States has said,

“It is firmly established in our cases that the absence of a valid (as
opposed to arguable) cause of action does not implicate subject-matter
jurisdiction …. Dismissal for lack of subject-matter jurisdiction
because of the inadequacy of the federal claim is proper only when the
claim is ‘so insubstantial, implausible, foreclosed by prior decisions of
this Court, or otherwise completely devoid of merit as not to involve a
federal controversy.’”34

Accordingly, it was improper for the District Court, prior to a hearing, to

substitute its own sense of whether Col. Hollister’s claim would eventually be

found to have merit, in place of first allowing the establishment of a record at a

hearing, something which is a prerequisite, of course, for appellate review of a

District Court’s findings of fact.

Appellant, Gregory S. Hollister, requests this Court to review De Novo the

lower Court’s finding that Hollister failed to state a cause of action which relief

could be granted, Barr v. Clinton 370 F.3d 1196, 1199 (D.C. Cir. 2004)

VI. Conclusion

For the foregoing reasons, the judgment of the District Court should be

reversed, and this case remanded to that Court with instructions to accept

Hollister’s First Amended Complaint, or, in the alternative, with instructions to

34
Steel Co. v. Citizens For A Better Environment, 523 U.S. 83, 89 (1998) (citations omitted).

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allow Hollister to amend again, or at least to hold a hearing on the basis for

Hollister’s claim.

Respectfully submitted,

Dated: September 18, 2009 s/ Lawrence J. Joyce

__________________________
Lawrence J. Joyce
1517 N. Wilmot Road,
Suite 215
Tucson, AZ 85712
D.C. Circuit Bar No. 52501
(520) 584-0236

Attorney for Appellant,

Gregory S. Hollister

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CERTIFICATION OF COMPLIANCE WITH FED. R. APP. P. 32(a)

Pursuant to Fed. R. App. P. 32(a) and D.C. Circuit Rule 32)a), I hereby

certify that this brief contains 6,638 words, excluding the parts exempted by the

rules, and has been prepared in a proportionally spaced typeface using Microsoft

Word 2003 in Times New Roman 14-point typeface.

Dated: September 18, 2009 s/ Lawrence J. Joyce

_________________________
LAWRENCE J. JOYCE, ESQ.
barmemberlj@earthlink.net
1517 N. Wilmot Road,
Suite 215
Tucson, AZ 85712
D.C. Circuit Bar No. 52501

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UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA

GREGORY S. HOLLISTER, :
:
Appellant, :
vs. : Court of Appeal Case No. 09-5080
: Consolidating No. 09-5161
BARRY SOETORO, et al. :
:
Appellees. :

CERTIFICATE OF SERVICE

I, Lawrence J. Joyce, Esquire, hereby certify that Appellant, Gregory S.

Hollister’s, Reply to Respondents Barry Soetoro a/k/a Barack H. Obama and

Joseph R. Biden’s Appellees Brief was served via electronic filing this 20th day of

September 2009 upon the following:

Robert F. Bauer, Esquire

PERKINS COIE
607 Fourteenth Street, N.W.
Washington, D.C. 20005-2003
RBauer@perkinscoie.com
Attorney for Appellees

s/ Lawrence J. Joyce
_______________________
Lawrence J. Joyce, Esquire
1517 N. Wilmot Road,
Suite 215
Tucson, AZ 85712
D.C. Circuit Bar number 52501
Attorney for Appellant

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ATTACHMENT NO. 1-39
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09/22/2009 Page: 41
39

APPENDIX “A”

ATTACHMENT NO. 1-40

 Case: 09-5080 Document: 1217859
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The Honorable William J. Perry

Secretary of Defense
The Pentagon, Room 2E 880
Washington, D.C. 20301

Dear Mr. Secretary,

Sir, I am writing to ask your assistance to obtain an answer from the Attorney General
(Tab 1) regarding section 3 of the 14th Amendment of the Constitution and how it may
apply to Mr. Clinton. I have been seeking a direct answer to this question since February
1993.

I continue to seek a formal, direct answer for the following reasons:

1. Section 3 of the 14th Amendment and Mr. Clinton’s letter of December 1969 to
Colonel Eugene Holmes of Arkansas ROTC appear to make Mr. Clinton’s
Presidency suspect unless and until a vote is taken by the House and the Senate.

2. Page 22 of American Jurisprudence in the Constitutional Law section confirms

amendments to the Constitution require ratification by three-fourths of the States.
The Act of June 6, 1898, stat 432 by Congress removing the disability of section 3
was not ratified at all as best I can tell from my research.

3. Griffin 11 Fed Case page 24 as regards section 3 of the 14th Amendment states
“The Amendment applies to all the states of the union, to all offices under the
United States or under any state, and to all persons in the category of the
prohibition, and for all time present and future.”

4. American Jurisprudence 2d Edition, page 88, describes aid and comfort as “aid
and comfort are given whenever overt acts are committed which, in their natural
consequence, if successful would encourage and advance the interests of the
enemy.” Mr. Clinton’s acts of organizing protests while a student in England
after he signed up for ROTC falls into this category. Additionally, Admiral
Stockdale is on record as characterizing Mr. Clinton’s acts of that time as aiding
the North Vietnamese effort. (A copy of Mr. Clinton’s letter is a part of the
Congressional record – read in during the September/October ’92 time frame.)

5. The case of Stephan vs. the U.S. describes the enemy as “subjects of a foreign
power in open hostility with the U.S. No declaration of war is required to
categorize a nation or a people as an enemy.

6. In Gillars vs. U.S. speaking into a microphone and causing a record to be made
that is to be used as propaganda were held to constitute aid and comfort. Again, a
parallel can be drawn to Mr. Clinton’s actions as outlined in his December 1969
letter as documented in the Congressional Record.

ATTACHMENT NO. 1-41

Case: 09-5080 Document: 1217859
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09/22/2009 Page: 43
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7. Mr. Clinton had also taken an oath as a staffer prior to his aid and comfort actions
(see Tab 5 page 2)

Mr. Secretary, I want you to understand this is not about Mr. Clinton becoming
President, remaining, or never having been President. It is about the Constitution and
my oath of office. It is also not about me being right or wrong. It is about ensuring
the integrity of the principles and ideals embodied in the Constitution remain intact
and credible. Failure to clarify this matter places in question the very essence, the
bedrock, upon which our nation and way of life are based. If section 3 of the 14th
Amendment is Constitutionally and legally no longer applicable then the Constitution
should be changed accordingly. If this is not done, the entire Constitution becomes
suspect – what is or is not applicable any longer? Do we only “support and defend”
certain sections and ignore others? What of our oaths of office? How can they be
considered binding or meaningful in any manner if we collectively care little for the
accuracy or credibility of the Constitution?

I have tabbed out letters with information sent to the Attorney General, the Supreme
Court, Congress, and an attorney for your review prior to consultation with the
Attorney General. I have not and will not discuss this issue with any active duty
member. It would not be appropriate. This is an issue for our civilian leadership to
grapple with and resolve. I respectfully request your assistance to obtain rulings from
the Attorney General in a formal, legal, and professional manner on all the issues
addressed in this letter and the attached packages.

God bless you and guide you

Submitted with deepest respect,

Gregory S. Hollister, Lt. Col, USAF 1. Note/letter to Att. Gen

Commander 52nd Communications Squadron 2. Copy DOJ Receipt Doc
3. Letter/Reply Supreme
4. Letter/info Rep Houghton
5. Letter to attorney

ATTACHMENT NO. 1-42