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Berg v. Obama appeal denied in 3rd Circuit

“If a District Court does not have subject matter jurisdiction, it must dismiss.” – 3rd Circuit Court of Appeals

In a decision, binding on district courts in the 3rd circuit, Philip J. Berg’s appeal was denied today. (A writ of certiorari in this case was previously denied by the U. S. Supreme Court.)

The appeal came before judges Sloviter, Fuentes and Hardiman, with the opinion written by Sloviter. This decision was marked “PRECIDENTIAL” indicating that it was binding on districts within the 3rd Circuit (comprised of Delaware, New Jersey, Pennsylvania, and the U.S. Virgin Islands). The conclusion being drawn is that voters do not have standing to challenge the qualifications of someone running for president of the United States. (This does not completely close the door on Apuzzo’s appeal in Kerchner v. Obama, also in the Third Circuit, because Kerchner is suing as a member of the military reserve.)

“The District Court dismissed Berg’s action on the grounds that he lacks standing and failed to state a cognizable claim.”

Rather than simply affirming Judge Surrick’s District Court opinion, the Circuit Court went further, taking note that several similar cases had been filed. Judge Sloviter wrote:

In light of the public’s interest in the final resolution of this case – which is one of a series of cases brought challenging the qualifications of the 2008 presidential candidates from both of the major political parties – and the obvious lack of any merit in Berg’s contentions, we will exercise our discretion and address them to put some finality to the dispute.

In sum, we agree with the District Court that Berg lacks standing to bring this suit because he has suffered no injury particularized to him. A prerequisite of standing is that the litigant has suffered or will suffer an injury in fact that is caused by the complained-of conduct by a defendant and that can be redressed by the court. [Internal citations removed.]

The Court then goes into detail as to why Berg, as a voter, did not suffer specific and individual harm due to Barack Obama being on the ballot, concluding: “Even if we assume that the placement of an ineligible  candidate on the presidential ballot harmed Berg, that injury, including any frustration Berg felt because others refused to act on his view of the law, was too general for the purposes of Article III.”

The essence of Berg’s complaint is that the defendants, the states, presidential candidates other than Obama, political parties, a majority of American voters, and Congress – a list that includes some who could have challenged, or could still challenge, Obama’s eligibility through various means – have not been persuaded by his claim. That grievance, too, is not one “appropriately resolved through the judicial process.”

I presume that those who “could still  challenge Obama’s eligibility” are exactly those in Congress.

The balance of the decision contains words like “baffling” and “frivolous” in between the solid legal footing for the Court’s decision to affirm the dismissal of Berg v. Obama.

17 Responses to Berg v. Obama appeal denied in 3rd Circuit

  1. avatar
    aarrgghh November 12, 2009 at 6:05 pm #

    finally — this means this thing goes in front of scalia now! i can smell discovery! we win again!

    </birfer>

  2. avatar
    G November 12, 2009 at 6:29 pm #

    Here is the well-written PRECEDENTIAL OPINION, which should hopefully help put a stop to all this frivolous birther nonsense in the courts, since most of them are at least in part, just derivative of Berg’s pleadings.

    http://www.scribd.com/doc/22475054/BERG-v-OBAMA-Original-Case-PRECEDENTIAL-OPINION-Transport-Room

    And here is the actual JUDGMENT:

    http://www.scribd.com/doc/22474733/BERG-v-OBAMA-Original-Case-JUDGMENT-Ordered-and-Adjudged-that-the-judgment-of-the-District-Court-ente-r-ed-October-27-2008-be-and-the-same-is-h

  3. avatar
    nbc November 12, 2009 at 6:38 pm #

    Ballantine posted a link to Ankeny v Gov of Indiana where the court established that anyone born on US soil is a NBC regardless of the citizenship of the Parents

    Ruling here (pdf)

    A double whammy for Mario

  4. avatar
    jvn November 12, 2009 at 6:40 pm #

    I can hear them now… “This was a state appeals court – NOT a federal court – so this ruling doesn’t count!!!!

    🙂

  5. avatar
    ballantine November 12, 2009 at 6:50 pm #

    This is actually probably good news for Mario. Since this court probably did not need to reach the NBC issue, the Indiana Supreme Court should now be faced with a decision of addressing it or deciding the case on a non-constitutional grounds. If they do, or they just affirm, the US Supreme Court will be faced with the same issue and will be urged to decide the issue and put to rest this uncertainty forever. For the first time I can actually see that the two-parent theory might get before the US Supreme Court where they will swat it away for good.

  6. avatar
    nbc November 12, 2009 at 6:50 pm #

    Oh, its applicability will be limited but shows how Courts are likely going to treat the NBC issue.

    One can just hope this ruling will be appealed to SCOTUS…

  7. avatar
    nbc November 12, 2009 at 6:52 pm #

    Well, if losing in front of SCOTUS is good, then we agree, this is excellent for Mario

  8. avatar
    Bob November 12, 2009 at 6:59 pm #

    The Indiana Supreme Court is a court discretionary appeal.

    It’ll vote to not review this case (as will SCOTUS), and the court of appeal’s decision will become final.

  9. avatar
    ballantine November 12, 2009 at 7:18 pm #

    I meant to say to that the US Supreme Court would be invited to accept the case on issues other than justiciability and might just do that to put the controversy to rest. It is my understanding that they can accept cert. if:

    (i) a state court of last resort has decided an important federal question in a way that conflicts with the decision of another state court of last resort or of a United States court of appeals; or

    (ii) a state court or a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this Court, or has decided an important federal question in a way that conflicts with relevant decisions of this Court.

  10. avatar
    jvn November 12, 2009 at 7:18 pm #

    I agree, neither higher court will hear an appeal of this case, thus affirming the appellate court’s decision.

  11. avatar
    jvn November 12, 2009 at 7:21 pm #

    Hey, isn’t Mario’s appeal to this same 3rd Circuit?

    Awwww, poor Mario…

  12. avatar
    Bob November 12, 2009 at 7:34 pm #

    While possible, no one is going to hear this case. This isn’t an important question of federal law that needs to be “settled.”

  13. avatar
    Texlaw November 12, 2009 at 9:02 pm #

    Yes. And if Mario actually reads the opinion in Berg, he should see the proverbial writing on the wall. Then again, if he’d read any case law on standing he would’ve never brought his suit in the first place.

  14. avatar
    Rickey November 12, 2009 at 9:52 pm #

    It’s also significant that the Court of Appeals addressed the claim of standing under the Tenth Amendment. The court ruled that the Tenth Amendment “has no apparent relevance to this case.”

  15. avatar
    Bob November 12, 2009 at 9:52 pm #

    The writing is more than proverbial. The 3d Circuit will in essence say, “Mario: Read Berg. HAND.”

  16. avatar
    wendy November 13, 2009 at 3:33 am #

    the US supreme court has the option to hear cases that fit those situations.
    Reality check…
    there are only a few nuts out there who don’t know what a real birth certificate is, or want to think that some internet story that “omg, you must have 2 citizen parents to be a natural born citizen”.. is a real legal “question”.
    There IS NO IMPORTANT QUESTION, and never was. The Supreme court is for questions that are real.. not publicity stunts.

  17. avatar
    John November 13, 2009 at 11:29 pm #

    Just to note, when SCOTUS denies to take a case, it does not mean SCOTUS agrees with the merits of the case. SCOTUS may deny the case for any number of reasons unknown to us. However, with that being said, a SCOTUS denial does effectively affirm an Appeal decision. If SCOTUS were to deny the Indiania Case or Berg’s case,the issues are still not settled as SCOTUS is final Guardian and say of the law. Addition, a SCOTUS decision is usually different from state court or federal court decision as SCOTUS will reach in the annal of legal wisdom to reach an ultimate decision which why their decisions are so lengthy. (Plus you have 9 Justices’s Wisdoms to consider) Lower courts tend to ignore this and will generally cite case law without driving deeper in the Annals of Legal Wisdom. I think that’s why some people believe that SCOTUS has the infinite wisdom of law. (Please bear in mind SCOTUS can still get it wrong.)