At approximately 3:30 p.m. today, Illinois Sen. Barack Obama and the Democratic National Committee filed a Motion to Dismiss the lawsuit filed on August 21, 2008 by lawyer and former Deputy Attorney General for Pennsylvania Philip Berg questioning Obama’s constitutional eligibility to run for and hold the office of president of the United States.
The motion–available for view and download HERE, along with the supporting brief–was filed pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil procedure, arguing, first, that the court lacked subject matter jurisdiction because Berg has no standing to assert his claim and, secondly, that Berg’s complaint failed to state a claim upon which relief could be granted.
Unlike the way in which the defense supported the 12(b)(6) defense, citing the particularities and treatment of the Declaratory Judgment Act by the Third Circuit Court of Appeals, the lack of standing defense did not surprise me in the least. In two recent posts on this matter, the first one eight and the other 12 days ago, I focused on the standing issue–specifically noting the disposition of the New Hampshire case, Hollander v. McCain, quoted in today’s motion–and pressed Berg on the issue.
I told him, just as I explained in these pages, that above everything else he needed to show an INJURY IN FACT. I mentioned that simply being a taxpayer, or a voter for that matter, has not proven to be enough to show injury or prove standing. In today’s motion, the defense stated that Berg failed to allege any “concrete, specific injury in fact to himself,” maintaining that voter disenfranchisement alone is not enough, that “a voter’s loss of the ability to vote for a candidate ‘of their liking’ does not confer standing because the actual injury is not to the voter but to the candidate.”
The Hon. William Alsup in the Northern District of California expressed similar feelings when he granted John McCain’s Motion to Dismiss–filed on similar grounds–on September 16 in Robinson v. Bowen, the citizenship-related action filed against the Arizona senator by the chairman of California’s American Independent Party, stating that even with plaintiff Markham Robinson’s status as party chairman and chances of becoming an elector, he still had “no greater stake in the matter than a taxpayer or voter.”
In that decision, just like in today’s Motion filed by Obama and the DNC, Judge Alsup relied heavily on the New Hampshire court’s decision in Hollander, which could not have been more clear:
This is not to demean the sincerity of Hollander’s challenge to McCain’s eligibility for the presidency; … [w]hat is settled, however, is that an individual voter like Hollander lacks standing to raise that challenge in the federal courts.
I was actually on the telephone this afternoon with Philip Berg, conversing about the possibility and possible ramifications of moving for default judgment on Thursday morning, when I learned that the Motion to Dismiss had been filed. Two hours later, I caught up with him again after he presumably had a chance to look over the other side’s response pleading.
He hadn’t yet, and said he didn’t need to, stating that he was “prepared for them to file the Motion to Dismiss” and that he knows without having yet read it what it contains and contends.
Furthermore, even though filing so close to deadline is a common and accepted practice, Berg was steadfast in his belief that the longer the senator fails and refuses to produce the documentation sought in the Motion for Expedited Discovery filed on September 9, the more it looks like his allegations are correct, and he felt as though the timing of today’s motion was another attempt at obfuscation.
“Note, Jeff, that they waited until just before the deadline to file this, note that they’re just trying to prolong it and not deal with the issue,” he said. “It’s funny that on a day that McCain has stated that he’s suspending his campaign and wants the upcoming debate canceled so America can talk about the economic crisis, Obama says that he can campaign and talk it out at the same time, yet how come he’s not talking about his birth certificate? How come he’s hiding behind technical rules?”
“If you’re not qualified to be there,” Berg said, “get off the stage at this point in the game. Every day that goes by, every step that he takes to avoid showing those documents, which I don’t believe exist, indicates to me that he’s not natural-born.”
Having just been called out for lack of standing, I once again pressed him on the issue. I knew that filing a response to today’s Motion had its disadvantages and therefore assumed that Berg would file an amended complaint better laying the foundation for his standing. Berg maintained the line he’d drawn and walked over the past few weeks, but was careful to make sure I understood his ability to adapt.
“Don’t get me wrong,” he said. “I believe we have established standing with the complaint we filed, but also we’re going to add a few clauses which will clarify our standing to sue.”
At the heart of one of those clauses, he said, is the United States Code, specifically 8 U.S.C. § 1481(b), the use of which appears to be aimed at Berg’s allegation that, if Obama did have U.S. Citizenship, he relinquished it upon moving with his mother to Indonesia and never regained it. 8 U.S.C. § 1481(b) states that whenever the loss of citizenship is at issue with regard to a civil action presumably such as this, the burden of proof is placed on the party bringing the action–in this case, Berg–to establish the claim by preponderance of the evidence.
§ 1481. Loss of nationality by native-born or naturalized citizen; voluntary action; burden of proof; presumptions
(b) Whenever the loss of United States nationality is put in issue in any action or proceeding commenced on or after September 26, 1961 under, or by virtue of, the provisions of this chapter or any other Act, the burden shall be upon the person or party claiming that such loss occurred, to establish such claim by a preponderance of the evidence. Any person who commits or performs, or who has committed or performed, any act of expatriation under the provisions of this chapter or any other Act shall be presumed to have done so voluntarily, but such presumption may be rebutted upon a showing, by a preponderance of the evidence, that the act or acts committed or performed were not done voluntarily.
Simply put, to prove something “by a preponderance of the evidence,” the party bearing the burden of proof must simply convince a judge or jury that the facts are more probably one way than the other. Regardless, Berg reads 8 U.S.C. § 1481(b) as providing him with “the right to question anyone’s status as a citizen,” I imagine, so long as he can satisfy the burden of proof.
Berg insists that, rather than wait the full 20 days to respond, he’ll likely file his amended complaint on Monday. Besides containing the aforementioned additional clauses and arguments, Berg mentioned that he will likely withdraw suit against the Federal Election Commission–they’re more concerned about the financial aspect of the election, he says–and add Pennsylvania’s Secretary of the Commonwealth, Pedro Cortes, to the action for his role as overseer of the electoral process in the Keystone State.
In talking about the addition of Cortes, Berg also mentioned that he has been contacted by a number of people who may file similar suits against state-level election officials in several states across the country, saying that “the public outrage should be enough to cause a groundswell” in several locations, that “even one state would be enough,” that “some judge must hear this case before the election.”
All in all, Berg said, today’s Motion to Dismiss was expected, but certainly wasn’t right.
“This filing, this joint filing, was outrageous,” he said. “It was outrageous for the country, it was outrageous for the people who have voted for him, for the 300 to 400 million dollars collected by his campaign under false pretenses. The easy way to do this was to simply accept my challenge and turn over the vault copy of his birth certificate and oath of allegiance, but it is obvious by his waiting and by his hiding behind technicalities that those don’t exist.
“By doing it this way,” he continued, “he is just playing with the public and I think it is an outright disgrace.”
In order to survive this motion to dismiss, Berg will need to amend his complaint or author a responsive pleading which, in some way, shows that he has done enough. According to Bell Atlantic v. Twombly, a case heard by the U.S. Supreme Court last year, Berg would need to allege enough facts to create “plausible grounds to infer” that (1) his claims can in fact be proven and (2) “to raise a reasonable expectation that discovery will reveal evidence” which supports those claims. While Bell Atlantic did not provide specific detail as to exactly what type of factual support is necessary to push a claim, such as Berg’s, “across the line from conceivable” to “plausible,” the Court in that case did make it crystal clear that a “short and plain statement” of the facts will be fine and that detailed factual allegations are not necessary.
Berg assures me that his response will come soon. Keep checking here for updates.