berg|fca - 09 - gov motion to dismiss case (03/26/2009)

8/14/2019 Berg|FCA - 09 - GOV Motion to Dismiss Case (03/26/2009)

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IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICAEXREL.PHILLIP J. BERG,

Plaintiff,

v.BARACKHUSSEIN OBAMA, JR.,

Defendant.

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Civ. No. 1:08-1933 (RWR)UNDER SEAL

UNITED STATES' SUGGESTION OF DISMISSALThe United States ofAmerica, through its undersigned counsel, respectfully submits this

suggestion of dismissal, seeking the dismissal of this action pursuant to 31 U.S.C. 3730(c)(2)(A) of the False Claims Act (FCA), 31 U.S.C. 3729-3733, in the exercise ofprosecutorial discretion.

BACKGROUNDRelator, Philip J. Berg, filed this complaintpro se under seaP on or aboutNovember 7,

2008, pursuant to the FCA, 31 U.S.C. 3730. The FCA is the government's primary tool forrecovering money lost from the United States Treasury due to fraud. Its qui tam provisionspermit a private person, "a relator," to file an action on behalfof the United States to recover theUnited States' damages in exchange for a bounty of up to 30% of any eventual recovery. See id.

1Relator appears to have then breached the seal by posting on his website a list of histhree lawsuits against President Obarna, which states in part: "Berg v. Obarna, U.S. DistrictCourt, Case filed under seal on 11107/08 - cannot be discussed. Berg filed Motion to UnsealDenied. Response due April 2009." See http://www.obamacrimes.info/.


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The United States may elect to intervene in the action and assume primary responsibility for thelitigation, or it may decline to intervene, which allows the relator to pursue the action on theUnited States' behalf. 31 U.S.C. 3730(b)(2), (c). The United States also retains the authorityto dismiss an action when dismissal is in the interests of the United States. Id. 3730 (c)(2)(A)("The Government may dismiss the action notwithstanding the objections of the person initiatingthe action if the person has been notified by the Government of the filing of the motion and thecourt has provided the person with an opportunity for a hearing on the motion.")

Mr. Berg alleges in his lawsuit that President Barack Obama defrauded the United Statesby taking his Senate salary when he did not meet the citizenship requirements to hold a Senateseat. He has made similarallegations in other proceedings. See, e.g., Berg v. Obama, 574 F.Supp. 2d 509 (E.D. Pa. 2008). The Department of Justice has reviewed the relator's allegations,determined that they lack merit, and concluded that they therefore should not be pursued on theUnited States' behalfagainst its sitting President. See generallyMemorandum Ruling, Hollisterv. Soetoro, Civ. No. 08-2254 (JR), slip op. at I (D.D.C. Mar. 5,2009) (attached hereto as ExhibitA) (concluding with respect to another lawsuit by a straw plaintifffor Mr. Berg with substantiallythe same allegations: "This case, if it were allowed to proceed, would deserve mention in one ofthose books that seek to prove that the law is foolish or that America has too many lawyerswithout enough to do. Even in its relatively short life the case has excited the blogosphere andthe conspiracy theorists. The right thing to do is to bring it to an early end.").

ARGUMENTThe Court ofAppeals has recognized that 31 U.S.C. 3730(c)(2)(A) gives the United

States "virtually 'unfettered' discretion" to dismiss a qui tam suit, including, as here, before the

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United States has made its election whether to intervene. See United States ex rei. Hoyte v.American National RedCross, 518 F. 3d 61, 65 (D.C. Cir. 2008); Swift v. United States, 318F.3d 250, 251-54 (D.C. Cir. 2003). By affording qui tam relators an opportunity for a hearing ifthey request one, section 3730(c)(2)(A) gives relators the chance to try to convince the UnitedStates to change its mind but gives the Court no role in second-guessing the United States'exercise of its prosecutorial discretion. See Hoyte, 518 F.3d at 65; Swift, 318 F.3d at 253. TheCourt of Appeals has explained: "Nothing in 3730(c)(2)(A) purports to deprive the ExecutiveBranch of its historical prerogative to decide which cases should go forward in the name of theUnited States." Swift, 318 F. 3d at 253. In the exercise of its discretion, the United States hasdetermined that this action should not proceed.

CONCLUSIONFor the foregoing reasons, we respectfully request that the relator be afforded an

opportunity for a hearing if he so requests and this action then be dismissed.Respectfully submitted,MICHAEL F. HERTZ, DC Bar #261495Acting Assistant Attorney GeneralCivil Division

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/ s / , ~KEITH v. ME' GAN, DC Bar #422665Assistant U ed States Attorney555 4th Street, N.W., Rm 10113Washington, D.C. 20530(202) 514-7228

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UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLUMBIA

GREGORY S. HOLLISTER,P la in t i f f ,

v.BARRY SOETORO, e t al . ,

Defendants.

Civ i l Action No. 08-2254 (JR)

MEMORANDUM

This case , if it were al lowed to proceed , would deservemention in one of those books t h a t seek to prove t h a t the law i sfoo l i sh or t h a t America has too many lawyers with not enough todo. Even in i t s re l a t ive ly shor t l i f e the case has exci ted theblogosphere and the conspiracy t h eo r i s t s . The r i gh t th ing to dois to b ring it to an ear ly end.

The p l a i n t i f f says t h a t he i s a r e t i r ed Air Forceco lone l who cont inues to owe fea l ty to h is Commander-in-Chief(because he might poss ib ly be reca l l ed to duty) and who i sto r tu red by uncer ta in ty as to whether he would have to obeyorders from Barack Obama because it has no t been p rov en - - to theco lone l ' s sa t i s fac t ion - - t h a t Mr. Obama i s a nat ive-bornAmerican c i t i zen , qua l i f i ed under the Cons t i tu t ion to bePresident . The i s sue of the P r e si de n t' s c i ti ze n sh ip was ra i sed ,ve t t ed , blogged, t ex ted , twi t t e red , and otherwise massaged byAmerica 's v ig i l an t c it i ze n ry dur ing Mr. Obama's two-year-campaign


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fo r the p re sid en cy , b ut t h i s p l a i n t i f f wants it resolved by acour t .

The r ea l p l a i n t i f f i s probably Phi l ip J . Berg, a lawyerwho l ives in L afa ye tte Hil l , Pennsylvania , and who has pursuedh is c ru sade e ls ewhe re , see Berg v. Obama, 574 F. Supp. 2d 509(E.D. Pa. 2008), invoking the c i v i l r igh t s s t a t u t e s , the FederalElect ion Campaign Act, the Freedom of Informat ion Act, theImmigrat ion and Nat ional i ty Act, and the law of promissoryes toppe l . That case was th e su bjec t of a scho lar ly opinion by ajudge who took Mr. Berg 's claims ser ious ly - - and dismissed them.Mr. Hol l i s t e r i s apparent ly Mr. Berg 's fa l lback brains torm,essen t i a l ly a straw p l a i n t i f f , one who could tee Mr. Berg 'sna t ive -born i s sue up fo r decis ion on a new theory: I f some~ v a l u e " could be ass igned to the ~ d u t i e s " the p l a i n t i f f th inks hemight someday be ca l l ed upon to f u l f i l l under the Commander-inC hief, then those ~ d u t i e s " could be d ep os i te d in the reg i s t ry oft h i s Court as the res whose d i s t r i bu t i on i s to be decided by asu i t in in te rp leader!

The f i l ing and se rv ice of the complaint requi redp r iva t e counsel to appear fo r President Obama and fo r VicePres iden t Biden (whose c i t i zensh ip i s not c ha lle ng ed b ut who was

presumably cons idered a necessary par ty in a su i t seeking tounsea t the Pres iden t ) . Those counse l have moved to dismiss ,asser t ing both t ha t t h i s Court has no j u r i sd i c t ion (Rule

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12(b) (1)) and t ha t th e p l a i n t i f f has s ta ted a claim fo r whichr e l i e f cannot be gran ted (Rule 12(b) (6)) .

P la in t i f f having invoked both dive r s i t y and the fed era lin te rp leader s t a t u t e , 28 U.S.C. 1355, I do have j u r i sd i c t ion .Because p l a i n t i f f ' s o nly c laim invokes the i n t e rp l eade r s t a tu t e ,however, the s u i t must be dismissed fo r f a i l u re to s t a t e a claim.

I have al ready ca l l ed the i n t e rp l eade r claimQfrivolous" in two i n t e r locu to ry rUl ings [#10 and #14J, and I doso again here . As the defendants noted in t h e i r motion todismiss , Qinte rp leader al lows a par ty exposed to m ult ip le claimson a s ing le ob l iga t ion o r p ro pe rty to se t t l e th e c on tro ve rs y andsa t i s fy h is obl iga t ion in one proceeding." Commercial Union Ins .Co . v. U.S. , 999 F.2d 581, 583 (D.C. Cir . 1993) . I t i s typica l lyused in in su ra nc e c as es where the p l a i n t i f f holds proper ty onbehal f of another but does not know to whom among seve ra l adversepa r t i e s the proper ty should be t r an s fe r red [#9 a t 8J . Resor t toin te rp leader i s i nappropr ia t e when it Qis sought fo r improper oru l t e r i o r purposes . " Wright & Mil le r 1707 (3d ed . 2001).

P l a i n t i f f has not c i t ed a s ing le case t ha t lends evencolorable suppor t to the not ion t ha t h is a lleg ed Qduties" can bethe Qmoney or proper ty" to which the i n t e rp l eade r s ta tu teapp l ies . The i n t e rp l eade r su i t s he c i t e s a re a l l about money ort an g ib le p ro p er ty : American Fide l i ty Fi re Ins . Co. v.Const rucc iones Werl, Inc . , 407 F. Supp 164 (D. V.I . 1975) i s

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about contes ted HUD monies; Underwri ters a t Lloyd ' s v. Nichols ,363 F.2d 357 (8th Cir . 1966), i s about i ns u ran ce p ro ce ed s; Dunbarv. United Sta t e s , 502 F.2d 506 (5th Cir . 1974) i s about moneyse ized from the mails . The only in te rp leader case p l a i n t i f fc i t e s t h a t involves a "duty" i s Bank of Neosho v . Colcord, 8F.R.D. 621 (W.D. Mo. 1949) (Complaint , para . 12) , an inappos i tedecis ion dec l in ing to s t r ike a cross-c la im fo r spec i f i cperformance in an i n t e rp l eade r case t h a t began, as i n t e rp l eade rcases do, with the depos i t of funds. This su i t wi l l accordinglybe dismissed .

Mr. Berg and Lawrence J . Joyce, an a t to rney who l ivesin Tucson, Arizona, s igned the complaint in t h i s case . (Theyhave been f i l ing e l ec t ron i ca l l y al though they have not beenadmit ted pro hac v ice , see [#10].) They are agentsprovocateurs - - and any a t t empt to sanc t ion them fo r misuse ofthe p ub lic and p r iva t e resources t ha t have had to be devoted tot h i s case would only give them a forum to cont inue t h e i rprovocat ion . John D. Hemenway, on the other hand, i s a member ofthe Bar of t h i s Court . He may have been en l i s t ed by Messrs. Bergand Joyce as a foot so ld i e r in t he i r crusade, bu t he i snever the les s di rec t ly r espons ib le to t h i s Cour t fo r the pleadingst h a t have been f i l ed on beha l f of the p l a i n t i f f . Because itappears t ha t the complaint in t h i s case may have been presentedfo r an improper purpose such as to h arass; and t ha t the

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i n t e rp leader cla ims and o the r l ega l c on te ntio ns o f p l a i n t i f f arenot warranted by ex i s t i ng law or by non- f r ivo lous arguments fo rextending, modifying o r re ve rs in g ex i s t i ng law or fo re s t ab l i sh ing new law, the accompanying order of d ism issa lr equ i r es Mr. Hemenway to show cause why he has not v io l a t ed Rules11 (b) (1) and 11 (b) (2) of th e Federa l Rules of Civ i l Procedure ,and why he should not be req uired to pay reasonable a t to rneysfees and othe r expenses to counsel fo r th e d ef en da nts .

JAMES ROBERTSONUnited Sta tes Dis t r i c t Judge

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on t h i ~ Y of March, a true and correct copy of theabove and foregoing United States' Suggestion of Dismissal and its proposed order were mailedby first-class mail to counsel for the pro se relator in this action:

Philip J. Berg, Esq.555 Andorra Glen Court, Suite 12

Lafayette Hill, PA 19444

Because this action is under seal pursuant to 31 U.S.C. 3729, et seq., defendant has notbeen served with a copy of the foregoing.

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berg|fca - 09 - gov motion to dismiss case (03/26/2009)

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