03-09-4209 kerchner v obama & congress appeal - atty apuzzo's response to court's show cause order

8/9/2019 03-09-4209 Kerchner v Obama & Congress Appeal - Atty Apuzzo's Response to Court's Show Cause Order

1/95

_____________________________________________________________

IN THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________________________________________________________

Case No. 09-4209

CHARLES F. KERCHNER, JR. et al.,

Plaintiffs-Appellants,

v.

BARACK HUSSEIN OBAMA II et al.,

Defendants-Appellants.

_____________________________________________________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

_____________________________________________________________

ATTORNEY MARIO APUZZOS RESPONSE TO THE COURTS

ORDER THAT HE SHOW CAUSE WHY THE COURT SHOULD NOT

IMPOSED DEFENDANTS DAMAGES AND COSTS AGAINST HIM

FOR FILING A FRIVOLOUS APPEAL

_____________________________________________________________

MARIO APUZZO

Attorney for Plaintiffs-Appellants185 Gatzmer Avenue

Jamesburg, New Jersey 08831

(732) 521-1900

On the Brief:

Mario Apuzzo

Case: 09-4209 Document: 003110221486 Page: 1 Date Filed: 07/19/2010


2/95

2

PROCEDURAL STATEMENT

On July 2, 2010, the Third Circuit Court of Appeals issued its decision

affirming the New Jersey Federal District Courts dismissal of the Kerchner

et al v. Obama/Congress et al case for lack of Article III standing. Dkt.

Document No. 003110204058. The Court ordered that I show cause in 14

days why the Court should not find me liable for just damages and costs

suffered by the defendants, not in having to defend against the merits of

plaintiffs underlying claims that Putative President Obama is not an Article

II natural born Citizen, that he has yet to conclusively prove that he was

born in Hawaii, that Congress failed to exercise its constitutional duty to

properly vet and investigate Obamas natural born Citizen status, and that

former Vice President and President of the Senate, Dick Cheney, and current

Speaker of the House, Nancy Pelosi, were complicit in that Congressional

failure, but rather in having to defendant against what the court considers to

be a frivolous appeal of the District Courts dismissal of their claims on

the ground of Article III standing. Opinion at p. 3 and 9.

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



3/95

3

III standing. Opinion at p. 5-6. They found that these injuries are too

generalized for Article III courts. Opinion at p. 5. They added that

plaintiffs injuries are not concrete and particularized because there are

harms that are suffered by many or all of the American people. Opinion at

p. 5. Furthermore, the court said that plaintiffs injuries are generalized

grievances which are most appropriately handled by the legislative

branch. Opinion at p. 6. The court said that it acknowledges plaintiffs

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

of an Article II natural born Citizen. . . is a child born in the country to a

United States citizen mother and father. Opinion at p. 7, n.4.

On my having to show cause why I should not have to pay damages

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

aware that we rejected almost identical claims in Berg, as have courts in

other jurisdictions. Opinion at p. 8. They said that an examination of this

precedent would have made it obvious to a reasonable attorney that an

appeal from the District Court was frivolous since no law or facts could



4/95

4

support a conclusion that the District Court erred. Opinion at p. 8. While

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

for bringing forth such claims. Opinion at p. 9.

LEGAL ARGUMENT

I.

THE COURT SHOULD RECONSIDER ITS FINDING THAT

ATTORNEY APUZZO FILED A FRIVOLOUS APPEAL AND ON

RECONSIDERATION IT SHOULD FIND THAT ATTORNEY

APUZZO DID NOT FILE SUCH AN APPEAL OR AT LEAST GIVE

HIM A HEARING ON THE RECORD BEFORE DECIDING THE

QUESTION

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 Courts show cause order

is the standard to be applied by the Court in deciding whether an appeal is

frivolous which subjects the offending party or attorney to pay the other

partys just damages and costs incurred in having to defend that appeal.

Federal Rule of Appellate Procedure 38 provides that [i]f a court of appeals



5/95

5

determines that an appeal is frivolous, it may, after a separately filed motion

or notice from the court and reasonable opportunity to respond, award just

damages and single or double costs to the appellee. The purpose of an

award of attorneys fees under Rule 38 is to compensate appellees who are

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.

1997) (internal quotation and citation omitted). This court employs an

objective standard to determine whether or not an appeal is frivolous which

focuses on the merits of the appeal regardless of good or bad faith. Hilmon

Co. v. Hyatt Intl, 899 F.2d 250, 253 (3d Cir. 1990) (internal quotation

omitted). In the Third Circuit, an appeal is considered to be frivolous when it

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.

1986) or presented with no colorable arguments to support it. In re: Halls

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

colorable arguments on appeal even when we have found them to be without



6/95

6

merit. Sun Ship, Inc. 785 F.2d at 64 (citing Mid-Jersey National Bank v.

Fidelity-Mortgage Investors, 518 F.2d 640, 642 n. 1 (3d Cir.1975)).

In Crain v. Commissioner of Internal Revenue, 737 F.2d 1417 (5th

Cir.

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 taxpayers 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

years or to file totally frivolous appeals. The Court said:

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 alwaysor oftenfrivolous. 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 anyother governmental authority. Crains 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.



7/95

7

B.

The Court Should Reconsider Its Finding that I Filed A Frivolous

Appeal and After Such Reconsideration It Should Conclude that I Did

Not File Such An Appeal

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

warrant the Courts imposing damages and costs against me.

The Factual Allegations of the Complaint Are to be Accepted As True

on Defendants Motion to Dismiss for Lack of Standing

The Court agreed that the factual allegations of the complaint are to be

accepted as true and are to be interpreted in a light most favorable to the

plaintiffs. The Court said:

At this procedural posture, we must accept all factual allegations as

true, construe the complaint in the light most favorable to

[Appellants], and determine whether, under any reasonable reading

of the complaint, [Appellants] may be entitled to relief. Byers v.

Intuit, Inc., 600 F.3d 286, 291 (3d Cir. 2010) (quoting Grammar v.

John J. Kane Regl Ctrs.-Glen Hazel, 570 F.3d 520, 523 (3d Cir.

2009)). Nonetheless, a complaint must . . . state a claim . . . that is

plausible on its face. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007)).



8/95

8

Hence, the Court would have accepted as true plaintiffs well-plead

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

would also have to accept plaintiffs well-plead allegations that Congress

failed to properly vet and investigate Obama under its Twentieth

Amendment powers, and that former Vice President and Senate President,

Dick Cheney, and current Speaker of the House, Nancy Polosi, were

complicit in that failure. It is also telling that defendants neither in the

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

these allegations as true is important because these accepted facts go to the

plaintiffs establishing an injury in fact and therefore standing.

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



9/95

9

case law are well documented. See Sunstein, Whats Standing After Lujan?

Of Citizen Suits, Injuries, and Article III, 91 Mich.L.Rev. 163, 168 (1992).

There is no United States Supreme Court precedent on the question of a

citizens standing to enforce Article IIs natural born Citizen clause.

There has not yet been a decision from the United States Supreme Court on

the question of a citizens standing to enforce Article IIs natural born

Citizen clause by having the court, within the factual and legal context of

the case or controversy presented by the Kerchner case, issue a declaration

as to the meaning and application of that clause as it applies to Obama or

any other presidential candidate, president-elect, or sitting putative president,

and to issue injunctive and mandamus relief based on that declaration.

Under the same factual and legal circumstances, there also is no United

States Supreme Court precedent on the question of whether a citizen has

standing to bring an action against Congress and other government officials

in which he contends that they failed to properly exercise their Twentieth

Amendment constitutional duty to properly vet, investigate, and confirm a

President-Elect before confirming him under that amendment, when they

failed to confirm that he meets the Founders and Framers definition of an

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



10/95

10

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

have guided me on the question of whether the Kerchner case rested on a

sufficient factual and legal basis needed to establish standing and whether an

appeal to the Third Circuit of the District Courts finding of no standing

would certainly be judged by a reasonable attorney and the Circuit Court as

being frivolous.

With no such cases being available, I looked to other cases of our

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

there were no Supreme Court standing cases within the Article II

presidential eligibility context, but that the Supreme Court and lower court

cases that do exist on standing have for various reasons come to different

and conflicting conclusions or rested their decisions on very narrow grounds

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



11/95

11

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:

Frothingham v. Mellon, 262 U.S. 447 (1923). A taxpayer's mere ideological

opposition to an alleged illegal expenditure of federal tax revenue failed to

provide a sufficient basis for standing.

Flast v. Cohen, 392 U.S. 83 (1968). Complicating things even more in the

area of standing is the First Amendment Establishment Clause cases. The

Court found taxpayer standing in a suit challenging as an unconstitutional

exercise of Congress taxing and spending power the use of federal dollars

to pay for instructional materials in religious schools because plaintiff

alleged a specific constitutional limitation, the Establishment Clause, on

Congress spending power. The Supreme Court was willing to carve out an

exception to the usual standing impediment that courts will normally not

accept a case in which large groups of individuals would be affected by the

government action of which the plaintiffs complain. The Court made that

exception because of the importance of the Establishment Clause is a



12/95

12

specific constitutional limitation upon the exercise of Congress of the

taxing and spending power under Article Is Taxing and Spending Clause.

Id. at 104-05. It is not unreasonable for plaintiffs to ask for declaratory,

injunctive, and mandamus relief and to argue that an exception should also

be made for their claims relative to Article II, Section 1, Clause 4s natural

born Citizen clause under both the due process clause of the Fifth

Amendment for deprivation of life, liberty, safety, security, tranquility, and

property, and the equal protection component of that Amendment, for what

can be more important to our Constitution, our Republican form of

government, and particularly the safety and security of the plaintiffs that the

President and Commander in Chief of the Military be a person whom 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

the Establishment Clause so does Congress have limits to its power to

confirm a President-Elect under the Twentieth Amendment because of

Article IIs natural born Citizen clause.

Sierra Club v. Morton, 405 U.S. 727 (1972) ). An environmental

organization would have standing to challenge development on land owned

by the National Forest Service and National Park Service in the Mineral



13/95

13

King Valley of California if it could show that its members were likely to

suffer an aesthetic injury were the development to go forward. This case is

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

formed a small environmental group had standing to challenge a decision of

the Interstate Commerce Commission allowing a 2.5% increase in rail

freight rates. The Court accepted plaintiffs argument that they were likely

to be injured if the rate increase went into effect because the increase would

disproportionately affect recycled goods, causing fewer goods to be

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

persons challenging exclusionary zoning ordinances of a wealthy suburb of

Rochester, New York. The Court said the plaintiffs failed to identify a

specific project that would have been built but for the allegedly



14/95

14

unconstitutional ordinances. Other alleged basis for standing was rejected

on grounds of an insufficient showing of causation or lack of redressibility.

Valley Forge Christian College v. Americans United for Separation of

Church and State (1982). In a case involving a donation of federal property

to a religious college, taxpayers lacked standing to challenge an

Establishment Clause violation when Congress exercised its power under the

Property Clause rather than the Spending Clause);

Allen v Wright, 468 U.S. 737 (1984). The Court found that plaintiffs

challenging tax exempt status for racially discriminatory private schools

failed to show that the injuries they alleged were "fairly traceable" to the

defendant's (the I.R.S's) illegal action (granting of tax-exempt status).

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

invalidated a countless number of Congressional statutes giving citizens



15/95

15

standing to sue government agencies in the area of environmental law. This

case is a prime example of how the rules of standing can change from case

to case. The Court found no standing in a case involving a national

environmental organization's challenge to a Department of Interior rule

declaring that federal agencies had no duty to consult with that department

about the impact their projects in foreign countries might have on

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

see endangered species which would be threatened by projects receiving

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

plaintiffs demonstrated an injury in fact, standing would still not exist

because the alleged injury might not be preventable by relief granted if the

court ruled in plaintiffs favor). We distinguish the Lujan case on the

grounds that the Kerchner plaintiffs, as party citizens to the constitutional

compact with their government are the objects and beneficiaries of Article

II natural born Citizen clause; the Kerchner plaintiffs allege sufficient



16/95

16

facts to show they have suffered a concrete and particularized injury that is

actual and imminent and not conjectural or hypothetical. They also

adequately show causation and redressability. Id. at 560; we are not

challenging any government agency action or requesting anything which can

be perceived as the courts interference with the executives constitutional

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

Congress to protect the plaintiffs Fifth Amendment rights to life, liberty,

safety, security, tranquility, and property by failing to honor the meaning

and intent of Article IIs natural born Citizen clause and Congress failure

to provide that protection to plaintiffs equally as they did to other similarly

situated persons; Kerchner does not involve any Congressional citizen-suit

statute which violates Article III by unlawfully granting standing to citizens

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

dissented opinions, joined by the other dissenting justices, in which they



17/95

17

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

on the planet and do not affect Massachusetts in any particular way. He

concluded that standing was therefore not established. We distinguish the

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,

depending on their cause, may or may not be able to be controlled by man,

where the requirement that a person be a natural born Citizen to lead a

constitutional republic both in its civil and military capacity is based on a

policy decision made by the Founders and Framers that itself was based on

what they perceived to be the consequences to the survival and protection of

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



18/95

18

Founders and Framers which gives the individual Kerchner plaintiffs the

constitutional right to bring a legal action in which they ask, in default of

the executive and legislative branches of government and the political

majorities doing so, the judicial branch of government to protect their right

to protect their unalienable rights to life, liberty, safety, security, tranquility,

and property as guaranteed to them by the Declaration of Independence and

the Constitution.

Hein v. Freedom From Religion Foundation, 551 U.S. 587 (2007). In

another 5-4 decision, the Court adopted a new, more restrictive view of

taxpayer standing. The Court concluded that the plaintiff lacked standing to

challenge a White House program on faith-based initiatives. Taxpayer

standing, the Court said, reached only congressionally-funded programs, not

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

Case or Controversy requirements but rather on policy considerations.

Flast v. Cohen, 392 U.S. 83, 92 (1968) (confusion has developed as



19/95

19

commentators have tried to determine whether Frothingham establishes a

constitutional bar to taxpayers suits or whether the Court was simply

imposing a rule of self-restraint which was not constitutionally compelled).

Under prudential standing, the judiciary seeks to avoid deciding question of

broad social impact where no individual rights would be vindicated and to

limit access to the courts to persons best suited to assert particular claims.

Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99-100 (1979).

The doctrine of prudential standing, with its policy and political

underpinnings, further clouds ones ability to come away from the case law

with any objective and clear test for standing. Not addressing the lower

courts 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 Courts 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

handled by the legislative branch (Opinion p. 5-6) is an application of

prudential standing rather than Article III constitutional standing. See

United States v. Richardson, 418 U.S. 166, 173-76 (1974) (the individual

may not litigate generalized grievances shared by a large group of

individuals). As we have seen, prudential standing is grounded to a great



20/95

20

degree on political considerations. It is very amorphous since it is based on

the courts case-by-case view of what it perceives to be its role in our

tripartite federalist system, its self-restraint within that vision, and what it

perceives to be sound public policy. Distinguishing between Article III

standing and prudential standing is critical in that Congress can by statute

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

that it is widely shared does not deprive Congress of constitutional power to

authorize its vindication in the federal courts. In the Kerchner case, we do

not have any Congressional statute granting plaintiffs standing. But

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



21/95

21

argument would be considered as utterly without merit or as having no

colorable arguments to support it and therefore have no chance of success

on appeal.

The Berg case was not an absolute block to my filing the Kerchner

appeal to the Third Circuit Court of Appeals

I did not believe that I was precluded from advancing my clients

rights through the judicial system because the Third Circuit had decided the

Berg case, for precedent may be either distinguished or overruled. The

Court found that the Kerchner case makes almost identical claims as Berg.

Opinion, p. 8. But how are we to measure by any objective standard what is

almost identical. On the contrary, I see the Kerchner case as a much

different case than the Berg case. The Kerchner case has different facts and

legal arguments than Berg.

The Kerchner facts are significantly different from the Berg facts

Standing cannot be decided by generalized statements. Rather,

standing analysis requires a highly fact-sensitive inquiry. We saw in the

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



22/95

22

holding was limited to its particular facts. The court in Berg relied on

different facts to reach its decision on standing.

The timing of the filing of the Kerchner complaint is significantly

different from the filing of the Berg complaint. Standing is assessed as of

the time that the complaint is filed. Lujan v. Defenders of Wildlife, 504 U.S.

555, 571 n.4 (1992) (The existence of federal jurisdiction ordinarily

depends on the facts as they exist when the complaint is filed. (quoting

Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 830 (1989))).

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

with all questions of subject matter jurisdiction except mootness, standing is

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

that person will have as a defendanta mere candidate, a candidate-elect, or

even a sworn-in office holderwill depend upon when that complaint is filed

against that person.

In Kerchner, because we sued the President-Elect and the putative

sitting President, we do not have a First Amendment problem. As Judge

Carter explained:



23/95

23

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 Constitutions 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 reasonis within the province of Congress, not the

courts.

US District Court Judge David O. Carter in dismissing Captain Pamela

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

similar to the one here, in which the plaintiff challenged President-elect

Obamas eligibility to run for and serve as President. Opinion p. 4. We

respectfully disagree with this statement. Berg as a voter sued candidate

and private person Obama before the general election. Bergs challenge was

to Obamas right to run for office and to be placed on the ballot. He never

amended his complaint to make any claim against President-Elect Obama or

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

swore him in).



24/95

24

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

November 4, 2008. He never amended his complaint at any time thereafter.

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

constitutionally vested with executive Power under Article II, Section 1,

Clause 1 of the Constitution. Berg made claims against Obama as a

candidate, asking for injunctive relief that the Democratic National

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.

He filed an additional emergency injunction motion after Obama won the

general election, asking that the governors of each state be prohibited from

certifying their states 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

included in his complaint any allegations regarding Obama winning the

general election and Congress confirming the electoral college votes without



25/95

25

any objection. Id. The Court added that Berg was challenging the

qualifications of a 2008 presidential candidate[]. Id. at 239.

In contrast, the Kerchner plaintiffs filed their complaint/petition at

about 2:50 a.m. on January 20, 2009, before Chief Justice Roberts swore

private Obama in as the new President and Commander in Chief of the

Military. Before serving the complaint upon the defendants, they amended

that complaint on January 21, 2009 and February 9, 2009 so as to be able to

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.

The Court in Berg held that a candidates ineligibility under the

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 placement of an ineligible candidate on the presidential ballot harmed

[the plaintiff], that injury . . . was too general for the purpose of Article III

[because the plaintiff] shared . . . his interest in proper application of the

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

was in a voter challenging a candidate running for office before a general

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



26/95

26

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]

on the Execution of his Office . . . under Article II, Section 1, Clause 8

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

acquiring executive power which he is supposed to use to protect citizens

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

constitutionally vested in him. Their controlling status was not of mere

voters suing someone who might win an election but rather that of citizens

of the constitutional republic, the United States of America, suing someone

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

constitutional duty to protect the Kerchner plaintiffs. But because Obama

has yet to and because he cannot conclusively prove that he is an Article II



27/95

27

natural born Citizen, plaintiffs are not constitutionally expected to nor do

they trust him to protect their life, liberty, safety, security, tranquility, and

property as would a President and Commander in Chief of the Military who

is a natural born Citizen.

Additionally, with Berg, the other Branches of government had yet to

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 courts could perceive this as a separation of powers problem which is

the underlying concern in any standing analysis. With Kerchner, the other

two branches of government had completed their work and they refused to

do anything on the question of Obamas Article II eligibility. The Court

states without specific reference or explanation that its Berg decision

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 Bergs complaint (Id. at 238), such accommodation did not and

could not change the fact that Bergs alleged injuries were all tied to his

status as a voter and Obamas status as a candidate. Unlike the Kerchner

plaintiffs, Berg simply did not make any injury arguments based on Obama



28/95

28

having the civil and military power of the President and how exercise of that

power has caused and is continuing to cause him an injury in fact.

If we analyze each one of Bergs claimed injuries, we can see that

most of his claims were tied to his status as a voter and to Obamas status as

a mere candidate. Berg argued that he suffered an injury in fact as a voter

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 Bergs 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

candidate or as the President was his contention of injury caused to him by

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



29/95

29

consider Bergs 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

in having Obama be eligible with an even greater number of people,

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 Bergs complaint was

that various persons were not persuaded by his claim that Obama is not

eligible to be President. Id. Calling this claim a grievance, the Court

concluded that it was not one to be resolved by the judiciary. Id. The Court

went on to explain that Bergs 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 Bergs 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

claim]-if any-should occur only after the electoral and Congressional

processes have run their course. Id. at 1147. We made the same argument



30/95

30

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 plaintiffs personal stake and thereby cause

standing to evaporate (Arizonas for Official English v. Arizona, 520 U.S. 43,

68 n.22 (1997); Ehrheart v. Verizon Wireless, No. 08-4323, p. 5 (3rd

Cir.

June 15, 2010)), ripeness can give a person a personal stake in litigation and

thereby cause standing to come into being. We therefore distinguished the

Courts response on this argument by Berg.

Berg maintained that he has suffered damage to his reputation by

being called a racist for bringing his suit. He argued that he was injured

because he had to spend money on his lawsuit. He said he suffered injury

because he was denied some information concerning the qualifications of

Obama. He added he had standing under 18 U.S.C. 1983. He asserted

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

somehow violated when his political representatives failed to object to the

electoral votes cast in Obamas favor as he wished them to. Finally, he

argued that the District Court violated his due process rights by dismissing



31/95

31

his case. Berg, 586 F.3d at 241-42. The Court rejected all of these

arguments.

We can see from these arguments that Bergs claims of injury are

mostly concentrated on his status as a voter and to Obamas status as a mere

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

Obama as either a mere candidate or a putative sitting President and

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

Obama, the putative President and Commander in Chief of the Military. No

where in Bergs action did he allege any deprivation of his Fifth Amendment

due process right to life, liberty, safety, security, tranquility, and property

caused by the all-powerful putative sitting President Obama and Congress,

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

being sworn in as President.

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



32/95

32

in our complaint and briefs how Kerchner pursuant to his First Amendment

right to petition the government wrote dozens of letters to Senators,

Representatives, and President Bush petitioning them for an investigation

into Obamas 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

this status. We explained in our complaint and briefs that Kerchner is a

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.

With standing turning on factual minutia, how is a reasonable attorney

to know by any objective standard that a court would without question

consider his argument for standing in this case which has different facts

from other cases almost identical to the argument for standing made in

those other cases which found no standing?

The Kerchner Case Makes Different Legal Arguments than the Berg

Case



33/95

33

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

standing analysis. Modern standing analysis has placed us in a logical

inconsistency. Courts tell us that we are not to analyze the underlying merits

of a plaintiffs claim unless that plaintiff first establishes that he has standing

to bring those claims. Does this mean that the underlying merits of a claim

are not relevant to standing analysis? On the contrary, we cannot reasonably

deny that the merits and standing analysis overlap and that one cannot be

considered without considering the other. How is injury in fact to be

measured unless we know what the merits of the claims of injury are?

Injury cannot be assessed through a purely factual inquiry without any

consideration of legal concepts that make up causes of action. We cannot

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

action. For example, a person suffering damage from an automobile



34/95

34

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

also determinative when deciding the question of whether he or she has

suffered an injury in fact giving rise to standing. The reliance on the

underlying legal claim in standing analysis is recognized by Cass R.

Sunstein who states: [D]espite its apparent simplicity, the notion of injury

in fact is heavily dependent on an assessment of law and is far from a law-

free inquiry into facts. Sunstein, Whats Standing After Lujan? Of Citizen

Suits, Injuries, and Article III, 91 Mich. L.Rev. 163, 167 (1992).

As counterproductive as it may appear, we submit that any reasonable

standing analysis must consider the fullness of the underlying merits of a

plaintiffs claims in order to properly determine whether that plaintiff has

indeed suffered a sufficient injury in fact. When engaged in standing

analysis, we should not only touch upon the underlying merits of a plaintiffs

claims in some vague and limited way, for we need to fully understand the



35/95

35

merits of a plaintiffs claims of injury before we can reasonably conclude

that the plaintiff does not have sufficient injury in fact to establish standing.

In their complaint, plaintiffs have alleged that Obama is not and

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

meets the definition of an Article II natural born Citizen and hence

violated its constitutional duty under the Twentieth Amendment to make

sure that a president-elect qualifies for the office. Finally, they allege that

Former Vice-President and Senate President, Dick Cheney, and current

Speaker of the House, Nancy Pelosi, were complicit in that Twentieth

Amendment violation.

On defendants motion to dismiss for standing on the face of the

complaint, the Court is to accept as true the factual allegations of the

complaint and to construe that complaint in a light most favorable to the

non-moving party. Byers v. Intuit, Inc., 600 F.3d 286, 291 (3d

Cir. 2010).



36/95

36

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

therefore is not and cannot be an Article II natural born Citizen. Obama

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 Obamas admission is generally known throughout the

United States and can be accurately and readily determined by reliable

sources. The Court can therefore take judicial notice of these facts under

Fed. R. Evid. 201(d).

http://www.kerchner.com/protectourliberty/twelvecounts.pdfhttp://puzo1.blogspot.com/2010/03/obama-maybe-citizen-of-united-states.htmlhttp://puzo1.blogspot.com/2010/03/obama-maybe-citizen-of-united-states.htmlhttp://www.kerchner.com/protectourliberty/twelvecounts.pdf


37/95

37

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

Article II natural born Citizen, is an illegal and illegitimate President and

Commander in Chief of the Military. This is constitutional protection.

Neither the District Court nor this Court addressed this argument in its

decision that plaintiffs do not have standing. Moreover, this Court found my

appeal on the standing issue to be frivolous without addressing this

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

protection from their President and Commander in Chief to which each

particular citizen plaintiff is entitled under our Constitutional covenant

between the People and the Government as conceived by the Founders and

Framers is more than sufficient on a motion to dismiss for lack of standing

to show the Kerchner citizen plaintiffs have each suffered an injury in fact

which is both concrete and particularized and which gives them standing

http://puzo1.blogspot.com/2009/04/article-ii-natural-born-citizen-means.htmlhttp://puzo1.blogspot.com/2009/04/article-ii-natural-born-citizen-means.html


38/95

38

and, under the Fifth Amendment due process clause, a right to have their day

in court.

The source of plaintiffs individual right to protection from their

government and their right to bring a legal action to enforce is well grounded

in our constitutional history. The Declaration of Independence tells us that

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

Consent of the Governed Finally, it tells us that when government

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,

Section 3, Clause 1 and 2. It is telling that the Framers provided in Article

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.



39/95

39

They did not place in the Constitution the same obligation upon senators,

representatives, and judges. The Constitution at Article IV, Section 4 also

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

recognize the plaintiffs right to receive protection from their government

which necessarily includes the President, Commander in Chief, and

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

allegiance to that government. As part of that protection to each and every

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



40/95

40

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

government, if Obama is not eligible for the office of President and

Commander in Chief, then he cannot be trusted or relied upon to protect the

plaintiffs life, liberty, safety, security, tranquility, and property. There is no

denying that the plaintiffs each make up the people and have an inalienable

constitutional right to this protection from their President and Commander in

Chief and Congress. Finally, we explained that plaintiffs injury in fact is

their not receiving protection from the President and Commander in Chief of

these inalienable rights as recognized by the Declaration of Independence

and the Constitution.

The safety feature of the natural born Citizen clause if further

evidence from the Congressional hearing in 2000 during which Congress

debated whether that clause should be amended.

We also argued that if neither Congress nor the Executive branches 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



41/95

41

argued that this right to access to the courts is more critical when both the

Executive and Legislative branches of government are acting in concert to

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

only Congress has jurisdiction over the question of whether he is a natural

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

President and Commander in Chief of the Military? Surely the Constitution

would not leave someone like the plaintiffs without any remedy to protect

the same rights which the Declaration of Independence and the Constitution

recognize as their unalienable rights to life, liberty, and property. Marbury

v. Madison, 5 U.S. (1 Cranch) 137 (1803), did instruct that where there is a

right there is a remedy. As Alexander Hamilton in the Federalist Papers

No 78 said:

This independence of the judges is equally requisite to guard the

Constitution and the rights of individuals from the effects of those ill

humors, which the arts of designing men, or the influence of particularconjunctures, sometimes disseminate among the people themselves,

and which, though they speedily give place to better information, and

more deliberate reflection, have a tendency, in the meantime, to

occasion dangerous innovations in the government, and seriousoppressions of the minor party in the community . . . .



42/95

42

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

power to interpret the Constitution and thereby vindicate plaintiffs rights to

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

be injured by the defendants actions. We argued that this is not a correct

statement of the law of standing. We argued that the plaintiffs have

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

that plaintiffs not receiving protection of their unalienable rights to life,

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

other Americans who may also be injured by the defendants actions. We



43/95

43

argued that as long as the plaintiffs are among the injured, the fact that

others may also be injured by the defendants should not be a disqualifying

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

does not deprive Congress of constitutional power to authorize its

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.

Additionally, we showed that there is no reasonable way for the Court to

conclude that almost all other Americans would have suffered the same

injury as the plaintiffs if Obama is ineligible to be President because such a

statement is not supported by any evidence and is pure speculation. On the



44/95

44

contrary, we argued that there is a great number of Americans who for

various reasons do not feel injured by Obama even if he should not be

eligible for the office he currently occupies.

The District Court and this Court agreed that while plaintiffs may be

frustrated by Congress unwillingness to act on their behalf, they may find a

remedy to their frustration through their vote. Opinion at p. 6 (quoting

the District Court opinion). We also argued that going to the voting booth is

not the correct way to resolve a constitutional question such as whether

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

resolved constitutional questions. On significant questions of constitutional

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

as a means to interpret the constitution, plaintiffs would have to convince

millions of other voting citizens as to what the correct interpretation of the

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

natural born Citizen clause.

To establish standing a litigants injury need not necessarily be one to



45/95

45

his or her physical person, property, or economic interest. Give case law on

this. The defendants, by allowing an ineligible person to occupy the all

powerful and singular offices of the President and Commander in Chief of

the Military, are violating their constitutional duty to protect the citizen

plaintiffs and to deny plaintiffs standing to bring their action against them is

to deprive the plaintiffs of a right to protect themselves which belongs to

them under the Constitution as citizens of the United States. In the

discrimination context, denying a person a right that belongs to them under

the Constitution, even if lacking the character of being one that injures a

persons person or property, when combined with a defendants

discriminatory animus, is sufficient to make out a cause of action under 42

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

sufficient injury in fact, that is sufficiently concrete and particularize caused

by Obama, Congress, and the other defendants, which the Court has the

constitutional power and authority to remedy by taking judicial action to

assure the plaintiffs that Obama is an Article II natural born Citizen

through use of its declaratory, injunctive, and mandamus powers.

The argument that the plaintiffs have an individual right to this

protection from defendants and that they also have a right to resort to the



46/95

46

courts to enforce and vindicate that right is the heart and soul of plaintiffs

argument for standing. Plaintiffs are citizens of a constitutional republic and

not subjects of a King and in the words of the Declaration of Independence,

endowed by their Creator with certain unalienable Rights, that among

these are Life, Liberty, and the pursuit of Happiness . . . Not to give

plaintiffs standing when they are made to suffer a serious constitutional

violation by the putative President and Commander in Chief not proving

himself to be and by law not being eligible for those offices is to deny them

their individual right as a citizen of a constitutional republic to bring a legal

action in which they seek to protect those rights by having the judicial and

legislative branches of government work together to remove from the all

powerful and singular office of the President and Commander in Chief of the

Military a person who is not eligible to hold those positions because of

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,

liberty, safety, security, tranquility, and property by acting on a daily basis

on, among many issues, national defense and security, the war on terrorism,



47/95

47

relations with our enemies, and transformation of the national economy and

the health care industry. To deny them standing is to relegate the plaintiffs

to the status of subjects and not citizens.

The Kerchner plaintiffs also sue Congress under the Fifth Amendment

due process clause for failure to protect their unalienable right to life, liberty,

safety, security, tranquility, and property when it breached its constitutional

duty under the Twentieth Amendment to properly vet and confirm only a

qualified president-elect for the office of President and Commander in Chief.

They also sue Former Vice President and Senate President, Richard Cheney,

and then and current Speaker of the House, Nancy Pelosi, for their

complicity in that breach. Berg made no such claim. This is a very

important distinguishing aspect of the Kerchner case because defendants

have maintained and courts have agreed with them that the question of

presidential eligibility can be handled only by Congress and not by the

courts. We allege that since Congress failed to exercise its constitutional

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

have any interest in challenging Obamas eligibility. It has ignored the

petitions of not only the plaintiffs in this regard but that of countless other



48/95

48

concerned citizens. In the words ofDistrict Court Judge Clay Land:

Congress is apparently satisfied that the President is qualified to serve.

Congress has not instituted impeachment proceedings, and in fact, the House

of Representatives in a broad bipartisan manner has rejected the suggestion

that the President is not eligible for office. See H.R. Res. 593, 111th

Cong.

(2009) (commemorating, by vote of 378-0, the 50th

anniversary of Hawaiis

statehood and stating, the 44th

President of the United States, Barack

Obama, was born in Hawaii on August 4, 1961).

http://ia311028.us.archive.org/1/items/gov.uscourts.gamd.77605/gov.uscourt

s.gamd.77605.13.0.pdf

Article IIs natural born citizen clause limits Congress Twentieth

Amendment power to confirm a president-elect and thereby allow the

vesting in him of executive power under the Constitution. The equal

protection component of the Fifth Amendment also prevents Congress from

acting in a way to violate a persons equal protection. In Kerchner, the

citizen plaintiffs want protection from their government of their Fifth

Amendment right to life, liberty, safety, security, tranquility, and property

and that that protection be equal to the protection that it gives to other

members of American society. We saw that under Flast, the First

Amendment Establishment Clause limits Congress taxing and spending



49/95

49

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

more important to our Constitution, our Republican form of government,

and particularly the safety and security of the plaintiffs that the President and

Commander in Chief of the Military be a person whom the Founders 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

carve out an exception to the usual standing impediment asserted by the

courts when large groups of individuals would be affected by the

government action of which the plaintiffs complain as it did in Flast which

only concerned some taxpayers tax dollars? We cannot deny that Article

IIs natural born Citizen clause is an important limitation on Congress

power under the Twentieth Amendment to confirm a president-elect for the

office of President and Commander in Chief. Hence, asking for an

extension of the Flast doctrine to the Kerchner plaintiffs is reasonable.

We also cannot reasonably expect the Executive Branch to challenge

Obama because of its conflict of interest. Any legal action by the Executive



50/95

50

Branch would be initiated by the United States Attorney General. But the

United States Attorney General, Eric Holder, his staff, and the entire

Department of Justice, have a clear conflict of interest. Mr. Holder was a

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

relationship with Mr. Obama. Additionally, suing Congress becomes

important given that a plaintiff must establish a causal connection between

the injury and the conduct complained ofthe 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

action on the Obama eligibility issue. Because of the failings of our

legislative and executive branches of government regarding the eligibility

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

Constitution in general and the natural born Citizen clause specifically.

The courts have the responsibility under Article III to review cases and



51/95

51

controversies under the Constitution over which they have jurisdiction.

Cohens v. Virginia, 19 U.S. 264 (1821) (the Court is constitutionally duty

bound to hear a case if it has jurisdiction). If the Constitution allows a court

to find that an action of Congress expressed by way of a law is

unconstitutional, then they can also find under the Constitution that another

action of Congress expressed in certifying an ineligible president is also

unconstitutional.

Our appeal on the issue of standing has more than enough merit. It is

not like I violated some objective standard that applies to appealing an

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

Amendment protection argument was well supported by legal precedent and

constitutional history. Plaintiffs argued that as citizens they have a personal

and individual right to receive protection from the President, Commander in

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

protection is well grounded in the founding principles of our nation. If



52/95

52

plaintiffs do not present a legitimate case or controversy under the

Constitution, then the presidential eligibility clause has effectively been

nullified, not by a constitutional amendment but rather by the court-created

rule of standing which plaintiffs have in any event shown they adequately

03-09-4209 kerchner v obama & congress appeal - atty apuzzo's response to court's show cause order

Documents