UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

GREGORY S. HOLLISTER, :

Plaintiff :

:

vs. : CIVIL ACTION NO.

: 1:08-cv-02254 JR

:

BARRY SOETORO, et al., :

Defendants :

:

COUNSEL’S RESPONSE TO ORDER TO SHOW CAUSE

John D. Hemenway, Esquire, Attorney for Plaintiff Gregory S. Hollister, who filed

the within-captioned lawsuit pro hac vice for the principal attorneys Philip J. Berg, Esq.

and Lawrence J. Joyce, Esq., hereby responds to Honorable James Robertson’s Order

issued March 05, 2009, to Show Cause as to why he should not be sanctioned under Rule

11 (b) of the Federal Rules of Civil Procedure. This “Show Cause” is being filed timely

within the required eleven days of the date of the Order and a Show Cause Motion

objecting to the dismissal motion will follow as soon as time permits.

1. At the heart of this lawsuit is the provision found in the United States Constitution

as Article II, Section 1, which states in pertinent part:

“No person except a natural born citizen... shall be eligible to the office of President;

neither shall any person be eligible to that office who shall not have attained to the age of

thirty-five years, and been fourteen years a resident within the United States.”

2. This Honorable Court also granted Defendants Motion to Dismiss Plaintiff’s

Complaint on March 5, 2009. Judge Robertson issued a Memorandum with his reasons

for granting the Defendants Motion to Dismiss which stated that he had deemed

Plaintiff’s Complaint for Interpleader frivolous in two earlier orders.

3. The first point raised in Judge Robertson’s Memorandum is that

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“Plaintiff Hollister says that he is a retired Air Force colonel who continues to owe fealty

to his Commander-in-Chief (because he might possibly be recalled to duty) and who is

tortured by uncertainty as to whether he would have to obey orders from Barack Obama

because it has not been proven--to the colonel’s satisfaction--that Mr. Obama is a nativeborn

citizen.

4. This is not what Plaintiff Hollister’s concern is. Plaintiff

Hollister is a retired Colonel, who is subject to recall. Plaintiff’s concern is how an order

received from Soetoro/Obama is to be regarded. Would it be a legal order which he must

obey or an illegal order which he must disobey? These are not frivolous matters, as the

learned Judge Robertson has suggested. Possible illegal orders are a matter of great

concern to officers in the armed forces. Undersigned counsel himself entered the Army

of the United States during WWII and was promoted to Infantry Second Lieutenant

preparing for the anticipated landings in Japan which were scheduled for November 1,

1945. But for President Truman’s use of nuclear weapons to end the war, this would

have transpired. The legality of orders in and out of combat is of paramount importance.

Following military service during the war, the undersigned counsel studied civil

engineering, then attended the U.S. Naval Academy at Annapolis, graduating with the

class of 1951. He won a Rhodes Scholarship while at Annapolis and then studied

Philosophy, Politics and Economics at the University of Oxford for three years. He was

invited to join the United States Diplomatic Service after successfully passing a four day

examination and then joined the United States Department of State as a foreign service

officer in which capacity he became a Russian/German expert. Hemenway served in

Moscow during the height of the cold war (1960-1962). There is no activity in the life of

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the undersigned attorney that suggests he would knowingly do or attempt to do anything

frivolous. Moreover, there is nothing frivolous in the instant case as one carefully

considers it in the context of the surrounding fact pattern. This is all straight forward.

5. By contrast, the Plaintiff’s situation is a little more complicated. If the Plaintiff

were to be recalled to duty by the Commander-in-Chief (the President), he no longer has

access to our Article III Courts. Plaintiff has severe doubts concerning the legitimacy

and the constitutional qualifications/eligibility of his nominal Commander-in-Chief,

Soetoro/Obama. There is some doubt as to whether he is a Kenyan citizen, Indonesian

Citizen, naturalized U.S. citizen or a “natural born” U.S. Citizen. Plaintiff Hollister is not

even sure what his Commander-in-Chief’s legal name is. As a result, Plaintiff Hollister

has sought relief from this Court by way of an Interpleader Complaint, to help determine

whether Soetoro/Obama is in fact constitutionally qualified/eligible to be President of the

United States and Plaintiff’s Commander-in-Chief.

6. Plaintiff Hollister is not the only individual in the United States who has these

concerns. There have been several lawsuits filed seeking clarification as to

Soetoro/Obama’s legal citizenship status as well as his legal name. Several Supreme

Court Justices are publicly identified as stating that they will consider the matter, if it is

presented to them. How can the instant lawsuit be considered frivolous if it concerns the

basic issues not considered frivolous by judges of sound reputation and wide experience?

7. A second point raised in Judge Robertson’s Memorandum (p.1), is that the

President of the United States had been properly vetted. This assumes facts not in

evidence and was not addressed. It is clear that the constitutional qualifications of

President Soetoro/Obama have not been properly vetted. Judge Robertson even cites an

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earlier case filed in Pennsylvania by one of the two lead attorneys in this case, in which

the judge claimed candidates in the recent presidential election had never been more

closely vetted. Nothing was further from the truth. Effectively, the Pennsylvania District

Court Judge was introducing his own hearsay and opinion into the case as if it were

acceptable evidence. Legislation introduced into the Congress (HR 1503) would

establish a vetting process for future national candidates,

indicating Congressional recognition of the lack of proper credentialing in the 2008

election; unfortunately the legislation is not retro-active and therefore does not address

COL Hollister's complaint.

8. In the case at bar, this Court threatens to sanction the undersigned attorney with

the costs allegedly borne by the Defendants when all that would be necessary to terminate

this political chicanery (substitute "crisis") that now has involved hundreds of thousands

of concerned citizens would be for President Obama to display his actual birth certificate

which should include the customary doctor's signature (or mid-wife) and hospital name.

9. Instead, Soetoro/Obama has blocked access to his records by sealing his college

records, refusing access to his “vault” Birth Certificate; and all other documents which

would provide his citizenship status. Candidate John McCain, in contrast, provided his

“vault” version Birth Certificate showing his place of birth, and the issue of his

eligibility was addressed in Congress, in the non-binding Senate Resolution 511.

10. Although the eligibility of John McCain to qualify as president was

challenged and the remedy provided (in part by Soetoro/Obama), McCain’s qualifications

were solid. Much earlier, in the case of President Hoover, the Supreme Court had

determined that a person born of two American citizens not resident within the

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continental United States (in Hoover’s case, China) could be qualified under Article II,

Section 1 of the Constitution.

11. Although Soetoro/Obama has been asked for valid proof of his birth,

Defendant Soetoro/Obama has never responded. Instead, a document perpetrating to be

Soetoro/Obama’s birth certificate was placed on the internet in cites including, but not

limited to: factcheck.org, dailykos.com and fightthesmears.com. This image so presented

was later challenged by a forensic expert as a forged and/or altered document. It should

be noted the only organization which has actually seen the “supposed” original

Certification of Live Birth is Factcheck.org, a site which is owned by Annenberg and has

close ties with Soetoro/Obama. No news media or other entity or person has been

allowed access.

12. It is a widely recognized legal principle that, when a false or modified or

counterfeit document is presented as the original, under discovery, the actual document

must be presented.

13. Moreover, this document is a Certification of Live Birth which is issued by the

Hawaiian State Government when births abroad or births occurring outside of a hospital

are registered with the Hawaii Department of Health. A proper birth certificate provides

information as to where the child was born, weight, length, parent’s information, doctor

information, etc. The Certification of Live Birth provided by Soetoro/Obama only shows

he was born-- somewhere. The Hawaii Department of Home Lands will not even accept

its own Certification of Live birth for purposes of proving Hawaiian Heritage, much less

“natural born” status.

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13. Asking for proof of citizenship is critical in Plaintiff’s case. If the Plaintiff makes

the wrong decision, he could be court - martialed and faced with serious charges by the

military. The Citizenship status of our President should not be kept confidential.

14. Judges often have ruled the public interest outweighs any type of confidentiality.

In this Honorable Court’s Memorandum, p. 2, ¶1, Judge Robertson opines that “...The

real plaintiff is probably Philip J. Berg, A lawyer...who has pursued his crusade

elsewhere, see Berg v. Obama, 574 F. Supp. 2d 509 (E.D.Pa. 2008),...that case was the

subject of a scholarly opinion by a judge who took Mr. Berg’s claims seriously – and

dismissed them. Mr. Hollister is apparently Mr. Berg’s fallback brainstorm, essentially a

straw plaintiff, one who could tee [sic] Mr. Berg’s native-born issue up for decision on a

new theory...” We referred earlier to this case.

15. This opinion is not only completely absurd; it is extremely prejudicial to the

Plaintiff herein and the undersigned attorney who is being threatened with sanctions.

Contrary to Judge Robertson’s findings, Berg v. Obama was never heard on its merits,

instead it was dismissed for lack of jurisdiction pursuant to F.R.C.P. 12(b)(1) and is

currently under appeal in the Third Circuit Court of Appeals. Moreover, Berg v. Obama

has no place here in Plaintiff Hollister’s action. As noted above, the Pennsylvania judge

relied on his own opinion and prejudices to determine that candidate Obama had been

thoroughly “vetted.” To “vet” is hardly a judicial term. It is slang at best and should not

be used to “prove” legal matters from material from the Internet of some unknown

person’s “blog” as, surprisingly enough; several Judges have done, including this Court.

16. There are numerous military personnel and officers who have the same concern

as the Plaintiff herein. Dr. Orly Taitz, Esquire, has a list in excess of 85 (check #- I have

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seen the #120) military personnel. These are potential Plaintiffs who will decline to

obey any orders issued by Soetoro/Obama as long as there are serious concerns whether

Soetoro/Obama is a Kenya citizen, Indonesia citizen, U.S.citizen, or if he is a “natural

born” citizen constitutionally qualified to serve as United States President.

17. Moreover, Ambassador Keyes, a presidential candidate has filed suit against

Soetoro/Obama at the time of the filing of the instant lawsuit regarding the citizenship

status and legal name of Soetoro/Obama , which is still pending and was currently being

litigated at the time of the filing of the instant lawsuit. The issues are similar and no legal

authority has accused Ambassador Keyes of bringing a “frivolous” lawsuit or threatening

him with Article 11 sanctions.

18. Judge Robertson states “The filing and service of the complaint required private

counsel to appear for President Obama and for Vice President Biden…” [Judge

Robertson’s Memorandum p. 2, ¶2]. This is not accurate. Plaintiff and Plaintiff’s

counsel is unaware of any personal appearance of Defendants counsel in this Court, as

Plaintiff’s counsel have not been afforded any opportunity to appear before this

Honorable Court, not even to be heard on the issues surrounding Defendants Motion to

Dismiss. As this Court is aware, appearance of counsel for either party of a suit without

notification to all counsel is extremely biased and prejudicial.

19. Jurisdiction was established with this Honorable Court when Judge Robertson

acknowledged that “Plaintiff having invoked both diversity and the federal interpleader

statute, 28 U.S.C. § 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.”

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[Judge Robertson Memorandum, p. 3, ¶1]. 28 U.S.C. § 1355 pertains to fines, penalty

and forfeiture.

20. Counsel can only assume 28 U.S.C. § 1355 is a typo. However, if not,to clarify,

Plaintiff’s complaint was filed under Rule 22 Interpleader and 28 U.S.C. § 1335 and his

First Amended Complaint was filed pursuant to 28 U.S.C. § 1335 and the added Bivens

Claim.

21. Judge Robertson, in his Memorandum in support of his Order of Dismissal,

states “I have already called the interpleader claim “frivolous” in two interlocutory

rulings [#10 and #14], and I do so again here. [Judge Robertson Memorandum, p. 3, ¶2].

This is not completely accurate.

22. Docket item #10, Order of Judge Robertson issued February 4, 2009, states

“Plaintiff's motion to file interpleader and deposit funds with the court [#2] is frivolous

and is denied.” This order clearly pertains only to the Motion to file Interpleader, which

was a requirement of the Clerk of the Court in order to file Plaintiff’s Complaint.

23. Docket item #14, Order to Show Cause, was issued by Judge Robertson

February 25, 2009. This Honorable Court states “What was frivolous about the motion,

however, was not the fact that it was filed, but the suggestion that "duties" could be filed

in the registry of this court.” Again, this Order only pertains to the Motion to file

Interpleader, not the Interpleader Complaint itself. Furthermore, as addressed above,

when the Plaintiff asked to deposit an Interpleader bond with the Court in lieu of a cash

monetary deposit, this court dismissed the motion as moot.

24. This Honorable Court states “Plaintiff has not cited a single case that lends even

colorable support to the notion that his alleged “duties” can be the “money or property”

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to which the interpleader statute applies.” [Judge Robertson Memorandum, p. 3, ¶2]. In

Murphy v. Travelers, 534 F.2d 1155 (5th Cir. 1976) the Court stated:

“Federal interpleader jurisdiction depends on identifiable property or a limited fund or

pecuniary obligation, and it is not proper to predicate jurisdiction on the mere potential to

recover damages for pecuniary injury. Wallach v. Cannon, 357 F.2d 557 (8th Cir. 1966).

Failure to deposit the full amount claimed does not deprive the court of interpleader

jurisdiction where the stakeholder deposits all of the specific property or the full amount

of the specific ‘fund’ into the court.” Murphy, 534 F.2d at 1159, n. 2 (citations omitted).

[emphasis added] The Court went on to say, “Requiring a stakeholder to anticipate such a

recovery ab initio would frustrate the purpose of federal interpleader …” Ibid.

25. The interpleader statute pertains to tangible or intangible

property, which also includes “duties” and “obligations”. Judge Robertson goes on

further in his memorandum at p. 3, in the first paragraph that“The only interpleader case

plaintiff cites that involves a "duty" is Bank of Neosho v. Colcord, 8 F.R.D. 621 (W.D.

Mo. 1949) (Complaint, para. 12)…”

26. With respect to the “property” requirement of the statute, the Supreme Court has

held that in the federal jurisdiction, property can be recognized in intangible res, such as

an interest in the confidentiality of a newspaper’s contents, as well as in the timing of the

release of those contents. Carpenter v. United States, 484 U.S. 19, 25-27, 108 S.Ct. 316,

320-321, 98 L.Ed.2d 275, 283-284 (1987). Other federal courts have stated that property

can be recognized in other types of intangible res as well. First Victoria National Bank v.

United States, 620 F.2d 1096, 1106-1107 (5th Cir. 1980) (“rice history acreage”, like

“good will of a business”, is property); Matter of Nichols, 4 B.R. 711, 717 (E.D. Mich.

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1980) (citing Black’s Law Dictionary at 1095 for proposition that “property”

encompasses all things “corporeal or incorporeal, tangible or intangible, visible or

invisible … ”). Significantly, the District of Massachusetts has found that property can be

recognized in a relationship, such as a landlord-tenant relationship, or an employeremployee

relationship. Glosband v. Watts Detective Agency, Inc. 21 B.R. 963, 971-972.

(D. Mass. 1982).

27. It has been found that interpleader will be allowed even when the plaintiff has no

“stake” in the outcome of the litigation, or in which there is no “fund”. Xerox Corp. v.

Nashua Corp., 314 F. Supp. 1187, 166 U.S.P.Q. 344 (S.D.N.Y. 1970). A duty with

respect to a sum of money has also been found to be a proper matter for interpleader.

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

28. A plaintiff is permitted to proceed in interpleader even when no formal demand

against him has been made. Dunbar v. United States, 502 F.2d 506 (5th Cir. 1974).

Instead, the mere fact that the plaintiff has a real, reasonable, bona fide fear of exposure

to multiple claims or the hazards and vexation of conflicting claims is sufficient.

American Fidelity Fire Insurance Co. v. Construcciones Werl, Inc., 407 F. Supp. 164

(D.C. Virgin Islands 1975). See also, Underwriters at Lloyd’s v. Nichols, 363 F.2d 357

(8th Cir. 1966) (in such circumstances, court has a duty to allow interpleader). Also, it

has been found that no “deposit” with the court is required. Murphy v. Travelers, Inc.,

534 F.2d 1155 (5th Cir. 1976); Bauer v.

Uniroyal Tire Co., 630 F.2d 1287 (8th Cir. 1980).

29. Plaintiff has pled he is in possession of certain property. This property consists

of duties owed by the Plaintiff to the Commander-in-Chief of the Armed Forces of the

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United States and to all others above Plaintiff’s rank in his chain of command, and this

property also consists of certain relationships.

30. The Plaintiff has found no case, nor did His Honor cite any such case, in which a

Court held that intangible res cannot be the subject of Interpleader; and the wording of

the statute upon which the Plaintiff relies to bring this case in the nature of Interpleader

must be considered in light of two holdings by the Supreme Court on statutory

construction: Martin v.Wilks , 490 U.S. 760, 109 S.Ct. 2180, 104 L.Ed.2d 835 (1989)

and N.O.W. v.Scheidler, 510 U.S. 249, 114 S.Ct. 798, 127 L.Ed.2d 99 (1994).

31. The duties which Plaintiff Hollister has toward the

Commander-In-Chief of the Armed Forces of the United States, and to all others above

him in his chain of command also constitute obligations owed by the Plaintiff to the

Commander-In-Chief and to all others above him in his chain of command.

32. In light of Martin v. Wilks and N.O.W. v. Scheidler, any attempt to read into the

federal Interpleader statute a requirement that the property rights pertain only to a

tangible res or that the obligations would have to constitute the tendering of a tangible

res would constitute an impermissible addition of an element not contained in the statute

itself.

33. This Honorable Court states further “Mr. Berg and Lawrence J. Joyce, an

attorney who lives in Tucson, Arizona, signed the complaint in this case. (They have

been filing electronically although they have not been admitted pro hac vice, see [#10].)”

This again is not completely accurate. All Plaintiff’s counsels names appear on

everything filed in the case herein, including John D. Hemenway. Mr. Hemenway was

not able to manage ECF log-in at the beginning of this lawsuit. Mr. Berg has been

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refused an ECF log-in and password until he becomes a member of the State Bar of the

District of Columbia or the Motion to allow him admission pro hac vice has been

approved. Mr. Berg’s office spoke with the ECF division of the Court and was instructed

to send briefs to be filed to the ECF email address for electronic filing. This is exactly

what counsel for Plaintiff has done.

34. To threaten sanctions against Attorney Hemenway because of the new ECF

filing procedures seems unfair in the extreme. It suggests a further restriction of access to

information held by the Courts by limiting the use of the new electronic system only to

the initiated. Just as Rule 11 is not designed to intimidate those seeking justice before the

Court system, so should the introduction of electronic devices not be used to limit, but to

facilitate access to Court information.

35. Docket entry #10 is Judge Robertson’s February 4, 2009 Order wherein he

instructs that “The motions of his counsel [Docket #4 and #5] for the admission pro hac

vice of Philip J. Berg and Lawrence J. Joyce are in abeyance until the Court has had the

opportunity, in open court, to examine their credentials, their competence, their good

faith, and the factual and legal bases of the complaint they have signed.” However, this

Court has never afforded Philip J. Berg, Esquire or Lawrence J. Joyce, Esquire, or

Attorney John D. Hemenway, for that matter, an opportunity to appear before the Court.

It should also be noted, Plaintiff’s counsel filed a Motion requesting this Honorable Court

to vacate its February 4, 2009 Order and grant counsel’s motion for admission pro hac

vice, see docket entry #18. To this date, your Honor has not ruled upon that Motion. In

Washington, D.C., this is not unusual, even though it is not good practice. The

undersigned attorney has had a case in the Superior Court of the District of Columbia for

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more than 22 years, which has numerous motions, fully briefed, upon which no action

has been taken for years. Neither has an attempt to sue the Superior Court in the United

States Court for the District of Columbia to force action produced any movement, so far.

It appears that judges in the D.C. Circuit do not like to criticize or admonish other judges

for inaction particularly where racial antagonisms play a factor. (Hoai v. Vo, a case

involving the Sun Oil Company and the D.C. Superior Court and the U.S. District Court

for the District of Columbia Circuit.)

36. This Honorable Court states “Mr. Berg and Lawrence J. Joyce, an attorney who

lives in Tucson, Arizona, signed the complaint in this case. They are agents provocateurs

–-…” [Judge Robertson Memorandum, p. 4, ¶2]. This not only is inaccurate, the speech

is prejudicial. Plaintiff’s complaint and any brief, response thereto or oppositions bear

the name of all three attorneys. Furthermore, as stated above, Attorney Hemenway did

not have any expertise in ECF log-in or filings at the time the case was submitted to this

Court and Attorney Berg was refused ECF log-in until his Motion for pro hac vice was

granted. Peggy in the ECF division of the court instructed Plaintiff’s counsel to send any

brief’s via email to the ECF division of the court at dcd_cmecf@dcd.uscourts.gov.

37. Your Honor’s statement regarding Attorney Berg and Attorney Joyce is nothing

more than a one-sided and uninformed opinion with respect to the Defendants herein,

extremely biased and extremely prejudicial to the Plaintiff. Unfortunately, the Plaintiff

does not have any other avenue to obtain answers he so desperately needs and he should

be afforded the same constitutional protections as all citizens of the United States and

permitted his right to redress with an unbiased and un-prejudicial Judge. The fact that in

raising the same basic question concerning details of President Obama’s birth, none of

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the many other courts at all levels have suggested that the cases have been filed “... for an

improper purpose such as to harass...” as has this Court, suggests that such language is

incorrect or over the top.

38. Has this Court never met a citizen who was in its presence merely because duty

and obedience to the law required it? Hemenway, when in the foreign service in Moscow

with the U.S. Embassy, made a study of religions, including, but not limited to Catholics,

Jews, and Baptists, to document Communist policy of suppression of religion in the

USSR. He was denounced in an anti-Semitic book published in 1964 in the Soviet Union

called “Judaism Unadorned.” Hemenway fought the State Department for

implementation of a Grievance System which was put into place after Hemenway was

elected President of the American Foreign Service Association (AFSA), the union for

all U.S. Diplomats. Hemenway had opposed AFSA's formation, because he predicted it

would turn into a company union. Hemenway witnessed an attempted carjacking,

pursuing the perpetrator and made a citizen’s arrest before turning the criminal over to

uniformed police. As a matter of duty, Hemenway ran for Congress, as a Democrat, in

Seattle. Concurrence with Mr. Berg's complaint does not make Hemenway a "foot

soldier" anymore than it does servicemembers out in the field. Given Hemenway's long

career in public service and history of activism on behalf of many worthy causes, the

Judge's language is demeaning and unprofessional.

39. Yet, Judge Robertson went on further in his Memorandum to assert: “John D.

Hemenway, on the other hand, is a member of the Bar of this Court. He may have been

enlisted by Messrs. Berg and Joyce as a foot soldier in their crusade, but he is

nevertheless directly responsible to this Court for the pleadings that have been filed on

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behalf of the plaintiff.” [Judge Robertson’s Memorandum, end of p. 4] Attorney

Hemenway volunteered his services to the Berg case because he believes in upholding

our United States Constitution and honors the fact that citizens of the United States are

entitled to ask questions, and know who their President of the United States is , and if

our President is in fact constitutionally eligible/qualified to serve. No one is above the

law.

40. Judge Robertson went on further stating in his Memorandum “Because it appears

that the complaint in this case may have been presented for an improper purpose such as

to harass; and that the interpleader claims and other legal contentions of plaintiff are not

warranted by existing law or by non-frivolous arguments for extending, modifying or

reversing existing law or for establishing new law, the accompanying order of dismissal

requires Mr. Hemenway to show cause why he has not violated Rules 11(b)(1) and

11(b)(2) of the Federal Rules of Civil Procedure, and why he should not be required to

pay reasonable attorneys fees and other expenses to counsel for the defendants.” [Judge

Robertson’s Memorandum, pp. 4-5]. Are any attorney’s fees reasonable when the

“transparency in government” and “openness” promised by the candidate Soetoro/Obama

would require and resolve all questions merely by presentation of a birth certificate. Seen

in this light, the position of this Court appears absurd. Plaintiff’s case herein was brought

as a form of redress so the Plaintiff would not be placed in a situation where he is unsure

if he should obey an order, as a legal order, issued by Soetoro/Obama or disobey an

Order of Soetoro/Obama as an illegal order. Plaintiff clearly asked this Court to rule in

two (2) different ways. Plaintiff asked this Court to deem Soetoro/Obama a “natural

born” citizen and constitutionally eligible/qualified to serve as President of the United

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States and as his Commander-in-Chief, and obey any orders he so issues; or to find

Soetoro/Obama not a “natural born” citizen and constitutionally ineligible/qualified to

serve as President of the United States and not recognize him as Plaintiff’s Commanderin-

Chief, and disobey any orders he gives as an illegal order.

41. It should also be noted, all through Judge Robertson’s Memorandum, he uses the

term “native born”. Plaintiff has never used the term “native born”, Plaintiff is

questioning whether Soetoro/Obama is a “natural born” U.S. citizen, as the Constitution

so requires to be President of the United States. The phrase “natural-born citizen” was

meant by the Founding Fathers to ensure that the Presidency was never occupied by

someone who was not thoroughly “Americanized” and who would be loyal to a republic

and who would defend its independence and hard-won liberties. As James Madison said

in the House of Representatives:

“It is an established maxim that birth is a criterion of allegiance. Birth, however,

derives its force sometimes from place and sometimes from parentage, but, in

general,place is the most certain criterion; it is what applies in the United States.

(James Madison, May 22, 1789, in the House of Representatives.)

42. As to the question of whether the Plaintiff’s status as a member of the Armed

Forces in good standing will continue, that involves matters of his reputation in the

community and his risk of facing incarceration and expulsion from his career in the

military (i.e., from this employer-employee relationship) if he fails to perform his duty to

obey lawful orders and disobey unlawful orders correctly. The same holds true for his

continued superior-subordinate relationship with the Commander-in-Chief of the Armed

Forces of the United States, as well as that same relationship with every person in his

chain of command.

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43. As to the plaintiff’s interest in knowing how to perform his duties to obey lawful

orders and to disobey unlawful orders properly, A look at the present state of affairs with

respect to the twin legal duties of a member of the uniformed service to obey a lawful

order, and to disobey an unlawful order, will provide this Court with the insight needed to

comprehend the situation the plaintiff now faces. In 1995, an Army specialist refused to

obey an order on the grounds that it was an illegal order. Persons entering the military

are, of course, required taking an oath to obey orders, and to defend the Constitution

against all enemies, foreign and domestic. But the Armed Forces themselves construe

their oath to obey orders to require only that they obey lawful orders. See The Uniform

Code of Military Justice (UCMJ) 809.ART.90 (20) (military personnel need only obey

the "lawful command of his superior officer"); 891.ART.91 (2), (a member of the service

must obey the "lawful order of a warrant officer"; 892.ART.92 (1) service member must

obey the "lawful general order"), and 892.ART.92 (2) ("lawful order"). And the courts

have recognized even the affirmative duty of service members to disobey unlawful

orders, most notably in the notorious “My Lai Massacre” case, United States v. Calley,

22 USCMA 534, 48 CMR 19 (1973).

44. Counsel for the specialist at his court-martial maintained at trial that it was the

prosecution’s burden to prove that the order was lawful. The judge, however, concluded

that the order was lawful as a matter of law, and instructed the jury that the order was

lawful. In 1996, the specialist was convicted at that court-martial of disobeying a lawful

order, and he appealed.

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45. As the case made its way through the military appeals process, the specialist

sought intervention by the Article III courts … by this court specifically, in fact. He was

denied access to this court on the grounds that Congress had precluded it. United States

ex rel. New v. Perry, 919 F. Supp. 491 (D.D.C. 1996); aff’d sub nom. New v. Cohen, 129

F.3d 639 (D.C.Cir. 1997). The Supreme Court denied certiorari. New v. Cohen, 523

U.S.1048, 118 S.Ct. 1364, 140 L.Ed.2d 513 (1998).

46. Three years after the Supreme Court first declined to review the case, the United

States Court of Appeals for the Armed Forces (CAAF) upheld his conviction. United

States v. New, 55 M.J. 95 (2001). Specialist New had argued first of all that the

lawfulness of the order was part of the prosecution’s case in chief, relying on United

States v. Gaudin, 515 U.S.506, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995), in which the

Supreme Court said that it is the prosecution’s burden to prove every element of an

offense. The CAAF rejected this argument, however, holding that Gaudin had no

application to cases brought under the Uniform Code of Military Justice (New, 55 M.J. at

104), and that therefore the judge’s decision at trial to determine that the order had been

lawful as a matter of law had been proper (New, 55 M.J. at 102-104). The CAAF never

even made a finding per se that the order was lawful, but simply stated instead that the

specialist had not proven that the order was unlawful. New, 55 M.J. at 106-107. The

Court even went so far as to say that the judge at the court-martial had properly declined

to rule on the very constitutionality of the President’s order on the grounds that it

presented a nonjusticiable political question. (New, 55 M.J. at 109).

47. In Judge Robertson’s Memorandum in support of his dismissal of Plaintiff’s

complaint, Judge Robertson states “Because it appears that the complaint in this case may

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have been presented for an improper purpose such as to harass; and that the interpleader

claims and other legal contentions of plaintiff are not warranted by existing law or by

non-frivolous arguments for extending, modifying or reversing existing law or for

establishing new law...” Judge Robertson has used this as his basis issuing the Order

against Attorney Hemenway to show cause why he should not be sanctioned pursuant to

F.R.C.P. 11(b)(1) and 11(b)(2).

48. Federal Rules of Civil Procedure, Rule 11 states in pertinent part:

(b) Representations to the Court.

By presenting to the court a pleading, written motion, or other paper — whether

by signing, filing, submitting, or later advocating it — an attorney or

unrepresented party certifies that to the best of the person's knowledge,

information, and belief, formed after an inquiry reasonable under the

circumstances:

(1) it is not being presented for any improper purpose, such as to harass, cause

unnecessary delay, or needlessly increase the cost of litigation;

(2) the claims, defenses, and other legal contentions are warranted by existing law

or by a non-frivolous argument for extending, modifying, or reversing existing

law or for establishing new law;

(c) Sanctions.

(1) In General.

If, after notice and a reasonable opportunity to respond, the court determines that

Rule 11(b) has been violated, the court may impose an appropriate sanction on

any attorney, law firm, or party that violated the rule or is responsible for the

violation. Absent exceptional circumstances, a law firm must be held jointly

responsible for a violation committed by its partner, associate, or employee.

(3) On the Court's Initiative.

On its own, the court may order an attorney, law firm, or party to show cause why

conduct specifically described in the order has not violated Rule 11(b).

49. Plaintiff’s arguments were by no means frivolous. Undersigned counsel points

out to this Court, that credible information shows Soetoro/Obama was born in Mombosa

Kenya. In any event, Soetoro/Obama’s son, Soetoro/Obama, was born August 4, 1961

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and at the time of his birth, his mother was only eighteen [18] years old and not old

enough to pass on “natural born” United States citizenship to her son Soetoro/Obama.

See the Nationality Act of 1940, revised June 1952; United States of America v.

Cervantes-Nava, 281 F.3d 501 (2002), Drozd v. I.N.S., 155 F.3d 81, 85-88 (2d Cir.1998),

United States v. Gomez-Orozco, 188 F.3d 422, 426-27 (7th Cir.1999), Scales v.

Immigration and Naturalization Service , 232 F.3d 1159 (9th Cir. 2000), Solis-Espinoza

v. Gonzales , 401 F.3d 1090 (9th Cir. 2005).

50. The Certification of Live Birth which has been mentioned numerous times is not a

document which proves or conveys “natural born” United States citizenship status.

Hawaii issues a Certification of Live Birth to any person whose birth is registered with

the Hawaii Department of Health by parents, including those children born abroad.

Hawaiian Statute §338. In any event, Soetoro/Obama’s Certification of Live Birth posted

on his website was challenged by a forensic expert (?) to be an altered and forged

document. Although the image of Soetoro/Obama’s Certification of Live Birth has been

placed on the internet at dailykos.com, fightthesmears.com and factcheck.org, (the latter

an internet site owned by Annenberg) no courtroom has been permitted access to the

“supposed” original document. No other reporter, person or entity has been permitted to

see the original document. It should also be noted, Soetoro/Obama’s sister, Maya

Soetoro-Ng was born in Indonesia and today is classifiable as a “naturalized citizen.”

However, her birth was registered in Hawaii and she, too, maintains a Certification of

Live Birth.

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51. Plaintiff submitted Barry Soetoro’s (a/k/a Barack H. Obama’s) Indonesian

school record showing Soetoro/Obama’s citizenship status as “Indonesian”, his name as

“Barry Soetoro”, etc. Soetoro/Obama has admitted to attending the Indonesian public

schools, ABC News, Indonesia Matters. Furthermore, the laws in effect at the time

Soetoro/Obama attended the Indonesian public schools have been provided in Plaintiff’s

complaint, Plaintiff’s First Amended complaint and other filings. In the years

Soetoro/Obama attended the public schools in Indonesia, his father was listed as Lolo

Soetoro, M.A. Indonesia did not allow foreign students to attend their public schools in

the late 1960’s or 1970’s, and any time a child was registered for a public school, the

child’s name and citizenship status were verified through the Indonesian Government.

See Constitution of Republic of Indonesia (Undang-Undang Dasar Republik Indonesia

1945), Chapter 13, Law No. 62 of 1958 (all citizens of Indonesia have a right to

education). These documents are available and suggest strongly that to sanction Attorney

Hemenway for assisting in filing a “frivolous” Complaint is prejudiced and wrong and

most certainly violative of Hemenway’s civil rights before this Court. This Court must

offer Attorney Hemenway the right to pursue pertinent discovery, if it persists in

sanctioning him for a Rule 11 violation.

52. Soetoro/Obama’s mother divorced Lolo Soetoro in 1980. In the divorce papers,

the parties claim they have two [2] children, one under the age of eighteen [18} and one

over the age of eighteen [18] who is a full time student and in need of financial support.

The two [2] children of the Soetoro’s are Maya Soetoro-Ng and Barry Soetoro a/k/a

Barack H. Obama. The Soetoros did not have any other children. This document is

available for public inspection.

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53. As outlined above, Plaintiff’s Interpleader Action was and is a proper action for

no other purpose than to determine whether Soetoro/Obama’s Orders, if issued, are

lawful orders which he must obey or illegal orders which he must disobey. The matter

relates to his Constitutional qualification as President as defined in Article II, Section 1 of

the United States Constitution. The matter can be cleared up merely by presentation of a

birth certificate or identifying the place and attendees present at Soetoro/Obama’s birth.

Plaintiff through Counsel properly filed an interpleader Complaint which asked this

Court to take action to prevent a situation from developing in which all these issues will

be compounded by additional confusion over who is lawfully entitled to be the

Commander-in-Chief.

54. There is another serious problem, previously alluded to, which suggests

that Soetoro/Obama’s citizenship may have been clouded by his use of a passport issued

to him by Indonesian authorities, when he was considered a citizen of Indonesia. On

April 6, 2008, candidate for President Obama mentioned his travel to Indonesia and

Pakistan in the summer of 1981 to demonstrate his knowledge of foreign affairs, saying,”

I knew what Sunni and Shia was (sic) before I joined the Senate Foreign Relations

Committee.” Candidate Obama’s press secretary, Bill Burton, confirmed to the New

York Times and other periodicals that Obama had visited Pakistan in 1981, traveling with

a Pakistani friend from his Occidental College days, Wahid Hamid. In Pakistan, Obama

stayed with the family of Mohammed Hasan Chandoo, another Pakistani friend.

Although Obama has never again mentioned this travel (it was omitted from his two

memoirs)it can be considered a fact confirmed by his own statements, that he did travel to

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Indonesia and Pakistan in 1981. Pakistan was under martial law in 1981 and Christians,

Jews and Americans were prohibited from entering the country. Further, Pakistan was on

the U.S. State Department’s “no travel” list. Even if Obama still retained a U.S. passport

issued when his mother took him from Hawaii to Indonesia in 1967 to be with her

second, Indonesian husband, the U.S. passport was of no value in Pakistan. Logic

compels us to conclude that Obama either traveled on an Indonesian passport (obtained

when he became an Indonesian citizen, through his mother) or a British passport, based

on his putative birth in Kenya in 1961 or the fact that his father was a Kenyan and a

British citizen.

55. The facts are quite clear based on Soetoro/Obama’s own statements: (1)

he acknowledges a 1981 trip to Pakistan; (2) a U.S. passport (if he had one) was of no use

at that time; (3) also available to him was the possibility of a British passport or an

Indonesian passport. Travel on such documents necessarily compromises his claim to

United States citizenship. The relevant portion of the Immigration and Nationality Act of

1952, Title III, Chapter 1 is Section 301(a)(7) which reads:

“...a person born outside the geographical limits of the United States and

its outlying possessions of parents one of whom is an alien, and the other a citizen

of the United States who, prior to the birth of such person, was physically present

in the United States or its outlying possessions for a period of periods totaling not

less than 11 years, at least five of which were after attaining the age of fourteen

years: Provided, That any periods of honorable service in the Armed Forces of the

United States by such citizen parent may be included in computing the physical

presence requirements of this paragraph.”

A large number of personal documents would establish the facts of the personal

citizenship status of Soetoro/Obama during this period. For example medical records,

college and law school records, in addition to a genuine birth certificate or certificate

from the hospital or person attending his mother during his birth, such as a mid-wife or

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doctor. It is a simple matter to establish, but Soetoro/Obama has instead contested

lawsuits and stonewalled demands to produce proof of his place of birth, thereby creating

the very understandable inference that he is concealing the facts and hiding the truth.

56. In the face of the facts cited above that underlie the case at bar, it is

preposterous to cite Attorney Hemenway for Rule 11 sanctions. More appropriate would

be to question the integrity of the attorneys representing Soetoro/Obama with the intent

of determining whether they are in a conspiracy with the defendants they represent to

violate the Constitution of the United States for political purposes. It is sad to read this

Court’s use of material from the internet to imply that the issues in the numerous lawsuits

filed have been resolved by the “twittering and blogging” to determine that the litigants

are invoking “conspiracy theorists.” It suggests that the intellectual capacity of this Court

focused on the issues in the instant suit at a very low level, perhaps for political purposes,

such as to win attention from the highest authority when a seat on the Supreme Court of

the United States becomes vacant. Whatever action this Court may take, sanctioning of

the attorney who facilitated the filing of the case at bar is inappropriate.

57. The intentional withholding of personal details by a President who assured

those who voted for him (53% of the electorate) that he favored public policies of

undiluted honesty, openness, and “transparency” can not be overstated. During a March

30, 2007 fundraiser, while campaigning, Soetoro/Obama claimed: “I was a constitutional

law professor, which means unlike the current president (George W. Bush) I actually

respect the Constitution.” Actually he was listed among university professors as a

“senior lecturer.” If, through inadvertency, Soetoro/Obama mistakenly became a

candidate when unqualified, there are constitutional corrections available and we now

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have a fully qualified Vice-President in office. It is not helpful for a United States

District Judge to endorse obfuscation when a constitutional issue is involved. Under

these circumstances, to threaten sanctions against an attorney who, in good faith assisted

in the filing of a law suit involving issues none of the many judges and attorneys from

coast to coast have found “frivolous” is to employ the Rule 11 as a device to deprive the

undersigned attorney of his civil rights and the right to due process. Without even a

hearing or access to discovery being granted to defend against the charges, such a

sanction would be a veritable lynching.

58. Furthermore, it is governing precedent in this Circuit that once defendant

Obama becomes the plaintiff’s Commander-in-Chief, the doors to this Court, and all the

Article III courts, will be closed to him initially. To adjudicate his claim, the plaintiff in

fact would first have to disobey an order he deemed unlawful and then wait to be courtmartialed

and convicted, and the appeals process thereof exhausted, before he could ask

the Article III courts for a remedy. United States ex rel. New v. Perry, 919 F. Supp. 491

(D.D.C. 1996); aff’d sub nom. New v. Cohen, 129 F.3d 639 (D.C.Cir. 1997), cert. den.,

523 U.S. 1048, 118 S.Ct. 1364, 140 L.Ed.2d 513. Hence Plaintiff cannot wait until an

Order is issued by Soetoro/Obama to learn whether the Order is a legal Order he is to

obey or an illegal Order he is to disobey.

59. Counsel for the Plaintiff filed the appropriate action on

Plaintiff’s behalf, which was an interpleader action, seeking to remedy the uncertainties

Plaintiff has with whether Soetoro/Obama’s Orders are legal Orders which he is to obey

or illegal Orders which he is to disobey.

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60. In Forbes v. Merrill Lynch, 179 F.R.D. 107, 111 n. 6 (S.D.N.Y.1998), the Court

found "[D]ue process requires that courts provide notice and an opportunity to be heard

before imposing any kind of sanctions." Quoting, Ted Lapidus, S.A. v. Vann, 112 F.3d

91, 96 (2d Cir.) (quoting In re Ames Dep't Stores, Inc., 76 F.3d 66, 70 (2d Cir. 1996))

(alteration in original), cert. denied, 118 S. Ct. 337 (1997); accord Rounseville v. Zahl, 13

F.3d 625, 632-33 (2d Cir. 1994). Rule 11. itself requires that sanctions be imposed only

"after notice and a reasonable opportunity to respond." Fed. R. Civ. P. 11(c); see also

Fed. R. Civ. P.11(c) advisory committee's note to 1993 amendments ("Explicit provision

is made for litigants to be provided notice of the alleged violation and an opportunity to

respond before sanctions are imposed.").

61. In particular, "a sanctioned attorney must receive specific notice of the conduct

alleged to be sanctionable and the standard by which that conduct will be assessed, and

an opportunity to be heard on that matter." Lapidus, 112 F.3d at 97 (emphasis added);

see also United States v. International Bhd. of Teamsters, 948 F.2d 1338, 1346 (2d Cir.

1991) (district court must "specify the sanctionable conduct and the authority for the

sanction"). "The purpose of particularized notice is to put counsel 'on notice as to the

particular factors that he must address if he is to avoid sanctions.'" Lapidus, 112 F.3d at

96 (quoting Jones v. Pittsburgh Nat'l Corp., 899 F.2d 1350, 1357 (3d Cir. 1990)).

Accordingly, Rule 11 requires that the court, before imposing sanctions sua sponte, "enter

an order describing the specific conduct that appears to violate [the rule] and directing

[the] attorney . . . to show cause why it has not violated [the rule] with respect thereto."

Fed. R. Civ. P. 11(c)(1)(B) (emphasis added).

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62. Under Rule 11(c), a court may impose sanctions either by motion, see Rule

11(c)(1)(A), or on its own initiative, see Rule 11(c)(1)(B). Rule 11(c), however, also

limits the types of sanctions that may be imposed for violation of the rule as follows:

A sanction imposed for violation of this rule shall be limited to what is sufficient

to deter repetition of such conduct or comparable conduct by others similarly

situated. . . . [T]he sanction may consist of, or include, directives of a

nonmonetary nature, an order to pay a penalty into court, or, if imposed on motion

and warranted for effective deterrence, an order directing payment to the movant

of some or all of the reasonable attorneys'

fees and other expenses incurred as a direct result of the violation. Fed. R. Civ.

P. 11(c)(2) (emphasis added).

As the italicized language indicates, a court may award attorneys' fees under Rule 11 only

"if imposed on motion" under Rule 11(c)(1)(A). See Thornton v. General Motors Corp.,

136 F.3d 450, 455 (5th Cir. 1998) (per curiam). By its terms, the rule thus precludes a

court from awarding attorneys' fees on its own initiative. See Fed. R. Civ. P. 11 advisory

committee's note to 1993 amendments ("The revision [to subsection (c)] provides that a

monetary sanction imposed after a court-initiated show cause order be limited to a

penalty payable to the court."); see also Thornton, 136 F.2d at 455 ("[W]here sanctions

are imposed under Rule 11(c)(1)(B) by a district court on its own initiative, . . . the award

of attorney's fees . . . [does not] constitute a valid sanction."); Johnson v. Waddell &

Reed, Inc., 74 F.3d 147, 152 n.3 (7th Cir. 1995) (per curiam) ("[W]here sanctions are

imposed under Rule 11(c)(1)(B) by the district judge on his own initiative, Rule 11(c)(2)

provides that payment of sanctions may be directed only to the court as a penalty.")

63. For the above aforementioned reasons, Plaintiff’s Counsel, John D. Hemenway

should not be sanctioned under Federal Rules of Civil Procedure 11(b)(1) and 11(b)(2).

If the Court persists in pressing Rule 11 procedures against Hemenway, then Hemenway

should be allowed all of the discovery pertinent to the procedures as Court precedents

have permitted in the past.

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Dated: March 16, 2009

Respectfully submitted,

_______/S/________

John D. Hemenway

Hemenway & Associates

4816 Rodman Street, N.W.

Washington, D.C.20016

D.C. Bar No. 379663

(202) 244-4819

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