Berg v. Obama Update — Monday, September 29

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:

  1. 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.
  2. The “generalized interest of of all citizens in constitutional governance” was not enough to claim harm.
  3. Hollander failed to allege that any harm was indeed proximately “traceable” to McCain’s alleged unlawful conduct.
  4. 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).



  1. Anonymous says:

    I find it APPALLING that he (Barack Hussein Obama) and the DNC are tangled up in this FRAUD!!!And all the money given to this campaign has been givin in Vain. I believe he should be convicted of larceny.

  2. TonyU says:

    Thanks for the update Jeff. I’m fairly new to the legal process stuff, so how long do you think it will take before the court issues it’s decision?

  3. says:

    Anonymous -

    Innocent before being proven guilty is still the basis of law in the United States. Remember that. Someone is not guilty just because you want him or her to be guilty.

  4. Anonymous says:

    I’m probably wrong, but I thought it was obvious that Berg has standing to raise this issue. Has this issue been already decided by a higher court?


  5. Anonymous says:

    When are the real deadlines, ie: States printing and mailing absentee ballots?

    My understanding here is that Berg doesn’t need a win – he just needs discovery.

  6. Anonymous says:

    On ponts 1 and 2 of Hollander:

    HOW exactly is he precluded from voting for Hillary? As an election judge, I’ve seen people vote for Mickey Mouse. I’m certain they’d have no problem casting a (write-in) vote for Hillary.

    Berg’s dropped the ball on this one. Not necessarily on the merits, but certainly on the reasoning of his arguments. The ability to write-in any candidate has been used in the past to explain away anybody’s complaint of not being able to vote for a given candidate. There’s nothing in Berg’s motion alledging otherwise. Oh, sure, Obama’s candidacy has severely impacted her ability to WIN, but Berg (and others) are not precluded in any way from voting for her. No harm, no foul.

  7. Beth says:

    Thank you much Jeff!! I appreciate the time you put into this for all of us!

  8. Anonymous says:

    When it comes to discovery… doesn’t that go both ways? Specifically what I mean is that Berg’s demand for information contains requests for documents that (if his allegations are not true) do not even exist. On the otherhand, Berg’s “evidence” appears to be primarily Internet rumors, Wikipedia entries, and even (I do not kid you) a reference to a “Canadian Birth Certificate” that is signed by “Dudley Doright.” Furthermore, the breadth of the requests makes it look more like a fishing expedition than a legitimate request for relevant information.

    What discretion does the judge have (based on Berg’s initial filing) to dismiss simply because it’s so goofy?

  9. Anonymous says:

    If Mr. Berg does not have legal standing to bring forward this case and the judge dismisses it, wouldn’t Hillary Clinton have legal standing then to bring this case forward again if it is dismissed?

    Either way, all American voters (especially those who have contributed to Obama’s campaign) should have the right to know if the candidate is eligable or not to be President.

    You have to wonder why Senator Obama refuses to release his vault copy birth certificate if he doesn’t have anything to hide.

  10. Anonymous says:

    I am responding by claims made, and the judge’s ruling in “Hollander v. McCain”:

    1) You CAN still vote for Independent and Green party candidates.

    2) The “general interests of all citizens” is NOT enough to claim harm; as this is NOT a “class action” suit.

    3) “There is NO harm to the individual”, however this could be considered a FRAUD case regarding the people who donated to the Obama campaign, especially had Berg donated to the Obama campaign, and THEN found out this information.

    4) This is important: Obama is NOT unquestionably a “natural born” USA citizen! This is the issue at the heart of the complaint, that he is FRAUDULENTLY claming to be born in Hawaii, and falsifying (or withholding) documents. This SHOULD be a “criminal complaint” to the FBI, who cannot act, unless there is a complaint filed, and there has not been. One of the “Democrap” delegates could make this complaint of fraud.

    Note: We throw around the word “American”, but remember, that refers to this whole continent, and not just to this country, which is the “U.S. of A”. Mexico, Canada, Brazil, etc, are all part of America!

  11. Brenda says:

    I live in Indiana, and we are not allowed to write in a name. I would not vote for Libitarian(sp) nor green so what does that leave me? Vote for McCain hoping he will beat Obama.

    Jeff, I asked Citizen Wells but will ask you too. Does anyone know why Obama gave his law license up in 2007? I think that is odd–the only reason I can think of is because he thought they were to be taken away. Help?

  12. Brenda says:

    Does this remind anyone when Bush was trying to push for the war? Seems as if he was pushing the bailout. It really is disconcerting to not know what is going to happen in the near future. Brenda

  13. Anonymous says:

    Not all states allow write in votes.

  14. Jeff Schreiber says:


    That’s news to me.

    Interesting question, though.

    – Jeff

  15. Anonymous says:

    I’m sorry for posting a comment that’s off topic, but you’re a lawyer and I have a question re another issue surrounding Obama. How is it legal that he can hire law enforcement officials to prosecute people for writing or speaking negatively about him? That’s a clear and obvious violation of free speech. Why isn’t someone out there filing a lawsuit against him for taking away peoples’ right to free speech? It just baffles me that he gets away with this stuff. And baffles me even more that people don’t recognize this behavior as straight out of Adolf Hitler’s or Fidel Castro’s playbook. I can’t believe that people don’t see that if he gets elected, anyone who bad mouths him will get thrown in jail. If you’re talking to your friend on the phone and you criticize Obama, law enforcement will be at your door slapping cuffs on you. Unbelievable. You can’t tell me people actually WANT a dictatorship!

  16. Anonymous says:

    Will you post what you learn about Obama giving up his law license on this thread?
    Thanks for all your work.

  17. Anonymous says:

    The case seems to make sense – I am no expert in these matters though.

    However, I have some real difficulty with a lawyer having to finance a serious constitutional case through Paypal donations.

    Lawyers do defend pro bono meritorious constitutional cases.


  18. Anonymous says:
  19. Anonymous says:


    Giving up a law license?

    Maintaining one requires taking continuing education classes each year. This can be anything from day-long seminars to 1-2 hour web presentations. Given that he’s not doing anything that actually requires a law license, it doesn’t strike me as odd that he would choose to not keep up the license. Should he decide practice law again, it’s nto difficult to get the license reinstated.

  20. Anonymous says:

    Jeff, if Obama is ruled an illegal alien as noted in Berg’s motion, would there be criminal charges brought up on him for being a Senator?

  21. Anonymous says:

    I’m shure this has probably already been considered but wouldn’t Berg have standing to sue for damages if he simply made a small contribution to Obama’s campaign?

  22. tsfiles says:

    Whether one agrees with this suit or not, Berg has no standing to sue (i.e., he hasn’t been personally harmed or injured).

  23. Anonymous says:

    If Barack Hussein Obama really is a natural U.S. citizen, why doesn’t he just produce a valid, authentic birth certificate?

    Why would the DNC have to argue standing if Obama can produce a birth certificate?

  24. Disputation says:

    I pray and hope that the court hurries to make a decision prior to the election and rules in favor of Berg..

  25. Anonymous says:, innocent until proven guilty only applies to criminal trials, which this is not. The criminal trial will come later. Nice Try.

  26. Anonymous says:

    Tis guy Berg saddens me deeply. Assuming he’s a Clinton fan, did he not listen to her when she said her fans should support Barack Obama, as her record is virtually identical to Barack’s in terms of policies and together, those policies are virtually the opposite of McCain’s. There’s no way Hilary is getting back on the ticket, whether you win this coirt case or not. Your actions are like a spoilt child, throwing his toys out the pram. Grow up! If your idol Hilary can get over it, why can’t you?

  27. Anonymous says:

    I would like to know why in the world would the media would not be talking about this? Does Obama get a free ride with whatever he does?
    I really don’t understand what makes this guy so special in people’s eyes. When are we going to see this on FOX News?
    If Obama is a US Citizen why won’t he come up with the documentation then this would be over.
    Jenny, MN

  28. Siddheshwari says:

    “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.”

    Talking about documents, where is a copy of the adoption papers?

  29. Anonymous says:

    I have also done alot of looking into the background of OB and I also agree he is not a citizen of the US. His birth is really bothering me because I believe he was born in Kenya after Stanley’s parents thru her out and she went to Kenya to be with his family. Kenya also at that time did not allow dual citizenship because it was under the rule of Great Britian. And his mother was only 18 and to pass on citizenship she had to reach the age of 14 in the US and then remain here 5 years before she could give birth out of the US to pass on citizenship. This is a great mystery and why won’t he come forward and prove us wrong if he can. He is a complete fraud. After doing alot of reading about Acorn and his connections with them which he also denies,it makes me wonder what else he is hiding. I have done alot of reading on this man and I am not ready for someone who lied about everyone he has had connection with in his life to be the next president. What I have read about him scares me. I am not ready to live in a soclist country. Philip keep up the good work, I am counting on you to get him.

  30. Anonymous says:

    Anonymous said…
    Giving up a law license?
    Maintaining one requires taking continuing education classes each year. This can be anything from day-long seminars to 1-2 hour web presentations. Given that he’s not doing anything that actually requires a law license, it doesn’t strike me as odd that he would choose to not keep up the license. Should he decide practice law again, it’s nto difficult to get the license reinstated.”

    That’s not true, if you just voluntarily give up your license, in order to get your license back, you either have to re-take and pass the bar or show that you have kept up with your continuing education during the time you were unlicensed. It’s not that easy. It’s very rare for a lawyer to give up their license, because it’s something you work so hard to get. Unless you have moved to another state and are licensed in that state, OR, pending disciplinary action, to avoid public disbarment. This is very strange to me.

  31. apageor2 says:

    Mr. Berg is correct in what he is doing and all of the information that he has against Senator Obama has is proof this man is unfit to be POTUS.

    What I do know is the Democratic party has their lawyers pushing all of this under the rug so they can now get their golden child into the White House.

    I certainly do not think this is the time for Senator Obama as the POTUS is not a place for on the job training. Lastly, I do not want a man who refuses to give our Armed men and women in uniform respect.

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