Mr. Berg Goes to Washington

Today, should everything go according to plan, only five days after his federal lawsuit against Illinois Sen. Barack Obama was dismissed for lack of standing from the United States District Court for the Eastern District of Pennsylvania, attorney Philip Berg will file his appeal in Philadelphia and, once it is docketed with the Third Circuit Court of Appeals, will travel to Washington, D.C. to file a Petition for Writ of Certiorari with the United States Supreme Court.

There, Berg says, should things progress on schedule, he will be accompanied by a television crew from Fox News Channel.

“Despite the setback we received on Friday,” Berg said, “I feel as though we really do have momentum here. And, while this course of action may not be your standard fare, I think that we’re too close to the election and too close to a constitutional crisis in America to not pursue this to the best of our ability.”

The non-standard course of action Berg mentioned, it seems, is the concept of appealing to the U.S. Supreme Court without first exhausting all options at the Circuit Court level. By appealing at the Third Circuit, the case could have been heard by a panel of three judges, if not more, and then taken to the U.S. Supreme Court if necessary. Still, Berg insists that due to the argument schedules at the Third Circuit and the nation being less than a week removed from Election Day, the chance of his action against Barack Obama being heard in time is slim at best.

Now, as was written yesterday at America’s Right, the odds that the U.S. Supreme Court will grant certiorari and choose to hear Berg’s case are razor-thin. Each year, the Supreme Court is presented with approximately 8,000 petitions for certiorari but only grants about 75 to 120. Berg, however, is not extremely concerned.

“Of course, the odds are long,” Berg said. “But this case does have to do with the prevention of a guaranteed constitutional crisis and, even if it is not heard in time or at all, the national media should have no choice but to pay attention.”

Even if the case were heard, Berg faces long odds in the courtroom as well, as the standing doctrine as it stands now does not lean in his favor. Also from yesterday’s update:


To have standing, a plaintiff must satisfy a three-prong test. He or she must prove (1) injury in fact, (2) causation, and (3) redressibility — that they’ve sustained more than just general harm, that the harm can be traced to the conduct of the defendant, and that adjudication of the matter can provide a remedy to that harm. Berg’s biggest hurdle, so far, has been establishing injury in fact.

Now, while there is a three-prong test for standing, there is no such definitive test for establishing what exactly constitutes an injury in fact. Instead, whether or not a plaintiff has sustained an injury in fact depends upon how that plaintiff’s factual allegations are perceived by the judge on what has been described as a sliding scale of speculation, creativity and remoteness. In other words, if the factual support of a plaintiff’s claims is deemed too speculative, too remote, or too creative, then the judge may not find injury, and visa versa.

In the past, the United States Supreme Court has held that a plaintiff must have a “personal stake” in the matter being adjudicated. This, of course, is to ensure that the matter belongs before the court in the first place. More recently, however, the Court has paid greater attention to, and awarded standing for, plaintiffs who can show enough of an injury so as to provide something along the lines of a good contest among legal rivals.

In Constitutional Law class last year, we studied a few cases while looking at the standing issue. One was a case in which a group of environmentalists were given standing by the Supreme Court because the need for preservation of “environmental well-being” was enough to prove injury. In another case, an association in Washington state was deemed to have standing even though it was the individual members, and not the association itself, which could be found to have had the requisite “personal stake.”

That being said, in the unlikely event that this case is heard by the Supreme Court, Berg will need to argue, certainly among other things, that the injury deemed too generalized by Judge Surrick is indeed enough to show injury in fact and therefore gain standing to sue. Only then can this case be heard on its merits.

All that being said, Berg says, he takes heart in knowing that while the law as it stands now may be difficult to overcome, he is at the very least arguing from the perspective of America’s founders and in the best interests of the American people.

“Should my case be heard, and it should,” Berg said, “Barack Obama will need to argue that the American people have no right to challenge whether or not a candidate for president of the United States actually is constitutionally eligible, in the eyes of our founding fathers, to serve in the office of the presidency. That’s not right. That’s not right at all. If the American people are not injured by a fraudulent candidate collecting $600 million while campaigning for an office he cannot constitutionally hold, if the American people do not have standing, then who does?”

UPDATE, 2:00pm:

The filing at the United States Supreme Court will be happening tomorrow morning and not today, according to Philip Berg, who explained that he still must attend to other commitments associated with his legal practice and was tied up in court later than planned. Berg assured America’s Right that, from a conversation he had with representatives at Fox News Channel, a television crew will be meeting him in Washington D.C. to follow his progress as he files his Petition for Writ of Certiorari.

Furthermore, Berg said, his interview with Fox News Channel’s Rick Leventhal, taped yesterday, should air this evening in either the 6:00 or 7:00 hour, just before Barack Obama’s 30-minute infomercial.

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Comments

  1. Anonymous says:

    Judge Surrick ruled that hiscourt does not have subject matter jurisdiction over Berg vs.Federal Election Commission. But, on page 28 of his opinion he admits that it is an agency subject to 5 U.S.C. 552. Whether or not Mr. Berg filed acomplaint or had the opportunity to file acomplaint with the Federal Election Commission goes to the merits of the case, not to the issue of subject matter jurisdiction. Judge Surrick’s Order dated October 24, 2008 is clearly in error.

  2. Anonymous says:

    from Mainemom

    earlier in these comments there was a link to the API site, and I checked it out.

    Does anybody know if this API is a legit organization, or is the editor playing a hoax?

    is there really a tape, and is it really going to FOX?

  3. Sean says:

    I pulled up a ballot application for Texas and I just need to sign an affidavit saying that I meet the requirements. There is no need to provide a birth certificate. Seems to me that the state attorney general would need sue Obama in a state court for lying on the affidavit. He would need evidence to pursue his case. Is the evidence strong enough or is it just speculation? Seems to me that citizens should be blanketing their state attorney general’s office with telephone calls in this matter. Most attorney generals’ offices investigate complaints ASAP if there are a lot of complaints. They would then probably just call Obama asking him to provide the information without needing a court case (unless he refuses to supply the documents).

  4. Anonymous says:

    Jeff,

    This is a very good article written by Dr. Edwin Vieira, Jr., Ph.D., J.D.

    Please read it. Maybe Mr. Berg could read it too.

    http://www.newswithviews.com/Vieira/edwin84.htm

    Thanks

  5. bluewater says:

    Comic relief – tongue in cheek – the origin of conspiracies:

    Berg is busy tonight, but where? Allow me to wear the tin foil hat I wear when I’m dreaming (if not psychotic).

    Berg was named as being associated with the highly suspect API.

    API reporting tapes coming out ASAP.

    Blogger claiming Fox will run Michelle tapes during Obama’s special.

    AH! Now – back to reality. That was fun.

  6. Koyaan says:

    anonymous wrote:

    A 3 million dollar offer from Obama camp to API to cancel Fox News airing Michelle tapes? Isn’t that bribery? How much can this guy get away with?

    How much bullshit can you swallow?

    k

  7. Anonymous says:

    This Just in!!

    From MommaE talk radio:

    “RALLY AT SUPREME COURT FOR PHIL BERG!!”

    “Philip J Berg will go to the US Supreme Court on Thursday, October 30, 2008.

    Show up at the steps of the Supreme Court and help defend the Constitution.

    Please get your signs made today and tonight and be ready for tomorrow!

    We need as large a Crowd as we can get to be waiting at the steps of Supreme Court for Mr. Berg, the person meeting him at the Train Station as well as Will Bower who will be there to accompany him there.

    Fox News will also be at the Train Station and will follow them all the way to the Supreme Court, filming everything.”

    See full details, suggestions for signs and some do’s and dont’s here:

    http://citizenwells.wordpress.com/2008/10/29/supreme-court-rally-philip-j-berg-october-30-2008-supreme-court-steps-defend-the-constitution/

    AND SPREAD THE WORD!!

  8. Anonymous says:

    http://www.newswithviews.com/Vieira/edwin84.htm

    “In disposing of the lawsuit Berg v. Obama, which squarely presents the question of Obama’s true citizenship, the presiding judge complained that Berg “would have us derail the democratic process by invalidating a candidate for whom millions of people voted and who underwent excessive vetting during what was one of the most hotly contested presidential primary in living memory.”

    This is exceptionally thin hogwash.

    A proper judicial inquiry into Obama’s eligibility for “the Office of President” will not deny his supporters a “right” to vote for him—rather, it will determine whether they have any such “right” at all. For, just as Obama’s “right” to stand for election to “the Office of President” is contingent upon his being “a natural born Citizen,” so too are the “rights” of his partisans to vote for him contingent upon whether he is even eligible for that “Office.” If Obama is ineligible, then no one can claim any “right” to vote for him. Indeed, in that case every American who does vote has a constitutional duty to vote against him.”

  9. Anonymous says:

    VERY IMPORTANT!!!!!

    Please read NOW

    http://citizenwells.wordpress.com

    10/29/08 4:59PM

  10. Anonymous says:

    More Obama weirdness rains from the sky.

    Love it or hate it, the impossible looks true.

    Scientific and forensic stylometric analyses independently establish William Ayers authorship of Obama's 'Dreams From My Father.'

    "At the heart of my message is that Barack Obama is an impostor, the Milli Vanilli of politics, a man who has been lip-synching for the last 13 years to lyrics pre-recorded by, among others, Bill Ayers."

    http://worldnetdaily.com/index.php?fa=PAGE.view&pageId=79403

    http://worldnetdaily.com/index.php?fa=PAGE.view&pageId=79391

  11. Brian H says:

    Avoid the API site; it infect your system with exceptionally nasty malware.

    That closing paragraph (“In disposing of the lawsuit Berg v. Obama, which squarely presents the question of Obama’s true citizenship, the presiding judge complained that Berg “would have us derail the democratic process by invalidating a candidate for whom millions of people voted and who underwent excessive vetting during what was one of the most hotly contested presidential primary in living memory.” ) was obviously written by the Ossiah camp for the judge. What horse pucky!!

  12. Anonymous says:

    There is nothing via Fox News…
    what’s up?

  13. Anonymous says:

    How much bullshit can you swallow?

    k

    October 29, 2008 4:53 PM

    re:
    Too close to the target, am I? If you reply in the same manner, I will know that I am right on. (Profanity is a small mind’s way of expressing itself)

  14. Anonymous says:

    Welp looks like Mr. Berg won’t be on Fox tonight afterall. Kind of disappointed. I swear Obama is already threatening them.

  15. Anonymous says:

    Plankton at 11:48 AM said:
    “Hollander was dismissed for lack of standing and was the basis for the dismissal in Berg v. Obama.
    Hello? Do you see the hilarity here? The same people who cheered when the judge decided “correctly” that you couldn’t challenge McCain’s citizenship are the same people who think it’s a “conspiracy” that another judge decided the same way in favor of Obama. You can’t have it both ways.”
    Plankton, there is no “hilarity” and no inconsistency here! In your eagerness to insult the intelligence of those who disagree with the current decision in the Berg lawsuit, you fail to note that one of the KEY differences between the Hollander case and the Berg case is the fact that one turns on an “issue of law” and the other turns on an “issue of fact.” In the McCain situation (the Hollander case) what was in dispute and needed judicial determination was THE LAW. All the relevant “facts” concerning McCain’s birth are known. What Hollander complained about is an unclear law. He claimed that a court needs to determine what the LAW is that applies to McCain’s birth. Hollander had no standing to present his claim because the possibility that a judicial construction of the unsettled LAW could go against McCain was to remote to constitute actual injury to a mere voter.
    Such however in not the case in Berg’s lawsuit against Obama. Here, the law is not in dispute. That is, if the FACTS are as Berg has alleged them to be (i.e., Obama was born in Kenya, etc.), the law applicable to those facts is clear: OBAMA IS NOT A NATURAL BORN CITIZEN AND CANNOT SERVE AS POTUS UNDER THE CONSTITUTON. There is nothing remote or uncertain about an actual injury to the voter if the FACTS are such that the candidate is constitutionally ineligible serve as POTUS. Note, furthermore, that in the present state of the Berg lawsuit (dismissal for lack of standing), the FACTS as alleged by Berg are deemed to be true – that is, for the purposes of the current state of the Berg action, OBAMA WAS BORN IN KENYA AND IS NOT A NATURAL BOR CITIZEN OF THE UNITED STATES.
    I cannot envision a greater actual injury to a voter than to be asked to vote for (and listen to ad nauseaum) a candidate for POTUS who is not eligible to serve in such capacity.
    Erika

  16. Anonymous says:

    “Furthermore, Berg said, his interview with Fox News Channel’s Rick Leventhal, taped yesterday, should air this evening in either the 6:00 or 7:00 hour, just before Barack Obama’s 30-minute infomercial.”

    Alas, nothing happened.

    Any explanations?

  17. Koyaan says:

    anonymous wrote:


    re:
    Too close to the target, am I? If you reply in the same manner, I will know that I am right on. (Profanity is a small mind’s way of expressing itself)

    No.

    It is the small, irrational mind that says like “profanity is a small mind’s way of expressing itself.”

    It is the small, puritanical mind that deems perfectly good words as being “profane” in the first place.

    And it is the small, unquestioning mind that believes everything it reads on the Internet is true, particularly when it comes to the likes of the bullshit that API has been spewing for weeks now.

    k

  18. Anonymous says:

    There is precedent to remove a person from the ballot:

    In 1968, the California Supreme Court voted 6-1 that a presidential candidate who is not eligible to be president should not be placed on the ballot. Cleaver v Jordan, Calif. Supreme Court minutes, Sep. 26, 1968, case no. 7838, not reported.

  19. Anonymous says:

    koyann says: “And it is the small, unquestioning mind that believes everything it reads on the Internet is true…”

    EXACTLY!

    It is sad how many people believe without question that everything on factcheck.org is true.

    The fact is, factcheck.org does not have all their facts straight. They also need to hire a photographer – even a good amateur would do well. Taking photos of a “certification of birth” in the passenger seat of a pickup truck is just as bad as the garbage coming from API. Many photos on eBay are better than that. “Factcheck” should also know that a certification of birth is not an original certificate of birth.

    Fortunately, there are a lot of people who know how to do basic research who have not yet been brainwashed by the Obama Cult.

  20. Koyaan says:

    anonymous wrote:

    There is precedent to remove a person from the ballot:

    In 1968, the California Supreme Court voted 6-1 that a presidential candidate who is not eligible to be president should not be placed on the ballot. Cleaver v Jordan, Calif. Supreme Court minutes, Sep. 26, 1968, case no. 7838, not reported.

    I can’t find any specifics on the case you refer to here, but if there was such a case, I believe the “Cleaver” in question here was Eldridge Cleaver, who, unlike Berg or any of the others filing lawsuits, was a candidate (Cleaver ran for President on the Peace & Freedom ticket in 1968).

    And I don't think there's any question that a candidate has standing.

    Also note that the suit was heard in STATE court. NOT federal court. The federal government has no say as to who is allowed on state ballots.

    k

  21. tothrowmyselfupon says:

    i have zero idea what you are talking about

  22. Meat Wad says:

    This is losing credibility rapidly with everyone.

    I would hope you either take down this blog or start proving that you actually have information and relationships that could benefit America.

    I manage/operate a blog media cluster which reaches 2.3mm people a day, you might be able to even guess which one that may be, because there are not many blog groups which can claim that. With that said, several draft posts are “at the ready” based on the outcome of events being discussed here. One of these posts is a thorough dissection of sites like yours. Before my blog team calls out your site as one of the dominant forces of independent misinformation, I ask that you contact me via my outreach email address and discuss this.

  23. Jeff Schreiber says:

    In case I need to be concerned about my credibility being called out by a cartoon meatball, in case you really think it’s necessary to “call out” this place for actually providing a look at both sides of the procedural aspect of this issue, please email me.

    I’ve tried to send an email to meatwad@livinginmyparentsbasement.com, and it keeps on getting sent back to me.

  24. Anonymous says:

    Jim your site is easy on the eyes, and presents more logical info about Berg than others I can find. Thank you.

    I have questions, and Berg isn’t providing answers on his site or on interviews on patriotbrigaderadio.com or anyplace I can find. Here is what I found out about the process of filing a Petition for Writ of Certiorari.

    Someone with a legal claim files a lawsuit in a trial court, such as a U.S. District Court, which receives evidence, and decides the facts and law. Someone who is dissatisfied with a legal decision of the trial court can appeal. In the federal system, this appeal usually would be to the U.S. Court of Appeals, which is required to consider and rule on all properly presented appeals. The highest federal court in the U.S. is the Supreme Court. Someone who is dissatisfied with the ruling of the Court of Appeals can request the U.S. Supreme Court to review the decision of the Court of Appeals. This request is named a Petition for Writ of Certiorari. The Supreme Court can refuse to take the case. In fact, the Court receives thousands of “Cert Petitions” per year, and denies all but about one hundred. If the Court accepts the case, it grants a Writ of Certiorari.
    http://www.techlawjournal.com/glossary/legal/certiorari.htm

    Berg filed Petition for Writ. Where is the document saying the Court granted it and that it set December 1 for Defendants to answer?

    SV

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