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IN THE UNITED STATES COURT OF APPEALSFOR THE THIRD CIRCUIT

PHILIP J. BERG, ))

Plaintiff-Appellant, ) ) No. 08-4340v. )

) MOTIONBARACK OBAMA, et al. , )

)Defendants-Appellees. )

DEFENDANT FEDERAL ELECTION COMMISSIONSMOTION FOR SUMMARY AFFIRMANCE

Plaintiff Philip J. Berg (Berg) has sued President-Elect Barack Obama (Obama), the

Democratic National Committee (DNC), the Federal Election Commission (Commission),

and others in an attempt to prevent Obama from becoming the next President. He alleges that

Obama is ineligible for that position because he is not a natural born citizen as required by

Article II, Section 1 of the Constitution (the Natural Born Citizen Clause). On October 24,

2008, the District Court for the Eastern District of Pennsylvania correctly dismissed Bergs First

Amended Complaint and its eight separate counts, holding that he lacked standing under Article

III to bring a challenge under the Natural Born Citizen Clause and that he had otherwise failed to

plead a valid cause of action under any of the various federal statutes he invoked. Berg v.

Obama , 574 F. Supp. 2d 509 (E.D. Pa. 2008) (FEC Exh. 1). The Commission respectfully

moves this Court, pursuant to Federal Rule of Appellate Procedure 27 and Local Appellate Rule

27.4, to summarily affirm the judgment of the court below entered on October 24, 2008.

This Court may summarily dispose of an appeal when no substantial question is

presented. See 3d Cir. L.A.R. 27.4 (2008); Reyes-Vasquez v. U.S. Atty. Gen ., No. 07-4498, 2008

WL 5351842, at *2 (3 rd Cir. Dec. 23, 2008). The Courts review of the lower courts decision to

Case: 08-4340 Document: 00314857595 Page: 1 Date Filed: 01/16/2009

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grant a motion to dismiss is plenary. See Angstadt v. Midd-West School Dist ., 377 F.3d 338, 342

(3rd Cir. 2004); Gallo v. City of Philadelphia , 161 F.3d 217, 221 (3 rd Cir. 1998).

BACKGROUND

On August 21, 2008, Berg filed a complaint for declaratory and injunctive relief and a

motion for a temporary restraining order and for expedited discovery against Barack Obama, the

Democratic National Committee, the Federal Election Commission, and Does 1-50. In his

complaint and motion for a TRO, Berg alleged that then-Senator Obama was constitutionally

ineligible to become President of the United States because was a not a natural born citizen as

required by Article II, Section 1. Berg sought a declaration that Obama could not becomePresident, as well as permanent injunctions barring him from running for the office, and barring

the DNC from selecting him as the partys nominee.

On October 6, 2008, Berg filed an Amended Complaint for declaratory and injunctive

relief that added several defendants, including Pedro Cortes, the Secretary of the Commonwealth

of Pennsylvania, and the U.S. Senate Committee on Rules and Administration as well as its

Chairman, Senator Dianne Feinstein. The Amended Complaint also added seven new claims to

the original National Born Citizen Clause allegation (Count 1). The new claims were brought

under 42 U.S.C. 1983, 1985, and 1986 (Counts 2-4, respectively), as well as provisions of the

Federal Election Campaign Act (FECA), 2 U.S.C. 437 (Count 5); the Freedom of

Information Act (FOIA), 5 U.S.C. 552 (Count 6); and the Immigration and Nationality Act

(INA), 8 U.S.C. 1481(b) (Count 8). Bergs Amended Complaint also included a claim for

Promissory Estoppel (Count 7). Counts 1-6 are directed to all defendants. The promissory

estoppel claim (Count 7) is directed to defendants Obama and the DNC, while the INA claim

(Count 8) is directed only to the former.

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Pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), Obama and the DNC

moved to dismiss Bergs First Amended Complaint on October 20, 2008. The following day, the

Commission moved to dismiss this action for lack of subject matter jurisdiction pursuant to

Federal Rule of Civil Procedure 12(b)(1). Three days later, on October 24, the district court

dismissed Bergs Amended Complaint. Taking as true the well-pleaded facts of the Amended

Complaint, the court held that Berg had not established injury-in-fact, and therefore standing, to

bring a challenge under the Natural Born Citizen Clause. Berg , 574 F. Supp. 2d at 515-521. The

court also held that Berg had not otherwise brought a claim for which relief could be granted. Id .

at 521-30.Berg filed a notice of appeal in this Court on October 30, 2008, as well as an Emergency

Motion for an Immediate Injunction to Stay the Presidential Election of November 4, 2008,

pending resolution of the appeal. 1 This Court denied Bergs Emergency Motion on October 31.

The Court held that [f]or the reasons ably expressed by the District Court and not addressed

in [Bergs] Emergency Motion it appears that [Berg] lacks standing to challenge Senator

Obamas candidacy for the Presidency of the United States. Accordingly, [Berg] has not shown

a likelihood of success with respect to his appeal.

On December 4, 2008, Berg returned to this Court moving for an Immediate Injunction

Pending the Resolution of Petitioners Appeal. In his motion, Berg asked the Court to stay the

certification of electors, stay the Electoral College from casting any votes for Obama on

December 15, 2008, and to stay the counting of any votes in Congress on January 6, 2009. The

1 On that same day, October 31, 2008, Berg filed a Petition for Writ of Certiorari BeforeJudgment in the Supreme Court, as well as an application with Justice Souter for an ImmediateInjunction to Stay the Presidential Election of November 4, 2008 Pending Resolution of thePetition for Certiorari. Justice Souter denied Bergs motion on November 3, 2008. A little morethan two months later, on January 12, 2009, the Court denied his petition for a writ of certiorari.

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[party] bears the burden of proof . . . FOCUS v. Allegheny County Court of Common Pleas ,

75 F.3d 834, 838 (3 rd Cir. 1996) (internal quotations and citation omitted). In deciding this case,

the court must only consider the allegations of the complaint and documents referenced therein

and attached thereto, in the light most favorable to the plaintiff. Gould Elecs., Inc. v. United

States , 220 F.3d 169, 176 (3 rd Cir. 2000); McCann v. Newman Irrevocable Trust , 458 F.3d 281,

290 (3 rd Cir. 2006). This Courts threshold inquiry into standing in no way depends on the

merits of [Bergs] contention that particular conduct is illegal . . . Warth v. Seldin , 422 U.S.

490, 500 (1975) (citations omitted).

Three elements constitute the irreducible constitutional minimum of standing:(1) an injury-in-fact, (2) a causal connection between the injury and the challenged conduct of

the defendant, and (3) a likelihood that the injury will be redressed by a favorable decision of the

court. Lujan v. Defenders of Wildlife , 504 U.S. 555, 560-61 (1992) (citations omitted). The

injury-in-fact required by Article III is an invasion of a legally protected interest that is concrete

and particularized as well as actual or imminent, rather than conjectural or hypothetical.

Id . at 560 (citations omitted). [P]articularized mean[s] that the injury must affect the plaintiff

in a personal and individual way. Lujan , 504 U.S. at 560 n.1. Thus, the injury cannot be

merely a generalized grievance about the government that affects all citizens or derives from an

interest in the proper enforcement of the law. FEC v. Akins , 524 U.S. 11, 23 (1998); Lujan ,

504 U.S. at 573-74; see also Warth , 422 U.S. at 499 ([W]hen the asserted harm is a generalized

grievance shared in substantially equal measure by all or a large class of citizens, that harm

alone normally does not warrant exercise of jurisdiction.).

Standing has been a consistent barrier to lower courts hearing generalized,

undifferentiated claims by voters and citizens. See Berg , 574 F. Supp. 2d at 517-18 (citing

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cases). [A] voter fails to present an injury-in-fact when the alleged harm is abstract and widely

shared or is only derivative of a harm experienced by a candidate. Id . at 518 (quoting Crist v.

Commn on Presidential Debates , 262 F.3d 193, 195 (2 nd Cir. 2001)). Any injury alleged by

Berg is undifferentiated and widely-shared, and thus fails to satisfy the injury-in-fact requirement

for standing. Berg never asserts that the purportedly unconstitutional candidacy of Barack

Obama results in any harm that redounds particularly to his detriment. Rather, he broadly

identifies those who may suffer as: Plaintiff as well as other Democratic Americans, Am.

Compl. 7; Plaintiff and the American Citizens, id. 133; and Plaintiff and the American

people, id. 134, 135.Thus, as the lower court correctly held, Bergs stake is no greater and his status no more

differentiated than that of millions of other voters. 574 F. Supp. 2d at 517. Berg does not claim

that he has suffered any injury or harm that, if true, would not also be shared by every American,

all of whom would appear to suffer, if at all, in equal measure. Because it is well-settled that

claims advanced on behalf of such all-encompassing groups do not satisfy the injury-in-fact

requirement, Bergs generalized grievance on behalf of the American citizenry cannot satisfy

Article III. See Crist 262 F.3d at 195 (citing cases) (Several other Circuit Courts have also

concluded that a voter fails to present an injury-in-fact when the alleged harm is abstract and

widely shared or is only derivative of a harm experienced by a candidate.). Accordingly, the

court below correctly concluded that the harm allegedly suffered by Berg and other Democratic

Americans is too vague and its effects too attenuated to confer standing on any and all voters.

574 F. Supp. 2d at 519. Because Berg does not have standing to bring a claim under the Natural

Born Citizen Clause, the Court should summarily affirm the dismissal of this claim for lack of

subject matter jurisdiction.

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II. THE COURT SHOULD SUMMARILY AFFIRM THE DISMISSAL OFBERGS REMAINING CLAIMS, NONE OF WHICH STATES A VALIDCAUSE OF ACTION

In his First Amended Complaint, Berg added seven claims to his Natural Born Citizen

Clause claim. Five of those additional claims, Counts 2-6, were directed at all the defendants,

including the Federal Election Commission. Counts 2-6 alleged violations of 42 U.S.C. 1983,

1985, 1986, FECA, and FOIA, respectively. The court below correctly dismissed these claims

for failure to state a claim. 574 F. Supp. 2d at 521-24. Because no substantial question is

presented by Bergs appeal of the district courts decision on these counts, this Court should

summarily affirm it.A. 42 U.S.C. 1983

The court below properly concluded that Berg had failed to allege a cognizable 1983

claim. 574 F. Supp. 2d at 521-23. Section 1983 provides a cause of action against

[e]very person who, under color of any statute, ordinance, regulation, custom, orusage, of any State or Territory or the District of Columbia, subjects, or causes tobe subjected, any citizen of the United States or other person within the

jurisdiction thereof to the deprivation of any rights, privileges, or immunitiessecured by the Constitution and laws.

42 U.S.C. 1983. See generally Richardson v. McKnight , 521 U.S. 399, 403 (1997). A 1983

claimant must allege violations of rights independently secured by the Constitution and laws of

the United States. Berg , 574 F. Supp. 2d at 522 (quoting Gonzaga Univ. v. Doe , 536 U.S. 273,

285 (2002)). Thus, the district court properly framed the relevant inquiry as whether Berg had

alleged a violation of a right under the Natural Born Citizen Clause that would entitle him to

relief under section 1983. 574 F. Supp. 2d at 522. The Court correctly concluded that he had

not. Id . at 522-23.

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The district court was unable to find any cases that even suggested that the Natural Born

Citizen Clause creates a federal right for which violations are redressable under section 1983. Id .

at 522. The court also noted that the parties had offered none, id .; the Commission is indeed

unaware of any case that suggests that the Natural Born Citizen Clause creates such a right.

Absent any precedent supporting Berg, the court properly concluded that the Natural Born

Citizen Clause does not confer an individual right on citizens or voters. Id . at 522-23. This

Court should summarily affirm that Berg has no cognizable claim under 42 U.S.C. 1983.

B. 42 U.S.C. 1985

The court below properly concluded that Berg had failed to allege a cognizablesection 1985 claim. 574 F. Supp. 2d at 523-24. Section 1985 creates a cause of action for

various conspiracies which deprive individuals of federal rights or privileges. As the court

below observed, however, where there is no federal right that creates a basis for a 1983 claim

there is similarly no basis for a 1985 claim. Id . at 523. Accordingly, the court properly held

that because Berg had not stated a cognizable 1983 claim, he could not state a cognizable

1985 claim. Id .

Moreover, as the court below specifically explained, id . at 523-24, section 1985(1)

involves interference with officers of the United States, section 1985(2) creates a claim for

conspiracies to intimidate witnesses, jurors, or parties in a federal case, and section 1985(3)

involves alleged conspiracies motivated by racial animus. Because Berg has not made any

factual allegations that would support any claims under any of the three subsections, this Court

should summarily affirm that Berg has not stated any cognizable claims under section 1985.

C. 42 U.S.C. 1986

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It is well-settled that a plaintiff must state a cognizable claim under 1985 in order to

state a claim under section 1986, and the court below correctly concluded that Berg had not

stated a cognizable claim under that section. See 574 F. Supp. 2d at 524; Clark v. Clabaugh ,

20 F.3d 1290, 1295 (3 rd Cir. 1994) ( 1986 constitutes an additional safeguard for those rights

protected under 42 U.S.C. 1985 , and transgressions of 1986 by definition depend on a

preexisting violation of 1985 . . . ) (citation, footnote, and internal quotation marks omitted).

This Court should summarily affirm that ruling.

D. Federal Election Campaign Act, 2 U.S.C. 431-55

The court below also properly concluded that Berg had failed to state a cognizable claimunder FECA. 574 F. Supp. 2d at 524-26. Berg alleges that the defendants have allowed

Obamas purportedly illegal campaign to receive more than $450 million in donations

(Am. Comp. 141) and that this somehow entitles him to the information he seeks regarding

Obamas citizenship. 574 F. Supp. 2d at 524.

The court below correctly held, however, that no provision of FECA entitles Berg to such

information. Id . at 525-26. Indeed, FECA only regulates the financing of federal campaigns:

regulating the organization of campaign committees; the raising, spending, and disclosing of

campaign funds; and the receipt and use of public funding for qualifying candidates. See

generally , 2 U.S.C. 431-55. Nothing in FECA addresses determinations of the constitutional

eligibility of federal candidates or otherwise requires the Commission to provide information

regarding their eligibility. As the court below aptly explained, [i]t seems clear that the [Federal

Election] Campaign Act does not address the sort of corruption that [Berg] alleges in his

Complaint. 574 F. Supp. 2d at 525. Berg has failed to state a claim under FECA for which

9

http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW9.01&ifm=NotSet&fn=_top&sv=Split&tc=-1&docname=42USCAS1986&ordoc=1994079541&findtype=L&db=1000546&utid=%7bBE87399F-4B56-4894-A3E3-2C3DC9B317A4%7d&vr=2.0&rp=%2ffind%2fdefault.wl&mt=FederalGovernmenthttp://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW9.01&ifm=NotSet&fn=_top&sv=Split&tc=-1&docname=42USCAS1985&ordoc=1994079541&findtype=L&db=1000546&utid=%7bBE87399F-4B56-4894-A3E3-2C3DC9B317A4%7d&vr=2.0&rp=%2ffind%2fdefault.wl&mt=FederalGovernmenthttp://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW9.01&ifm=NotSet&fn=_top&sv=Split&tc=-1&docname=42USCAS1986&ordoc=1994079541&findtype=L&db=1000546&utid=%7bBE87399F-4B56-4894-A3E3-2C3DC9B317A4%7d&vr=2.0&rp=%2ffind%2fdefault.wl&mt=FederalGovernmenthttp://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW9.01&ifm=NotSet&fn=_top&sv=Split&tc=-1&docname=42USCAS1985&ordoc=1994079541&findtype=L&db=1000546&utid=%7bBE87399F-4B56-4894-A3E3-2C3DC9B317A4%7d&vr=2.0&rp=%2ffind%2fdefault.wl&mt=FederalGovernmenthttp://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW9.01&ifm=NotSet&fn=_top&sv=Split&tc=-1&docname=42USCAS1985&ordoc=1994079541&findtype=L&db=1000546&utid=%7bBE87399F-4B56-4894-A3E3-2C3DC9B317A4%7d&vr=2.0&rp=%2ffind%2fdefault.wl&mt=FederalGovernmenthttp://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW9.01&ifm=NotSet&fn=_top&sv=Split&tc=-1&docname=42USCAS1986&ordoc=1994079541&findtype=L&db=1000546&utid=%7bBE87399F-4B56-4894-A3E3-2C3DC9B317A4%7d&vr=2.0&rp=%2ffind%2fdefault.wl&mt=FederalGovernmenthttp://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW9.01&ifm=NotSet&fn=_top&sv=Split&tc=-1&docname=42USCAS1985&ordoc=1994079541&findtype=L&db=1000546&utid=%7bBE87399F-4B56-4894-A3E3-2C3DC9B317A4%7d&vr=2.0&rp=%2ffind%2fdefault.wl&mt=FederalGovernmenthttp://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW9.01&ifm=NotSet&fn=_top&sv=Split&tc=-1&docname=42USCAS1986&ordoc=1994079541&findtype=L&db=1000546&utid=%7bBE87399F-4B56-4894-A3E3-2C3DC9B317A4%7d&vr=2.0&rp=%2ffind%2fdefault.wl&mt=FederalGovernment

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relief can be granted, and this Court should summarily affirm the district courts dismissal of this

claim.

E. Freedom of Information Act, 5 U.S.C. 552 et seq.

Finally, the court below correctly held that Berg had failed to state a cognizable FOIA

claim against any of the defendants, including the Commission. 574 F. Supp. 2d at 526-28. As

the court explained, id . at 526, FOIA applies only to government agencies. See 5 U.S.C.

552(a)(2) (requiring each agency to make certain records available for public inspection and

copying). Because the Commission is the only government agency defendant here within the

meaning of FOIA, the district court correctly concluded that Berg had not stated a FOIA claimagainst the non-FEC defendants. 574 F. Supp. 2d at 526-27.

Although the Commission is subject to FOIA, the court below properly held that Berg

had failed to state a FOIA claim against the Commission for at least two reasons. First, Berg

does not allege that he actually made a FOIA request to the Commission, let alone that he

complied with the FECs regulations for making such a request. 574 F. Supp. 2d at 527. The

court below correctly held these failures sufficient to dismiss Bergs FOIA claim. Id . Second, a

FOIA claimant must exhaust available administrative remedies before bringing a FOIA suit; the

exhaustion requirement allows an agency sufficient time to exercise its discretion and compile a

record supporting its decision. See Wilbur v. CIA , 355 F.3d 675, 676-77 (D.C. Cir. 2004). As

detailed by the district court, however, Bergs complaint contains no allegations that any

applicable FOIA deadlines expired before he brought suit under the statute. 574 F. Supp. 2d

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11

at 527-28. Consequently, Bergs FOIA claim presents no substantial question, and this Court

should summarily affirm the dismissal of this count. 2

CONCLUSION

For the foregoing reasons, the Federal Election Commission respectfully asks this Court

to summarily affirm the district courts order dismissing Bergs Amended Complaint.

Respectfully submitted,

Thomasenia P. DuncanGeneral Counsel

David KolkerAssociate General Counsel

Kevin DeeleyAssistant General Counsel

/s/ Steve N. HajjarSteve N. HajjarAttorney

FOR THE APPELLEEFEDERAL ELECTION COMMISSION999 E Street, N.W.Washington, DC 20463

January 16, 2009 (202) 694-1650

2 The Court should also summarily affirm sua sponte the dismissal of the remaining twocounts of Bergs Amended Complaint against the other defendants. See 3d Cir. L.A.R. 27.4(2008). The promissory estoppel claim (Count 7) is frivolous on its face, and it is beyonddispute that the INA does not establish the alleged cause of action (Count 8). See Berg , 574F. Supp. 2d at 528-30 .


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IN THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

)PHILIP J. BERG, ))

Plaintiff-Appellant, ))

v. ) No. 08-4340)

BARACK OBAMA, et al. , ) FEC Exhibit))

Defendants-Appellees. )

____________________________________)

FEC EXHIBIT 1


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509BERG v. OBAMACite as 574 F.Supp.2d 509 (E.D.Pa. 2008)

1 DENIED as to the following allega-tions without prejudice to be raised ata later stage in the litigation:

Causing the Bucks County landto be transferred to a Mignattirelated company without havingfirst established a fair market value price for the land;

Causing the land profits derivedfrom the transfer price of theBucks County land to be reducedby transferring the property to aMignatti related company at lessthan fair market value;

Causing the transfer and/or de-

velopment of the Bucks Countyland to be delayed by, inter alia,construction of the HeritageCreek project; and

Anticipatorily breaching theBucks County and LC agree-ments.

Defendants Motion to Dismiss Counts IV and V (Tortious Interference) is DE-NIED without prejudice to be raisedagain at a later stage in the litigation.

Defendants Motion to Dismiss Count VI

(Civil Conspiracy) is DENIED withoutprejudice to be raised again at a laterstage in the litigation.

Defendants Motion to Dismiss Count VII(Unjust Enrichment) is:

1 GRANTED as to the LC Agreement;and

1 DENIED without prejudice to beraised again at a later stage in thelitigation as to the Bucks County Agreement.

Defendants Motion to Dismiss Count

VIII (Declaratory Judgment) is DENIED without prejudice to be raised again at alater stage in the litigation.

Defendants Motion to Dismiss Count IX(the Request for Accounting) is DENIED without prejudice to be raised again at alater stage in the litigation.

All claims against Tracy Mignatti in herindividual capacity are DISMISSED.

,

Philip J. BERG,

v.

Barack OBAMA, et al.

Civil Action No. 084083.

United States District CourtE.D. Pennsylvania.

Oct. 24, 2008.Background: Voter sued Democratic Par-tys nominee for President, DemocraticNational Committee (DNC), and FederalElection Commission (FEC), seeking de-claratory judgment that nominee was ineli-gible to be President under ConstitutionsNatural Born Citizen Clause, and seekingto enjoin his candidacy. Defendants moved

to dismiss.Holdings: The District Court, Surrick, J.,held that:(1) voter lacked standing to bring Natural

Born Citizen Clause claim;(2) Natural Born Citizen Clause did not

create federal right enforceable via 1983;

(3) voter failed to state claim that defen-dants violated federal statute prohibit-ing conspiracy to interfere with civilrights;

(4) voter had no cause of action underFederal Election Campaign Act(FECA);

(5) voter failed to state claim against FECunder Freedom of Information Act(FOIA);


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510 574 FEDERAL SUPPLEMENT, 2d SERIES

(6) DNCs national platform could not giverise to claim of promissory estoppel;and

(7) expatriation provision of Immigrationand Nationality Act (INA) did not giverise to private cause of action.

Motions granted.

1. Federal Civil Procedure O 103.2, 103.3Elements of Article III standing are:

(1) party must have experienced injury infact, i.e. invasion of legally protected inter-est which is concrete and particularizedand actual or imminent, not conjectural orhypothetical; (2) there must be causal con-

nection between injury in fact and defen-dants conduct that is fairly traceable tochallenged action of defendant, and notresult of independent action of some thirdparty not before court; and (3) favorabledecision must be likely to redress com-plained-of injury. U.S.C.A. Const. Art. 3, 2.

2. United States O 26 Voter, who identified himself as life-

long Democrat, lacked standing to chal-lenge Democratic Partys nominee for

President based on allegation that nominee was ineligible to hold office under NaturalBorn Citizen Clause; voters stake was nogreater and his status no more differenti-ated than that of millions of other voters,and thus voter fell short of injury-in-factcriterion for standing. U.S.C.A. Const. Art. 2, 1, cl. 4; Art. 3, 2.

3. United States O 26Candidates ineligibility for office of

President under Natural Born CitizenClause does not result in injury in fact to

voters, within meaning of Article IIIstanding requirement. U.S.C.A. Const. Art. 2, 1, cl. 4; Art. 3, 2.

4. Civil Rights O 1029Natural Born Citizen Clause did not

create federal right, violation of which iscognizable under 1983; Clause did not

confer an individual right on citizens or voters. U.S.C.A. Const. Art. 2, 1, cl. 4;42 U.S.C.A. 1983.

5. Conspiracy O 18

Voter failed to state claim that Demo-cratic Partys nominee for President, Dem-ocratic National Committee (DNC), andFederal Election Commission (FEC) had violated federal statute prohibiting con-spiracy to interfere with civil rights bypromoting and assisting nominees candi-dacy knowing that nominee was ineligibleto take office under Natural Born CitizenClause; voter made no allegations that

purported conspiracy was motivated by ra-cial animus. 42 U.S.C.A. 1985.

6. Conspiracy O 7.5(2)

Where there is no federal right thatcreates basis for a 1983 claim, there issimilarly no basis for claim under federalstatute prohibiting conspiracy to interfere with civil rights. 42 U.S.C.A. 1983,1985.

7. Civil Rights O 1039

Plaintiff must establish valid claim un-

der federal statute prohibiting conspiracyto interfere with civil rights in order tostate claim under statute creating right of action for neglect to prevent such conspir-acy. 42 U.S.C.A. 1985, 1986.

8. Elections O 317.5

Voter who sought judicial review afterFederal Election Commission (FEC) failedto act on his administrative complaintcharging violation of Federal ElectionCampaign Act (FECA) could not proceedin any federal district court other than theDistrict of Columbia. Federal ElectionCampaign Act of 1971, 309(a)(1, 8), 2U.S.C.A. 437g(a)(1, 8).

9. Elections O 317.5

Voter had no cause of action underFederal Election Campaign Act (FECA) to


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seek to compel Democratic Partys nomi-nee for President, Democratic NationalCommittee (DNC), and Federal Election

Commission (FEC) to release informationconcerning nominees birth and citizenshiphistory, which voter believed would reveal violation of Natural Born Citizen Clause;information sought was outside FECAsdisclosure requirements. U.S.C.A. Const. Art. 2, 1, cl. 4; Federal Election Cam-paign Act of 1971, 309(a)(1), 2 U.S.C.A. 437g(a)(1).

10. Elections O 317.2Purpose of Federal Election Cam-

paign Act (FECA) is to combat corrupting

influence of money on the political process.2 U.S.C.A. 431 et seq.

11. Records O 51Nominee for President, Democratic

National Committee (DNC), United StatesSenator, and Senates Commission onRules and Administration were not subjectto Freedom of Information Act (FOIA),since they were not federal executive de-partments. 5 U.S.C.A. 551(1), 552.

12. Records O 63 Voter failed to state Freedom of In-

formation Act (FOIA) claim against Feder-al Election Commission (FEC) by failingto show that he had complied with FECguidelines for record requests, and failingto make clear what type of request he hadmade to FEC, or if he had made any suchrequest. 5 U.S.C.A. 552; 11 C.F.R. 4.7.

13. Records O 63 Voter failed to allege administrative

exhaustion element of his Freedom of In-formation Act (FOIA) claim against Feder-al Election Commission (FEC), by merelyalleging that FEC had ignored his infor-mation request; voter did not cite expira-tion of any FOIA deadlines, or other factsthat would allow invocation of FOIAs con-structive exhaustion doctrine. 5 U.S.C.A. 552.

14. Records O 63Before bringing Freedom of Informa-

tion Act (FOIA) claim in federal court,plaintiff must exhaust available adminis-trative remedies. 5 U.S.C.A. 552.

15. Estoppel O 85Democratic National Committees

(DNC) statement of partys national plat-form did not state any enforceable prom-ises, and thus could not serve as basis forclaim of promissory estoppel; allegedpromises in platform were statements of principle and intent.

16. Action O 3

Aliens, Immigration, and CitizenshipO 684(2)

Expatriation provision of Immigrationand Nationality Act (INA), stating that[w]henever the loss of United States na-tionality is put in issue ... the burden shallbe upon the person or party claiming thatsuch loss occurred, did not establish private cause of action to challenge citizen-ship of Presidential candidate on groundsof expatriation; provision merely set uprules of evidence. U.S.C.A. Const. Art. 2,

1, cl. 4; Immigration and Nationality Act, 349(b), 8 U.S.C.A. 1481(b).

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

John P. Lavelle, Ballard, Spahr, An-drews & Ingersoll, LLP, Philadelphia, PA,for Barack Obama.

MEMORANDUM & ORDER

SURRICK, District Judge.

Presently before the Court are the Mo-tion of Defendant Democratic NationalCommittee and Senator Barack Obama toDismiss First Amended Complaint (Doc.


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No. 20) and the Defendant Federal Elec-tion Commissions Motion to Dismiss forLack of Subject Matter Jurisdiction (Doc.No. 24). For the following reasons, theDefendants Motions to Dismiss will begranted.

I. BACKGROUND

A. Procedural History

Philip J. Berg (hereinafter Plaintiff) isan attorney who is representing himself inthis matter. On August 21, 2008, justprior to the Democratic National Conven-tion, Plaintiff filed a Complaint for Declar-atory and Injunctive Relief (Doc. No. 1)

and a Motion For Temporary RestrainingOrder and for Expedited Discovery (Doc.No. 2 TRO) against Barack Obama(Obama), the Democratic National Com-mittee (DNC), the Federal ElectionCommission (FEC), and Does 150 In-clusive. The Complaint and request forTRO alleged that Obama is not eligible torun for the Office of President of the Unit-ed States because he is not a natural borncitizen as required by Article II, Section1, Clause 4 of the United States Constitu-

tion (the Natural Born Citizen Clause).Plaintiff sought a TRO prohibiting Obamafrom running for President and enjoiningthe DNC from selecting Obama as thenominee. Plaintiff also sought declaratoryand injunctive relief in the form of a decla-ration that Obama is ineligible to run forthe office of President under the UnitedStates Constitution and a permanent injunction enjoining Obama from running for

President and enjoining the DNC frommaking Obama the Democratic presiden-tial nominee.

On August 22, 2008, a hearing was heldon Plaintiffs Motion for Temporary Re-straining Order. 1 At the conclusion of thehearing an Order was entered denying theMotion. (Doc. No. 4.)

On September 9, 2008, service of thesummons and Complaint was made on De-fendants Barack Obama and the DNC.(Doc. No. 7.) On September 12, 2008, service was made on Defendant FEC. (Doc.No. 9.) On September 24, 2008, a Motionto Dismiss was filed by Barack Obama

and the DNC. (Doc. No. 12.) PlaintiffsResponse in Opposition to the Motion toDismiss was filed on September 29, 2008.(Doc. No. 13.) On October 6, 2008, Plain-tiff filed a Motion for Leave to File a First Amended Complaint. (Doc. No. 14.)Plaintiffs First Amended Complaint forDeclaratory and Injunctive Relief (Amended Complaint) was attached tothe Motion. (Doc. No. 142.) 2 In addi-tion to Defendants Barack Obama, theDNC, and the FEC, Plaintiffs Amended

Complaint includes the following Defen-dants: the Secretary of the Common- wealth of Pennsylvania Department of State, Pedro A. Cort es; Secretary of theCommonwealth in his Official Capacity;Diane Feinstein, Chairman of the U.S.Senate Commission on Rules and Admin-istration in her Official Capacity; U.S.Senate Commission on Rules and Admin-istration; and Does 150 Inclusive. 3 On

1. Defendants were not represented at thehearing. Plaintiff advised the Court that hehad faxed a copy of the Complaint and Mo-tion for Temporary Restraining Order as wellas notice of the hearing to Defendants, butthat he could not confirm that they had beenreceived by Defendants. (Hrg. Exs. P1, P2,& P9.)

2. Federal Rule of Civil Procedure 15(a) pro-vides that a party may amend its pleading

once as a matter of course TTT before beingserved with a responsive pleading. A mo-

tion to dismiss is not a responsive pleading.The motion seeking leave to amend was un-necessary. The Amended Complaint isdeemed filed.

3. As of this date, there is no indication in thisrecord that any of these newly added Defen-dants have been served.


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October 20, 2008, a Motion of DefendantDemocratic National Committee and Sena-tor Barack Obama to Dismiss First

Amended Complaint was filed. (Doc. No.20.) On October 21, 2008 Defendant Fed-eral Election Commissions Motion to Dis-miss for Lack of Subject Matter Jurisdic-tion Pursuant to Federal Rule of CivilProcedure 12(b)(1) was filed. (Doc. No.24.)

The Amended Complaint adds claimsthat were not included in the original Com-plaint. In addition to the claim that Oba-ma is not a natural born citizen and istherefore not eligible to be President,Plaintiff alleges that the Defendants havedeprived him of his rights in violation of 42U.S.C. 1983, 42 U.S.C. 1985, and 42U.S.C. 1986 (Counts Two, Three, &Four). The Amended Complaint also addsa Claim for Promissory Estoppel (CountSeven) and includes claims for violation of the Federal Election Campaign Act(Campaign Act), 2 U.S.C. 437 (CountFive), violation of the Freedom of Informa-tion Act (FOIA), 5 U.S.C. 552 (CountSix), and a Claim of Loss of Nationalityunder 8 U.S.C. 1481(b) (Count Eight). 4

B. Factual Background

The Amended Complaint alleges thatPlaintiff is a life-long member of the Dem-ocratic Party (Doc. No. 142 3) who fearsthat Defendant DNCs nomination of De-fendant Obama as the Democratic Partyspresidential nominee for the 2008 election will result in irreparable harm to Plaintiff and other Democratic Americans. ( Id. 7.) Obama cannot be a presidential nomi-nee, Plaintiff contends, because Obama isnot a natural born citizen of the United

States and is therefore barred from hold-ing the office of President by the NaturalBorn Citizen Clause. 5 ( Id. 36.)

Plaintiff claims that if the evidenceshows that Obama is not a natural borncitizen, his nomination (and presumably hiselection to the Presidency if he wins) willbe null and void. ( Id. 7.) Plaintiff assertsthat Defendants collective knowledge of this fact, or their failure to assist Plaintiff in obtaining information from Obama andthe DNC, has deprived Plaintiff of liber-ty, property, due process of law and equalprotections of the laws, ( id. 89), and hascaused significant disenfranchisement of the Democratic Party generally ( id. 173).

Various accounts, details, and ambigui-ties from Obamas childhood form the ba-sis of Plaintiffs allegation that Obama isnot a natural born citizen of the UnitedStates. To support his contention, Plain-tiff cites sources as varied as the Rainbow Edition News Letter, ( id. 39), and thetelevision news tabloid Inside Edition (id. 45). These sources and others leadPlaintiff to conclude that Obama is either acitizen of his fathers native Kenya, bybirth there or through operation of U.S.law; or that Obama became a citizen of Indonesia by relinquishing his prior citi-zenship (American or Kenyan) when hemoved there with his mother in 1967. Ei-ther way, in Plaintiffs opinion, Obamadoes not have the requisite qualificationsfor the Presidency that the Natural BornCitizen Clause mandates. The AmendedComplaint alleges that Obama has activelycovered up this information and that the

4. The claims in Counts Five, Six and Eightwere not included as claims in Plaintiffs orig-inal Complaint; however, they did appear inPlaintiffs brief in opposition to the Motion toDismiss (Doc. No. 13) as arguments in sup-port of Plaintiffs standing to bring this law-suit.

5. The Natural Born Citizen Clause reads:No Person except a natural born Citizen, ora Citizen of the United States, at the time of the Adoption of this Constitution, shall beeligible to the Office of President TTTT U.S.Const. art. II, 1, cl. 5.


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other named Defendants are complicit inObamas cover-up.

Plaintiff seeks the following relief fromthe Court:

1. An order compelling Defendants toturn over: (a) a certified copy of Obamas vault (original long ver-sion) birth certificate; (b) certifiedcopies of all reissued and sealedbirth certificates of Obama in thenames referred to in the caption of this lawsuit; (c) a certified copy of Obamas Certification of Citizenship;(d) a certified copy of Obamas Oathof Allegiance taken upon age of ma-

jority; (e) certified copies of Oba-mas admission forms for OccidentalCollege, Columbia University andHarvard Law School; and (f) certi-fied copies of any court orders orlegal documents changing Obamasname from Barry Soetoro to BarackHussein Obama;

2. A declaration that Obama is not anatural-born citizen or naturalizedcitizen of the United States;

3. A declaration that Obama is ineligi-ble to run for the President underthe United States Constitution, Arti-cle II, Section 1;

4. A preliminary and permanent injunction enjoining Obama from anyfurther campaigning and from run-ning for President;

5. An order compelling the FEC, Fein-stein and the U.S. Senate Commis-sion on Rules and Administration toimmediately open and conduct aninvestigation into the fraudulent tac-tics of Obama and immediately openand conduct an investigation into thecitizenship status of Obama; and

6. A preliminary and permanent injunction enjoining the DNC, thePennsylvania Department of State,Pedro A. Cort es, Pennsylvania Sec-retary of the Commonwealth, and

the Bureau of Commissions, Elec-tions and Legislation from placingObamas name on the presidentialelection ballot.

II. LEGAL STANDARD

A. Rule 12(b)(1)Lack of Jurisdic-tion

Under Federal Rule of Civil Procedure12(b)(1), a court must grant a motion todismiss if it lacks subject matter jurisdic-tion over the case. Fed.R.Civ.P. 12(b)(1).The party asserting that jurisdiction is

proper bears the burden of showing that jurisdiction exists. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114S.Ct. 1673, 128 L.Ed.2d 391 (1994); Pack-ard v. Provident Natl Bank, 994 F.2d1039, 1045 (3d Cir.1993). A challenge to jurisdiction may be either factual or facial. See CNA v. United States, 535 F.3d 132,145 (3d Cir.2008) (citing 5B Charles Alan Wright & Arthur R. Miller, Federal Prac-tice and Procedure 1350, at 14755 (3ded.2004)). Where the challenge is facial,as Obama and the DNCs is here, courtsmust take the well-pleaded facts of thecomplaint as true and must draw all infer-ences in a manner most favorable to theplaintiff, as with ruling on a Rule 12(b)(6)motion to dismiss. See Mortensen v. First

Fed. Sav. & Loan Assn, 549 F.2d 884, 891(3d Cir.1977).

B Rule 12(b)(6)Failure to State aClaim

When considering a motion to dismiss a

complaint for failure to state a claim underFederal Rule of Civil Procedure 12(b)(6),this Court must accept all factual allega-tions as true, construe the complaint in thelight most favorable to the plaintiff, anddetermine whether, under any reasonablereading of the complaint, the plaintiff may


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be entitled to relief. Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n. 7 (3dCir.2002). However, a court need notcredit a complaints bald assertions orlegal conclusions when deciding a motionto dismiss. Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir.1997) (cita-tions omitted). 6

Thus, both the 12(b)(1) and the 12(b)(6)challenges to the Amended Complaintraise strictly legal questions. For pur-poses of this opinion, we take as true the well-pleaded facts of the Amended Com-plaint. 7

III. LEGAL ANALYSIS

A. Count One The Natural BornCitizen Clause 8

Defendants Obama and the DNC arguethat Plaintiff does not have Article IIIstanding to bring a challenge under theNatural Born Citizen Clause and that as aresult this Court does not have jurisdictionto hear the case. That Article III re-stricts the federal judicial Power to theresolution of Cases and Controversies is a basic doctrinal principle. SprintCommcns. Co. v. APCC Servs., U.S., 128 S.Ct. 2531, 2535, 171 L.Ed.2d 424

6. Obama and the DNC are the only Defen-dants that have moved this Court to dismissunder Rule 12(b)(6). ( See Doc. No. 20.)However, we evaluate Plaintiffs claimsagainst all Defendants. The Court may onits own initiative dismiss the complaint forfailure to state a claim upon which relief canbe granted, pursuant to [Rule] 12(b)(6), wherethe inadequacy of the complaint is apparentas a matter of law. Coggins v. Carpenter,468 F.Supp. 270, 279 (E.D.Pa.1979) ( citing 5Wright and Miller, Federal Practice and Pro-cedure 1357). This practice promotes theprompt and efficient disposition of cases andprotects valuable judicial resources by expe-

diting the dismissal of cases that lack a shredof a valid claim. Pa. State Troopers Assn v. Pennsylvania, No. 061079, 2007 WL 853958,at *9 (M.D.Pa. Mar.20, 2007), modified, 2007WL 1276914 (M.D.Pa. May 1, 2007) ( citing

Baker v. U.S. Parole Commn, 916 F.2d 725,726 (D.C.Cir.1990)). The court must acceptall of a plaintiffs allegations as true, as wehave done here. See Bryson v. Brand Insula-tions, Inc., 621 F.2d 556, 559 (3d Cir.1980).In addition, the court must give the plaintiff notice and an opportunity to be heard on thelegal viability of his complaint. See Dougher-ty v. Harpers Magazine Co., 537 F.2d 758, 761(3d Cir.1976); Pourghoraishi v. Flying J, Inc.,

449 F.3d 751, 765 (7th Cir.2006); see also Bethea v. Nation of Islam, 248 Fed.Appx. 331,333 (3d Cir.2007) (However, although disfa-vored, a TTT dismissal may stand even if theplaintiff is not provided notice and an oppor-tunity to respond where it is clear that theplaintiff cannot prevail and that any amend-ment would be futile.). This notice and op-portunity to be heard may be provided by the

act of a single defendant who raises a defenseapplicable to all defendants. See Pourghorai-

shi, 449 F.3d at 76566; Coggins, 468F.Supp. at 279 (dismissing the complaint withrespect to defendants who were not properlyserved, where other defendants had filed mo-tion to dismiss pursuant to Rule 12(b)(6)). Inthe instant case, Plaintiff is on notice thatObama and the DNC raised a Rule 12(b)(6)defense applicable to all Defendants. ( SeeDoc. No. 20 (discussing all counts of theAmended Complaint and alleging that noneof the additional counts contained in theAmended Complaint sets forth any viable fed-eral cause of action).) Since the filing of the

Motion to Dismiss First Amended Complaint(Doc. No. 20), Plaintiff has filed five differentMotions, including a Motion for SummaryJudgment. ( See Doc. Nos. 21, 22, 25, 26 &27). We assume that if Plaintiff wished torespond to those issues raised in the Motionto Dismiss First Amended Complaint that hedid not already address in his Response inOpposition to the initial Motion to Dismiss(Doc. No. 13) he would have done so.

7. We note that while we take Plaintiffs alle-gations as true for purposes of this motion (aswe must), Defendants Obama and DNC char-acterize them as patently false. (Doc. No.20 at 9.)

8. Because we dispose of Count One on juris-dictional grounds, we need not addresswhether Plaintiff can state a claim for relief under the Natural Born Citizen Clause. See

Ibraimi v. Chertoff, No. 073644(DMC), 2008WL 3821678, at *6, 2008 U.S. Dist. LEXIS61406, at *12 (D.N.J. Aug. 12, 2008).


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(2008). The requirement that there be acase or controversy is satisfied only where a plaintiff has standing. Id.

Standing can be a difficult concept forlawyers and non-lawyers alike. The doc-trine was so vague that it led JusticeDouglas to quip, [g]eneralizations aboutstanding to sue are largely worthless assuch. Assn of Data Processing Serv.Org. v. Camp, 397 U.S. 150, 151, 90 S.Ct.827, 25 L.Ed.2d 184 (1970). Judge Posnerhas framed the topic in the following way:

[D]esire does not create standing. If you become indignant reading about acase of police brutality, you cannot suethe responsible officers in federal courtunder 42 U.S.C. 1983, though the (im-mediate) victim might well have a suit;much less can you sue to force the stateto conduct a referendum on police bru-tality, even if the referendum would al-leviate your outrage at the officers vio-lation of federal civil rights law. If youhappen to think it a scandal that lessthan half the eligible voters actually votein most American elections, still you can-not sue the government demanding thatit be ordered to punish nonvoters andyou could not even if, as in some othercountries, the law required people to vote. The injury brought about by a violation of law must, to support a feder-al court action, be more direct and im-mediate than this. It must at least re-semble the type of injury that wouldsupport a lawsuit under traditional prin-ciples of common law or equity; it musttherefore affect ones possessions orbodily integrity or freedom of action,

however expansively defined and not just ones opinions, aspirations, or ideol-ogy. It must in short be fairly describa-ble as an injury personal to the plain-tiff a deprivation of his right ratherthan a concern with anothers injury.TTTT

[I]f you have no right to demand assis-tance the failure to assist you is not aninjury that will support a federal suit,

even though such a failure may makethe rights you do have, which includethe right of political advocacy, less fruit-ful in achieving your goals.

People for Organized Welfare and Em- ployment Rights v. Thompson , 727 F.2d167, 17172 (7th Cir.1984) (Posner, J.) (ci-tations omitted).

[1] The Supreme Court has clarifiedthe doctrine since Justice Douglass time.It is now clear that standing is an irredu-cible constitutional minimum that has

three elements. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130,119 L.Ed.2d 351 (1992); see also Danvers

Motor Co. v. Ford Motor Co., 432 F.3d286, 29091 (3d Cir.2005) (employing Lu-

jan s three-pronged test). First, a partymust have experienced an injury in fact:an invasion of a legally protected interest which is (a) concrete and particularizedand (b) actual or imminent, not conjecturalor hypothetical. Lujan, 504 U.S. at 560,112 S.Ct. 2130 (citations and quotationmarks omitted). Second, there must be a

causal connection between the injury infact and the defendants conduct that isfairly TTT trace[able] to the challengedaction of the defendant, and not TTT theresult [of] the independent action of somethird party not before the court. Id. at56061, 112 S.Ct. 2130 (quoting Simon v.

E. Ky. Welfare Rights Org., 426 U.S. 26,4142, 96 S.Ct. 1917, 48 L.Ed.2d 450(1976)). Third, a favorable decision mustbe likely to redress the complained of inju-ry. Lujan, 504 U.S. at 561, 112 S.Ct. 2130(citations omitted). Where a plaintiff can-not establish each of the three elements,the plaintiff does not have standing andthe court therefore does not have jurisdic-tion over the case and cannot rule on themerits. See Goode v. City of Phila., 539F.3d 311, 327 (3d Cir.2008) ([O]nce theDistrict Court determined that [plaintiffs]


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did not have standing, it necessarily deter-mined that it did not have jurisdiction andthus it could not decide the merits of thecase.).

The Supreme Court hasconsistently held that a plaintiff raisingonly a generally available grievanceabout government claiming only harmto his and every citizens interest inproper application of the Constitutionand laws, and seeking relief that nomore directly and tangibly benefits himthan it does the public at large doesnot state an Article III case or controversy.

Lujan, 504 U.S. at 57374, 112 S.Ct. 2130.These decisions include the somewhat rarecases that have reached the SupremeCourt where plaintiffs allege constitutionalharms (other than taxpayer standing un-der the Establishment Clause of the First Amendment) that affect broadly-definedgroups of citizens or voters. See Lance v.Coffman , 549 U.S. 437, 127 S.Ct. 1194,1198, 167 L.Ed.2d 29 (2007) (per curiam)(holding that Colorado voters did not havestanding under the Elections Clause of theConstitution, art. I, 4, cl. 1, to challengea provision of the Colorado constitutionlimiting the states congressional redis-tricting to once per census); Ex parte Levitt , 302 U.S. 633, 633, 58 S.Ct. 1, 82L.Ed. 493 (1937) (per curiam) (holding thata citizen did not have standing to challengeappointment of Hugo Black to the Su-preme Court under the Constitutions Ine-ligibility Clause, art. I, 6, cl. 2); see also Schlesinger v. Reservists Comm. to Stopthe War , 418 U.S. 208, 22021, 94 S.Ct.

2925, 41 L.Ed.2d 706 (1976) (holding thatan anti-war group did not have standing toinvoke the Incompatibility Clause, art. II, 6, cl. 2, to have members of Congressstricken from the Armed Forces ReserveList); United States v. Richardson , 418U.S. 166, 179, 94 S.Ct. 2940, 41 L.Ed.2d678 (1974) (holding that a taxpayer did nothave standing to obtain information aboutthe expenditures of the Central Intelli-gence Agency under the Constitutions Ac-counts Clause, art I, 9, cl. 7).

Standing has been a consistent barrierto lower courts hearing generalized, undif-ferentiated claims by voters and citizens.

See Crist v. Commn on Presidential De-bates, 262 F.3d 193, 194 (2d Cir.2001) (percuriam) (affirming trial courts determina-tion that voter did not have standing tochallenge policy of non-profit corporationresponsible for organizing presidential de-bates); Becker v. FEC, 230 F.3d 381, 38990 (1st Cir.2000) (holding that supportersof presidential candidate Ralph Nader didnot have standing to challenge FECs de-bate regulations under which Nader expe-rienced the alleged harm); Gottlieb v.

FEC, 143 F.3d 618, 62022 (D.C.Cir.1998)(holding that voters, among others, did nothave standing to challenge FECs decisionto dismiss an administrative complaint al-leging violations of the Campaign Act);

Jones v. Bush, 122 F.Supp.2d 713, 71618(N.D.Tex.2000) (holding that voters did nothave standing to seek injunctive relief un-der the Twelfth Amendment to preventTexas members of the Electoral Collegefrom casting votes for both George W.Bush and Dick Cheney). 9 Most recently,

9. This is not to say that voters never havestanding to challenge practices that restricttheir rights as voters. See, e.g., Bullock v.Carter, 405 U.S. 134, 14344, 92 S.Ct. 849, 31L.Ed.2d 92 (1972) (allowing voters to inter-vene in suit challenging the constitutionalityof prohibitively expensive filing fees that keptvoters desired candidates off the ballot wherethe fees in question had a real and apprecia-

ble impact on the exercise of the franchise).At first blush what concerned the SupremeCourt in Bullock appears to be present here:Plaintiff argues that if Obama is permitted torun and is subsequently shown to be ineligi-ble, voters will be denied their right to votefor an eligible candidate. (Doc. No. 13 at 17.)However, upon further review, it becomes


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in a well-reasoned and concise opinion,Judge Laplante of the District of New Hampshire ruled on a question very simi-

lar to the one before us and determinedthat voters do not have standing to bring aclaim under the Natural Born CitizenClause to exclude a candidate from thepresidential primaries. See Hollander v. McCain, 566 F.Supp.2d 63 (D.N.H. 2008).

1. Plaintiff Does Not Have Standing[2, 3] [A] voter fails to present an

injury-in-fact when the alleged harm isabstract and widely shared or is only de-rivative of a harm experienced by a candi-date. Crist , 262 F.3d at 193; Jones , 122F.Supp.2d at 717 (holding that harm expe-rienced by Plaintiff[s] and all other American citizens was too undifferenti-ated and general nature to confer stand-ing on voters) (emphasis in original). Thealleged harm to voters stemming from apresidential candidates failure to satisfythe eligibility requirements of the NaturalBorn Citizen Clause is not concrete orparticularized enough to constitute an inju-ry in fact sufficient to satisfy Article IIIstanding. See Hollander , 566 F.Supp.2d

at 68 (noting that such harm would ad- versely affect only the generalized interestof all citizens in constitutional gover-nance) (citations omitted).

Hollander and Jones are instructive. In Hollander , the plaintiff alleged that the

Republican party primary candidate, JohnMcCain, 10 was ineligible to be Presidentbecause he was born in the Panama CanalZone and, therefore, was not a naturalborn citizen as that term is used in theNatural Born Citizen Clause. Hollander ,at 6469. The plaintiff believed that if theRepublican National Committee were per-mitted to nominate McCain, and McCain were subsequently found ineligible to runfor President, then plaintiff and 100 mil-lion additional voters would be disenfran-chised. Id . at 668. The district courtruled that the plaintiff did not have stand-ing because the harm plaintiff alleged was

too generalized. Id. at 67.

In Jones, the plaintiffs alleged thatGeorge W. Bush and Dick Cheney wereboth inhabitants of Texas and that mem-bers of the Electoral College from Texascould not cast votes for both of them in the2000 presidential election because of theTwelfth Amendments requirement thatElectors shall TTT vote by ballot for Pres-ident and VicePresident, one of whom, atleast, shall not be an inhabitant of that

same state with themselves. Jones, 122F.Supp.2d at 715 ( quoting U.S. Const.amend. XII). The plaintiffs claimed theirstatus as voters was sufficient to conferstanding. Id. According to the plaintiffs,by casting ballots for both Bush and Che-

apparent that there are stark differences be-tween Plaintiffs position and the position of the voters in Bullock.

In Bullock, the plaintiffs (both voters andaspiring candidates) challenged the constitu-tionality of filing fees whose expense keptaspiring candidates off the ballot. Bullock,405 U.S. at 135, 92 S.Ct. 849. The SupremeCourt held that the filing fees were an uncon-stitutional legislative barrier that kept other-wise legitimate, aspiring candidates from ap-pearing on the ballot. Thus, state action, inthe form of a statute, prevented voters fromvoting for legitimate candidates of theirchoice. That concern is not present here.

Moreover, the Court in Bullock did not lim-it or in any way invalidate votes that hadalready been cast; nor did it void the resultsof the elections that had taken place. See id.at 13637, 149, 92 S.Ct. 849 (affirming trialcourts permanent injunction of the filing feelaw). By contrast, Plaintiff would have usderail the democratic process by invalidatinga candidate for whom millions of people vot-ed and who underwent excessive vetting dur-ing what was one of the most hotly contestedpresidential primary in living memory.

10. John McCain has since secured the Repub-lican Partys nomination for President.


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ney, the Texas Electors would be infring-ing [plaintiffs] right to cast a meaningful vote. Id. at 717. The court found plain-

tiffs alleged harm insufficient to establishstanding because it was not a particular-ized, palpable injury. Id.

Plaintiffs allegations of harm in the in-stant case suffer from the same fundamen-tal flaws as the plaintiffs allegations in Hollander and Jones : Plaintiffs stake isno greater and his status no more differen-tiated than that of millions of other voters.Plaintiff acknowledges as much in the Amended Complaint when he avers that heand other Democratic Americans (Doc.

No. 142 7) will experience irreparableharm. 11 This harm is too vague and itseffects too attenuated to confer standingon any and all voters. See Becker, 230F.3d at 390 (holding that voter-plaintiffsconcern for corruption of the political pro-cess is not only widely shared, but is alsoof an abstract and indefinite nature, com-parable to the common concern for obedi-ence to law (quoting FEC v. Akins, 524U.S. 11, 23, 118 S.Ct. 1777, 141 L.Ed.2d 10(1998))).

The party asserting that jurisdiction isproper must establish each of the elementsestablished by the Supreme Court in Lu- jan. 505 U.S. at 561, 112 S.Ct. 2638(Since [elements of standing] are notmere pleading requirements but rather anindispensable part of the plaintiffs case,each element must be supported in thesame way as any other matter on whichthe plaintiff bears the burden of proof TTTT ) (emphasis added). Failure to es-tablish any of the elements leaves the

plaintiff without standing. Plaintiff doesnot, and we believe cannot, establish aninjury in fact. Therefore, he does nothave standing to pursue this matter and we do not have jurisdiction to hear it.

2. Plaintiffs Standing Arguments areUnpersuasive

Plaintiff attempts to establish standingon several additional grounds, but his ar-guments do not solve the fundamentalproblem that the harm he alleges does notconstitute an injury in fact. His mostreasonable arguments attempt to distin-guish Hollander. (Doc. No. 13 at 1617.)

For example, he asserts that the harm hehas experienced is sufficient to constitutean injury in fact under Akins (id. at 1822). However, Plaintiff ventures into theunreasonable with arguments based on anumber of federal statutes ( id. at 1718,2227). We give consideration to each ar-gument.

(a) Hollander v. McCain

In an effort to establish standing, Plain-tiff attempts to distinguish Hollander on

four grounds. First, he asserts that theplaintiff in Hollander challenged McCainscandidacy at the primary stage, and thusMcCains alleged ineligibility was hardly arestriction on voters rights. ( Id. at 69.)By contrast, Plaintiff argues that Obama isnow a candidate in the general election, which prevents citizens from voting forHillary Clinton despite her immense popu-larity. ( Id. at 69.) Plaintiff is correctthat the narrow issue in Hollander was the

11. One substantive problem with Plaintiffsdisenfranchisement theory is that it is unlikelythat the removal of an elected official bynon-electoral means amounts to disenfran-chisement of the voters who put him there.

Hollander, at 69 ( citing Powell v. McCormack,395 U.S. 486, 547, 89 S.Ct. 1944, 23 L.Ed.2d491 (1969)); see also id. at 70 n. 7 (There isalso the question of whether the disenfran-

chisement resulting from a vote for an ineli-gible candidate is [a] sort of self-inflictedharm caused by the voter, rather than anystate actor, which therefore does not amountto an infringement of the franchise right.)(citing 1 Lawrence H. Tribe, American Consti-tutional Law 1324, at 112223 (2ded.1988)).


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inclusion of an allegedly ineligible candi-date in a primary field of multiple (pre-sumptively) eligible candidates. See 566F.Supp.2d at 67. Whereas a Republican inNew Hampshire could vote for any one of twenty-one Republican candidates in theprimary ( id. at 69 n. 6), Plaintiff, as a life-long Democrat, arguably faces a Hobsonschoice in the general election: Obama ornothing. Thus, we do not expect Plaintiff to take solace in the Hollander courtsadmonition that McCains candidacy forthe presidency, whatever his eligibility, ishardly a restriction on voters rights be-cause it in no way prevents them from

voting for somebody else. Id. at 69 (cita-tion omitted).That does not mean, however, that

Plaintiff has experienced an injury in fact.The plaintiff and the court in Hollander specifically contemplated McCain winninghis partys nomination:

Unlike [plaintiffs] other disenfranchise-ment theory, this one does not dependon the failure of his chosen candidatebecause of McCains alleged ineligibility,but on the success of [plaintiffs] chosen

candidate who is McCain in this sce-nario despite his alleged ineligibility.On this theory, however, [plaintiffs] al-leged disenfranchisement flows not

from the actions he has challenged here,i.e., McCains presidential campaign orthe RNCs likely selection of him as itsnominee, but from his subsequent re-moval from office at the hands of some-one else (presumably one of the co-equalbranches), resulting (presumably, yetagain) in a President different from theone [plaintiff] helped to elect.

Id. at 70 (emphasis in original). 12 Thecourt found that the plaintiff still could notmeet the standing requirements on causa-tion grounds; the harm experienced wasnot traceable to the defendants conductbut to the conduct of those whoever

they might turn out to be responsible forultimately ousting McCain from office.

Id . We agree that such causation consider-

ations pose an impediment to a plaintiff obtaining standing in this context, but wealso believe that, regardless of questions of causation, the grievance remains too gen-eralized to establish the existence of aninjury in fact. To reiterate: a candidatesineligibility under the Natural Born Citi-zen Clause does not result in an injury in

fact to voters.13

Cf. Lance, 127 S.Ct. at1198 (voters did not allege harm sufficientto invoke the Elections Clause); Ex parte

Levitt, 302 U.S. 633, 633, 58 S.Ct. 1, 82

12. Plaintiffs argument that Obamas nomina-tion will deny him the constitutional right tovote for an eligible candidate is the same asthe argument that the plaintiff made in Hol-lander. (Doc. No. 13 at 17.) The fact that theplaintiff in Hollander called the harm disen-franchisement and Plaintiff identifies it as aconstitutional right to vote for an eligible can-didate is a distinction without a difference.

Indeed, Plaintiff does not appear to distin-guish between the two terms. ( Compare Doc.No. 13 at 17 with Doc. No. 142 173 (alleg-ing disenfranchisement will result from Oba-mas nomination and election).)

13. We find Chief Justice Burgers observationin Richardson pertinent here:

It can be argued that if respondent is notpermitted to litigate this issue, no one cando so. In a very real sense, the absence of a particular individual or class to litigatethese claims gives support to the argumentthat the subject matter is committed to thesurveillance of Congress, and ultimately tothe political process.

418 U.S. at 179, 94 S.Ct. 2940. If, throughthe political process, Congress determinesthat citizens, voters, or party members shouldpolice the Constitutions eligibility require-ments for the Presidency, then it is free topass laws conferring standing on individualslike Plaintiff. Until that time, voters do nothave standing to bring the sort of challengethat Plaintiff attempts to bring in the Amend-ed Complaint.


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L.Ed. 493 (citizen could not articulateharm under the Ineligibility Clause). Byextension, the theoretical constitutionalharm experienced by voters does notchange as the candidacy of an allegedlyineligible candidate progresses from theprimaries to the general election.

Plaintiffs second attempt to distinguish Hollander folds into his first. He arguesthat because he is denied his constitutionalright to vote for an eligible candidate, hisharm is more particularized than the plain-tiffs in Hollander. ( See Doc. No. 13 at17.) As we explained above, however,there is no meaningful distinction between

the harm alleged here and the harm al-leged in Hollander.Plaintiffs third and fourth arguments

are factual in nature. He argues that theharm created by Obamas ineligibility is aresult of subterfuge and fraud by Obamaas opposed to the situation in Hollander where there was no substantive disputeabout where McCain was born. ( Id. ) Healso claims that Defendants presumablyin their Motion to Dismiss have failed toshow that Mr. Obama is unquestionablyan American citizen. ( Id. (quoting Hol-lander, at 65).) These distinctions fail totake into account the procedural posture of the case here and in Hollander. We havetaken Plaintiffs factual allegations as trueand drawn all inferences in his favor. Thecourt in Hollander operated under thesame standard. Hollander, at 63. Raisingthese factual discrepancies is unavailing toPlaintiff.

(b) Statutory standing argumentsPlaintiff also attempts to obtain standing

to bring his Natural Born Citizen Clauseclaim under the Campaign Act, 2 U.S.C. 431 et seq. ; the Administrative Proce-dure Act (APA), 5 U.S.C. 702; theImmigration and Nationality Act, 8 U.S.C. 1481(b); FOIA, 5 U.S.C. 552; 28U.S.C. 1343; and 28 U.S.C. 1331.

Plaintiff cites no authority under whichany of these statutes would confer stand-ing on him to bring his Natural BornCitizen Clause claim and we are aware of none. We therefore find that Plaintiffsattempt to use these statutes to gainstanding to pursue his Natural Born Citi-zen Clause claim are frivolous and not worthy of discussion. Plaintiff avers viola-tions of some of these statutes as free-standing causes of action in the AmendedComplaint. We address the merit of thosecauses of action below.

B. Counts Two, Three, & Four Civ-

il Rights Violations, 42 U.S.C. 1983, 42 U.S.C. 1985, and 42U.S.C. 1986

The Amended Complaint alleges deprivation of Plaintiffs civil rights in violation42 U.S.C. 1983 (Count Two), 42 U.S.C. 1985 (Count Three), and 42 U.S.C. 1986 (Count Four). The DNC and Oba-ma argue that Plaintiff has failed to prop-erly allege a deprivation of his constitu-tional or statutory rights by state actionand has failed to properly allege a conspir-

acy. We address each of Plaintiffs claimsin turn.

1. 42 U.S.C. 1983

[4] Plaintiff makes several allegationsthat he believes entitle him to 1983 re-lief. First, he claims that he has beendeprived of money and billable hours byfraudulent means as a result of donatingmoney and billable hours to secure, aspromised, an eligible Democratic candidatefor Office of the President TTT [and that

he] has been deprived of his right to votefor an eligible Democratic Nominee for theU.S. Office of the President. (Doc. No.142 93.) Second, he claims that he hasbeen a victim of racial animosity perpetrat-ed by Obamas supporters, including beinglabeled in public as a racist for bringing


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this suit. ( Id. 9499.) Third, he claimsthat Defendants are attempting to changeour United States Constitution withoutproper due process of law by allowingObama to continue his campaign TTTT ( Id. 100.) Fourth, he claims that hisLife, Liberty and Property rights guaran-teed by the Fourteenth Amendment of theU.S. Constitution will further be violated if Obama is allowed to be voted into theposition of President TTTT ( Id. 101.)Finally, he claims that all the Defendants(other than Obama) have damaged Plain-tiff by failing to act in their official capaci-ties to stop Obama from running. ( Id. 10408.)

Section 1983 protects civil rights. Itcreates a cause of action against

[e]very person who, under color of anystatute, ordinance, regulation, custom, orusage, of any State or Territory or theDistrict of Columbia, subjects, or causesto be subjected, any citizen of the Unit-ed States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities se-cured by the Constitution and laws.

42 U.S.C. 1983. A 1983 claimant mustallege violations of rights independentlysecured by the Constitution and laws of the United States. Gonzaga Univ. v. Doe, 536 U.S. 273, 285, 122 S.Ct. 2268, 153L.Ed.2d 309 (2002). One cannot go intocourt and claim a violation of 1983 for 1983 by itself does not protect anyoneagainst anything. Id. (citing Chapman v. Houston Welfare Rights Org., 441 U.S.600, 617, 99 S.Ct. 1905, 60 L.Ed.2d 508(1979)). We therefore must inquire into whether Plaintiff has alleged a violation of

a right that would entitle him to redressunder 1983.

The irreducible basis of all Plaintiffsalleged violations is that Obama might beelected to the Office of President despitebeing constitutionally ineligible under theNatural Born Citizen Clause. This alleged

fact underscores his claim that he has beendeprived of money and billable hours, hisclaim that he has been insulted in public,his claim that he is being deprived of achance to vote for an eligible candidate, hisclaim that he will be deprived of life, liber-ty and property, and his claim that thenon-Obama Defendants are causing himharm by not stopping Obama. The ques-tion, therefore, is straightforward: Doesthe Natural Born Citizen Clause create afederal right the violation of which resultsin a cognizable 1983 claim? We thinknot.

After a diligent search, we have been

unable to find any cases that address thematter and the parties have not offeredany. However, other courts have ad-dressed the application of 1983 in analo-gous situations. See, e.g., Dennis v. Hig-

gins, 498 U.S. 439, 111 S.Ct. 865, 112L.Ed.2d 969 (1991) (The SupremacyClause TTT is not a source of any federalrights; rather, it secure[s] federalrights by according them priority whenev-er they come in conflict with state law. (citing Chapman, 441 U.S. at 613, 99 S.Ct.1905)); White Mountain Apache Tribe v.Williams, 810 F.2d 844, 848 (9th Cir.)(amended opinion), cert. denied, 479 U.S.1060, 107 S.Ct. 940, 93 L.Ed.2d 990 (1987)([T]he Supremacy Clause, standing alone,secures federal rights only in the sensethat it establishes federal-state priorities;it does not create individual rights, nordoes it secure such rights within the mean-ing of 42 U.S.C.S. 1983.); Maryland

Pest Control Assn. v. Montgomery Coun-ty, 884 F.2d 160 (4th Cir.1989) (same);Gerling Global Reinsurance Corp. of Am.

v. Garamendi, 400 F.3d 803, 811 (9th Cir.2005) (Graber, J., concurring) ([T]he for-eign affairs power, like the SupremacyClause, creates no individual rights en-forceable under 42 U.S.C. 1983.). Likethe Supremacy Clause and the foreign af-fairs powers, the Natural Born Citizen


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Clause does not confer an individual righton citizens or voters. Therefore, Plaintiff cannot state a cognizable 1983 claim. 14

2. 42 U.S.C. 1985

[5] The facts that Plaintiff alleges insupport of his 42 U.S.C. 1985 claim aresubstantively the same as the facts healleges in support of his 1983 claim. 15

( See Doc. No. 142 11022.) He be-lieves that the Defendants are promotingand assisting Obamas candidacy knowingthat Obama is ineligible to take office.Plaintiff avers that Defendants conductamounts to a conspiracy in violation of

1985. He does not, however, indicatethe sub-section of 1985 on which hepremises his claim.

[6] As a preliminary matter, wherethere is no federal right that creates abasis for a 1983 claim there is similarlyno basis for a 1985 claim. See Escamil -

la v. Santa Ana, 606 F.Supp. 928, 934(C.D.Cal.1985) (granting summary judg-ment to defendants on plaintiffs 1985and 1986 claims where plaintiff could notestablish a 1983 claim); Wiggins v.

Hitchens, 853 F.Supp. 505, 510 (D.D.C.1994) (There can be no recovery undersection 1985(3) absent a violation of asubstantive federal right.). This alonestands as an impediment to Plaintiff stat-ing a cognizable 1985 claim.

Moreover, none of the 1985 clausesapply here. Section 1985(1) deals withinterference with officers of the UnitedStates, and Plaintiff has not alleged thathe is an officer of the United States. See

Silo v. City of Phila., 593 F.Supp. 870, 873(E.D.Pa.1984). Section 1985(2) creates aclaim for conspiracy to intimidate wit-nesses, jurors, or parties in a federal case.

Id. Plaintiff has made no allegations that would support such a claim. That leaves

14. State action is also a necessary element of a 1983 claim. See Mark v. Borough of Hat-boro, 51 F.3d 1137, 114145 (3d Cir.1995)(discussing state action requirement). Whilewe do not need to reach this question because

Plaintiff does not allege the violation of anylegally protected right, we note that he wouldlikely have difficulty showing that either Oba-ma or the DNC are state actors or actingunder color of law. We have found no caseswhere a presidential candidate has been treat-ed as a state actor merely for running foroffice. To the contrary, the few cases that wehave found suggest that presidential candi-dates are not state actors or engaged in stateaction for purposes of 1983. See, e.g., Fula-ni v. McAuliffe, No. 046973, 2005 WL2276881, at *5, 2005 U.S. Dist. LEXIS 20400,at *17 (S.D.N.Y. Sept. 19, 2005) (dismissing 1983 claim against defendants, including

the DNC and 2004 presidential candidateJohn Kerry, because they were not actingunder color of state law); Riches v. Giambi,No. 070623, 2008 U.S. Dist. LEXIS 53123, at*20 (N.D.Cal. Jan. 2, 2008) (dismissing 1983 claim against 2008 Republican presi-dential candidate Mike Huckabee because hewas a private individual). The claim that theDNC is not a state actor or acting under color

of state law in conducting a presidential cam-paign is slightly more ambiguous, but themore recent cases appear to conclude that theDNC is not a state actor. See LaRouche v.

Fowler, 152 F.3d 974, 990 (D.C.Cir.1998) (If

a party must produce the nations uncontest-ed choice for President of the United State toqualify as a state actor, the Democratic (orRepublican) Party plainly does not qualify).

But cf. Lynch v. Torquato, 343 F.2d 370, 372(3d Cir.1965) (The people, when engaged inprimary and general elections for the selec-tion of their representatives in government,may rationally be viewed as the state inaction, with the consequence that the organi-zation and regulation of these enterprisesmust be such as accord each elector equalprotection of the laws.).

15. Plaintiff makes additional claims about

Obama and his campaign abus[ing] theirposition and the law for intimidation pur-poses to stop people from free speech whenthe speech includes criticism or questioningof Obama TTTT (Doc. No. 142 115.) TheAmended Complaint makes no attempt to al-lege facts in support of these claims, whichstanding on their own are nothing more thanconclusory allegations.


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1985(3). A claim under 1985(3) arises when:

(1) two or more persons conspire to de-prive any person of the equal protectionof the law; (2) one or more of the con-spirators performs or causes to be per-formed any overt act in furtherance of the conspiracy; and (3) that overt actinjures the plaintiff in his person orproperty or deprives the plaintiff of anyright or privilege of a citizen of theUnited States.

Barnes Found. v. Twp. of Lower Merion ,242 F.3d 151, 162 (3d Cir.2001). In addi-tion, 1985(3) requires allegation of

some racial, or perhaps otherwise class-based, invidiously discriminatory animusbehind the conspirators action TTTT Silo, 593 F.Supp. at 873 ( citing Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct.1790, 29 L.Ed.2d 338 (1971)).

We do not reach an analysis of the threeelements of 1985(3) because Plaintiff hasmade no allegations that the purportedconspiracy is motivated by racial animus. 16

Instead, the Amended Complaint is fo-cused entirely on an alleged conspiracy toconceal Obamas true nationality. There-fore, Plaintiff cannot state a cognizable 1985 claim.

3. 42 U.S.C. 1986

[7] It is well settled that [a] plaintiff must establish a valid 1985 claim in or-der to state a claim under 1986. Car-rington v. City of Jersey City, No. 065367, 2008 WL 2061147, at *7, 2008 U.S.Dist. LEXIS 38808, at *19 (E.D.Pa. May12, 2008) (citing Clark v. Clabaugh, 20F.3d 1290 (3d Cir.1994)). Since the

Amended Complaint does not articulate acognizable 1985 claim, Plaintiffs 1986claim must fail as well.

C. Count Five Campaign ActClaims, 2 U.S.C. 431 et seq.

Count Five of the Amended Complaintalleges a violation of the Campaign Act. 2U.S.C. 431 et seq. Specifically, it alleg-es that [t]he DNC, FEC, Feinstein andthe U.S. Senate Commission on Rulesand Administration are aware of Oba-mas illegal activities, encouraging racialtension, encouraging violence, his fraudu-lent campaigning, fraudulently attemptingto secure the position of President of theUnited States. (Doc. No. 142 139.)Despite this knowledge, these Defendantshave allowed Obamas illegal and fraudu-

lent campaign, [through] which Obamahas received in excess of $450 Million indonations. (Doc. No. 142 141.) Plain-tiff argues that this entitles him to the in-formation regarding Obama that he seeksin the Amended Complaint.

The Amended Complaint does not allegeany facts regarding Plaintiffs attempts toobtain the information he seeks by meansof the Campaign Act. However, PlaintiffsOpposition informs us that he com-plained to the FEC prior to instigating

his current suit and that the FEC hascompletely ignored him. (Doc. No. 13 at18.) Although Plaintiff alleged these factsin his Opposition and not in the AmendedComplaint, in the interest of rendering adecision that addresses Plaintiffs argu-ments, we will construe the allegations in alight most favorable to Plaintiff and treatthe Amended Complaint as if it had al-leged that the FEC failed to act on anadministrative complaint.

Congress has charged the FEC with

administering the Campaign Act, 2 U.S.C. 437c(b). As commonly understood, the[Campaign Act] seeks to remedy any actu-

16. We note that the Amended Complaint al-leges that Obamas supporters have made ra-cially charged remarks ( see Doc. No. 142 94) and that Obama is furthering racial

tension ( see id. 96), but there are no factualallegations whatsoever that tie any Defendantto any racially motivated tortious conduct of the sort 1985 was intended to redress.


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al or perceived corruption of the politicalprocess TTTT Akins, 524 U.S. at 14, 118S.Ct. 1777. The Campaign Act confersstanding on [a]ny person who believes a violation of this Act or of chapter 95 orchapter 96 of the Internal Revenue Codeof 1954 has occurred to file an administra-tive complaint with the FEC. 2 U.S.C. 437g(a)(1). When the FEC fails to acton an administrative complaint, as Plaintiff seems to argue here, a party may file asuit in district court. 17 2 U.S.C. 437g(a)(8); Stockman, 138 F.3d at 153,156 n. 18 (5th Cir.1998) (noting that 478g(a)(8) is the only private remedyafforded by the Campaign Act). Thereare, however, two fatal flaws with Plain-tiffs theory: one procedural and one sub-stantive.

[8] First, if the FEC failed to act on acomplaint filed by Plaintiff, this is the wrong court to hear the action. The Cam-paign Act specifically requires that griev-ances regarding the FECs failure to en-force the Act must be filed in the DistrictCourt for the District of Columbia. 2U.S.C. 437g(a)(8); Beam v. Gonzales,548 F.Supp.2d 596, 61112 (N.D.Ill.2008)([T]he only FECA provision empoweringprivate parties to seek judicial review ex-tends to administrative complainants TTTTEven if such a suit were proper [here],FECA would require that it be brought inthe United States District Court for theDistrict of Columbia.).

[9, 10] Second, neither the AmendedComplaint nor the Opposition identifies aspecific provision of the Campaign Act thatentitles Plaintiff to information concerningObamas citizenship. Instead, Plaintiff re-

lies on generalized arguments about politi-cal corruption and the purpose of the Cam-paign Act. ( See Doc. No. 13 at 2022.)

Congress intended the Campaign Act tocombat the corrupting influence of moneyon the political process. See Karl Rove &Co. v. Thornburgh, 39 F.3d 1273, 1281 (5thCir.1994) (The primary purpose of [theCampaign Act] TTT is to regulate campaigncontributions and expenditures in order toeliminate pernicious influence actual orperceived over candidates by those whocontribute large sums TTTT (footnoteomitted)). It seems clear that the Cam-paign Act does not address the sort of corruption that Plaintiff alleges in hisComplaint. Nevertheless, Plaintiff cites tothe Supreme Courts decision in Akins,524 U.S. 11, 118 S.Ct. 1777, 141 L.Ed.2d 10

passim, to support his claim of standing.( See Doc. No. 13 at 2022.) Reliance on

Akins, however, merely accentuates theproblems with Plaintiffs argument.

Akins involved a challenge by voters tothe FECs determination that the Ameri-can Israel Public Affairs Committee (AI-PAC) was not a political committee within the meaning of the Campaign Act.

524 U.S. at 13, 118 S.Ct. 1777. The effectof this determination was to shield AIPACfrom the Campaign Acts disclosure re-quirements and deprive plaintiffs of infor-mation regarding, among other things, AI-PACs lobbying activities. Id . at 1516,118 S.Ct. 1777. On certiorari, the Su-preme Court addressed whether the plain-tiffs (respondents) had standing to chal-lenge the [FECs] decision not to bring anenforcement action in this case. Id. at 18,118 S.Ct. 1777. In holding that the plain-tiffs did have standing, the Court deter-

17. If we have extended Plaintiff too favorablean inference and he in fact did not file anadministrative complaint, then he lacks stand-ing to pursue the theory outlined in hisAmended Complaint because section 437d(e)of the Campaign Act provides that the powerof the [FEC] to initiate civil actions TTT shall

be the exclusive civil remedy for the enforce-ment of the provisions of this Act. 2 U.S.C. 437d(e) (emphasis added). See also Stock-man, 138 F.3d at 152 (The [Campaign Act]provides a strong basis for scrupulously re-specting the grant by Congress of exclusive

jurisdiction to the FEC TTTT ).


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mined that [t]he injury in fact that[plaintiffs] have suffered consists of theirinability to obtain information lists of AIPAC donors (who are, according to AI-PAC, its members), and campaign-relatedcontributions and expenditures that, on[plaintiffs] view of the law, the statuterequires that AIPAC make public. Id . at21, 118 S.Ct. 1777. Plaintiff reasons thathe has standing because his request forinformation is analogous to the plaintiffs in Akins. (See Doc. No. 13 at 2122.)

Plaintiffs argument has superficial ap-peal, but does not take into account theunderlying consideration in Akins that was

necessary to the Supreme Courts determi-nation. There, plaintiffs sought disclo-sures that were required by the Campaign Act. See Akins, 524 U.S. at 16, 118 S.Ct.1777. Here, the Campaign Act does notrequire Defendants to disclose the sort of information that Plaintiff seeks in the Amended Complaint. Accordingly, even if Plaintiff had followed the proper adminis-trative procedure, Plaintiff still would facean insurmountable obstacle to obtainingthe information he now seeks through thecourts. See Gottlieb, 143 F.3d at 62021(holding that voters did not have standingto challenge supposed injury to their ab

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