(Note: Berg's complaint has been dismissed, but he is appealing in both the Third Circuit and the Supreme Court. See here for current status of his appeals.)
10/4 Update: On Monday, Sept. 29, Mr. Berg filed his Opposition to Motion to Dismiss. In his Opposition, Berg first attempts to distinguish Hollander - one of the cases against McCain, which the court dismissed on lack of standing. Second, he asserts five "sets of laws" to argue that he has standing.
An Aside: We've received comments asking: "Who would have standing to sue if a voter does not?" and "If the courts can't decide this issue, who can? For a great answer to these two questions, we found the following very helpful:
- Robinson v. Bowen, discussed in our first post re: standing, here, and
- Daniel P. Tokaji, Commentary, The Justiciability of Eligibility: May Courts Decide Who Can Be President?, 107 Mich. L. Rev. First Impressions 31 (2008).
DISCLAIMER: The information provided below is information found or reported to us to date, but we wish to make clear that we are not providing independent legal analysis on these issues. If and when we find a published report of legal analysis from a qualified attorney, we will post that information.
|Berg's Legal Argument||Pleading Citation(s)||Law Cited in Pleadings|
|A||"This case is easily distinguishable from Hollander v. McCain, 2008 U.S. Dist.LEXIS 56729 (D.N.H. 2008)..."||Opposition to Motion to Dismiss at 15.||Hollander v. McCain|
|B||Plaintiff has Standing pursuant to 5 United States Code. §702||Opposition at 16.||5 U.S.C. § 702|
|C||Plaintiff has Standing pursuant to FEC v. Akins, 524 U.S. 11 (1998)||Opposition at 17.||FEC v. Akins, 524 U.S. 11 (1998)|
|D||Plaintiff has Standing Pursuant to 8 U.S.C. §1481(b)||Opposition at 21.||8 U.S.C. § 1481(b)|
|E||Plaintiff has Standing under 5 U.S.C. §552(B)||Opposition at 23.||5 U.S.C. § 552(B)|
|F||Plaintiff has Standing pursuant to 28 U.S.C. §1343, Civil Rights and Elective Franchise||Opposition at 24.||28 U.S.C. § 343|
|G||Plaintiff has Standing pursuant to Federal Question Jurisdiction||Opposition at 25.||28 U.S.C. § 1331|
Let's look at these arguments.
|Berg asserts: "This case is easily distinguishable from Hollander v. McCain, 2008 U.S. Dist. LEXIS 56729 (D.N.H. 2008), where the Court held that the Plaintiff did not have standing based on the alleged harm he would suffer should McCain be elected President despite his alleged lack of eligibility under the natural born citizenship clause, Art. II, § 1, cl. 4."
Bert then outlines four "factors" he alleges the Hollander court relied upon in its ruling.
|Conclusion: Berg failed to distinguish Hollander.|
As summarized above, Berg's failed to explain how the factors considered by the Hollander court do not apply to his case. Instead, the relevant factors are virtually identical.
|B||Plaintiff has Standing pursuant to 5 United States Code. §702|
In this section, Berg asserts standing, based on the Federal Administrative Procedure Act. However, 5 USC § 702 provides as follows:
Read the provision yourself here: 5 USC § 702.
See also 5 U.S.C. § 701 (1), which explains that "agency' means each authority of the Government of the United States, whether or not it is within or subject to review by another agency, but does not include -... (E) agencies composed of representatives of the parties or of representatives of organizations of the parties to the disputes determined by them; ....."
|Conclusion: Berg fails to explain why or how provisions of the Federal Administrative Procedure Act applies to a Presidential Candidate (Obama) or National Political Party (DNC); and fails to demonstrate that he followed required procedures to obtain standing to sue the FEC.|
|As highlighted in the quoted text above, to the extent that this provision applies at all to the case, it could only apply to the FEC, and not to Obama or the DNC. Because neither Obama, as candidate, nor the DNC are "federal agencies" subject to the Federal Administrative Law Act.|
|C||Plaintiff has Standing pursuant to FEC v. Akins, 524 U.S. 11 (1998)|
|Berg also asserts standing pursuant to FEC v. Akins, 524 U.S. 11 (1998) ("Atkins"). However, Akins like 5 USC § 702, applies to federal agencies. Berg fails to explain how or why this case does - or should - apply to presidential candidates or national political parties.
Read the case yourself here: FEC v. Akins
Additionally, in Atkins, plaintiff sued after first filing an official complaint with the FEC, and obtaining an order from the FEC. See Atkins (PDF file at pp 3-6) for a discussion of the FEC proceedings. Here, Berg has not alleged that he has filed a complaint with the FEC, or that the FEC issued an order dismissing his complaint. As stated in Atkins:
FEC v. Akins, (PDF p. 7). Berg has not demonstrated that he (a) filed a complaint with the FEC or that (b) the FEC dismissed that complaint. Thus, he hasn't met the test as enunciated by the Atkins Court, even if the law set forth in that decision otherwise would grant him standing to sue the FEC.
Additionally, the Atkins court stated:
FEC v. Akins, (PDF p. 7). However, Berg has not yet explained what statute requires disclosure of these materials. Indeed, in a recent interview, Berg admitted that there is no such statute, saying
See DNC steps in to silence lawsuit over Obama birth certificate, World Net Daily, Oct. 4, 2008.
|Conclusion: Berg fails to explain why or how FEC v. Akins applies to a Presidential Candidate (Obama) or National Political Party (DNC); and fails to demonstrate that he followed required procedures to obtain standing to sue the FEC.|
|D||Plaintiff has Standing Pursuant to 8 U.S.C. §1481(b)|
|Berg also asserts standing to sue under 8 U.S. C. §1481(b), which is a provision in Title 8, Chapter 12 of the U.S. Code, addressing immigration and nationality.
However, 8 U.S. C. §1481 does not address standing of a private citizen to sue another person at all. Rather, subsection (a) discusses the "rules" re: voluntary loss of citizenship; while subsection (b) addresses the appropriate burden of proof in any action regarding loss of citizenship.
Read the statute yourself, here: 8 USC § 1481.
In fact, the only provision we can find in Title 8, Chapter 12, addressing who can sue, and how, is in 8 USC § 1503. That provision provides the remedy (against federal agencies) that apply to a person denied rights on the grounds that s|he is not a national. The law simply doesn't permit one person to sue another person to challenge his|her citizenship.
|Conclusion: Berg fails to explain why or how 8 U.S.C. §1481(b) grants him standing to challenge any person's citizenship or to sue the DNC or FEC.|
|E||Plaintiff has Standing under 5 U.S.C. §552(B)|
|Next, Berg asserts that he has standing to sue under 5 U.S.C. 552(B).
However, once again, this statute, like 5 U.S.C. § 702, discussed above, applies to federal agencies. Section 552 addresses FOIA requests i.e., Freedom of Information Act requests. Specific procedures have been implemented for citizens to submit FOIA requests, requesting information such as the following (from § 552(a)(2)
Read the statute yourself, here: 5 U.S.C. § 552.
Once again Berg fails to explain why or how the Freedom of Information Act, which applies to federal agencies, should apply to a Presidential Candidate (Obama) or a national political party (the DNC).
Additionally, Berg has submitted no evidence that he made a proper FOIA request for specific information from the FEC, or that it failed to provide any information properly requested.
|Conclusion: Berg fails to explain why or how provisions of the Federal Freedom of Information Act applies to a Presidential Candidate (Obama) or National Political Party (DNC); and fails to demonstrate that he followed required procedures to obtain standing to sue the FEC.|
|F||Plaintiff has Standing pursuant to 28 U.S.C. §1343|
Berg also asserts standing under 28 U.S.C. § 1343. This statute provides that federal district courts have jurisdiction to hear cases:
Read the statute yourself here: 28 U.S.C. § 1343.
We think this "begs the question." The issue is not whether the federal court has jurisdiction to hear such a case, but whether Berg has demonstrated standing to sue under the statute. In any event, Berg fails to identify what "Act of Congress" grants the protection he seeks - i.e., what statute authorizes courts to require candidates to turn over the multifarious types of information contained in Berg's discovery requests, which you can review here.
Indeed, as noted above, Berg admitted that there is no such statute, saying:
See DNC steps in to silence lawsuit over Obama birth certificate, World Net Daily, Oct. 4, 2008.
|Conclusion: Berg fails to identify any law that requires candidates to disclose the information he seeks to voters and, indeed, has publicly admitted that there is no such statute.|
|G||Plaintiff has Standing pursuant to Federal Question Jurisdiction - 28 U.S.C. § 1331|
|Finally, Berg asserts standing pursuant to 28 U.S.C. § 1331.
That statute provides: "The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States."
Read the statute yourself here: 28 U.S.C. § 1331.
Again, we're pretty sure that this begs the question. The district court has jurisdiction over all such actions. That is a completely separate issue from whether an individual person, with a particular claim, has standing to sue under whatever law s|he identifies.
Note, however, that in both Osborn and Verliden, the court specifically referenced comprehensive statutory schemes passed by Congress when finding that there was a justiciable federal question.
Thus, it is difficult to see how either Osborn or Verlinden are remotely applicable to the case at issue, given that Berg appears to admit that:
See Opposition at 25. And, once again we note that Berg has publicly admitted that there is no such statute, in an interview with World Net Daily. See DNC steps in to silence lawsuit over Obama birth certificate, World Net Daily, Oct. 4, 2008.
|Conclusion: Berg fails to identify any Constitutional provision, law, or treaty provision which grants him standing to demand the information he seeks. Indeed, he has publicly admitted that there is no such statute.|