Professional Documents
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_____________________________________________________________
Plaintiffs-Appellants,
v.
Defendants-Appellants.
_____________________________________________________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
_____________________________________________________________
MARIO APUZZO
Attorney for Plaintiffs-Appellants
185 Gatzmer Avenue
Jamesburg, New Jersey 08831
(732) 521-1900
On the Brief:
Mario Apuzzo
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PROCEDURAL STATEMENT
On July 2, 2010, the Third Circuit Court of Appeals issued its decision
affirming the New Jersey Federal District Court’s dismissal of the Kerchner
days why the Court should not find me liable for just damages and costs
II “natural born Citizen,” that he has yet to conclusively prove that he was
properly vet and investigate Obama’s “natural born Citizen” status, and that
former Vice President and President of the Senate, Dick Cheney, and current
failure, but rather in having to defendant against what the court considers to
On the standing issue, the Court found that the plaintiffs did not
establish that they suffered an “injury in fact.” They said that the injury that
plaintiff allege like that of plaintiff, Philip Berg, in Berg v. Obama, 586 F.3d
234 (3d Cir. 2009), is not concrete or particularized enough to satisfy Article
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III standing. Opinion at p. 5-6. They found that these injuries are “too
plaintiffs’ injuries are not “concrete and particularized” because there are
“harms that are suffered by many or all of the American people.” Opinion at
“frustration with what they perceive as Congress’ inaction in this area, but
their remedy may be found through their vote.” Opinion at p. 6. Finally, the
Court stated that because plaintiffs failed to show they have standing, it need
not address plaintiffs’ contention that “the original common law definition
and costs for filing a “frivolous” appeal, the court found that “Appellants
had ample notice that this appeal had no merit. They should have been
appeal from the District Court was frivolous since no law or facts could
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the Court acknowledges that the Federal District Court did not “explicitly”
state that our claims were frivolous, the Court believes that I had meaningful
notice that the appeal was frivolous from the decisions of other courts which
dealt with “similar legal theories” and imposed sanctions on those lawyers
LEGAL ARGUMENT
I.
A.
The Standard For Finding That An Appeal Is Frivolous and That It Merits that the
Court Impose Upon the Attorney Filing That Appeal Rule 38 Just Damages and
Costs
The first issue that we have to address in the Court’s show cause order
frivolous which subjects the offending party or attorney to pay the other
party’s just damages and costs incurred in having to defend that appeal.
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or notice from the court and reasonable opportunity to respond, award just
forced to defend judgments awarded them in the trial court from appeals that
are wholly without merit, and to preserve the appellate court calendar for
cases worthy of consideration.” Huck v. Dawson, 106 F.3d 45, 52 (3d Cir.
“focuses on the merits of the appeal regardless of good or bad faith.” Hilmon
Co. v. Hyatt Int’l, 899 F.2d 250, 253 (3d Cir. 1990) (internal quotation
is “‘utterly without merit.’” Hilmon Co. 899 F.2d at 253 (citing and
quoting Sun Ship, Inc. v. Matson Navigation Co., 785 F.2d 59, 64 (3d Cir.
Motor Transit Company, 889 F.2d 520, 523 (3d Cir. 1989). “[A]n appeal
from a frivolous claim is likewise frivolous.” Beam v. Bauer, 383 F.3d 106,
108 (3d Cir. 2004). “This court has been reluctant to classify as frivolous
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merit.” Sun Ship, Inc. 785 F.2d at 64 (citing Mid-Jersey National Bank v.
1984, the Fifth Circuit affirmed the Tax Court statutory penalty (26 U.S.C.
6673) against the taxpayer for filing a spurious petition which challenged the
constitutional authority of that court and the I.R.S.’ jurisdiction to levy taxes
on his income. Id. The Court said that the constitutionality of our income
tax system has long been established. Id. The Court also imposed Rule 38
damages against that taxpayer who appealed the dismissal of his Tax Court
petition to that Court. The Court found that the taxpayer’s arguments on
appeal did not even have “some colorable merit.” The Court cited to Parker
v. C.I.R., 724 F.2d 469, 472 (5th Cir. 1984), wherein it cautioned those who
may be inclined to file appeals on tax issues that have been “put to rest for
We are sensitive to the need for the courts to remain open to all who
seek in good faith to invoke the protection of law. An appeal that
lacks merit is not always–or often–frivolous. However, we are not
obliged to suffer in silence the filing of baseless, insupportable
appeals presenting no colorable claims of error and designed only to
delay, obstruct, or incapacitate the operations of the courts or any
other governmental authority. Crain’s present appeal is of this sort. It
is a hodgepodge of unsupported assertions, irrelevant platitudes, and
legalistic gibberish. The government should not have been put to the
trouble of responding to such spurious arguments, nor this court to the
trouble of “adjudicating” this meritless appeal.
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B.
Knowing what the Rule 38 standard is, the Court needs to apply that
standard to the Kerchner appeal so that it may determine whether the appeal
that I filed fits under the definition of a frivolous appeal which would then
The Court agreed that the factual allegations of the complaint are to be
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allegations that Obama has not yet conclusively proven that he was born in
Hawaii and that he is not an Article II “natural born Citizen.” The Court
Amendment powers, and that former Vice President and Senate President,
Dick Cheney, and current Speaker of the House, Nancy Polosi, were
District Court nor on appeal in any way disputed plaintiffs’ allegations that
Obama does not meet the definition of an Article II “natural born Citizen”
and that he has not yet conclusively proven that he was born in Hawaii.
It is also significant that no court in the United States that has rendered any
decision on the Obama eligibility issue has granted to any plaintiff any
discovery which would show that these allegations are not true. Accepting
The case law on standing is not a clear roadmap for lawyers and courts
to follow
The case law on standing is not a clear roadmap for lawyers and
courts to follow. The twists and turns of how standing has developed in our
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case law are well documented. See Sunstein, What’s Standing After Lujan?
Of Citizen Suits, “Injuries,” and Article III, 91 Mich.L.Rev. 163, 168 (1992).
There has not yet been a decision from the United States Supreme Court on
Citizen” clause by having the court, within the factual and legal context of
Under the same factual and legal circumstances, there also is no United
Article II “natural born Citizen” and that he conclusively proved that he was
born in the United States, and when Congress did not equally exercise its
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power to protect the citizens under the Twentieth Amendment for the benefit
of the plaintiffs as they did for other similarly situated persons. Lack of such
precedent is confirmed by the fact that the Court did not cite to any such
cases. Hence, objective standards do not exist from that Court which could
sufficient factual and legal basis needed to establish standing and whether an
being frivolous.
Supreme Court and lower courts on the issue of standing as it has been
applied in other factual and legal contexts. But that case law on standing in
general is also not a clear guide. What I have discovered is not only that
presidential eligibility context, but that the Supreme Court and lower court
cases that do exist on standing have for various reasons come to different
regarding whether a litigant has or does not have standing. After researching
this law, I concluded that these cases did not provide an objective standard
which showed that a court would most likely finding that the Kerchner
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plaintiffs did not have standing to bring their claims. On the contrary, I
concluded that I could argue for an extension of the principles that these
cases relied upon to find standing. I respectfully submit that the following
cases do not show that the Kerchner appeal would be considered frivolous:
Flast v. Cohen, 392 U.S. 83 (1968). Complicating things even more in the
exercise of Congress’ taxing and spending power the use of federal dollars
Congress’ spending power. The Supreme Court was willing to carve out an
exception to the usual standing impediment that courts will normally not
government action of which the plaintiffs complain. The Court made that
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taxing and spending power” under Article I’s Taxing and Spending Clause.
injunctive, and mandamus relief and to argue that an exception should also
be made for their claims relative to Article II, Section 1, Clause 4’s “natural
born Citizen” clause under both the due process clause of the Fifth
property, and the equal protection component of that Amendment, for what
government, and particularly the safety and security of the plaintiffs that the
Founders and Framers trusted with the great power of those singular civil
and military offices. As Congress has limits to its spending power because of
by the National Forest Service and National Park Service in the Mineral
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King Valley of California if it could show that its members were likely to
best known for the dissenting opinion by Justice William O. Douglas who
asserted that natural resources, because of the importance that they play to
human life, ought to have standing to sue for their own protection.
United States v. SCRAP, 412 U.S. 669 (1973). Five law students who
freight rates. The Court accepted plaintiff’s argument that they were likely
to be injured if the rate increase went into effect because the increase would
recycled and the group to more likely encounter litter on its hikes in the
Washington, D. C. area.
Warth v Seldin, 422 U.S. 490 (1975). The Court threw out a suit brought by
Rochester, New York. The Court said the plaintiffs failed to identify a
specific project that would have been built but for the allegedly
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Establishment Clause violation when Congress exercised its power under the
Allen v Wright, 468 U.S. 737 (1984). The Court found that plaintiffs
failed to show that the injuries they alleged were "fairly traceable" to the
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). This case dramatically
shifted the law of standing by departing from the relaxed approach taken in
the two earlier cases. Now the Court read something new into Article III
and used a novel approach to standing and through the effect of its decision
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case is a prime example of how the rules of standing can change from case
declaring that federal agencies had no duty to consult with that department
endangered populations of animals. The Court laid down the famous three-
prong test for standing, injury in fact, causation, and redressability. Finding
that the plaintiffs failed to show they suffered an injury in fact, the Court
found the organization lacked standing even though the complaint alleged
that members planned to visit certain foreign countries where they hoped to
federal assistance or visit zoos where these animals might be less likely in
the future to be found. Four members of the Court agreed that even if the
because the alleged injury might not be preventable by relief granted if the
compact with their government are the objects and beneficiaries of Article
II” “natural born Citizen” clause; the Kerchner plaintiffs allege sufficient
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facts to show they have suffered a concrete and particularized injury that is
authority to “take Care that the Laws be faithfully executed” (Article II,
Section 3) or congressional power but rather the failure of the Executive and
and intent of Article II’s “natural born Citizen” clause and Congress’ failure
who are not able to sufficiently allege facts which show that they do have
standing.
Massachusetts v. EPA, 549 U.S. 497 (2007). Here, the Court found standing
with a 5-4 vote. Chief Justice Roberts and Justice Scalia wrote separate
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stated that the plaintiffs did not have standing. The split of the Court shows
how complex and debatable the issue of standing is and that there really is
no clear-cut test that can guide would-be litigants in their pursuit of what
they perceive to be justice. Justice Roberts did not believe that the plaintiffs
demonstrated concrete and particularized harm which has been the standing
issue also in the eligibility cases. He concluded that the alleged effects of
global warming are base on speculative scientific evidence at best and that
even if it did have any effects as alleged, those consequences affect everyone
dissent in this case from the Kerchner case in that global warming or climate
change affects the whole world based on natural and physical properties that,
policy decision made by the Founders and Framers that itself was based on
not only that republic but every one of its citizens should that person not
have love, fidelity, and allegiance only to the nation and to every one of its
citizens from the moment of his or her natural birth. It is this decision by the
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Founders and Framers which gives the individual Kerchner plaintiffs the
majorities doing so, the judicial branch of government to protect their right
the Constitution.
another 5-4 decision, the Court adopted a new, more restrictive view of
taxpayer standing. The Court concluded that the plaintiff lacked standing to
Executive Branch initiatives such as one that helps religious charities win
federal grants.
Complicating matter even worse is the fact that court have also
created the doctrine of prudential standing which is not based on Article III
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limit access to the courts to persons best suited to assert particular claims.
underpinnings, further clouds ones ability to come away from the case law
with any objective and clear test for standing. Not addressing the lower
court’s finding that plaintiffs also lack prudential standing, this Court has
concluded that plaintiffs do not have Article III standing. Opinion p. 4. But
the lower and this Court’s conclusion that plaintiffs fail to establish Article
III standing because they present “generalized grievances” “that are suffered
by many or all of the American people” and which are “most appropriately
United States v. Richardson, 418 U.S. 166, 173-76 (1974) (the individual
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tripartite federalist system, its self-restraint within that vision, and what it
waive the latter but not the former. See, e.g., Endangered Species Act, P.L.
93-205, Sec. 11(g), 16 U.S.C. Sec. 1504(g) and 5 U.S.C. Sec. 702 (a person
alleging the proper wrong can obtain judicial review of agency action). In
Federal Election Commission v. Akins, 524 U.S. 11, 25 (1998), the Court
held that the injury “is sufficiently concrete and specific such that the fact
nevertheless, we did not see any impediment to arguing and we did so argue
that plaintiffs’ injuries are sufficiently concrete and specific to them that it
did not matter that other Americans may also be damaged. Under all these
circumstances and existing case law, an attorney can hardly come away from
prudential standing analysis which is what the Court actually based its
decision upon with any clear objective standard of standing. Nor would a
reasonable attorney know with any great degree of certainty that such an
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on appeal.
The Berg case was not an absolute block to my filing the Kerchner
appeal to the Third Circuit Court of Appeals
rights through the judicial system because the Third Circuit had decided the
Court found that the Kerchner case makes “almost” identical claims as Berg.
different case than the Berg case. The Kerchner case has different facts and
The Kerchner facts are significantly different from the Berg facts
Lujan case how standing can turn on the facts that are alleged by the
plaintiff. We submit that the Kerchner facts are not only not “almost”
identical to the Berg facts but rather are significantly different. Because the
facts are different between the two cases, I reasonably believed that the Berg
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holding was limited to its particular facts. The court in Berg relied on
the time that the complaint is filed. Lujan v. Defenders of Wildlife, 504 U.S.
depends on the facts as they exist when the complaint is filed.” (quoting
See also Wilbur v. Locke, 423 F.3d 1101, 1107 (9th Cir. 2005) (quoting
Kitty Hawk Aircargo, Inc. v. Chao, 418 F.3d 453, 460 (5th Cir. 2005)) (“‘As
determined as of the date of the filing of the complaint . . .’”). The status of
a person who is running for public office will change over time. What status
even a sworn-in office holder–will depend upon when that complaint is filed
Carter explained:
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There may very well be a legitimate role for the judiciary to interpret
whether the natural born citizen requirement has been satisfied in the
case of a presidential candidate who has not already won the election
and taken office. However, on the day that President Obama took the
presidential oath and was sworn in, he became President of the United
States. Any removal of him from the presidency must be
accomplished through the Constitution’s mechanisms for the removal
of a President, either through impeachment or the succession process
set forth in the Twenty-Fifth Amendment. Plaintiffs attempt to subvert
this grant of power to Congress by convincing the Court that it should
disregard the constitutional procedures in place for the removal of a
sitting president. The process for removal of a sitting president–
removal for any reason–is within the province of Congress, not the
courts.
Barnett, et. al. v Barack H. Obama, et. al., October 29, 2009
The Court found that “[t]he appeal in Berg presented us with a claim
and private person Obama before the general election. Berg’s challenge was
to Obama’s right to run for office and to be placed on the ballot. He never
putative President Obama. But the Kerchner plaintiffs sued both President
Elect Obama (after Congress confirmed him but before Chief Justice
Roberts swore him in) and putative President Obama (after the Chief Justice
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If we closely examine the holding of Berg, we can see that Berg filed
his complaint on August 21, 2008, well before the general election of
The decision was all about a voter suing a candidate and private person
before a general election took place and not about suing that same person
after the political process had run its course but before that person became
Committee not be allowed to nominate him, that he not be allowed to run for
office, and that he not be placed on the ballot. Berg, 586 F.3d at 237. He
also filed emergency injunction motions asking that the election be stayed.
general election, asking that the governors of each state be prohibited from
certifying their state’s electors, the electors be prohibited from casting any
votes for Obama, and Congress be prohibited from counting of the electoral
votes in Congress. Id. at 238. The Court even recognized that Berg did not
general election and Congress confirming the electoral college votes without
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any objection. Id. The Court added that Berg was challenging the
about 2:50 a.m. on January 20, 2009, before Chief Justice Roberts swore
Military. Before serving the complaint upon the defendants, they amended
also have their claims filed against Obama in his public and official capacity
as the new duly sworn in President and Commander in Chief of the Military.
“Natural Born Citizen Clause does not result in an injury in fact to voters.”
Id. at 239 (quotation and citation omitted). The Court stated that “[e]ven if .
[the plaintiff], that injury . . . was too general for the purpose of Article III
Constitution and laws’ . . . with all voters . . .’” Id., 586 F.3d at 240 (quoting
Lujan, 504 U.S. at 573). Hence, we can see that the focus of the decision
election had even taken place and not in a “citizen” challenging that same
candidate after he becomes like Obama did the President-Elect after he won
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the popular vote in the general election and the vote of the Electoral College,
and Congress in join session confirmed that election but before he “enter[ed]
when Chief Justice Roberts swore him into office. In Berg, candidate
Obama had yet to be the President-Elect on his way to being sworn in and
such as Berg. Hence, candidate Obama could not harm Berg by failing to
protect him because he had no power to affect his life and was but a mere
private person. In Kerchner, the citizen plaintiffs sued Obama knowing that
he was the President-Elect soon to have vested in him that power and also
sued him after he was sworn in at which time presumably that power
voters suing someone who might win an election but rather that of citizens
who won both the popular and electoral college vote and received
Congressional confirmation and then also sued that person after executive
power presumably vested in him. With Obama being the winner of the
election and also being sworn in, Congress and he now have the
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they trust him to protect their life, liberty, safety, security, tranquility, and
act. The Court could perceive acting at that stage as an interference with the
work of the other branches of government which had yet to take up the issue.
the underlying concern in any standing analysis. With Kerchner, the other
two branches of government had completed their work and they refused to
encompasses these facts and therefore these different circumstances are not a
basis to distinguish the Kerchner case from the Berg case. Opinion page 5.
But while the court was willing to exercise its discretion in the interest of
justice and to accelerate the time forward and address issues that were not
raised in Berg’s complaint (Id. at 238), such accommodation did not and
could not change the fact that Berg’s alleged injuries were all tied to his
plaintiffs, Berg simply did not make any injury arguments based on Obama
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having the civil and military power of the President and how exercise of that
most of his claims were tied to his status as a voter and to Obama’s status as
because each state placed Obama on the ballot when there existed substantial
questions regarding his citizenship status. Id. at 239. The Court found that
Berg was not injured because he could always support a candidate that he
believed was eligible. Id. The Court found that Berg’s wish that the
Democratic primary voters had not chosen Obama and that they did not act
on the ineligibility evidence that he provided did not state a legal harm. Id.
240. The Court further found that even if the placement of an ineligible
candidate on the ballot had harmed Berg, that harm was too general. Id.
The Court said that he shared his harm with all voters and that relief he
sought would not have benefited him more than it would the public at large.
Id. The only argument that Berg made that could concern Obama as a mere
the possibility that Obama might be removed from office in the future
because of his ineligibility. Id. at 239. The Court found this injury to be
speculative and contingent on future events. Id. The Court did briefly
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consider Berg’s position “[n]ow that the election is over.” Id. 240. But it
rejected any claim of injury because it concluded that Berg shared his stake
“whether voters or not.” Id. But unlike the Kerchner plaintiffs, there was no
injury that Berg alleged for the post election period and therefore there was
no such injury for the Court to analyze that may have applied to that time
period. Simply wanting Obama to be eligible did not articulate any injury in
fact. The Court then explained that the “essence of Berg’s complaint” was
that various persons were not persuaded by his claim that Obama is not
concluded that it was not one to be resolved by the judiciary. Id. The Court
went on to explain that Berg’s Tenth Amendment argument that the states
and the people have the power to determine the qualifications of the
President-Elect had no relevance to the case and that the case that Berg cited
supporting his argument had nothing to do with standing. Id. 240-41. The
Court did not accept Berg’s “automatic standing” argument that he based on
Robinson v. Bowen, 567 F.Supp. 2d 1144, 1147 (N.D.Cal. 2008). Id. at 241.
Berg cited the following language of that opinion: “Judicial review [of the
processes have run their course.” Id. at 1147. We made the same argument
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in the Kerchner case. In Berg, the Court said that the statement goes to
ripeness and that in itself it does not support any argument for standing. But
just as mootness can eliminate a plaintiff’s personal stake and thereby cause
standing to evaporate (Arizonas for Official English v. Arizona, 520 U.S. 43,
June 15, 2010)), ripeness can give a person a personal stake in litigation and
being called a racist for bringing his suit. He argued that he was injured
that he was injured when the “President of the Senate failed to call for
objections during the counting of the electoral votes from each state....” He
pressed that he had standing because his First Amendment rights were
argued that the District Court violated his due process rights by dismissing
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his case. Berg, 586 F.3d at 241-42. The Court rejected all of these
arguments.
We can see from these arguments that Berg’s claims of injury are
candidate. This is a critical point because whether the Berg or the Kerchner
plaintiffs can allege sufficient injury in fact is logically linked to the status of
Commander in Chief. But as we shall see below, the injury in fact that the
Kerchner plaintiffs allege arises not from their status as mere voters, but
from their status as citizens. They do not allege that they suffered any injury
from Obama, the powerless candidate, but rather from the all-powerful
where in Berg’s action did he allege any deprivation of his Fifth Amendment
due process right to life, liberty, safety, security, tranquility, and property
who, unlike a mere private person who is running for public office, became a
public actor and subject to the Fifth Amendment due process clause after
To distinguish them from Berg and other Americans and to show that
they have a stake in this action different from other Americans, we explained
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in our complaint and briefs how Kerchner pursuant to his First Amendment
into Obama’s Article II eligibility before he sued. Berg did not do this. We
explained in our complaint and briefs that both Kerchner and Nelsen are
oath takers under the Armed Forces and National Guard. Berg did not have
member of the military. Berg is not. The Kerchner plaintiffs are also suing
in their capacity as citizens and not as mere voters. Hence, the Kerchner
plaintiffs are much different from plaintiff Berg. These characteristics show
that the Kerchner plaintiffs had a greater stake in the Obama eligibility issue
and that they had a greater motivation to truly litigate that issue than Berg
did.
consider his argument for standing in this case which has different facts
from other cases “almost” identical to the argument for standing made in
The Kerchner Case Makes Different Legal Arguments than the Berg
Case
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The Kerchner case also makes different legal arguments than the Berg
case. In Kerchner, we argued that the underlying merits of the case are very
relevant to showing injury in fact and therefore standing. Berg did not make
this argument nor did he make the same legal claims as did the Kerchner
plaintiffs. Neither the District Court nor this Court addressed this argument.
The merits of the legal claims cannot simply be ignored when engaging in a
inconsistency. Courts tell us that we are not to analyze the underlying merits
of a plaintiff’s claim unless that plaintiff first establishes that he has standing
to bring those claims. Does this mean that the underlying merits of a claim
deny that the merits and standing analysis overlap and that one cannot be
measured unless we know what the merits of the claims of injury are?
reasonably deny that standing also turns on the nature of the legal claim
being made by a litigant, for whether a person has suffered any injury surely
depends upon whether our law recognizes that a person has a cause of
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accident will usually not bring an action for a violation of his civil rights.
Even though the litigant could have real and serious injury caused by the
automobile accident, he simply would not have any cause of action under
our civil rights laws. The litigant would not have suffered any injury in fact
cognizable under our civil rights laws but he would have suffered such an
injury under our tort laws. Hence, the legal theory advance by a litigant is
Sunstein who states: “[D]espite its apparent simplicity, the notion of injury
free inquiry into facts.” Sunstein, What’s Standing After Lujan? Of Citizen
Suits, “Injuries,” and Article III, 91 Mich. L.Rev. 163, 167 (1992).
analysis, we should not only touch upon the underlying merits of a plaintiff’s
claims in some vague and limited way, for we need to fully understand the
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that the plaintiff does not have sufficient injury in fact to establish standing.
cannot be an Article II “natural born Citizen” because he does not meet the
original law of nations and common law definition of that clause which is a
child born in the country to a United States citizen mother and father.
They also allege that Obama has not yet conclusively proven that he was
born in Hawaii. Additionally, they allege that Congress did not adequately
vet and investigate whether Obama was born in Hawaii and whether he
sure that a president-elect qualifies for the office. Finally, they allege that
Amendment violation.
non-moving party. Byers v. Intuit, Inc., 600 F.3d 286, 291 (3d Cir. 2010).
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Hence, when analyzing what injury the plaintiffs have suffered and continue
to suffer which analysis goes to the question of whether they have suffered
an injury in fact which gives them standing, we must accept these allegations
as true.
Berg did not argue that Obama is not eligible because he does not
meet the original law of nations and common law definition of a “natural
born Citizen” which as we showed in our Opening Brief and Reply Brief is a
child born in the country to a citizen mother and father. While Berg
focused only on the place of birth issue which is in dispute, Kerchner argues
that Obama is not and cannot be President no matter where he was born
because he was born to a citizen mother but not also to a citizen father which
made him born a subject of a foreign power like a naturalized citizen and he
himself has admitted that his father was a British subject and that he himself
was a British subject under the British Nationality Act 1948. These facts
are not in dispute, for Obama’s admission is generally known throughout the
sources. The Court can therefore take judicial notice of these facts under
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The Kerchner plaintiffs argue that they each have an unalienable right
to life, liberty, safety, security, tranquility, and property, that the government
has an obligation to protect that right pursuant to the very reason why the
People constituted their government during the Founding and under the Fifth
Amendment due process clause, and that they are not expected to and have
not and will not receive that protection from a person who, not being an
Neither the District Court nor this Court addressed this argument in its
decision that plaintiffs do not have standing. Moreover, this Court found my
argument. But this is the most important standing argument that we made in
these two courts. The injury that is alleged in this argument is critical to
plaintiffs’ standing to bring their claims against the defendants, for lack of
between the People and the Government as conceived by the Founders and
to show the Kerchner citizen plaintiffs have each suffered an injury in fact
which is both concrete and particularized and which gives them standing
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and, under the Fifth Amendment due process clause, a right to have their day
in court.
government and their right to bring a legal action to enforce is well grounded
“Men” are not only created equal, but that their “Creator” has also endowed
them “with certain unalienable Rights, that among these are Life, Liberty,
and the Pursuit of Happiness…” It also tells us that to secure these rights,
“Governments are instituted among Men, deriving their just Powers from the
becomes “destructive of these Ends, the people have “the Right” to alter or
abolish it, and to institute new government so as to best protect their “Safety
and Happiness.”
The Framers thought enough about the constitutional duty that office
holders have to act with sole loyalty, fidelity, and allegiance to the people
that they included in the Constitution provision for the punishment for
treason. See Article I, Section 6; Article II, Section 4; and Article III,
II, Section 1, Clause 6 (or 8) that the President specifically give an oath that
he will preserve, protect, and defend the Constitution of the United States.
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They did not place in the Constitution the same obligation upon senators,
provides that the United States shall protect each state from “invasion.”
Such protection would necessarily extend to each citizen of each state which
includes the plaintiffs. There are also numerous other sources that
Congress. I cited these sources and discussed them in my Opening Brief and
Reply Brief.
To show that they have standing to bring their action against Obama,
Congress, and the other defendants, plaintiffs argued in their Opening and
Reply briefs that after the revolution the people created a government so that
it could protect them. In return for that protection, the people pledged their
person and citizen in the nation, Article II guarantees to each and every
individual American that only a natural born citizen shall be vested with the
great and singular powers of the President and Commander in Chief of the
Military. We showed that the Framers were concerned with the President
and Commander in Chief being a “natural born Citizen.” They said that no
person who does not have such status can hold those all powerful and
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singular civil and military offices. We demonstrated that the Framers did
not trust a person who does not have that status to adequately protect the
nation and its citizens. We also argued that as conceived by the Founders
and Framers in the Constitution, a covenant between the people and its
denying that the plaintiffs each make up the people and have an inalienable
their not receiving protection from the President and Commander in Chief of
government will assure the plaintiffs that protection to which they are
entitled, the plaintiffs should have access to the courts to be able to protect
and vindicate their own rights to this protection from the defendants. We
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argued that this right to access to the courts is more critical when both the
deprive the plaintiffs of their right to this protection. We argued that the
position could be taken that since Obama has already been sworn in, that
born Citizen.” But what happens when Congress also refuses to perform its
constitutional duty under the Twentieth Amendment to make sure that only a
“natural born Citizen” is given the great and singular powers of the Office of
would not leave someone like the plaintiffs without any remedy to protect
the same rights which the Declaration of Independence and the Constitution
v. Madison, 5 U.S. (1 Cranch) 137 (1803), did instruct that where there is a
No 78 said:
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It only stands to reason that the only other branch of government to which
the plaintiffs can look for protection of those rights and receive a remedy is
the judicial branch of government, for it is that branch which has the sole
the protection to which they are entitled. Hence, it made perfect sense that
plaintiffs would bring their cause of action against both Obama and
Congress.
We argued that the District Court erred in finding that the plaintiffs
have no standing because there may be many other Americans who may also
adequately alleged that each of them have suffered an injury in fact by not
receiving from defendants the protection to which they are guaranteed under
the due process clause of the Fifth Amendment. We have adequately shown
liberty, safety, security, tranquility, and property affects each of the plaintiffs
in a personal and individual way. We argued that the courts should not
deny plaintiffs their right to access to the courts to enforce their inalienable
right to protection from the defendants simply because there may be many
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argued that as long as the plaintiffs are among the injured, the fact that
factor for them to show they have standing. The same rule was announced
in United States v. SCRAP, 412 U.S. 669, 688 (1973) which said that “[t]o
deny to persons who are in fact, injured simply because many others are also
injured, would mean that the most injurious and widespread Government
actions could be questioned by nobody.” See also Lujan, 504 U.S. at 581
(J. Kennedy concurring) (“While it does not matter how many persons have
been injured by the challenged action, the party bringing suit must show that
the action injures him in a concrete and personal way”); Federal Election
Commission v. Akins, 524 U.S. 11, 25 (1998) (holding that the injury “is
sufficiently concrete and specific such that the fact that it is widely shared
vindication in the federal courts”). This case law shows that the Supreme
Court has not required that a plaintiff show that his or her injury is more than
that of others but only that he or she has personally been injured.
conclude that almost all other Americans would have suffered the same
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The District Court and this Court agreed that while plaintiffs may be
the District Court opinion). We also argued that going to the voting booth is
Obama is an Article II “natural born Citizen.” The voting booth has never in
our history been the correct vehicle by which our constitutional republic has
law, a litigant should not be told that his remedy is not found in the judicial
branch of government but rather in the voting booth. Using the voting booth
“natural born Citizen” clause is. Such a task is neither warranted nor
practical. Popular elections do not and cannot amend or repeal the supreme
law of the land. Nor can they be used to interpret the meaning of the
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his or her physical person, property, or economic interest. Give case law on
the Military, are violating their constitutional duty to protect the citizen
plaintiffs and to deny plaintiffs standing to bring their action against them is
the Constitution, even if lacking the character of being one that injures a
U.S.C. Sec. 1985(3). It is this very argument along with everything else that
we have shown that demonstrates that the plaintiffs have indeed alleged a
by Obama, Congress, and the other defendants, which the Court has the
protection from defendants and that they also have a right to resort to the
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courts to enforce and vindicate that right is the heart and soul of plaintiffs’
these are Life, Liberty, and the pursuit of Happiness . . .” Not to give
himself to be and by law not being eligible for those offices is to deny them
action in which they seek to protect those rights by having the judicial and
powerful and singular office of the President and Commander in Chief of the
divided loyalty and allegiance to the United States and who in the eyes of
the Founders and Framers could not be trusted to wield such power. To
deny them standing is also to deny the power that the President and
Commander in Chief has over their individual lives and how Obama has
used that power and will continue to use that power to jeopardize their lives,
on, among many issues, national defense and security, the war on terrorism,
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relations with our enemies, and transformation of the national economy and
the health care industry. To deny them standing is to relegate the plaintiffs
The Kerchner plaintiffs also sue Congress under the Fifth Amendment
due process clause for failure to protect their unalienable right to life, liberty,
duty under the Twentieth Amendment to properly vet and confirm only a
They also sue Former Vice President and Senate President, Richard Cheney,
and then and current Speaker of the House, Nancy Pelosi, for their
have maintained and courts have agreed with them that the question of
duty under the Twentieth Amendment, this argument must fail, for Congress
simply refuses and continues to refuse to satisfy its obligations under that
amendment. Congress has shown that it did not have and continues not to
petitions of not only the plaintiffs in this regard but that of countless other
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Congress has not instituted impeachment proceedings, and in fact, the House
that the President is not eligible for office. See H.R. Res. 593, 111th Cong.
statehood and stating, “the 44th President of the United States, Barack
http://ia311028.us.archive.org/1/items/gov.uscourts.gamd.77605/gov.uscourt
s.gamd.77605.13.0.pdf
and that that protection be equal to the protection that it gives to other
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power given to it by the Spending Clause. In Flast, the taxpayers did not
want the government to use their tax dollars for prohibited religious uses.
Given the analogous nature of these two scenarios, why should the Fast
plaintiffs have standing and the Kerchner plaintiffs should not? What can be
and particularly the safety and security of the plaintiffs that the President and
Framers trusted with the great power of those singular civil and military
offices? Given the critical safety and national security role that the “natural
born Citizen” clause plays in our republic, why would a court not want to
only concerned some taxpayers’ tax dollars? We cannot deny that Article
Obama because of its conflict of interest. Any legal action by the Executive
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Branch would be initiated by the United States Attorney General. But the
United States Attorney General, Eric Holder, his staff, and the entire
political advisor to Mr. Obama before his election. Mr. Obama appointed
Mr. Holder as his Attorney General and Mr. Holder gains both financially
and politically from his position as Attorney General and from his
the injury and the conduct complained of—the injury has to be ‘fairly
trace[able] to the challenged action of the defendant, and not . . . th[e] result
[of] . . . some third party not before the court.” Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992) (quoting Simon v. E. Ky. Welfare Rights
Org., 426 U.S. 26, 41-42 (1976)). There is no other political or law
enforcement institution which has been willing to step forward and take any
issue, the task of taking up the plaintiffs’ plight falls upon the judicial branch
of government which has the ultimate power to interpret and enforce the
The courts have the responsibility under Article III to review cases and
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unconstitutional, then they can also find under the Constitution that another
unconstitutional.
Our appeal on the issue of standing has more than enough merit. It is
adverse ruling on standing. I made no legal error. Rather, the Circuit Court
like the District Court did not agree with me that the plaintiffs have standing.
But that is hardly a reason to find the appeal frivolous and to impose
damages and costs upon me. As we have seen in our jurisprudence, a court
can find standing just as easy as it can find no standing. Our Fifth
Chief of the Military, Congress, and other government officials and to bring
an action to enforce that right. They showed that their right to receive such
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rule of standing which plaintiffs have in any event shown they adequately
satisfy.
Precedent may also be overruled. I did not see the Berg case as a case
that stood on strong grounds. The cases cited by the Court as support for its
decision were not really on point because the factual and legal issues of
those cases were not the same as those in Berg. For example, the Court cited
Warth v. Seldin, 422 U.S. 490 (1975) and said: “[W]hen the asserted harm
large class of citizens, that harm alone normally does not warrant exercise of
jurisdiction.” But the court said “normally.” We submit that the unique
circumstances of the Kerchner case show that it does not fall under this
“normal” case which would be dismissed under this rule. The Court also
cited Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). But this case
that case also had a completely different set of factual and legal issues than
the Berg case. The Court also cited Taliaferro v. Darby Twp. Zoning Bd,
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458 F.3d 181 (3d Cir. 2006. But Taliaferro was a zoning case. So as we can
see, none of the cases cited by the Court in the Berg decision were in the
same factual and legal context as the Berg case but yet the Court cited these
cases to show that Berg had no standing. The lawyers that litigated Brown
vs. Board of Education, 347 U.S. 483 (1954), had to overcome the clear
precedent of Plessy v. Ferguson, 163 U.S. 537 (1896). But even with that
precedent in their way, they persisted in their fight all the way to the United
States Supreme Court. In their journey, not once did they face any threat of
judges could have looked at the standing issue in a different light given that
the Kerchner case differs from the Berg case on the facts and on the legal
theories advanced.
Court must honor Attorney Apuzzo’s due process rights before the
Court may deprive him of his property interest by imposing damages
and costs to be paid to the defendants
In Eash v. Riggins Trucking Inc., 757 F.2d 557 (3d Cir. 1985), the
Court in explaining that a Court must honor an attorney’s due process rights
when the government seeks to deprive that attorney of his property interest
said:
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Id. at 570-71. Hence, the Court recognized that due process and
fundamental fairness require that an attorney have advance notice that the
that the absence of some statute, Federal Rule, ethical canon, local rule or
case law, rule, or some other actual or constructive notice that would have
alerted me that the Court would most likely conclude that there exists some
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the Circuit Court would find plaintiffs’ appeal of the trial court’s finding of
and quoting Sun Ship, Inc. 785 F.2d at 64) or with no “colorable arguments”
to support it. In re: Hall’s Motor Transit Company, 889 F.2d at 523.
providing me with ample warning not to file the appeal or else I could be
punished with the imposition of Rule 38 damages and costs. To satisfy this
requirement, the court cited various cases as support for its conclusion that I
have filed a frivolous appeal and that I should have know that it was
frivolous and that filing it could subject me to Rule 38 damages and costs.
While these cases may provide general statements of the law that applies
when the court decides whether to impose damages and costs under Rule 38,
the facts of these cases do not support the Court’s conclusion that I filed a
appeal did not include clear violations of the rules concerning res judicata,
the need to make timely service of process, or the need to include in the
While the Court acknowledges that the Federal District Court did not
“explicitly” state that our claims were frivolous, the Court believes that,
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apart from the other cases that it cited on standing in general, I also had
meaningful notice that the appeal was frivolous from the Obama eligibility
decisions of two other courts which dealt specifically with “similar legal
theories” and two other courts that specifically imposed sanctions on those
lawyers for bringing forth such claims. The Court then concludes from its
statement regarding what other courts found regarding the validity of other
“legal theories” and “claims” made by other lawyers in other cases that I
should have known based on those court’s rulings that the Court would not
and costs. But equating the Kerchner plaintiffs and me with the parties and
attorneys in these four other cases presents several problems. These other
cases presented different facts and made different claims of injuries than I
did and facts and claims of injury are critical to whether one can show injury
in fact. Another problem is that the merits of the underlying claims is one
thing and the merits of whether a party has standing to make those claims is
attorney for how that attorney personally behaves toward the court and not
because of the nature of the claims made by that attorney to that court.
Let us now examine these four cases. The Court first cites Barnett v.
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(C.D.Cal. Oct. 29, 2009). But this case does not control on the question of
standing in Kerchner. This is a lower federal court case that is not from the
against defendants. Unlike the Kerchner plaintiffs, they did not allege that
their government. Plaintiffs did not allege any injury under the Fifth
Amendment due process clause for deprivation of their rights to life, liberty,
protection component. Plaintiffs did not make any claim against Congress.
The failure to make any claim against Congress prevented the plaintiffs from
Twentieth Amendment and Article II’s “natural born Citizen” clause and the
Fifth Amendment due process clause (both of which limit that power) as
Clause and the First Amendment’s Establishment Clause (which limits that
power). Hein, 551 U.S. at 615, even explained that Fast standing should
has never been used to find standing where there exists only “purely
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their complaint against Obama prior to his being sworn in was fatal. The
Court said that the plaintiffs were therefore suing a sitting President who
was now engaged in his official duties rather than a political candidate. We
do not have this problem in Kerchner. Unlike the Kerchner plaintiffs, the
plaintiff also did not ask the court to craft a remedy that allowed Congress to
take action against Obama rather than the court should the court declare him
to be ineligible to hold office. What is critical is that the court suggested that
since Congress has the obligation under the Twentieth Amendment to make
sure that the president-elect is qualified to serve, the court would not
necessarily have been faced with a “political question” should the plaintiffs
have filed their action before Obama became President. The court concluded
that only Congress can remove a sitting President, either under Article I’s
Kerchner plaintiffs did file their complaint before Obama became President.
The court also said: “There may very well be a legitimate role for the
judiciary to interpret whether the natural born citizen requirement has been
satisfied in the case of a presidential candidate who has not already won the
election and taken office.” The Kerchner case presents just this exact case.
So as we can see from all these factors, the Barnett case would not have
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given me any indication that filing my appeal of the Kerchner case was
frivolous. On the contrary, the decision gave me hope that we would get
standing because our case did not suffer from the various defects which that
case had. Finally, the court was also very indulgent with plaintiffs’ counsel’s
behavior toward the court. The Court then cites Cohen v. Obama, No. 08-
2150. 2—8 WL 5191864, at *1 (D.D.C. Dec. 11, 2008), aff’d, 332 F.App’x
640 (D.C.Cir. 2009). That case also is distinguishable. This case is not from
the Third Circuit. Plaintiffs did not make any claim against Congress. This
plaintiff also did not make the many claims that the Kerchner plaintiffs
made. Hence, both of these decisions gave me no advance notice that the
court first cites Hollister v. Soetoro, 258 F.R.D. 1 (D.D.C. 2009), and says
that the Court there reprimanded an attorney under Federal Rule of Civil
‘natural born citizen.’” Opinion at p. 8. But like the Court here, that is not
the reason why the Court sanctioned that attorney. Neither that court nor
this Court has reached the merits of the plaintiffs’ underlying claim that
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Citizen.” Hence, that Court did not and could not sanction that attorney
because of the underlying merits of his claims. Rather, the Court in the
Hollister case reprimanded the attorney for how he tried to create standing
by using interpleader which the Court said applied only to property and not
2009). Simply stated, the interpleader argument had nothing to do with the
To further support its claim that I should have know about the
frivolous nature of the Kerchner appeal and that I would be imposed Rule 38
damages and costs for filing it, the Court tells us that monetary sanctions
(M.D.Ga. 2009), against counsel who filed “similar claims” on behalf of the
military. Opinion at p. 8. But the Court in that case did not impose the
sanction against the attorney because of the underlying merits of her claims
or because of the standing issue. Rather, the Court sanctioned the attorney
(the same plaintiffs’ attorney as in the Barnett case) for what the Court
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interfere with the internal affairs of the armed forces and for counsel’s
political rhetoric, personal insults against President Obama and his father,
behavior toward the Court by a member of the bar and officer of the court.
The Court here did not find that I in any way acted with contempt or
disrespect toward the Court or any third parties. Hence, the Rhodes case
surely cannot serve as the basis for advance notice to me about the Kerchner
case being frivolous and that filing it would most probably expose me to
Rule 38 damages and costs. Hence, the Obama eligibility cases cited by the
Court do not support the Court’s finding that I filed a frivolous appeal and
the defendants in defending the appeal. The reason why the courts
merits of the claims they made, because the plaintiffs did not have standing,
Those cases are therefore inapposite and do not serve as any basis to justify
finding the Kerchner appeal to be frivolous and that the Court should impose
damages and costs on me for filing the Kerchner appeal to this Court.
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The courts have “cautioned counsel that a finding by a District Court that a
lawsuit is frivolous should serve as notice to the parties and their attorney to
validity and factual merit of his contentions.” Beam v. Bauer, 383 F.3d 106,
109 (3d Cir. 2004) (quotation omitted). But here, neither the District Court
deemed my appeal to be frivolous, providing the legal basis for why they so
thought, and that they would request that the Court impose Rule 38 damages
and costs upon me unless I withdrew the appeal. Neither did the defendants
argue nor did the District Court nor this Court find to be frivolous plaintiffs’
claims that Obama does not meet the “natural born Citizen” requirement,
that he has not conclusively proven that he was born in Hawaii, that
Congress failed to properly vet and investigate Obama under its Twentieth
Amendment powers, and that Cheney and Pelosi were complicit in that
failure. In fact, neither court found that defendants presented any evidence
to show in any way that these allegations are not true or frivolous. Rather,
what the District Court and this Court said is that plaintiffs simply lack any
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underlying claims are frivolous. Rather, what the Court has found frivolous
is plaintiffs’ claim that, because neither the legislative nor the executive
the merits of that question. Even thought this inquiry is a highly complex
constitutional matter that rests upon what role the judicial branch of
which is a question that does not find a consistent answer in the decisions of
our United States Supreme Court and among legal scholars, this Court has
conclusion while not providing any case law which would have revealed to
me that the Kerchner appeal was frivolous and that it would most likely
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In Crain, the Fifth Circuit rightfully stated that “[w]e are sensitive to
the need for the courts to remain open to all who seek in good faith to invoke
the protections of the law. An appeal that lacks merit is not always—or
our Constitution, the rule of law, and the American way of life. The court
bring justice to the people if lawyers did not bring to them cases to be
Court to review a case. The question of the meaning of Article II’s “natural
born Citizen” clause can only be finally decided by our Supreme Court. The
plaintiffs realized this fact from the time they first filed their
court, they will never be able to ask the Supreme Court for assistance in
protecting their inalienable rights to life, liberty, and property. Filing the
appeal with the Circuit Court was therefore a necessary step to get to the
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Supreme Court. As we have shown, there has not yet been a decision from
Supreme Court so that they may receive the final word on whether they have
There are cases where the courts must police the actions of litigants
and their lawyers because they violate clearly established objective legal
standards established and known by those litigants and their lawyers. But
the Court threatening damages and costs where such standards are not
established or violated is not warranted. Such judicial threats will only chill
lawyers from bringing actions in political and civil rights cases, cases in
which they normally fight for the Constitution, the rule of law, and the rights
in which lawyers took on unpopular cases and eventually won the day for
not only their clients but for justice and the rule of law. The Court through
its decision here is telling lawyers that they cannot file legal actions that
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already a heavy enough burden for lawyers to carry. But the threat of
reputation is just too much for most lawyers to risk. With such threat over
their heads, parties and their lawyers will be less inclined to bring legal
keeping with their constitutional duties. Such a chilling effect upon lawyers
and their clients can only damage the rule of law and the very foundation of
our Constitutional Republic. It can also cause the people themselves to lose
Constitution and the rule of law and the political and civil rights which that
law guarantees to it people. What is also critical in our republic is that the
people have a real and meaningful right of access to its courts to seek and
receive meaningful relief when they perceive and can prove that their
government has violated those rights. If, based on some vague or subjective
standing standard which the court itself creates as the cases themselves are
presented to it, litigants and their attorneys are going to be prevented from
of damages and costs from the very judicial institution that is supposed to
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hear their case, then the rule of law, which is the very foundation of the
constitutional republic, and the people’s trust and confidence in the judicial
guided by the Constitution and the rule of law but rather one guided by the
personal opinion and philosophy of the judges. No legal system can endure
conclude showed that the Circuit Court would find plaintiffs’ appeal of the
899 F.2d at 253 (citing and quoting Sun Ship, Inc. 785 F.2d at 64) or with no
889 F.2d at 523. I have shown that our appeal is well supported by the
unique facts of the Kerchner case and by the law of standing. My argument
that the Berg case is distinguishable from the Kerchner case both on the facts
and on the legal claims made or for an extension or modification of the law
unreasonable. Based on how the law of standing has developed over our
history, the uncertain and unclear state of that law, and plaintiffs’ claims and
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believe that I could reasonably argue for an extension of legal principles that
light most favorable to the non-moving party, we can see that Obama refuses
Military. We can also see that Congress refuses to take any action on the
clause. The Constitution gives only to the judicial branch the power to
interpret and to tell us what that clause means within the context of the
Roberts, was addressing global warming but not at “the pace of progress”
which the State of Massachusetts desired, and given the limited time of the
election cycles, we cannot expect Congress and the Executive to take any
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believe that the Kerchner case is much different from the Berg and other
eligibility cases and other standing cases and that these cases do not
eligibility area and specifically to the facts and legal claims raised in the
Kerchner case that would have given a reasonable attorney notice that the
Kerchner appeal to the Third Circuit was “wholly without merit.” There is
made to show that the court had standing under the facts and legal
circumstances of the Kerchner case. I have shown how the Kerchner case
also did not present the same or similar claims as these other cases. I also
reasonably believe that the Kerchner plaintiffs’ injuries were not mere
Congress and the Chief Executive” and not the federal courts. Massachusetts
v. EPA, 549 U.S. (Roberts, C.J. dissenting) (citing and quoting Lujan v.
Defenders of Wildlife, 504 U.S. 555, 576 (1992)). These arguments for an
was not objectively unreasonable. When the law of standing is not so clear
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environment and the nature of the issue presented to a court (e.g. New Deal
claims, the courts should not put up unreasonable obstacles to and chill that
attorney from bringing such cases, for to do so can only damage the rule of
law that is so vital to the proper functioning and survival of our Constitution
government.
C.
must be exhausted before the Court can come to a conclusion that I filed a
damages, and proximate cause. Huck v. Dawson, 106 F.3d 45, 52 (3d Cir.
1997) (Rule 38 is not a sanction provision and “the remedy that this rule
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tort”). Huck also found that that a litigant should have “the usual
[the Court is ] called upon to act.” Id. See also Beam v. Bauer, 383 F.3d
106 (3d Cir. 2004) (same). “Usual opportunities and procedures that attend
a claim upon injury” surely include a hearing at which a party has a fair
action by the prevailing party against the losing party and/or his attorney for
damages, there is no sound reason why I should not have the same
protections prior to the Court compelling me under that rule to pay damages
771 F.2d 64 (3d Cir. 1985) (explaining that a party is not entitled to any
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In Eash v. Riggins Trucking Inc., 757 F.2d 557 (3d Cir. 1985), the
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732 F.2d at 1182; Edgar v. Slaughter, 548 F.2d 770, 773 (8th
Cir.1977); see also Miranda, 710 F.2d at 522-23. Moreover, by
providing a record, a hearing will facilitate appellate review. Miranda,
710 F.2d at 522-23; Renfrew, supra, 67 Calif.L.Rev. at 281. In some
cases, it may be that the record developed at the time of the alleged
misconduct will, itself, satisfy this need as long as the attorney has
been afforded an opportunity to adduce the relevant facts. Upon
imposing such a sanction it would seem appropriate for the district
court to make adequate written findings. Renfrew, supra, 67
Calif.L.Rev. at 281; Wilson v. Volkswagon of America, Inc., 561 F.2d
494, 516 (4th Cir.1977), cert. denied, 434 U.S. 1020, 98 S.Ct. 744, 54
L.Ed.2d 768 (1978) (appellate review difficult without adequate
findings).
Id. at 570-71.
deprivation of my property. The case also tells us that this process includes
notice and opportunity to be heard. I have been given notice by the Court on
its intent to impose damages and costs against me. The Court has also given
me the opportunity to respond in writing to its show cause order. But Eash
tells us that not only may I respond in writing, but I also have the right to a
hearing on the record on the issue under contention. I dispute that I filed a
frivolous appeal. I also dispute the amount of damages that defendants will
claim as a proximate cause of my having filed the appeal and they having
had to defend it. It is only fair that I be given this hearing. The Court should
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that I filed a frivolous appeal. The Court will have a better understanding of
the basis of the appeal after I have had this opportunity. The Court will
thereafter also have a better opportunity to make its written findings. The
hearing on the record will also create a record which will facilitate appellate
reconsider its finding that I filed a frivolous appeal and then conclude that I
did not file such an appeal or in the alternative, reconsider its finding that I
filed a frivolous appeal and grant me a hearing on the record before deciding
II.
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must be exhausted before the Court can fix the amount of damages and costs
decision that I filed a frivolous appeal and grant me a hearing on that issue.
this hearing, I should be given the opportunity to show that defendants have
litigant who has to defend a frivolous appeal. “Damages [under Rule 38] are
appellee.” Beam v. Bauer, 383 F.3d 106, 108 (3d Cir. 2004) (internal
opponents’ time and resources.” Nagle v. Alspach, 8 F.3d 141, 145 (3d Cir.
1993). As we shall see, it would not be just to award any damages to the
defendants. The defendants themselves are the ones who have caused
themselves to incur any expenses and costs in having to defend not only the
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Kerchner appeal but the many other law suits that have been filed across the
without first hearing from me at a hearing on the record. For the court to do
so and impose any claimed damages and costs upon me without affording
Eash v. Riggins Trucking Inc., 757 F.2d 557 (3d Cir. 1985), the Court
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adversary hearing offends due process. Link, 370 U.S. at 632, 82 S.Ct.
at 1389, we believe that as a general practice a monetary detriment
should not be imposed by a court without prior notice and some
occasion to respond.
Id. at 570-71.
proximate cause. Huck v. Dawson, 106 F.3d 45, 52 (3d Cir. 1997) (Rule 38
is not a sanction provision and “the remedy that this rule offers a party is
also found that that a litigant should have “the usual opportunities and
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] called upon to act.” Id. See also Beam v. Bauer, 383 F.3d 106 (3d Cir.
2004) (same). “Usual opportunities and procedures that attend a claim upon
injury” surely include discovery and a hearing at which a party has a fair
against the losing party and/or his attorney for damages, there is no sound
reason why I should not have the same protections prior to the Court
compelling me under that rule to pay damages and costs to defendants. See
(explaining that a party is not entitled to any hearing or even to receive proof
award).
In any tort action, a defendant has a right to show that the plaintiff’s
claimed damages do not exist or even if they do exist they were not
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cause issue is the question of whether a party has met his obligation to
caused those damages, and what steps that plaintiff took to mitigate those
disclosures to the other party even before the other party makes a discovery
request. As part of the initial disclosure, a party must disclose to the other
party: the name, address, and telephone number of any individual likely to
have discoverable information that the disclosing party may use to support
category and location of all documents and other tangible things that are in
the possession, custody, or control of the party and that the disclosing party
may use to support its claims or defenses, unless solely for impeachment.
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practicable the parties are to discuss their claims and defenses and a possible
judgments, and the termination of litigation,” which not only allows for
conservation of judicial resources but also allows the parties to benefit from
avoiding the costs and risks of a protracted and complex trial. Ehrheart v.
statement, defendants will have to claim that I have caused them to incur
damages and costs in having to defend the plaintiffs’ appeal which will most
probably include a claim for attorney’s fees and costs. Hence, I am at this
juncture precluded from knowing what those damages are and how I caused
address these issues after the defendants present their damage claim. The
Court should also provide me a fair opportunity to show that the defendants’
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mitigate their own claimed damages and costs and have therefore caused
and thereby conserve valuable time and resources. While proof of where
and when Obama was born may not be relevant to whether he may run for
the political office of President given his First Amendment rights to make a
vote on the question of whether he qualifies for that office under Article II,
Amendment cases in our Brief. Obama under Article II, Section 1, Clause 4
is duty bound to conclusively prove where he was born and that he is at least
under Article II, Section 1, Clause 1. This is a burden of proof that he and
only he has and which he must satisfy in order to show that he as the
Amendment. Because of his need to satisfy the place and date of birth
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that Obama has a reasonable expectation of privacy as to the place and date
of his birth. Additionally, Obama did post in 2008 on the internet for the
that he may have had as to the place and date of his birth. Hence, documents
We know that our courts have held litigants responsible for his or her
conduct not only in a currently pending case but also for his or her conduct
reasonably maintain that Obama has met his Article II burden by simply
Consequently, concerned citizens have filed numerous law suits across the
nation arguing that Obama has not conclusively shown that he born in
Hawaii or even alleging that he was born in Kenya. Philip Berg filed the
first law suit on the issue of Obama’s place of birth on August 21, 2008.
Given the nature of the issue (Berg simply demanded that Obama produce
his long-form birth certificate), this is the only law suit that needed to be
filed and it should also have had a very short judicial life. But neither in the
Berg action nor in any other action did Obama honor his Rule 26 disclosure
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posted on various internet web sites in 2008 and a certified copy of his
name of the hospital where he was allegedly born, the name of the delivering
put an early end to the Berg case one way or the other. What could be more
easy and cheaper than simply presenting a birth certificate which is done on
the proof of his Hawaiian birth, the case would have been dismissed. If it
was shown before the election that Obama did not have that proof, he should
not have run for President with the expectation of being qualified for the
confirmed him under the Twentieth Amendment, then Congress should have
refused to confirm him. If shown after Congress confirmed him, then the
United States would have asked him to and he should resign as President. If
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Section 2 and 3 and Article II, Section 4 for impeachment or under the
of President. Under all four scenarios, the Obama eligibility case would
have become moot, for his ineligibility to be President would have been
conclusively proven by a public record which would have allowed for the
Democratic Party v. Benkiser, 459 F.3d 582 (5th Cir. 2006). Hence, if
Obama’s documents did not conclusively prove that he was born in Hawaii
which would mean that he is not eligible to be President, no one else would
have had any reason to file any other actions against Obama on the question
of his eligibility.
time, none of the defendants or any other person produced for the public
filed their action against Obama, Congress, and the other defendants, they
were in the same position as Berg and other plaintiffs on the question of
whether Obama had shown that he was born in Hawaii. Hence, plaintiffs in
the Kerchner action also claim that Obama has yet to conclusively prove that
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with the courts would have benefited the same as they would have in the
earlier cases from Obama’s early disclosures which would have brought the
and that in America persons are made to prove their birth events and their
vehicle, licensing, athletics, travel, and other sundry reasons, it did not
appear to the Kerchner plaintiffs, as it probably also did not appear to Berg
and all the other plaintiffs in the other actions, to be an unfair or burdensome
contemporaneous birth certificate proving the place and date of his birth.
For some unknown reason, Obama chose to prevent anyone from obtaining a
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internet, two newspapers which ran two birth announcements, and Hawaiian
officials who made statement to the public on what was contained in the
Hawaii Department of Health Obama birth file, and his request that the court
take judicial notice of those statements as his evidence of his place and date
court or the plaintiff. Obama and Vice President Biden argued in their
employed public attorneys who work for the Department of Justice who also
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chose to cause Berg, the Kerchner plaintiffs, other plaintiffs, the courts, and
the issue of Obama’s place of birth and having the issue discussed non-stop
in the public rather than to have that issue laid to rest during Berg’s early
law suit or upon being served with the Kercher complaint/petition by simply
other early cases on the relatively simple issue of place of birth would for all
between them, have had a preclusive effect that would have applied to all
pending and future law suits. Given the need for the defendants, plaintiffs,
and the courts to conserve time and other resources and the public interest in
wanting and needing finality to the dispute regarding the issue of Obama’s
place of birth, one would think that the only reasonable path for Obama,
other defendants, and the Department of Justice to chose would have been a
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simple and early Rule 26 disclosure of the readily available COLB and the
Kerchner plaintiffs. If Obama does not have this evidence, the United
States should have taken appropriate action against Obama including not
continuing to defend this action or any other action and thereby mitigated its
finding that Obama was born in Hawaii. This evidence has been included in
dilatory tactics and to play games with parties and the legal system by
then claim they have been damaged by a party’s litigation efforts to obtain
that very same evidence when they could have all along simply produced
that evidence and thereby avoided those very same damages. Should the
damages and costs, I respectfully request that the Court recognize and
his 1961 long-form birth certificate, and related documents showing that
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Obama was born in Hawaii which they could have simply shared with Berg
or other plaintiffs including the Kerchner plaintiffs who would not have
Obama was born in Hawaii, and which disclosure would have mitigated the
damages and costs they may now claim they suffered from having to defend
receive a copy of those documents. Should the Court be inclined to find that
I am liable for defendants’ damages and costs, I also request that the Court
Obama was born, along with a hearing on the record at which I will have a
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III.
Opening Brief on January 19, 2010, a Third Circuit panel issued its decision
in Berg v. Obama, 586 F.3d 234 (3d Cir. 2009). This decision did address
against Obama. The Court cites and quotes N.J. Rule of Professional
to the lawyer to be directly adverse to the position of the client . . . .”). After
citing this ethics rule, the Court “note[s] with concern that Appellants failed
to cite Berg in their opening brief.” Opinion p. 9, n.5. Needless to say, that
the Court in no uncertain terms has implied that I violated this ethics rule.
The Court’s citing of this rule and stating that “Appellants failed to cite Berg
in their opening brief” is even more damaging to me given that the court has
issued an order that I show cause why the Court should not impose damages
member of the general public, it would appear that the Court wants to
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sanction me for having not only filed a frivolous appeal but also for having
rule in its entirety (not the cut off version provided by the Court in its
decision) and the record before the Court clearly show that I did not violate
this ethics rule. Because there simply is no factual or legal basis to the ethics
rule having any application to anything that I did or did not do in how I
requesting that the Court correct its decision by removing from it the
reference to the rule and any implication therein that I violated the rule.
“arising out of the same case or proceeding.” The Kerchner case in the
Third Circuit is the only one case ever filed in any court in the United States.
Hence, there never have existed any other “same case[s] or proceedings[s]”
were other cases on the Obama eligibility issue already decided but which
were distinguishable from our case. It was my belief based on the high
notoriety of the Berg case that the Court knew that included in those cases
was the Berg case. I also distinguished the facts and legal claims of the
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Kerchner case from those of Berg and other cases in the Opening Brief. The
defendants cited and argued the Berg case in their opposition brief. I also
argued the Berg case in our Reply Brief, further distinguishing it. The Court
also relied heavily upon the Berg case in its decision. Hence, the Court had
the full benefit of the Berg case before rendering its decision in the Kerchner
appeal.
lawyer cannot take lightly a federal court’s implication that he violated the
career. Such a finding is even more damaging given the highly publicized
and politicized nature of the Obama eligibility cases. I have provided above
the quote of this ethics rule as provided by the Court in its precedential
opinion. What is troubling is that the Court in quoting the ethics rule did not
include in its quote a critical part which clearly and without question shows
Kerchner appeal to the Third Circuit Court of Appeals. The full quote is:
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counsel.” (emphasis supplied). We can see that the rule contains two
conditions that are both necessary before a lawyer may be cited for having
violated the ethics rule. The first condition is that the lawyer knowingly
failed to disclose to the court controlling legal authority known to the lawyer
opposing counsel also did not disclose that controlling authority to the court.
Even assuming that the first condition is met, clearly and without question
the record before the Court shows the second condition is not met. The
defendants did disclose to the Court the actual citation to the Berg case and
also argued that case throughout its Opposition Brief. In their Opposition
Brief, the defendants cited the Berg case in their Table of Authorities. Def.
Br. at ii. They also cited and argued the Berg case in their brief’s Statement
of Related Cases and Proceedings and in the Standard of Review. Def. Br. at
5-6. They also cited and argued the Berg case at page 8, 9, 11, and 13 of that
brief.
Authorities. Rep. Br. at i. I also cited and argued the Berg case in the
argument section of the brief, arguing that the Berg case is inapposite. I
explained how the Kerchner case was different from the Berg case. Rep. Br.
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at 24-26. The Court also relied heavily upon the Berg case in rendering its
decision. As can be so clearly seen, the Court had the benefit of both the
plaintiffs’ and defendants’ argument on the Berg case before it rendered its
decision. The Court also relied heavily upon the Berg case in rendering its
decision. The Court record clearly shows that not only did opposing counsel
disclose the Berg case to the Court, but I also disclosed and argued the case
to the same Court, and the Court relied heavily upon that decision in
Court that I did not violate N.J. Rule of Professional Conduct 3.3(a)(3). The
court has rendered a precedential decision which includes its statement that
places a cloud upon my ethics. Because of the serious nature of the Court’s
a corrected Opinion.
CONCLUSION
reconsider its Rule 38 finding that I filed an appeal that is frivolous and that
the Court grant me a hearing on the record at which I would be given a fair
appeal. Should the Court still find that the appeal that I filed is frivolous, I
respectfully request that I not be compelled to pay the defendants any Rule
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38 damages and costs. Should the Court find that I did file such an appeal
and that I am compelled to pay such damages and costs, then I respectfully
request that the Court withhold imposing judgment with a fixed amount for
damages and costs until I have had a fair opportunity to discover what those
claimed damages and costs are and whether defendants met their duty to
mitigate those expenses, and grant me limited discovery for the purpose of
learning what those damages and costs are and whether defendants satisfied
their duty to mitigate those claimed expenses, along with a hearing on the
record. Finally, because of the serious nature of the Court’s implication that
respectfully requesting that since the Court record clearly shows that I did
not violate that ethics rule, the Court issue a corrected Opinion removing
from the decision any reference to the rule and any implication that I
violated it.
95