berg v obama (fca case appeal) - appellant brief [1230292] - transport room

8/14/2019 BERG v OBAMA (FCA CASE APPEAL) - APPELLANT BRIEF [1230292] - Transport Room

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UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

__________________________

PHILIP J. BERG on his own behalf and as RELATOR on behalf of the

GOVERNMENT OF THE UNITED STATES

Plaintiff Appellant,

v.

BARACK HUSSEIN OBAMA

Defendant Appellee.

And

THE U.S. ATTORNEY GENERAL AND

THE U.S. DEPPARTMENT OF JUSTICE

Respondents - Appellees_________________________

APPELLANTS BRIEF

PHILIP J. BERG, ESQUIRE

555 Andorra Glen Court, Suite 12Lafayette Hill, PA 19444-2531

Ph: (610) 825-3134Fx: (610) 834-7659

Email: [email protected]

Attorney in Pro Se and as Relator on

behalf of the Government of theUnited States

Appendix Filed Separately

Court of Appeals Case No. 09-5362

Oral Argument is Requested

_________________________

Appeal from the United States District Court

for the District of Columbia

Case: 09-5362 Document: 1230292 Filed: 02/17/2010 Page: 1


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1.) PHILIP J. BERG, ESQUIRE inpro seOn his own behalf and as RELATOR on behalf

Of the GOVERNMENT OF THE UNITED STATES

[Hereinafter at times Appellant]

Plaintiff Appellant

2.) BARACK HUSSEIN OBAMA[Hereinafter at times Obama]

Defendant Appellee

3.) UNITED STATES ATTORNEYS OFFICE and

UNITED STATES DEPARTMENT OF JUSTICE

[Hereinafter at times The Government]

Respondents Appellees

The Rulings under review are all Orders of Judge Roberts, in the United

States District Court for the District of Columbia, Case No. 08-cv-01933

RWR. Federal Supplement Citation for this Case isBerg v. Obama, 656 F.

Supp. 2d 107 (D.D.C. 2009). Said Rulings under review are as follows:

June 09, 2009 Order Dismissing the Case, Docket No. 16

Attached to the Appendix as Exhibit 1;

September 21, 2009 Memorandum of Opinion Denying Relators

Motion for Reconsideration, Docket No. 21

CERTIFICATE AS TO PARTIES, RULINGS AND

RELATED CASES

A. Parties

B. Rulings Under Review



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Attached to the Appendix as Exhibit 2;and

September 21, 2009 Final Order Denying Relators Motion for

Reconsideration, Docket No. 22Attached to the Appendix as Exhibit 3

To Counsels knowledge there are no other related cases or

proceedings pending in this Court or any other Court pertaining to the

Appellant and his Qui Tam (False Claims) Action.

Respectfully submitted,

Dated: February 16, 2010 ___________________________

Philip J. Berg, Esquire


Ph: (610) 825-3134Fx: (610) 834-7659


Appellant in Pro Se and as Relator on


s/ Philip J. Berg

C. Related Cases



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Petitioner-Appellant, Philip J. Berg, Esquire, is a natural person. As

such, a corporate disclosure statement is not required. Federal Rules of

Appellate Procedure, 26.1(a).

PLAINTIFF-APPELLANTS RULE 26.1

CORPORATE DISCLOSURE STATEMENT



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Pursuant to Federal Rule of Appellate Procedure 34(a), Appellant

respectfully requests oral argument. Appellant believes that oral argument

will assist the Court in deciding this Appeal, which involves a number of

important legal issues. Oral argument will enable the parties to address

these issues adequately and respond to the Courts questions and concerns.

REASONS WHY ORAL ARGUMENT SHOULD BE HEARD



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TABLE OF CONTENTS

Page(s)

CERTIFICATE AS TO PARTIES, RULINGS AND

RELATED CASES.......i-ii

CORPORATE DISCLOSURE STATEMENT.iii

REQUEST FOR ORAL ARGUMENT.iv

TABLE OF CONTENTS....v-vi

TABLE OF AUTHORITIES..vii-xii

STATEMENT OF JURISDICTION...1

STATEMENT OF ISSUES.1-3

STATEMENT OF RELATED CASES..3

STATEMENT OF THE CASE...3-8

STANDARD OF REVIEW.8-9

SUMMARY OF ARGUMENT.9-11

ARGUMENT...11-29

A. Appellee was Not Constitutionally eligible to

Serve As a United States Senator of Illinois as

he was Not A United States Citizen11-18

B. Appellant was entitled to the Discovery used

in the Governments Decision to DismissAppellants Qui Tam (FCA) Action....18-19



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TABLE OF CONTENTS, Continued

Page(s)

C. The Government had and has a Conflict-of-Interest

in Litigating the Qui Tam (FCA) Action againstour Now Sitting President, Barack Hussein Obama

and therefore, A Special Prosecutor Should have been Appointed20-27

D. The District Court erred in denying the Appellants

Motion for Reconsideration.27-29

CONCLUSION.29

IDENTICAL PDF AND HARD COPY CERTIFICATE.30

VIRUS SCAN CERTIFICATE.30

CERTIFICATE OF COMPLIANCE WITH RULE 32(a)31

CERTIFICATE OF SERVICE....32-33



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TABLE OF AUTHORITIES

Page(s)

Cases

U.S. Supreme Court Cases

Gasperini v. Center for Humanities, 518 U.S. 415,432-433, 116 S. Ct. 2211, 135 L. Ed. 2d 659 (1996)28

United States v. Olano, 507 U.S. 725,

113 S. Ct. 1770, 123 L. Ed. 2d 508 (1993).9

White v. New Hampshire Dep't of Employment Sec.,455 U.S. 445, 102 S. Ct. 1162, 71 L. Ed. 2d 325 (1982)..28

District of Columbia Circuit Cases

Firestone v. Firestone, 316 U.S. App. D.C. 152,

76 F.3d 1205 (D.C. Cir. 1996)..28

Mitchell v. United States, 977 A.2d 959 (D.C. 2009).....9

Swift v. United States, 318 F.3d 250 (D.C. Cir. 2003)..19

Thomas v. United States, 914 A.2d 1 (D.C. 2006)..9

Wilson v. United States, 785 A.2d 321 (D.C. 2001)...9

All Other Circuit Courts

Burnham v. Amoco Container Co., 738 F.2d 1230 (11th Cir. 1984)29



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TABLE OF AUTHORITIES, Continued

Page(s)

Cases

All Other Circuit Courts, Continued

Dawson v. Wal-Mart Stores, Inc., 978 F.2d 205 (5th Cir. 1992)..28

Still v. Towsend, 311 F.2d 23 (6th Cir. 1962)...28

Womble v. J.C. Penney Co., Inc., 431 F.2d 985 (6th Cir. 1970)...28

United States District Courts

United States ex rel. Mikes v. Strauss,

846 F.Supp. 21 (S.D.N.Y. 1994)...19

All other Courts

Soetoro v. Soetoro, First Circuit Family Court,State of Hawaii, F.C.D. No 117619 (1980).14

FEDERAL STATUTES

Page(s)

18 U.S.C. 201.23

18 U.S.C. 203.23

18 U.S.C. 205...21, 23

18 U.S.C. 208.....21, 23, 24*

*

*



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Page(s)

FEDERAL STATUTES, Continued

18 U.S.C. 209.23

28 U.S.C. 1291..1

31 U.S.C. 3729 through 3733.1

Nationality Act of 1940.14

HAWAIIN STATUTES

Page(s)

Chapter 57 - 57-8 (1955)..4

338-17.8 (1986)4

CODE OF FEDERAL REGULATIONS (CFR)

Page(s)

5 CFR 2635 ...23

5 CFR 2635.101.....21

5 CFR 2635.401.24

*

*

*



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Page(s)

CODE OF FEDERAL REGULATIONS (CFR), Continued

5 CFR 2635.402.....24

5 CFR 2635.501(a).23

5 CFR 2635.502.....23

5 CFR 2640....23

5 U.S.C. 2640.103..24

UNITED STATES CONSTITUTION

Page(s)

Article I, Section 36, 9, 11

FEDERAL RULES OF CIVIL PROCEDURE

Page(s)

Rule 59..27

Rule 59(e)....27. 28

Rule 60(a)..29

*

*

*

*

*



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Page(s)

INDONESIAN LAWS

Asian Law DigestsINDONESIA LAW DIGEST 4.02 .11, 12, 13, 15

Asian Law Digests

INDONESIA LAW DIGEST 9.0212

Asian Law Digests

INDONESIA LAW DIGEST 13.04, Infants...12, 13

Constitution of Republic of Indonesia

Law No. 62 of 1958.13, 14

Constitution of Republic of Indonesia

(Undang-Undang Dasar Republik Indonesia 1945),

Chapter 13, Law No. 62 of 1958...14

Constitution of Republic of Indonesia of 1945,

Chapter XIII. Education Article 31...14

Indonesian Civil Code (Kitab Undang-undang Hukum

Perdata) (KUHPer) (Burgerlijk Wetboek voor Indonesie)13

MISCELLANIOUS

Page(s)

John Chierichella & Louis Victorino,

A Qui Tam Conundrum; When Relators Suit Lacks Merit,What is Governments Duty to the Contractor?

Legal Times (February 28, 2000), at 30-31...17

*

*

*

*

*

*

*

*



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Page(s)

MISCELLANIOUS, Continued

S. Rep. No. 99-345 at 23-24 (1986) U.S.C.C.A.N. 5266, 5288-89...10

The Erie Doctrine and Applicable Law.27



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STATEMENT OF JURISDICTION

This is a Qui Tam (False Claims) Action wherein the U.S. District

Court had original jurisdiction pursuant to 31 U.S.C. 3729 through 3733.

This is an appeal from a final judgment of the United States District Court

for the District of Columbia, entered on June 9, 2009 and September 21,

2009. Notice of Appeal was timely filed on October 21, 2009. Accordingly,

this Court has jurisdiction pursuant to 28 U.S.C. 1291.

STATEMENT OF ISSUES PRESENTED FOR REVIEW

The government filed a Motion to Dismiss Appellants Qui Tam

(False Claims) action against Barack Hussein Obama for his term as United

States Senator for the State of Illinois, who now happens to be the President

of the United States. The Court held a Hearing under Seal. The government

claimed they had an unfettered discretion to dismiss the case and the Court

did not have any say in the matter. The Court complied with the

Government and Dismissed the Relators Action against Barack Hussein

Obama on June 9, 2009. Appellant filed a Motion for Reconsideration of the

Dismissal on the basis of the law discovered regarding the Governments

Conflict-of-Interest as Barack Hussein Obama was the sitting President and



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their boss. Appellant was not afforded a hearing or chance to be heard,

although he requested such, and Appellants Motion was Denied on

September 21, 2009. This timely appeal was filed on October 21, 2009.

1. Whether the U.S. District Court for the District of

Columbia erred and/or abused its discretion by granting the

Governments Motion to Dismiss and Dismissing Relators Qui Tam

(False Claims) Action?


Columbia erred as a matter of law and/or abused its discretion in

failing to address the issues regarding the Governments Conflict-of-

Interest in representing President Barack Hussein Obama in the

Courts Order Dismissing the Relators Qui Tam (False Claims)

Action?


Columbia erred as a matter of law and/or abused its discretion by

Denying Appellants Request for Discovery of the Evidence and/or

Documents used by the Government in their determination to seek

Dismissal of the Relators Qui Tam (False Claims) Action? and


Columbia erred as a matter of law and/or abused its discretion by

Denying Appellants Motion for Reconsideration based on the new



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Moreover, Appellant believes Appellees foreign birth was registered in the

State of Hawaii as permitted pursuant to the 1955 Laws on the books,

Chapter 57 Vital Statistics, Section 57-8 Compulsory Registration of

Births; 57-9 Local Registrar to Prepare Birth Certificate. These statutes

were since revised in 1982 as Section 338-17.8.

Appellant further discovered when Appellee was approximately six

[6] years old, his mother, after divorcing Barack Hussein Obamas father,

married Lolo Soetoro, M.A. an Indonesian citizen and relocated with his

mother to Jakarta, Indonesia. During the investigation into these matters,

Appellant learned Appellee attended public school in Jakarta, Indonesia,

where only citizens of Indonesia could attend. It was further discovered that

Appellee Obamas school record indicated that he attended school under the

name of Barry Soetoro, an Indonesian Citizen. The Indonesian public

schools verified with the Indonesian Government the name and citizenship

status of all enrolled children. The only way Appellee could have been

enrolled in the public school system in Jakarta, Indonesia is if his step-

father, Lolo Soetoro, M.A., adopted him and/or signed an Indonesian

Government Acknowledgement form legally acknowledging Appellee,

Barack Hussein Obama as his son. In Indonesia the child takes the surname

of the father. At this point, it did not matter where Appellee was born or the



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citizenship status of his birth parents. Once adopted and/or his birth was

acknowledged by Lolo Soetoro, M.A., Appellee became a natural

citizen of Indonesia and his legal name became Barry Soetoro.

No records have been located where Barry Soetoro a/k/a Barack

Hussein Obama went through U.S. Immigration in 1971 when he was ten

[10] years old, upon his return to the United States, which would be required

to assume United States naturalized citizenship status and therefore, the

lack thereof, he would be an illegal alien. In addition, absolutely no

records have been located showing where Barry Soetoro legally changed his

name back to Barack Hussein Obama.

Even if Appellee could have regained any United States Citizenship

status upon his eighteenth [18th] birthday, he would have been required to

file a sworn Affidavit with the Indonesian Government relinquishing his

Indonesian Citizenship, and taking the Oath of Allegiance in the United

States, which would be recorded.

Indonesia in the late 1960s, early 1970s did not recognize dual

citizenship and required the relinquishment of any other citizenship status

upon becoming an Indonesian citizen. The United States would not interfere

with the citizenship status of any foreign citizen.



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As a result, as the records in possession of the Appellant suggest,

Appellee is still an Indonesian Citizen and his legal name is Barry Soetoro

and not Barack H. Obama.

In response to the citizenship questions of Appellee, Appellee released

on the Internet a copy of a Hawaiian Certification of Live Birth (COLB).

Even if this COLB is a legitimate document, which there is reason to believe

it is not. A Hawaiian COLB is issued to births that occurred in Hawaii and

births of children born abroad. Appellee has never addressed the issues

regarding his Indonesian citizenship and/or legal name.

In order to assume the position of a United States Senator, the party

must be a naturalized citizen for nine [9] years and be at least thirty [30]

years old and must use his/her legal name, Article I, Section 3 of the U.S.

Constitution. For the above reasons, again, which are better outlined below,

Appellee did not qualify to hold the Office of United States Senator for

Illinois; he was aware of his citizenship status and the fact his name was not

legally Barack Hussein Obama. Despite this, Appellee defrauded the United

States by filing claims he was qualified to hold this seat and filing false

statements with the Department of Treasury for his salary and expenses.

On or about March 30, 2009, the government Moved to Dismiss the

Appellants Qui Tam (False Claims) Action. The Government does have



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broad discretion to dismiss a False Claims Act; however, they must meet the

rational relation standard that is the substantive due process analysis

requirement, which they failed to do.

The Government has a duty to investigate the allegations outlined in a

Qui Tam (False Claims Act) filed by a Relator. Moreover, when the

Government goes to have the Qui Tam case Dismissed, the Relator is

entitled to the Discovery the Government used in their determination to

dismiss the action. Appellant herein was refused the Discovery. The U.S.

District Court for the District of Columbia granted the Governments

Dismissal.

Throughout the litigation of the within case, Appellant learned the

U.S. Attorneys General and his staff, which includes the U.S. Department

of Justice had a clear Conflict-Of-Interest in representing Appellee.

Appellee, Barack Hussein Obama is now the President of the United States

and is their boss.

This Qui Tam based on the False Claims Act (hereinafter at times

FCA) is a unique case with unique circumstances because of the nature of

the False Claims, that being because the allegations of fraud herewith are

against now, sitting President Barack Hussein Obama. The claims are based

upon the fact Appellee fraudulently held the Office of United States Senator



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from Illinois and the fact that review of these proceedings to decide to

prosecute rests with the United States Attorney General Eric Holder. The

United States Attorney General, Eric Holder, reports directly to the alleged

violator; gives opinions and legal advice to the alleged violator; was senior

legal advisor to Appellee, Barack Hussein Obamas Presidential campaign;

and served as one of three [3] members on Appellees Vice-Presidential

Selection Committee and thus a major Conflict-of-Interest existed and still

exists with the within litigation.

The proper procedure would have been for the Lower Court to appoint

a Special Prosecutor, as Appellant requested, however, this did not occur.

Appellants Notice of Appeal is attached to the Appendix as

EXHIBIT 1. The District Courts Order of Dismissal is attached to the

Appendix as EXHIBIT 2 and the District Courts Order of denial of

Appellants Motion for Reconsideration is attached to the Appendix as

EXHIBIT 3.

For all the reasons explained herein, it is incumbent upon this Court to

uphold the requirements of the Qui Tam (FCA) statutes, Remand this Case

back to the Lower Court with instructions that the Discovery used by the

Government must be turned over to Appellant; A special prosecutor must be



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appointed; and Appellant must be allowed to litigate the within case on

behalf of the Government.

STANDARD OF REVIEW

This Courts review is plenary, based on the issues presented in this

Appeal which include the District Courts abuse of discretion and the

District Courts error in formulating and applying legal precepts. In

addition, this Courts review is de novo based on the issues presented in this

Appeal which include Legal Conclusions and issues of statutory construction

of Article I, Section 3, Mitchell v. United States, 977 A.2d 959, 968 (D.C.

2009). Moreover, whether a Conflict-Of-Interest exists is a question of law

and the District Courts refusal to address the Conflict-of-Interest was a

plain error, Thomas v. United States, 914 A.2d 1, 8 (D.C. 2006). To

demonstrate plain error, Appellant must show that: (1) there is error, (2) the

error is plain, meaning clear or obvious, and (3) the error affected substantial

rights. Id. (citing United States v. Olano, 507 U.S. 725, 732, 113 S. Ct. 1770,

123 L. Ed. 2d 508 (1993)). The District Courts error caused a 'miscarriage

of justice,' and the trial court's error . . . 'seriously affect[ed] the fairness,

integrity or public reputation of judicial proceedings.'" See Wilson v. United

States, 785 A.2d 321, 326 (D.C. 2001) (quoting Olano, 507 U.S. at 736).



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SUMMARY OF ARGUMENT

The False Claims Act is aimed at establishing a law enforcement

partnership between federal law enforcement offices and private citizens

who learned or have the knowledge of fraud against the Government.

When the amendments to the False Claims Act were introduced in

1985, Senator Charles Grassley explained the purpose behind the Act:

The government needs help lots of help to adequately protect the Treasury against growing and increasinglysophisticated fraudPart of the solution something I consideressential to any meaningful improvements in cutting downfraud is the establishment of a solid partnership between

public law enforcersThe Federal government has a big job onits hands as it attempts to ensure he integrity of the nearly $1trillion we spend each year on various programs and

procurement. That job is simply too big if government officialsare working alone

Congresss intent in amending the Qui Tam section in 1986 was to

encourage more private enforcement suits. S. Rep. No. 99-345 at 23-24

(1986) U.S.C.C.A.N. 5266, 5288-89.

Appellee, Barack Hussein Obama, collected monies from the Federal

Government based on false claims that he was in fact a United States Citizen

eligible to serve as a United States Senator for Illinois. However, the facts

point to the fact that Appellees legal name is still Barry Soetoro and not



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Barack Hussein Obama and that he is still an Indonesian Citizen, not an

American Citizen.

Moreover, the Government has a serious Conflict-Of-Interest as

Appellee is now President of the United States and directly supervises the

United States Attorney General and United States Department of Justice.

The District Court plainly erred in allowing the government to

Dismiss Appellants Qui Tam (FCA) case without addressing the Conflict-

Of-Interest with the U.S. Attorney General and the U.S. Department of

Justice and failing to conflict them out and appointing a Special Prosecutor.

ARGUMENT

A. APPELLEE WAS NOT CONSTITUTIONALLY ELIGIBLE

TO SERVE AS A UNITED STATES SENATOR OF ILLINOIS

AS HE WAS NOT A UNITED STATES CITIZEN

In order to assume the position of a United States Senator, the party

must be a naturalized citizen for nine [9] years; be at least thirty [30] years

old; and must use his/her legal name, Article I, Section 3 of the U.S.

Constitution. Appellee did not qualify to hold his position as United States

Senator of Illinois and provided false claims to assume the position and

collect his salary.



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In or about 1967, when Appellee, Barack Hussein Obama was

approximately six [6] years old, his mother, Stanley Ann Dunham, married

Lolo Soetoro, a citizen of Indonesia, and moved Appellee to Indonesia.

Appellees Indonesian stepfather, Lolo Soetoro, adopted or legally

acknowledged Appellee Barack H. Obama making him a natural citizen of

Indonesia and giving him the legal name of Barry Soetoro. See the Asian

Law Digests INDONESIA LAW DIGEST 4.02, Citizenship, section (viii)

and Asian Law Digests INDONESIA LAW DIGEST 13.04, Infants.

Appellee was enrolled, by his parent, Lolo Soetoro, in a public school,

Fransiskus Assisi School in Jakarta, Indonesia. Attached to the Appendix as

EXHIBIT 4, is the school record of Appellee, Barack Hussein Obama. It

clearly states his name is Barry Soetoro and lists his citizenship as

Indonesian. His father is listed as Lolo Soetoro, his date of birth and place

of birth are listed as August 4, 1961 in Hawaii, and his Religion is listed as

Islam. This document was verified by Inside Edition, whose reporter, Matt

Meagher took the actual footage of the school record. At the time Appellee

was registered in public school, the public schools obtained and verified the

citizenship status and name of the student through the Indonesian

Government. All Indonesian students were required to carry government

identity cards, or Karty Tanda Pendudaks, as well as family card



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identification called aKartu Keluarga. TheKartu Keluarga is a family card

which bears the legal names and citizenship of all family members. See the

Asian Law Digests INDONESIA LAW DIGEST 9.02.

The only way Appellee could have obtained the name of Barry

Soetoro and the citizenship of Indonesian is if his step-father, Lolo Soetoro

adopted him or legally acknowledged Barack Hussein Obama as his son.

Either way, he became a natural citizen of Indonesia.

Under the laws of Indonesia, whether a child is adopted or legally

acknowledged, it changes the citizenship status of the child to an Indonesian

State Citizen of Indonesia. See the Constitution of Republic of Indonesia,

Law No. 62 of 1958 concerning Immigration Affairs and Indonesian Civil

Code (Kitab Undang-undang Hukum Perdata) (KUHPer) (Burgerlijk

Wetboek voor Indonesie); the Asian Law Digests INDONESIA LAW

DIGEST 4.02, Citizenship, section (viii) and the Asian Law Digests

INDONESIA LAW DIGEST 13.04, Infants.

Appellee, Barack Hussein Obama could not have attended the public

school system in Indonesia, which he did, unless he was an Indonesian

citizen. Whenever a child was enrolled in a public school in Indonesia, as

Appellee, Barack Hussein Obama, was, the school contacted the Indonesia

Government and verified the childs name and citizenship status. See



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Constitution of Republic of Indonesia (Undang-Undang Dasar Republik

Indonesia 1945), Chapter 13, Law No. 62 of 1958 (all citizens of Indonesia

have a right to education); and the Constitution of Indonesia of 1945,

Chapter XIII. Education Article 31.

The Indonesian citizenship law was designed to prevent apatride

(stateless) and bipatride (dual citizenship). Indonesian regulations recognize

neither apatride nor bipatride citizenship.

In addition, the United States Nationality Act of 1940 provided for the

loss of citizenship when a child became naturalized in a foreign country

upon the naturalization of his or her parent having custody of such child.

In or about 1971, Appellees mother sent him back to Hawaii.

Appellee was ten (10) years of age upon his return to Hawaii. At this time,

Appellee would have had to go through United States Immigration to

become a naturalized citizen of the United States. Even if Appellee could

have regained any United States citizenship status, he would have had to go

through the United States State Department, where there would be a record.

Appellees mother, Stanley Ann Dunham Soetoro and Lolo Soetoro

divorced in or about August 1980. In their divorce papers they claim to be

married and have two [2] children of the marriage, one [1] under the age of

eighteen [18] which would be Maya Soetoro and one over the age of



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eighteen [18], still dependant on the parties for education, which would have

been Appellee, Barack Hussein Obama. See the Soetoro Divorce decree

attached to the Appendix as EXHIBIT 51.

Appellant has been unable to locate any record of Appellee legally

changing his name from Barry Soetoro back to Barack Hussein Obama.

Therefore, Appellees legal name is still today, Barry Soetoro. Moreover,

Appellant has been unable to locate any immigration records for Barry

Soetoro and/or Barack Hussein Obama. To this date, Appellee, Barack

Hussein Obama is still an Indonesian Citizen and an Illegal Alien.

If Appellee, Barack Hussein Obama could have regained any U.S.

citizenship, he may have had and lost upon his mothers re-marriage and

relocation to Indonesia and the adoption and/or legal acknowledgement of

Lolo Soetoro acknowledging him as his son, when he reached eighteen (18)

years of age, he would have had to file a sworn Affidavit with the

Indonesian Government relinquishing his Indonesian Citizenship and go

through the United States State Department, take the Oath of Allegiance,

which would have had to be done by age twenty-one [21]. See the Asian

Law Digests INDONESIA LAW DIGEST 4.02, Citizenship.

1 Soetoro v. Soetoro, First Circuit Family Court, State of Hawaii, F.C.D. No 117619 (1980)



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In order to regain any U.S. citizenship status, if entitled, Appellee,

Barack Hussein Obama, would have had to make application to the United

States State Department to regain his citizenship status, if granted, he would

bear a Certificate of Citizenship. The same would have occurred if Appellee

would have gone through Immigration and became a naturalized U.S.

Citizen.

The Appellant is also informed, believes and thereon alleges that

Appellee, Barack Hussein Obama, attended Occidental College in California

and Columbia University wherein he claimed to be a foreign student.

Appellant has been unable to verify this with the Universities as the records

have since been sealed.

Appellant has also been unable to locate a legal name change wherein

Barry Soetoro legally changed his name to Barack Hussein Obama.

Therefore, Barry Soetoro is still his legal name and his legal citizenship

status is Indonesian. Hence, Appellee Barack Hussein Obama usurped the

Office of United States Senator for Illinois, knowing he was ineligible.

Moreover, Appellee filed false claims with the United States Government

claiming to be Constitutionally qualified for his Senate position and filed

false claims in order to obtain payment from the United States and the



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Treasury Department for his salary and expenses to which he was not

entitled.

The Government was supplied with this information as well as Barry

Soetoro a/k/a Barack Hussein Obamas Indonesian School Record. Barry

Soetoro a/k/a Barack Hussein Obama has admitted he attended school in

Indonesia and talked about his life in Indonesia on national Television.

What investigation has the Government done into these issues?

As stated above, Barack Hussein Obama is a lawyer who claims to be

a Constitutional lawyer [he states he taught Constitutional Law for ten

(10) years] and was well aware he was not qualified to hold the Office of the

United States Senator of Illinois. Furthermore, he signed governmental

paperwork to obtain his position and obtain the pay and related expenses for

said position claiming to be a naturalized U.S. citizen and Constitutionally

qualified for the position. He obtained money from the United States

Government and the Treasury Department based on his false claims.

The Government rarely moves to dismiss a Qui Tam Complaint; it can

simply decline to intervene in the action, thereby limiting expenditure of

governmental prosecutorial resources while preserving the outside chance

the action may be successfully pursued by the Relator. Two [2]

commentators argue that the inactivity of the Government in a declined Qui



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Tam case may constitute a violation of the Governments contractual duty of

good faith and fair dealing. See John Chierichella & Louis Victorino, A Qui

Tam Conundrum; When Relators Suit Lacks Merit, What is Governments

Duty to the Contractor? Legal Times (February 28, 2000), at 30-31.

Despite the evidence presented, The Government moved to Dismiss

the Qui Tam action claiming the Appellants claims lacked merit. The

Appellant clearly established a genuine question into the legality of Barack

Hussein Obama serving as United States Senator of Illinois. The Appellant

is unsure as to Appellees legal name and citizenship status. With this said,

pursuant to Article II, Section 3 of the United States Constitution, the

Government has a duty to ensure our laws are upheld, which also include

our Constitutional laws. The dismissal of Appellants Qui Tam (FCA)

Action by the Government is in clear violation of their duties pursuant to

Article II, Section 3 of the U.S. Constitution and should NOT be allowed.

B. APPELLANT WAS ENTITLED TO THE DISCOVERY USED

IN THE GOVERNMENTS DECISION TO DISMISS

APPELLANTS QUI TAM(FCA) ACTION

Appellant furnished the Government and the Lower Court with the

evidence pointing to the fact Appellee, Barack Hussein Obamas legal name

is Barry Soetoro and the fact he is an Indonesian citizen.



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In addition, Appellant raised the issue pertaining to Appellees

college records wherein Appellant is informed, believes and thereon alleges

Appellee attended Occidental College in California and Columbia

University as a foreign student.

The government has not refuted any of the above. This leads to the

question of what did the government investigate?

Has the Government located any citizenship records for Barry Soetoro

a/k/a Barack Hussein Obama?

Has the Government located any legal documents legally changing

Barry Soetoros name to Barack Hussein Obama?

Appellant has clearly shown a substantial threshold entitling him to

discovery relating to the Governments prosecutorial decision to seek

dismissal of the Relators False Claim Action [Qui Tam]. See Swift v. United

States, 318 F.3d 250, 254 (D.C. Cir. 2003).

Information filed or gathered by the Government relating to its

decision whether to intervene has been held non-exempt from disclosure. In

United States ex rel. Mikes v. Strauss, 846 F.Supp. 21 (S.D.N.Y. 1994) the

Court denied the Governments Motion to retain the documents filed in

relation to the Governments investigation of a Qui Tam Complaint under

seal.



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Although the Appellant raised these issues, the Lower Court failed to

address the issues. Thus, the District Court erred and/or abused its

discretion by failing to address the issue of Discovery.

C. THE GOVERNMENT HAD AND HAS A CONFLICT-OF-

INTEREST IN LITIGATING THE QUI TAM (FCA) ACTION

AGAINST OUR NOW SITTING PRESIDENT, BARACK

HUSSEIN OBAMA, and THEREFORE, A SPECIAL

PROSECUTOR SHOULD HAVE BEEN APPOINTED

This Qui Tam (FCA) Action is very unique. Appellee, Barack

Hussein Obama is now our acting President of the United States. Appellee

Obama appointed Eric Holder for the position of the United States Attorney

General and Mr. Holder reports directly to Appellee Obama. This creates a

huge Conflict-Of-Interest with anyone from U.S. Attorney General Eric

Holders Office or the U.S. Department of Justice, who Eric Holder over-

sees, having any association with the Qui Tam matter against, now,

President Obama, the Appellee herein.

Review of these proceedings to decide to prosecute rests with the

United States Attorney General Eric Holder who reports directly to the

alleged violator; gives opinions and legal advice to the alleged violator; was

senior legal advisor to Appellee Barack H. Obamas Presidential campaign;

and served as one of three [3] members on Appellee Obamas Vice-



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Presidential Selection Committee and thus a major Conflict-of-Interest

exists.

There are four [4] Federal Statutory prohibitions and related

regulations addressing Conflicts-Of-Interest on the part of present officers or

employees of the Federal (and in some instances of the District of Columbia)

government. None of the statutory prohibitions are limited in application

solely to lawyers. The conflicts dealt with by the several provisions are, in

each instance, conflicts between public responsibilities and private interests.

All of the statutory provisions are found in Chapter 11 (Bribery, Graft and

Conflicts of Interest) of Title 18 of the United States Code, the Federal

Criminal Code.

There are statutory restrictions on Conflicts-of-Interest during

Government Service. There are four [4] statutory provisions regarding

conflicts between governmental responsibilities and private interests of

government employees, all of which apply to employees of the District of

Columbia as well as the federal government, two [2] of which apply in this

case and are as follows:

A prohibition on certain representational activities relating to

claims against and other matters affecting the government, 18USC 205.



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they are violating the law or the ethical standards set forth in this part.

Whether particular circumstances create an appearance that the law or these

standards have been violated shall be determined from the perspective of a

reasonable person with knowledge of the relevant facts(c) Related

statutes. In addition to the standards of ethical conduct set forth in this part,

there are conflict of interest statutes that prohibit certain conduct. Criminal

conflict of interest statutes of general applicability to all employees, 18

U.S.C. 201, 203, 205, 208, and 209, are summarized in the appropriate

subparts of this part and must be taken into consideration in determining

whether conduct is proper. Citations to other generally applicable statutes

relating to employee conduct are set forth in subpart I and employees are

further cautioned that there may be additional statutory and regulatory

restrictions applicable to them generally or as employees of their specific

agencies. Because an employee is considered to be on notice of the

requirements of any statute, an employee should not rely upon any

description or synopsis of a statutory restriction, but should refer to the

statute itself and obtain the advice of an agency ethics official as needed.

As to the restrictions on Conflicts-Of-Interest during government

service, only section 208 is illuminated by formal regulations, which are



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found in the Code of Federal Regulations (CFR), 5 CFR 2635 and in 5

CFR Part 2640. 5 CFR 2635.501(a) states in pertinent part:

An employee who is concerned that other circumstances wouldraise a question regarding his impartiality should use the process

described in 2635.502 to determine whether he should or should notparticipate in a particular matter. See also 18 U.S.C. 208(a).

5 CFR 2635.502 states in pertinent parts, (a) where the employee

determines that the circumstances would cause a reasonable person with

knowledge of the relevant facts to question his impartiality in the matter, the

employee should not participate in the matter (b) Definitions. For

purposes of this section: participate in a particular matter(iv) Any person

for whom the employee has, within the last year, served as officer, director,

trustee, general partner, agent, attorney, consultant, contractor or employee.

5 U.S.C. 2640.103 Prohibition states:

(a) Statutory prohibition. Unless permitted by 18 U.S.C. 208(b)(1)(4), an employee is prohibited by 18 U.S.C. 208(a) from

participating personally and substantially in an official capacity in

any particular matter in which, to his knowledge, he or any other

person specified in the statute has a financial interest, if the particularmatter will have a direct and predictable effect on that interest. The

restrictions of 18 U.S.C. 208 are described more fully in 5 CFR2635.401 and 2635.402.

(1) Particular matter. The term particular matter includes only

matters that involve deliberation, decision, or action that is focusedupon the interests of specific persons, or a discrete and identifiable

class of persons. The term may include matters which do not involveformal parties and may extend to legislation or policy making that is

narrowly focused on the interests of a discrete and identifiable class



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of persons. It does not, however, cover consideration or adoption ofbroad policy options directed to the interests of a large and diverse

group of persons. The particular matters covered by this part include

a judicial or other proceeding, application or request for a ruling or

other determination, contract, claim, controversy, charge, accusationor arrest.

(2) Personal and substantial participation. To participate

personally means to participate directly. It includes the direct

and active supervision of the participation of a subordinate in

the matter. To participate substantially means that the employee'sinvolvement is of significance to the matter. Participation may be

substantial even though it is not determinative of the outcome of

a particular matter. However, it requires more than official

responsibility, knowledge, perfunctory involvement, or involvementon an administrative or peripheral issue. A finding of substantiality

should be based not only on the effort devoted to the matter, but alsoon the importance of the effort. While a series of peripheral

involvements may be insubstantial, the single act of approving or

participating in a critical step may be substantial. Personal and

substantial participation may occur when, for example, an

employee participates through decision, approval, disapproval,

recommendation, investigation or the rendering of advice in a

particular matter. [emphasis added]

(3)Direct and predictable effect. (i) A particular matter will have adirect effect on a financial interest if there is a close causal link

between any decision or action to be taken in the matter and any

expected effect of the matter on the financial interest. An effect may

be direct even though it does not occur immediately. A particularmatter will not have a direct effect on a financial interest, however, if

the chain of causation is attenuated or is contingent upon theoccurrence of events that are speculative or that are independent of,

and unrelated to, the matter. A particular matter that has an effect ona financial interest only as a consequence of its effects on the general

economy does not have a direct effect within the meaning of thispart.

(ii) A particular matter will have a predictable effect if there is a

real, as opposed to a speculative, possibility that the matter will



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affect the financial interest. It is not necessary, however, that themagnitude of the gain or loss be known, and the dollar amount of the

gain or loss is immaterial.

Eric Holder joined President Obamas Presidential Campaign as

Senior Legal Advisor and also served as one of three [3] members on

Obamas Vice-Presidential Selection Committee. December 2008, then

President-Elect Obama asked Eric Holder to serve in his Cabinet as the

United States Attorney General. See the Appendix EXHIBIT 6.

Mr. Holder was appointed by President Obama and now serves as the

United States Attorney General whom is the head of the United States

Department of Justice and United States Attorney Generals Office. Eric

Holder is paid by the United States Government and reports directly to,

Appellee President Obama. Eric Holder has a direct financial interest in

that he draws a salary based on his position as United States Attorney

General.

Furthermore, the Conflict-Of-Interest goes beyond financial. The

United States Attorney General is the Chief Law Enforcement Officer of the

Federal Government and represents the United States in legal matters and

gives advice and opinions to the President of the United States, whom is the

Appellee herein. See the Appendix EXHIBIT 7.



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D. THE DISTRICT COURT ERRED IN DENYING THE

APELLANTS MOTION FOR RECONSIDERATION

Rule 59 is a procedural device and is therefore applicable in all federal

cases, except in certain limited circumstances. See generally Ch. 124, The

Erie Doctrine and Applicable Law).

A court may grant a Rule 59(e) motion only when it finds an

"intervening change of controlling law, the availability of new evidence, or

the need to correct a clear error or prevent manifest injustice." Firestone v.

Firestone, 316 U.S. App. D.C. 152, 76 F.3d 1205, 1208 (D.C. Cir. 1996)

(per curiam) (internal quotations and citations omitted ). Dawson v. Wal-

Mart Stores, Inc., 978 F.2d 205, 206 (5th Cir. 1992) (federal rules govern

Fed. R. Civ. P. 59 determination) Still v. Towsend, 311 F.2d 23, 24 (6th Cir.

1962) (motion for new trial based on newly discovered evidence is

determined by federal not state law); Womble v. J.C. Penney Co., Inc., 431

F.2d 985, 989 (6th Cir. 1970) (citing Moore's, court held that federal rules

apply to question of jury misconduct for purpose of granting or denying new

trial).

The Supreme Court has stated that Rule 59(e) is generally invoked

"only to support reconsideration of matters properly encompassed in a



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decision on the merits." White v. New Hampshire Dep't of Employment Sec.,

455 U.S. 445, 451, 102 S. Ct. 1162, 71 L. Ed. 2d 325 (1982).

Re-examination clause does not limit trial judge's authority. Fed. R.

Civ. P. 59(a); Gasperini v. Center for Humanities, 518 U.S. 415, 432-433,

116 S. Ct. 2211, 135 L. Ed. 2d 659 (1996) (citing Moore's, discussing

applicable analysis in re-examination clause cases presenting countervailing

federal interests).

Although Motions for Reconsideration are to be filed within ten [10]

days upon Entry of Judgment, there is an exception to the rule, its the Rule

60(a) exception. See Burnham v. Amoco Container Co., 738 F.2d 1230,

1231-1232 (11th Cir. 1984).

Appellant timely filed his motion pursuant to Federal Rules of Civil

Procedure, Rule 59(e) and presented new evidence and new laws therein.

Therefore, all criteria for reconsideration of the District Courts

Dismissal of the Qui Tam (FCA) Action had been met. The District Court

erred and/or abused its discretion by denying Appellants Motion for

Reconsideration.



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E. CONCLUSION

For the reasons stated herein, the Lower Court must be over-turned, a

Special Prosecutor appointed and the case must be allowed to go forward.

Respectfully submitted,

Dated: February 16, 2010 ___________________________Philip J. Berg, Esquire


Ph: (610) 825-3134Fx: (610) 834-7659




s/ Philip J. Berg



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IDENTICAL PDF and HARD COPY CERTIFICATE

The Undersigned hereby certifies that the PDF file and hard copies of

this Brief are identical.

Dated: February 16, 2010 ______________________________



behalf of the Government of the

United States

VIRUS SCAN CERTIFICATE

This e-mail and the attached Brief have been automatically scanned

during preparation and upon sending by the following virus detection

programs: Norton Anti-Virus Software Program, and no viruses were

detected.

Dated: February 16, 2010 ______________________________




s/ Philip J. Berg

s/ Philip J. Berg



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CERTIFICATE OF COMPLIANCE

This Brief complies with the type-volume limitation of Fed. R. App.

P. 32(a)(7)(B) because this Brief contains 6,090 words excluding the parts of

the Brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

This Brief complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because

this brief has been prepared in a proportionally spaced typeface using

Microsoft Word Office Professional (2000) in font 14, Times New Roman.

Dated: February 16, 2010 ______________________________




s/ Philip J. Berg



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CERTIFICATE OF SERVICE

I, Philip J. Berg, Esquire hereby certify that Appellants Brief and

Appendix Volume I were served upon the Government via electronic filing

on the ECF system, this 16th day of February 2010, upon the following:

Eric Fleisig-Greene, Esquire

U.S. Department of Justice

DOJ Civil Division Appellate StaffRoom 7214

950 Pennsylvania Avenue, NWWashington, DC 20530-0001


R. Craig Lawrence

United States Attorneys OfficeCivil Division

U.S. Department of Justice

555 Fourth Street N.W.Washington, D.C. 20530


Mark B. Stern

U.S. Department of JusticeDOJ Civil Division, Appellate Staff

950 Pennsylvania Avenue, NWWashington, D.C. 20530-0001


Attorneys for Appellees Barack Hussein Obama and the Government



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