Mr. Berg Goes to Washington

Today, should everything go according to plan, only five days after his federal lawsuit against Illinois Sen. Barack Obama was dismissed for lack of standing from the United States District Court for the Eastern District of Pennsylvania, attorney Philip Berg will file his appeal in Philadelphia and, once it is docketed with the Third Circuit Court of Appeals, will travel to Washington, D.C. to file a Petition for Writ of Certiorari with the United States Supreme Court.

There, Berg says, should things progress on schedule, he will be accompanied by a television crew from Fox News Channel.

"Despite the setback we received on Friday," Berg said, "I feel as though we really do have momentum here. And, while this course of action may not be your standard fare, I think that we're too close to the election and too close to a constitutional crisis in America to not pursue this to the best of our ability."

The non-standard course of action Berg mentioned, it seems, is the concept of appealing to the U.S. Supreme Court without first exhausting all options at the Circuit Court level. By appealing at the Third Circuit, the case could have been heard by a panel of three judges, if not more, and then taken to the U.S. Supreme Court if necessary. Still, Berg insists that due to the argument schedules at the Third Circuit and the nation being less than a week removed from Election Day, the chance of his action against Barack Obama being heard in time is slim at best.

Now, as was written yesterday at America's Right, the odds that the U.S. Supreme Court will grant certiorari and choose to hear Berg's case are razor-thin. Each year, the Supreme Court is presented with approximately 8,000 petitions for certiorari but only grants about 75 to 120. Berg, however, is not extremely concerned.

"Of course, the odds are long," Berg said. "But this case does have to do with the prevention of a guaranteed constitutional crisis and, even if it is not heard in time or at all, the national media should have no choice but to pay attention."

Even if the case were heard, Berg faces long odds in the courtroom as well, as the standing doctrine as it stands now does not lean in his favor. Also from yesterday's update:

To have standing, a plaintiff must satisfy a three-prong test. He or she must prove (1) injury in fact, (2) causation, and (3) redressibility -- that they've sustained more than just general harm, that the harm can be traced to the conduct of the defendant, and that adjudication of the matter can provide a remedy to that harm. Berg's biggest hurdle, so far, has been establishing injury in fact.

Now, while there is a three-prong test for standing, there is no such definitive test for establishing what exactly constitutes an injury in fact. Instead, whether or not a plaintiff has sustained an injury in fact depends upon how that plaintiff's factual allegations are perceived by the judge on what has been described as a sliding scale of speculation, creativity and remoteness. In other words, if the factual support of a plaintiff's claims is deemed too speculative, too remote, or too creative, then the judge may not find injury, and visa versa.

In the past, the United States Supreme Court has held that a plaintiff must have a "personal stake" in the matter being adjudicated. This, of course, is to ensure that the matter belongs before the court in the first place. More recently, however, the Court has paid greater attention to, and awarded standing for, plaintiffs who can show enough of an injury so as to provide something along the lines of a good contest among legal rivals.

In Constitutional Law class last year, we studied a few cases while looking at the standing issue. One was a case in which a group of environmentalists were given standing by the Supreme Court because the need for preservation of "environmental well-being" was enough to prove injury. In another case, an association in Washington state was deemed to have standing even though it was the individual members, and not the association itself, which could be found to have had the requisite "personal stake."

That being said, in the unlikely event that this case is heard by the Supreme Court, Berg will need to argue, certainly among other things, that the injury deemed too generalized by Judge Surrick is indeed enough to show injury in fact and therefore gain standing to sue. Only then can this case be heard on its merits.

All that being said, Berg says, he takes heart in knowing that while the law as it stands now may be difficult to overcome, he is at the very least arguing from the perspective of America's founders and in the best interests of the American people.

"Should my case be heard, and it should," Berg said, "Barack Obama will need to argue that the American people have no right to challenge whether or not a candidate for president of the United States actually is constitutionally eligible, in the eyes of our founding fathers, to serve in the office of the presidency. That's not right. That's not right at all. If the American people are not injured by a fraudulent candidate collecting $600 million while campaigning for an office he cannot constitutionally hold, if the American people do not have standing, then who does?"



UPDATE, 2:00pm:

The filing at the United States Supreme Court will be happening tomorrow morning and not today, according to Philip Berg, who explained that he still must attend to other commitments associated with his legal practice and was tied up in court later than planned. Berg assured America's Right that, from a conversation he had with representatives at Fox News Channel, a television crew will be meeting him in Washington D.C. to follow his progress as he files his Petition for Writ of Certiorari.

Furthermore, Berg said, his interview with Fox News Channel's Rick Leventhal, taped yesterday, should air this evening in either the 6:00 or 7:00 hour, just before Barack Obama's 30-minute infomercial.