Berg v. Obama

• Decision Date: 24 October 2008
• Docket Number: Civil Action No. 08-4083.
• Citation: 574 F.Supp.2d 509
• Parties: Philip J. BERG, v. Barack OBAMA, et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

574 F.Supp.2d 509

Philip J. BERG, v. Barack OBAMA, et al.

Civil Action No. 08-4083.

United States District Court E.D. Pennsylvania.

October 24, 2008.

COPYRIGHT MATERIAL OMITTED

Philip J. Berg, Law Offices of Philip J. Berg, Lafayette Hill, PA, for Philip J. Berg.

John P. Lavelle, Ballard, Spahr, Andrews & Ingersoll, LLP, Philadelphia, PA, for Barack Obama.

MEMORANDUM & ORDER

SURRICK, District Judge.

Presently before the Court are the Motion of Defendant Democratic National Committee and Senator Barack Obama to Dismiss First Amended Complaint (Doc No. 20) and the Defendant Federal Election Commission's Motion to Dismiss for Lack of Subject Matter Jurisdiction (Doc. No. 24). For the following reasons, the Defendants' Motions to Dismiss will be granted.

I. BACKGROUND

A. Procedural History

Philip J. Berg (hereinafter "Plaintiff') is an attorney who is representing himself in this matter. On August 21, 2008, just prior to the Democratic National Convention, Plaintiff filed a Complaint for Declaratory and Injunctive Relief (Doc. No. 1) and a Motion For Temporary Restraining Order and for Expedited Discovery (Doc. No. 2 "TRO") against Barack Obama ("Obama"), the Democratic National Committee ("DNC"), the Federal Election Commission ("FEC"), and Does 1-50 Inclusive. The Complaint and request for TRO alleged that Obama is not eligible to run for the Office of President of the United States because he is not a "natural born citizen" as required by Article II, Section 1, Clause 4 of the United States Constitution (the "Natural Born Citizen Clause"). Plaintiff sought a TRO prohibiting Obama from running for President and enjoining the DNC from selecting Obama as the nominee. Plaintiff also sought declaratory and injunctive relief in the form of a declaration that Obama is ineligible to run for the office of President under the United States Constitution and a permanent injunction enjoining Obama from running for President and enjoining the DNC from making Obama the Democratic presidential nominee.

On August 22, 2008, a hearing was held on Plaintiff's Motion for Temporary Restraining Order.¹ At the conclusion of the hearing an Order was entered denying the Motion. (Doc. No. 4.)

On September 9, 2008, service of the summons and Complaint was made on Defendants Barack Obama and the DNC. (Doc. No. 7.) On September 12, 2008, service was made on Defendant FEC. (Doc. No. 9.) On September 24, 2008, a Motion to Dismiss was filed by Barack Obama and the DNC. (Doc. No. 12.) Plaintiff's Response in Opposition to the Motion to Dismiss was filed on September 29, 2008. (Doc. No. 13.) On October 6, 2008, Plaintiff filed a Motion for Leave to File a First Amended Complaint. (Doc. No. 14.) Plaintiff's First Amended Complaint for Declaratory and Injunctive Relief ("Amended Complaint") was attached to the Motion. (Doc. No. 14-2.)² In addition to Defendants Barack Obama, the DNC, and the FEC, Plaintiff's Amended Complaint includes the following Defendants: the Secretary of the Commonwealth of Pennsylvania Department of State, Pedro A. Cortes; Secretary of the Commonwealth in his Official Capacity; Diane Feinstein, Chairman of the U.S. Senate Commission on Rules and Administration in her Official Capacity; U.S. Senate Commission on Rules and Administration; and Does 1-50 Inclusive.³ On October 20, 2008, a Motion of Defendant Democratic National Committee and Senator Barack Obama to Dismiss First Amended Complaint was filed. (Doc. No. 20.) On October 21, 2008 Defendant Federal Election Commission's Motion to Dismiss for Lack of Subject Matter Jurisdiction Pursuant to Federal Rule of Civil Procedure 12(b)(1) was filed. (Doc. No. 24.)

The Amended Complaint adds claims that were not included in the original Complaint. In addition to the claim that Obama is not a "natural born citizen" and is therefore not eligible to be President, Plaintiff alleges that the Defendants have deprived him of his rights in violation of 42 U.S.C. § 1983, 42 U.S.C. § 1985, and 42 U.S.C. § 1986 (Counts Two, Three, & Four). The Amended Complaint also adds a Claim for Promissory Estoppel (Count Seven) and includes claims for violation of the Federal Election Campaign Act ("Campaign Act"), 2 U.S.C. § 437 (Count Five), violation of the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (Count Six), and a Claim of Loss of Nationality under 8 U.S.C. § 1481(b) (Count Eight).⁴

B. Factual Background

The Amended Complaint alleges that Plaintiff is a life-long member of the Democratic Party (Doc. No. 14-2 ¶ 3) who fears that Defendant DNC's nomination of Defendant Obama as the Democratic Party's presidential nominee for the 2008 election will result in irreparable harm to Plaintiff and other "Democratic Americans." (Id. ¶ 7.) Obama cannot be a presidential nominee, Plaintiff contends, because Obama is not a "natural born citizen" of the United States and is therefore barred from holding the office of President by the Natural Born Citizen Clause.⁵ (Id. ¶ 36.)

Plaintiff claims that if the evidence shows that Obama is not a natural born citizen, his nomination (and presumably his election to the Presidency if he wins) will be null and void. (Id. ¶ 7.) Plaintiff asserts that Defendants' collective knowledge of this fact, or their failure to assist Plaintiff in obtaining information from Obama and the DNC, has deprived Plaintiff of "liberty, property, due process of law and equal protections of the laws," (id. ¶ 89), and has caused "significant disenfranchisement of the Democratic Party" generally (id. ¶ 173).

Various accounts, details, and ambiguities from Obama's childhood form the basis of Plaintiff's allegation that Obama is not a natural born citizen of the United States. To support his contention, Plaintiff cites sources as varied as the Rainbow Edition News Letter, (id. ¶ 39), and the television news tabloid Inside Edition (id. ¶ 45). These sources and others lead Plaintiff to conclude that Obama is either a citizen of his father's native Kenya, by birth there or through operation of U.S. law; or that Obama became a citizen of Indonesia by relinquishing his prior citizenship (American or Kenyan) when he moved there with his mother in 1967. Either way, in Plaintiffs opinion, Obama does not have the requisite qualifications for the Presidency that the Natural Born Citizen Clause mandates. The Amended Complaint alleges that Obama has actively covered up this information and that the other named Defendants are complicit in Obama's cover-up.

Plaintiff seeks the following relief from the Court:

1. An order compelling Defendants to turn over: (a) a certified copy of Obama's "vault" (original long version) birth certificate; (b) certified copies of all reissued and sealed birth certificates of Obama in the names referred to in the caption of this lawsuit; (c) a certified copy of Obama's Certification of Citizenship; (d) a certified copy of Obama's Oath of Allegiance taken upon age of majority; (e) certified copies of Obama's admission forms for Occidental College, Columbia University and Harvard Law School; and (f) certified copies of any court orders or legal documents changing Obama's name from Barry Soetoro to Barack Hussein Obama;

2. A declaration that Obama is not a natural-born citizen or naturalized citizen of the United States;

3. A declaration that Obama is ineligible to run for the President under the United States Constitution, Article II, Section 1;

4. A preliminary and permanent injunction enjoining Obama from any further campaigning and from running for President;

5. An order compelling the FEC, Feinstein and the U.S. Senate Commission on Rules and Administration to immediately open and conduct an investigation into the fraudulent tactics of Obama and immediately open and conduct an investigation into the citizenship status of Obama; and

6. A preliminary and permanent injunction enjoining the DNC, the Pennsylvania Department of State, Pedro A. Cortés, Pennsylvania Secretary of the Commonwealth, and the Bureau of Commissions, Elections and Legislation from placing Obama's name on the presidential election ballot.

II. LEGAL STANDARD

A. Rule 12(b)(1)—Lack of Jurisdiction

Under Federal Rule of Civil Procedure 12(b)(1), a court must grant a motion to dismiss if it lacks subject matter jurisdiction over the case. Fed.R.Civ.P. 12(b)(1). The party asserting that jurisdiction is proper bears the burden of showing that jurisdiction exists. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994); Packard v. Provident Nat'l Bank, 994 F.2d 1039, 1045 (3d Cir.1993). A challenge to jurisdiction may be either factual or facial. See CNA v. United States, 535 F.3d 132, 145 (3d Cir.2008) (citing 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1350, at 147-55 (3d ed.2004)). Where the challenge is facial, as Obama and the DNC's is here, courts must take the well-pleaded facts of the complaint as true and must draw all inferences in a manner most favorable to the plaintiff, as with ruling on a Rule 12(b)(6) motion to dismiss. See Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir.1977).

B Rule 12(b)(6)—Failure to State a Claim

When considering a motion to dismiss a complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), this Court must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n. 7 (3d Cir.2002). However, "a court need not credit a complaint's `bald assertions' or `legal conclusions' when deciding a motion to dismiss." Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir.1997) (citations omitted).⁶

Thus, both the 12(b)(1) and the 12(b)(6) challenges to the Amended Complaint raise strictly legal questions....