Berg's Standing Problem - Part II

(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.)

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Earlier, we discussed Berg's Standing Problem - here.

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.

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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).

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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.

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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.

A	Distinguishing Hollander
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. Hollander (per Berg) Berg Comparison The Hollander court, per Berg, held that McCain's candidacy for the presidency, whatever his eligibility, was "hardly a restriction on voters' rights" because it in no way prevented them from voting for somebody else in the primary election. Here, Berg argues, Obama's candidacy for the presidency in the general election as opposed to the primary elections prevents citizens from voting for Hillary Clinton despite her immense popularity Essentially, Berg appears to allege that the "difference" is that Hollander involved the primaries, while Berg involves the general election. However, Hollander expressly made the "general election argument --  [Hollander argues that] This would lead to the disenfranchisement of [Hollander] and 100 million additional voters in the general presidential election. (Hollander Order at 6) -- and the Hollander court expressly rejected it. There is, thus, no difference between these two claims. The Hollander court, per Berg, held that the harm claimed "standing alone, would adversely affect only the generalized interest of all citizens in constitutional governance." Here, Berg argues, "the harm Plaintiff suffered is particular to him because he has been denied the constitutional right to vote for an eligible candidate..." Berg's argument is the exact same argument that Hollander made --  Hollander, however, argues that the harm to him from McCain s candidacy transcends simply the right to be governed by a constitutionally qualified President; Hollander claims it also impacts his right to vote, both in the New Hampshire Republican Primary and the general election. (emphasis added). (Hollander Order at 10-11) -- and that the Hollander court rejected. There is, thus, no difference between these two claims. The Hollander court, per Berg, held that Plaintiff did not "allege personal injury fairly traceable to the Defendant's allegedly unlawful conduct." Here, Berg argues, "Plaintiff's claims are traceable to the Defendants' unlawful behavior in failing to disclose information to which voters are entitled." Two issues: 1. In holding that Hollander failed to allege personal injury fairly traceable to the Defendant's allegedly unlawful conduct, the Hollander court wad addressing Hollander's claim that he would be disenfranchised if McCain were actually elected, and then subsequently removed due to his lack of eligibility. After noting that any such alleged injury would occur not from McCain/RNC actions, but from whomever thereafter sought to remove McCain from office.  "[T]he theory does not establish Hollander s standing because it does not  allege personal injury fairly traceable to the defendant s allegedly unlawful conduct, Allen v. Wright, 468 U.S. 737, 751 (1984), but to the conduct of those--whoever they might turn out to be--responsible for ultimately ousting McCain from office. Indeed, McCain and the RNC are trying to achieve the opposite. Hollander Order at 15-16. In other words, the Court was addressing Hollander s argument re: injury in the event that McCain was actually elected. (Berg, argues comparable injuries in the event that Obama is elected and thereafter determined ineligible  although a bit more dramatic: unrest and violence could occur.) Second: Mr. Berg states that he, as a voter, is "entitled" to the information he seeks. However, as he cites no law to support this contention. Moreover, as noted at the top of this post, in a recent interview, Mr. Berg essentially admitted that no law exists granting him that right: "The real outrage is that there's nothing in our system that provides that a candidate must provide that his qualifications are true and correct before he or she runs, and that safeguard should be put into our system by law," See DNC steps in to silence lawsuit over Obama birth certificate, World Net Daily, Oct. 4, 2008. The Hollander court, per Berg, held that McCain was "unquestionably an American citizen." Here, Berg argues, Defendants have failed to show that Mr. Obama is "unquestionably an American citizen." The Hollander court referenced McCain's general citizenship in the "Background" of its opinion - because it was uncontested by the parties.  However, that uncontested fact was not a "factor" considered by the court in its holding. See Hollander Order.
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.

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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: A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party. .... (Emphasis added.) 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.

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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: "Congress has specifically provided in FECA that "[a]ny person who believes a violation of this Act . . . has occurred, may file a complaint with the Commission. §437g(a)(1). It has added that "[a]ny party aggrieved by an order of the Commission dismissing a complaint filed by such party . . . may file a petition" in district court seeking review of that dismissal. §437g(8)(A)." 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: "[T]his Court has previously held that a plaintiff suffers an "injury in fact" when the plaintiff fails to obtain information which must be publicly disclosed pursuant to a statute." 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 "The real outrage is that there's nothing in our system that provides that a candidate must provide that his qualifications are true and correct before he or she runs, and that safeguard should be put into our system by law," 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.
See above.

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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.
See above.

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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) (A) final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases; (B) those statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register; (C) administrative staff manuals and instructions to staff that affect a member of the public; (D) copies of all records, regardless of form or format, which have been released to any person under paragraph (3) and which, because of the nature of their subject matter, the agency determines have become or are likely to become the subject of subsequent requests for substantially the same records; and (E) a general index of the records referred to under subparagraph (D)... 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.
See above.

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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: "(1) To recover damages for injury to his person or property, or because of the deprivation of any right or privilege of a citizen of the United States, by any act done in furtherance of any conspiracy mentioned in section 1985 of Title 42; (2) To recover damages from any person who fails to prevent or to aid in preventing any wrongs mentioned in section 1985 of Title 42 which he had knowledge were about to occur and power to prevent; (3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States; (4) To recover damages or to secure equitable or other relief under any Act of Congress providing for the protection of civil rights, including the right to vote." 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: "The real outrage is that there's nothing in our system that provides that a candidate must provide that his qualifications are true and correct before he or she runs, and that safeguard should be put into our system by law," 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.
See above.

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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. Additionally, Berg cites to Osborn v Bank of the United States, 22 US 738 (1824) and Verlinden BV v Central Bank of Nigeria, 461 US 480 (1983) to support what, we're not sure. 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: "There are no laws which specifically delegate whose responsibility it is to carry the burden of verifying the eligibility of a President. ....." 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.
See above.

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