Berg to File Opposition to Obama’s Motion to Dismiss Today
By the end of the day today, Philadelphia attorney Philip Berg will file an Opposition and supporting Brief in response to the Motion to Dismiss filed by Illinois Sen. Barack Obama and the Democratic National Committee with regard to the underlying August 21, 2008 suit filed by Berg which contends that Obama is not constitutionally eligible to hold the office of president of the United States.
The Motion to Dismiss filed by Obama and the DNC last Wednesday–available for view and download HERE–made two distinct arguments: First, that the court lacked subject matter jurisdiction because Berg has no standing to file suit and, secondly, that Berg’s complaint failed to state a claim upon which relief could be granted.
Among other authority cited by Obama and the DNC in support of the first defense was Hollander v. McCain, a recent case from New Hampshire in which the court held that Fred Hollander, asserting the claim that Arizona Sen. John McCain was ineligible for the presidency based upon his birth in the Panama Canal Zone, lacked standing to sue. In that case, the court cited several factors in its decision:
- Regardless of McCain’s eligibility for the presidency, his candidacy did not constitute a “restriction on voters’ rights” as it did not preclude Hollander or anyone else from voting for another candidate in the New Hampshire primary.
- The “generalized interest of of all citizens in constitutional governance” was not enough to claim harm.
- Hollander failed to allege that any harm was indeed proximately “traceable” to McCain’s alleged unlawful conduct.
- McCain was “unquestionably an American citizen.”
Berg is quick to distinguish Hollander. First, he says, Obama’s candidacy for the presidency in the general election prevents citizens from voting for Hillary Clinton despite her 18 million votes received in the primary election. Second, the harm Berg suffered is particular to him because he has been denied the constitutional right to cast his ballot for an eligible candidate. Third, his claims of injury can indeed be traced to Obama’s unlawful behavior, his “failure to disclose information to which American voters are entited.” And finally, the defendants have failed to show, as mentioned by the New Hampshire court in Hollander, that Sen. Obama is “unquestionably an American citizen.”
“If you take a closer look at the factors used by the court to decide Hollander v. McCain,” Berg said, “Those very same factors clearly come down in favor of me having standing in this case.”
There are a number of other avenues by which Berg could address the argument that he lacks standing.
First, he says that the failure of the Federal Election Commission and the DNC to investigate Barack Obama and his campaign, which has fraudulently taken in more than $400 million all the while knowing that he cannot serve as president, runs afoul of 5 USC §702, which states, in relevant part, that “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.”
Second, pursuant to 2 USC §437(d), the Federal Election Commission has the power to, among other things, require documentary evidence relating to the execution of its duties and conduct investigations and other mechanisms expeditiously and to report any apparent violations to law enforcement authorities as deemed appropriate. The agency, Berg says, has breached its duty to remedy any wrongdoing with regard to the political process.
“We’ve brought these issues to the attention of the DNC and the FEC but they’ve refused to take any action whatsoever to protect voters in this country,” Berg said. “Voters have donated $400 million to a candidate who fraudulently seeks the presidency.”
Furthermore, Berg plans to argue that he has standing under 8 U.S.C. § 1481(b), which 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.
“Every country has its own laws,” Berg said. “In one of his books, Obama wrote that his stepfather went back to Indonesia from Hawaii a little while before Obama and his mother did. When he finally got there, all the friends and relatives were out to meet him, the stepfather called him his son, and he was already registered in school.”
“We have the school registration papers,” Berg said, referring of course to the Associated Press-verified record from Obama’s school in Indonesia which shows his name as “Barry Soetoro,” his citizenship as Indonesian and his religion as Islam. “To be registered, the stepfather had to acknowledge that Obama was his son. For Obama to be acknowledged as his stepfather’s son, he had to become a natural born citizen of Indonesia.”
That’s right, Berg said “natural born citizen of Indonesia.” I asked him if his argument that Obama became a natural born Indonesian without being born there somehow weakened his argument that the Illinois senator wasn’t a natural born U.S. citizen because he was born in Kenya. He cited Article II of the Indonesian Constitution, which states that an adopted child–with the adoption severing the child’s relationship with the birth parent in question according to Indonesian law–is given the same status as a natural born child.
Interestingly enough, Berg also cites a case I had brought to his attention and asked him about, something we had read in school a while ago. Though Federal Election Commission v. Akins was a case which has nothing to do with citizenship–it questioned whether or not the American Israel Public Affair Commitee (AIPAC) could be considered a “political committee” under the Federal Election Campaign Act–the thing that struck me about it was the Court’s treatment of the plaintiffs. The Court, in that case, was concerned with “informational injury.” When the U.S. Court of Appeals for the District of Columbia Circuit reversed the trial court’s dismissal of the plaintiff’s action, the court stated the following:
A voter deprived of useful information at the time he or she votes suffers a particularized injury in some respects unique to him or herself just as a government contractor, allegedly wrongfully deprived of information to be made available at the time bids are due, would suffer a particularized injury even if all other bidders also suffered an injury.
Berg insists that he has similarly suffered an “informational injury” as a voter, and cites another part of the D.C. Circuit’s opinion which mentions that “anyone denied information under the Freedom of Information Act … has standing to sue regardless of his or her reasons.”
In response to the second argument, the 12(b)(6) defense put forth in the Motion to Dismiss, Berg mentions (1) that the pleading must be looked at in the light most favorable to him, and that (2) the difference between notice and fact pleading holds that he need only state a claim upon which relief can be granted, and that any other facts necessary to clarify the issue can be obtained through discovery.
What does it all mean? If I’m thinking like Obama, I’m betting that the Judge’s haste in obtaining Berg’s response to my Motion to Dismiss means that he could be ripe and ready to toss the whole thing out on jurisdiction issues should Berg not respond with anything new. If I’m thinking like Berg, it means that the Hon. R. Barclay Surrick could possibly grant my Motion for Expedited Discovery and delay ruling on Obama’s Motion to Dismiss until further evidence comes to light.
Bear with me here.
On questions of subject matter jurisdiction, I’m fairly certain that Judge Surrick can indeed delay a decision on Obama’s Motion to Dismiss and order discovery in the interim. In fact, according to a 2002 case entitled Sizova v. National Institute of Standards & Technology, when a defending party files a Motion to Dismiss for lack of jurisdiction, either party should be allowed discovery with regard to the issues of fact raised in that dismissal motion. Now, Judge Surrick certainly has discretion as to how he proceeds with adjudicating the issue of subject matter jurisdiction, but if he refuses discovery in such a way that the refusal could be deemed prejudicial against Berg, the denial and inevitable dismissal could be appealed on the grounds that the Judge abused that discretion.
Obviously, these things go both ways. Some decisions hold that, as a general rule, courts should allow limited discovery before dismissing a suit for lack of subject matter jurisdiction, while others hold that given the wide discretion afforded to District Court judges, the granting of a Motion to Dismiss based upon lack of subject matter jurisdiction without discovery does not constitute error.
This whole process will take time. Berg, of course, is fairly confident that he’s doing the right thing and will come out on top.
“In no way, shape or form does Barack Obama meet the requrements for president of the United States, and he should immediately be taken off of the ballot” Berg said. “Also, since he taught Constitutional Law, since he wrote the books that he wrote, he must be aware of his situation. It’s a crime what he’s done, and the Department of Justice should look into it.”
The motion was filed shortly before 5:00 p.m today, along with a dozen exhibits. Upon cursory glance, it looks the same as when I saw it this morning. The full text of the motion, in PDF format, can be found by clicking HERE (many thanks to a good friend of America’s Right).