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KEYES|BARNETT v OBAMA - 91.1 - REQUEST FOR JUDICIAL NOTICE re MOTION for Reconsideration re Order on Motion to Dismiss - Gov.uscourts.cacd.435591.91.1

KEYES|BARNETT v OBAMA - 91.1 - REQUEST FOR JUDICIAL NOTICE re MOTION for Reconsideration re Order on Motion to Dismiss - Gov.uscourts.cacd.435591.91.1

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Published by Jack Ryan
REQUEST FOR JUDICIAL NOTICE re MOTION for Reconsideration re Order on Motion to Dismiss - #1 Appendix Third circuit court of appeals decision)
REQUEST FOR JUDICIAL NOTICE re MOTION for Reconsideration re Order on Motion to Dismiss - #1 Appendix Third circuit court of appeals decision)

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Published by: Jack Ryan on Nov 13, 2009
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PRECEDENTIALUNITED STATES COURT OF APPEALSFOR THE THIRD CIRCUITNo. 08-4340PHILIP J. BERG, ESQUIRE,Appellantv.BARACK HUSSEIN OBAMA, a/k/a BARRY SOETORO, a/k/aBARRY OBAMA, a/k/a BARACK DUNHAM, a/k/aBARRY DUNHAM; THE DEMOCRATIC NATIONALCOMMITTEE; THE FEDERAL ELECTION COMMISSION;THE SECRETARY OF THE COMMONWEALTH,PENNSYLVANIA DEPARTMENT OF STATE;PEDRO A. CORTÉS, Secretary of the Commonwealth in hisofficial capacity; DIANNE FEINSTEIN, Chairman of the U.S.Senate, Commission on Rules and Administration in her officialcapacity; U.S. SENATE, COMMISSION ON RULES ANDADMINISTRATION; and DOES 1-50 INCLUSIVEOn Appeal from the United States District Courtfor the Eastern District of Pennsylvania(D.C. Civil No. 2-08-cv-04083)District Judge: Hon. R. Barclay SurrickSubmitted Under Third Circuit LAR 34.1(a)October 26, 2009Before: SLOVITER, FUENTES and HARDIMAN, CircuitJudges(Filed: November 12, 2009 )2Philip J. BergLafayette Hill, PA 19444-2531Attorney Pro SeJohn P. Lavelle, Jr.Morgan, Lewis & Bockius LLPPhiladelphia, PA 19103Of counsel:Robert F. BauerPerkins Coie LLPWashington, D.C. 20005-2003Joseph E. SandlerSandler, Reiff & Young, P.C.Washington, D.C. 20003Attorneys for Democratic NationalCommittee and Barack ObamaThomasenia P. DuncanGeneral CounselDavid Kolker
Case 8:09-cv-00082-DOC-AN Document 91-2 Filed 11/13/2009 Page 1 of 8
Associate General CounselKevin DeeleyAssistant General CounselSteve N. HajjarAttorneyFederal Election CommissionWashington, D.C. 20463Attorneys for Federal Election CommissionOPINION OF THE COURTThat
clause states,
No person except a natural bornCitizen, or a Citizen of the United States, at the time of theAdoption of this Constitution, shall be eligible to the Office of President . . . .
U.S. Const., art. II, § 1, cl. 4.
In the
Issues Presented
section of Berg
s brief, issuenine is whether the District Court erred in
dismissing [Berg
s]claims under Promissory Estoppel [by holding that] the DNC . . .and Obama
s promise[s] to uphold the United States Constitutionare simply statements of principle and intent in the political realmand are not enforceable promises[.]
s Br. at 3. Bergdoes not mention his promissory estoppel theory again, let aloneexplain why the District Court
s holding was in error. In any event,3SLOVITER,
Circuit Judge
.Philip Berg, a lawyer acting pro se, filed this actionchallenging Barack Obama
s eligibility to run for and serve asPresident of the United States. The District Court dismissedBerg
s action on the grounds that he lacks standing and failed tostate a cognizable claim.
Before the 2008 presidential election, Berg sued then-Presidential candidate Barack Obama, the Democratic NationalCommittee, and the Federal Election Commission, amongothers, alleging that Obama was ineligible to run for and serve asPresident because he was born in Kenya and therefore is not a
natural born citizen
within the meaning of Article II, Section1, Clause 4 of the United States Constitution.
Berg sought, inrelevant part, a declaratory judgment that Obama was ineligible,an injunction barring Obama from running for that office, and aninjunction barring the Democratic National Committee fromnominating him.Although Berg brought a grab-bag of claims before theDistrict Court, he appeals only the dismissal of those broughtunder the Natural Born Citizen Clause of the Constitution and 42U.S.C. § 1983.
The District Court
assuming the factualthe District Court was certainly correct that
[f]ederal courts . . . arenot and cannot be in the business of enforcing political rhetoric.
Case 8:09-cv-00082-DOC-AN Document 91-2 Filed 11/13/2009 Page 2 of 8
App. at 35.On the day that
we denied Berg
s motion, he petitionedthe Supreme Court for certiorari and applied to Justice Souter, whowas at the time the Circuit Justice for the Third Circuit, for aninjunction to stay the November 2008 election. The SupremeCourt denied the petition for certiorari and Justice Souter deniedthe application for an injunction.4allegations made by Berg to be true for the purposes of theDefendants
motion to dismiss those claims
dismissed the firstclaim because
[t]he alleged harm to voters [like Berg]stemming from a presidential candidate
s failure to satisfy theeligibility requirement[s] of the Natural Born Citizen Clause isnot concrete or particularized enough to . . . satisfy Article IIIstanding,
App. at 15, and dismissed the § 1983 claim becausethe
Natural Born Citizen Clause does not confer an individualright on citizens or voters,
App. at 23.Berg filed a notice of appeal and moved this court for an
injunction to stay the presidential election of November 4, 2008 pending resolution of that appeal. Wedeclined to stay the election, noting that it appeared that Berglacked standing and thus failed to show a likelihood of successon the merits.
Obama won the election and Berg subsequently madeanother
motion, asking this court to issue an orderprohibiting the certification of electors by the governors of eachstate, to stay the members of the Electoral College from castingtheir votes for Obama, and to stay the counting of electoral votesin Congress. We also denied that motion, reiterating Berg
sapparent lack of standing and also stating that Berg
s lawsuitseemed to present a non-justiciable political question.The electoral votes have since been cast without objectionto Obama
s qualifications by any members of Congress, andObama was inaugurated. Berg nonetheless persists in this
See, e.g.
 Hollister v. Soetoro
, 601 F. Supp. 2d 179, 181(D.D.C. 2009) (dismissing challenge to Obama
s eligibility);
Cohen v. Obama
, No. 08-2150, 2008 WL 5191864, at *1 (D.D.C.2008) (dismissing challenge to Obama
s eligibility),
, 2009WL 2870668 (D.C. Cir. 2009) (summary affirmance);
 Hollander v. McCain
, 566 F. Supp. 2d 63, 68 (D.N.H. 2008) (dismissingchallenge to Senator John McCain
s eligibility);
 Robinson v. Bowen
, 567 F. Supp. 2d 1144, 1147 (N.D. Cal. 2008) (dismissing5litigation.
We have jurisdiction to consider this appeal under 28
Case 8:09-cv-00082-DOC-AN Document 91-2 Filed 11/13/2009 Page 3 of 8

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