Berg v. Obama Update -- Monday, October 6

TWO FILINGS: Berg Files Motion for Leave to File Amended Complaint, Obama and DNC File Motion to Delay Discovery Until Judge Decides on Prior Motion to Dismiss

It was a busy day in the Eastern District of Pennsylvania today. First, attorney Philip Berg filed a motion asking the court to permit him to file an amended complaint with several additions. Next, attorneys for Barack Obama and the DNC filed a motion asking the court for a protective order, essentially asking that the judge rule on their motion to dismiss for lack of standing before ruling on Berg's motion for expedited discovery.

Analysis of both filings can be found below.

Incidentally, for those seeking background on the civil action first broken wide open here at America's Right, everything is located on the right-hand side of the page under the "Berg v. Obama @ America's Right" heading, and the original article which started it all can be read by clicking HERE.

-- Jeff


Obama, DNC File Motion for Protective Order

Today, attorneys for Barack Obama and the Democratic National Committee filed a Motion for Protective Order, essentially asking Judge R. Barclay Surrick to issue an order staying discovery until after he decides on the motion to dismiss filed by the defendants on September 24. Such protective orders are issued, and are done so to protect the interests of involved parties, namely to avoid embarrassment, undue expense, harassment and more.

The motion had been filed at about 4:45p.m. today and as I was talking with one of my contacts at the courthouse about it, my mobile phone rang. It was Philip Berg ... a very fired-up, angry Philip Berg. Apparently, he had just been contacted by John LaVelle, attorney for Barack Obama and the DNC, and asked whether he would "put off discovery until Judge Surrick ruled on the motion to dismiss."

Basically, the law states that Judge Surrick can order discovery even in the face of a pending dispositive motion such as the motion to dismiss filed on September 24 by Obama and the DNC. In other words, he can order full discovery, limited discovery, or none at all before ruling on the dismissal. The Motion for Protective Order filed by Obama and the DNC, however, asks for the court to issue a protective order stopping "all discovery in this action pending the Court's decision on defendant's motion to dismiss the action for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted."

Plaintiff has served extensive discovery requests on defendants. As noted in Defendants’ Brief in Support of their Motion to Dismiss, this lawsuit is entirely without merit and plaintiffs’ allegations are patently false. Defendants have moved to dismiss this action for lack of subject matter jurisdiction and failure to state a claim. That motion presents solely issues of law; no discovery is needed in order to resolve the motion. If the motion is granted, it will dispose of the entire action, obviating the need for the burdensome discovery sought by plaintiff. A protective order staying discovery is therefore warranted.

Just like with the amended complaint, an attorney cannot simply file a protective order but must file a motion for one, essentially asking the court to issue the order. That's what this is -- a motion asking the judge to issue a protective order which would allow for a ruling to come down on the motion to dismiss before the commencement of any discovery.

Obviously the first reaction is "what do they have to hide?" or something along those lines. However, Rule 26(c) of the Federal Rules of Civil Procedure provides authorization to the court for just such a matter, ostensibly to protect one of the parties from embarrassment or oppression or the like. I'm sure there's some case law on it as well. In spite of the rules, Berg suspected foul play.

"He's asking to delay discovery and, Jeff, I'm obviously going to oppose it, " he said. "This isn't right. This just isn't right. By tomorrow, we'll have a response and put out a press release. The American people should hear about this and, if they do, they should go nuts. It's time to put up or shut up."

Obama and the DNC, in the brief supporting today's Motion for Protective Order, cite the "burdensome discovery" sought by Berg. Berg did in fact submit more than 50 admissions requests to both Obama and the DNC, seeking an admission on everything from "[a]dmit you are an attorney who specializes in Constitutional Law" to "[a]dmit the only time you have been to a hospital in Hawaii was for check-ups or medical treatments for illnesses" to "[a]dmit you were born in Kenya," and his request for production of documents seeks everything from Obama's "vault" copy of his birth certificate to his transcript and records at Occidental College.

Speaking with Berg later this afternoon, he mentioned that he may agree to stay discovery with regard to some of his requests for admissions and documentation, but keep "about 10 of the necessary admissions" and "crucial documentation like his vault birth certificate and oath of allegiance" in play for discovery should it be granted.

"First," Berg said, "I will object completely, but then we'll provide Judge Surrick with the option of limited documents and admissions."

This evening, Berg put out a press release entitled "Country Headed to a Constitutional Crisis." Here it is:

(Lafayette Hill, Pennsylvania – 10/06/08) - Philip J. Berg, Esquire, the Attorney who filed suit against Barack H. Obama challenging Senator Obama’s lack of “qualifications” to serve as President of the United States, announced today that Obama and Democratic National Committee [DNC] filed a Joint Motion for Protective Order to Stay Discovery Pending a Decision on the Motion to Dismiss they filed on 09/24/08.

While legal, Berg stated he is “outraged as this is another attempt to hide the truth from the public; it is obvious that documents do not exist to prove that Obama is qualified to be President.” The case is Berg v. Obama, No. 08-cv-04083.

Their joint motion indicates a concerted effort to avoid the truth by attempting to delay the judicial process, although legal, by not resolving the issue presented: that is, whether Barack Obama meets the qualifications to be President.

It is obvious that Obama was born in Kenya and does not meet the “qualifications” to be President of the United States pursuant to our United States Constitution. Obama cannot produce a certified copy of his “Vault” [original long version] Birth Certificate from Hawaii because it does not exist.

Furthermore, and actually more important is Obama’s Certificate of Citizenship that he received when he returned from Indonesia, as if it exists it would indicate that Obama was “naturalized” and also not able to be President.

The DNC has promised “we the people” an Open and Honest Government and has promised to uphold our United States Constitution. The DNC has failed their promise. DNC Chairperson Howard Dean should resign as he has not and is not fulfilling his responsibility of seeing that a “qualified” candidate is on the ballot as the Democratic candidate for President of the United States.

A response to the Motion for Protective Order should be expected, Berg said, within the next day or two. I have a hunch that the next few days will bring an order of some sort from Judge Surrick. With the three open motions now pending, perhaps he will address all of them at once.

9:00 a.m. -- Berg Files Motion for Leave to File Amended Complaint

This morning, prominent Philadelphia attorney and former Deputy Attorney General for the Commonwealth of Pennsylvania Philip Berg filed a Motion for Leave to File an Amended Complaint in his ongoing case against Illinois Sen. Barack Obama and others, arguing that Obama is in fact not a natural born United States citizen and, pursuant to Article II, Section 1 of the U.S. Constitution is ineligible to serve as president of the United States of America.

Now, this does not mean that the amended complaint has been filed. Rule 15(a) of the Federal Rules of Civil Procedure permits amendments by leave of court, which means essentially that the judge must sign off on this type of pleading before it is filed. Curiously enough, Rule 15(a) only requires leave to amend after the opposing party has filed a response pleading, and I'm not so sure that a motion to dismiss such as the one filed by Obama and the DNC counts as such a pleading. Regardless, I'm probably wrong, so for the purposes of this explanation, I'll assume that Berg has interpreted correctly the Federal Rules of Civil Procedure.

It should be known that any party is entitled to amend a pleading, such as a complaint, once and at any time before a responsive pleading is made. That being said, the motion to dismiss filed by Barack Obama and the DNC was a motion attacking Berg's pleading and is not considered a responsive pleading in itself. Furthermore, according to the rules and, as Berg accurately states in the brief which supports the Motion for Leave to File a First Amended Complaint, such leave shall be freely given when justice so requires.

If, however, Judge R. Barclay Surrick finds that there is some sort of actual prejudice to Obama and the other defendants, he can deny leave to amend or grant it with restrictions. Seeing that Berg has filed this particular motion fairly early in the whole process, I expect it will be granted. However, because this motion for leave to amend was filed by Berg after the defendants filed the motion to dismiss for failure to state a claim upon on which relief can be granted, Judge Surrick could deny leave if he believes that Berg still cannot state a proper claim. Then again, despite what my grade point average suggests, I really don't know all that much.

In the amended complaint which Berg is seeking to file in the wake of a motion to dismiss filed on September 24 by Obama and the Democratic National Committee and his own Opposition and Brief filed last week, Berg added a few claims and a few defendants, as well as rehashed the original allegations made more than a month ago in the initial complaint.

As expected, Berg added Pedro Cortes, Secretary of the Commonwealth for the Commonwealth of Pennsylvania, given Cortes' role in fomenting and overseeing the electoral process in the Keystone State. He has also added, however, California Sen. Diane Feinstein in her role as Chairwoman of the U.S. Senate Commission on Rules and Administration, and the U.S. Senate Commission on Rules and Administration itself. The latter, according to the amended complaint, is "responsible for investigations into the qualifications of the President and Vice President candidates Federal elections" while the former "has primary authority" for oversight with regard to aspects related to ethics, campaign and election reform.

Berg is seeking, among other things, an order that Feinstein and the Rules Commission--along with the FEC--immediately conduct an investigation into "the fraudulent tactics of Obama" and into his citizenship status as well.

"The Senate should be investigating qualifications for higher office and for the Senate itself," Berg said. "We're thinking, at this point, that Obama is an illegal alien and therefore should be arrested, tried and deported. He certainly cannot hold his Senate seat."

I placed a telephone call to Sen. Feinstein's press office in Washington. The woman who answered the phone, Claire, was extremely nice but mentioned that this is the first they've heard of Berg's action. With any luck, Claire will get back to me with a comment after brushing up on the details of the case.

In the amended complaint, Berg also added a paragraph further addressing and supporting the court's jurisdiction over the matter at hand, questioned in the motion to dismiss filed by Obama and the DNC. The paragraph echoes a portion of the argument made by Berg in his Opposition to the defense motion, that the District Court has jurisdiction over the case pursuant to 5 USC §702, which states, in relevant part, that "[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof." This was a major part of his Opposition to the motion to dismiss filed by Obama and the DNC, and according to Berg goes to the failure of the Federal Election Commission and the DNC to investigate Barack Obama, his campaign, and the more than $400 million taken in under alleged false pretenses. From the complaint:

They are responsible for verifying the credentials and qualifications of Members of the Senate, contested elections and acceptance of incompatible offices. Moreover, in addition to the verification of a candidates qualifications, eligibility and credentials, they are responsible for Federal elections generally, including the election of the President, Vice President and Members of the Congress.

In addition, Berg confronted the defendants' assertion that he lacked standing--the same argument from which three similar cases against Arizona Sen. John McCain were thrown out this year--and included the same supporting arguments he made in the Opposition and Brief. He asserts all of the same statutory and common law arguments, and even looks to show a little frustration:

There is absolutely no other way for Plaintiff to ensure his constitutionally protected rights. The only option Plaintiff had was to bring this action. This is the first time in American History a “naturalized” citizen and/or illegal alien have been allowed to campaign for the Office of President of the United States. There are not any other ways to establish or determine the legal status of our Presidential Candidates, whether Republican and/or Democratic. The FEC and DNC have refused to verify and furnish Plaintiff with Obama’s eligibility or lack thereof. Plaintiff has standing to challenge any person(s) citizenship and/or nationality status pursuant to statute, 8 U.S. C. §1481(b).

Berg said this morning that, with regard to standing, he's just trying to "cover the board" in an attempt to look forward to the future, to look past Judge Surrick and the District Court if necessary.

"The longer we've been waiting, the more we've been doing further research, the more we've been finding out," Berg said. "If Judge Surrick doesn't grant standing, we're hoping that the Court of Appeals or the Supreme Court will look at the work we've done and grant it. I do think the Supreme Court would hear this case. We think we should get it there because it's an issue of the utmost importance which hasn't been touched yet."

"Still," he said, "I just want Judge Surrick to issue an order."

I may be wrong, but it looks like he added some further information from Indonesian law and history in support of his assertion that Obama relinquished U.S. Citizenship--if he had it to begin with--when he was adopted by stepfather Lolo Soetoro upon moving from Hawaii to Indonesia with his mother. The information was in the brief supporting his opposition, but apparently not in the original complaint.

Berg states that, even if Obama was indeed born in Hawaii to a mother who was a U.S. citizen, the situation in Indonesia, where Obama went to school and may have been formally adopted by his stepfather, it doesn't matter. As I mentioned in Is This For Real, and Why Hasn't the Mainstream Media Covered it Yet?, the Indonesian government only began acknowledging dual citizenship in November of 2006; in his amended complaint, Berg cites The Hague Convention of 1930 and argues that since Indonesia did not allow dual citizenship, neither did the United States when it came to Indonesia.

In the amended complaint, Berg also reiterates and expands upon his belief that Obama may have stated his citizenship as Kenyan when he applied for admission at Columbia University and possibly other schools. I can't say that I particularly subscribe to that assertion, however, as from all indications Barack Obama has been preparing to run for president since the moment the doctor slapped his posterior after he emerged from the womb.

Besides the new parties and the additional supporting information peppered throughout, Berg also added a number of new claims which, as required, all originated from the same conduct and occurrences as the original claims.

The amended complaint cites campaign fraud, citing all defendants' alleged violation of the Federal Election Campaign Act. According to the complaint, Obama committed a fraud against Berg and all American citizens by running for president, collecting more than $400 million in campaign money, and claiming to be eligible for the presidency but knowing that he was not. Berg further states that Obama committed a fraud by falsifying information on is Illinois State Bar Registration and Public Disciplinary Record, a claim which had been previously dissected and refuted here at America's Right.

The other defendants, too, have had a role in the fraud Berg alleges has been perpetrated against American citizens. Defendant Cortes, Berg says, failed to verify Obama's citizenship status prior to placing him on the ballot, and the congressional defendants have failed to investigate as well.

The DNC, FEC, Feinstein and the U.S. Senate Commission on Rules and Administration were and are well aware of Obama’s illegal activities, encouraging racial tension, encouraging violence, his fraudulent campaigning, fraudulently attempting to secure the position of President of the United States. Defendants have failed Plaintiff as they have not performed their duties so delegated to them pursuant to the Laws of our Country and their promises. Defendants have allowed an ineligible candidate to be nominated as President of the United States without performing due diligence in verifying Obama’s eligibility and/or investigating the fraudulent acts of Obama, for which Plaintiff has been damaged. Defendants have further allowed the illegal and fraudulent campaigning efforts of Obama to continue in an attempt to allow an ineligible candidate to serve as President of the United States in violation of our United States Constitution.

"The longer we wait, the more we do research, the more we learn," Berg said. "Listen, unless Barack Obama went through immigration after coming back from Indonesia, he's an illegal alien. An illegal alien. His school record shows that he was officially acknowledged by his stepfather. It is fraud, and I think it's a disgrace that Howard Dean hasn't researched it."

Berg was extremely hard on Dean, chairman of the DNC, suggesting that his failure to properly investigate the Democratic Party nominee was "outrageous," and that his role in avoiding the issues presented in the case against Obama reeks of "obstruction of justice."

In the amended complaint, Berg also adds a count against all defendants for alleged violation of the Freedom of Information Act, citing his rebuffed attempts to garner documentation and information pertaining to Obama's citizenship via subpoena.

Berg served subpoenas on the U.S. Embassy, Jakarta Indonesia, U.S. Embassy, Nairobi, Kenya, the U.S. State Department, the Federal Bureau of Information (FBI), the Central Intelligence Agency (CIA), The Hawaii Department of Health, Kapi’olani Medical Center for Women and Children, Queens Medical Center, and the U.S. Senate Commission on Rules and Administration and has been refused in every case so far. With regard to the embassies, Berg received a letter stating that his subpoena requests were denied because he failed to show enough information, and failed to have Barack Obama provide his written authorization of the request pursuant to the Privacy Act.

Citing materials on the DNC Web site, Berg also asserts promissory estoppel, that damage and injury has been caused due to reasonable detrimental reliance upon "many promises to the American people" made by the organization, including "open, accountable and ethical government." Berg cites one portion in particular:

The DNC promises in their promotion of Obama, Page 53, “In Barack Obama’s Administration, we will open up the doors of democracy. We will use technology to make government more transparent, accountable, and inclusive. Rather than obstruct people’s use of the Freedom of Information Act, we will require that agencies conduct significant business in public and release all relevant information unless an agency reasonably foresees harm to a protected interest.”

At the end of the day, much like he has been since filing the initial complaint on August 21, Philip Berg is seeking to avoid what he calls a "certain constitutional crisis" by asking the court to prevent Obama from seeking and obtaining the presidency. With this amended complaint, Berg is once again asking that the court:

• Order Barack Obama to prove his citizenship status and immediately turn over (1) a certified copy of his "vault" birth certificate, (2) certified copies of all reissued and sealed birth certificates in the names of Barack Hussein Obama, Barry Soetoro, Barry Obama, Barack Dunham and Barry Dunham, (3) a certified copy of his Oath of Allegiance taken upon age of majority, (4) any and all college admission forms, and (5) any and all documentation changing Obama's name from "Barry Soetoro" to "Barack Obama."

• Declare that Barack Obama (1) is not a U.S. "natural born" citizen, (2) is not a "naturalized" citizen, and (3) is still an Indonesian citizen.

• Declare that Barack Obama is ineligible to run for and hold the presidency of the United States of America.
  

• Order Barack Obama to be removed from the ballot in the presidential election "until his citizenship status can in fact be verified ensuring he is eligible to serve as president of the United States."

• Preliminarily and permanently enjoin--prevent--the Democratic National Committee and Pennsylvania Secretary Pedro Cortes from placing Barack Obama on the ballot until his citizenship status is proven and he is shown to be eligible to hold the presidency.
  

• Order the FEC, Diane Feinstein and the U.S. Senate Commission on Rules and Administration to "immediately open and conduct an investigation" into the "fraudulent tactics" and citizenship status of Barack Obama.
  

• Preliminarily and permanently enjoin Barack Obama from any further campaigning for the presidency until he is able to prove his citizenship status and eligibility to hold the office of president of the United States.

As of this morning, Berg says that his Web site has received 21.7 million hits, and that he has been swamped with phone calls and e-mails from democrats and republicans alike. One such caller this morning said that he heard about the case on the local news in Baltimore, Maryland, but most callers generally ask the same thing -- what's the answer?

"I tell them that he obviously doesn't have the documents," Berg said. "People get that. I even had one caller tell me that he plans to relay the information to [Alaska Gov.] Sarah Palin. She's been hitting Obama hard this weekend, and she should go after this eligibility issue. I tell you, if the republicans have this information, if this is their 'October Surprise,' they'd better do something soon. We're headed toward a constitutional crisis in America, and look at the markets ... we've got enough on our hands."

Still, this democrat isn't waiting for the GOP to act.

"Barack Obama promotes himself as the candidate for change. Well, he does want change. He wants the rules to apply to other people and not to himself," Berg said. "We're going to win this one way or another. I have a good feeling. We're going to make a little history with Obama, and I want to be there when they handcuff him."

Handcuff him, I asked. Isn't that a little harsh?

"Listen," Berg said, briefly chuckling at my question, "if he has the documents, produce them already!"



The full text of the amended complaint--remember, if Berg is correct, leave to file must still be granted by the court--is available by clicking HERE.

Keep checking America's Right for updates.