UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

GREGORY S. HOLLISTER,

Plaintiff,

v.

BARRY SOETORO, et al.,

Defendants.

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 Civil Action No. 08-2254 (JR)

MEMORANDUM

This case, if it were allowed to proceed, would deserve

mention in one of those books that seek to prove that the law is

foolish or that America has too many lawyers with not enough to

do. 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 plaintiff 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 native-born

American citizen, qualified under the Constitution to be

President. 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
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for the presidency, but this plaintiff wants it resolved by a

court.

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), invoking the civil rights statutes, the Federal

Election Campaign Act, the Freedom of Information Act, the

Immigration and Nationality Act, and the law of promissory

estoppel. 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 Mr. Berg’s

native-born issue up for decision on a new theory: If some

“value” could be assigned to the “duties” the plaintiff thinks he

might someday be called upon to fulfill under the Commander-inChief, then those “duties” could be deposited in the registry of

this Court as the res whose distribution is to be decided by a

suit in interpleader!

The filing and service of the complaint required

private counsel to appear for President Obama and for Vice

President Biden (whose citizenship is not challenged but who was

presumably considered a necessary party in a suit seeking to

unseat the President). Those counsel have moved to dismiss,

asserting both that this Court has no jurisdiction (Rule
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12(b)(1)) and that the plaintiff has stated a claim for which

relief cannot be granted (Rule 12(b)(6)).

Plaintiff having invoked both diversity and the federal

interpleader statute, 28 U.S.C. § 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.

I have already called the interpleader claim

“frivolous” in two interlocutory rulings [#10 and #14], and I do

so again here. As the defendants noted in their motion to

dismiss, “interpleader allows a party exposed to multiple claims

on a single obligation or property to settle the controversy and

satisfy his obligation in one proceeding.” Commercial Union Ins.

Co. v. U.S., 999 F.2d 581, 583 (D.C. Cir. 1993). It is typically

used in insurance cases where the plaintiff holds property on

behalf of another but does not know to whom among several adverse

parties the property should be transferred [#9 at 8]. Resort to

interpleader is inappropriate when it “is sought for improper or

ulterior purposes.” Wright & Miller § 1707 (3d ed. 2001).

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” to which the interpleader statute

applies. The interpleader suits he cites are all about money or

tangible property: American Fidelity Fire Ins. Co. v.

Construcciones Werl, Inc., 407 F. Supp 164 (D. V.I. 1975) is
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about contested HUD monies; Underwriters at Lloyd's v. Nichols,

363 F.2d 357 (8th Cir. 1966), is about insurance proceeds; Dunbar

v. United States, 502 F.2d 506 (5th Cir. 1974) is about money

seized from the mails. 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), an inapposite

decision declining to strike a cross-claim for specific

performance in an interpleader case that began, as interpleader

cases do, with the deposit of funds. This suit will accordingly

be dismissed.

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].) They are agents

provocateurs –- and any attempt to sanction them for misuse of

the public and private resources that have had to be devoted to

this case would only give them a forum to continue their

provocation. 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 behalf of the plaintiff. Because it

appears that the complaint in this case may have been presented

for an improper purpose such as to harass; and that the
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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.

 JAMES ROBERTSON

United States District Judge