Kerchner V Obama Appeal - Motion For Leave To File Supplemental Appendix Filed 10 Apr 2010 W/appx

Case: 09-4209 Document: 003110096600 Page: 1 Date Filed: 04/10/2010
IN THE UNITED STATES CIRCUIT COURT OF APPEAL

FOR THE THIRD CIRCUIT
____________________________________
Charles F. Kerchner, Jr, : Document Electronically Filed
Lowell T. Patterson, :
Darrell James LeNormand, and :
Donald H. Nelsen, Jr., :
:
Plaintiffs-Appellants, :
:
v. :
:
Barack Hussein Obama II, President Elect :
of the United States of America, President : Case No. 09-4209
of the United States of America, :
and Individually, a/k/a Barry Soetoro; :
United States of America; :
United States Congress; :
United States Senate; :
United States House of Representatives; :
Richard B. Cheney, President of :
the Senate, Presiding Officer of Joint :
Session of Congress, Vice President of the : MOTION FOR LEAVE TO
United States and Individually; and : FILE SUPPLEMENTAL
Nancy Pelosi, Speaker of the House and : APPENDIX
Individually, :
:
Defendants-Appellees. :
____________________________________:
TO: Clerk of the Court
Eric Fleisig-Greene, Esq.

U.S. Department of Justice
Civil Division, Appellate Staff
950 Pennsylvania Avenue, N.W.
Room 7214
Washington, DC 20530-0001
PLEASE TAKE NOTICE that the undersigned counsel for the
plaintiffs-appellants hereby moves the United States Third Circuit Court of

Appeals, at 21400 US. Courthouse Independence Mall West, 601 Market
Street, Philadelphia, PA 19106-1790, for entry of an Order granting
plaintiffs-appellants leave to file a Supplemental Appendix.
We explained in Appellants’ Opening Brief and Reply Brief that
while the issue before the Court is one of standing and political question, the
merits of plaintiffs’ claims are important to the showing that plaintiffs must
make to prove that they have standing. The importance of the merits of
plaintiffs’ claims is made evident by the recent state court decision in
Ankeny v. Governor of the State of Indiana, 916 N.E.2d 678 (Ind. Ct. App.
2009). We realize that the Ankeny case is a state court decision and not
binding on the federal courts. We nevertheless cite to it because it is the
only case in the United States that, although not necessary to its decision and
without considering or even discussing much case law and authorities
showing otherwise and by improperly conflating the clauses “natural born
Citizen” of Article II and “citizen of the United States” of the Fourteenth
Amendment, has reached the merits of the constitutional question of what is
an Article II “natural born Citizen,” finding that “persons born within the
borders of the United States are “natural born Citizens” for Article II,
Section 1 purposes, regardless of the citizenship of their parents….” Id. at
688. In the Ankeny case, the Indiana Court of Appeals was faced with the
2
question of whether the trial court was correct in dismissing the pro se
plaintiffs’ complaint under Trial Rule 12(B)(6) for failure to state a claim
upon which relief can be granted. Id. at 680. The court stated that “[w]hen
reviewing a motion to dismiss, the court views the pleadings in the light
most favorable to the nonmoving party, with every reasonable inference
construed in the nonmovant’s favor.” Id. at 680. The district court in the
Kerchner case said that it was following the same standard on defendants’
Rule 12(b)(1), Fed. R. Civ. P. motion to dismiss for lack of standing. A-10
to 11. The Ankeny court also said that it “need not accept as true any
‘conclusory, non-factual assertions or legal conclusions.’” Id. at 681. The
court then said:
The Plaintiffs do not mention the above United States Supreme

Court authority [U.S. v. Wong Kim Ark, 169 U.S. 649 (1898)]in their
complaint or brief; they primarily rely instead on an eighteenth
century treatise [Emer de Vattel’s, The Law of Nations, Or, Principles
of the Law of Nature, Applied to the Conduct and Affairs of Nations
and Sovereigns (1758)] and quotations of Members of Congress made
during the nineteenth century. To the extent that these authorities
conflict with the United States Supreme Court's interpretation of what
it means to be a natural born citizen, we believe that the Plaintiffs'
arguments fall under the category of "conclusory, non-factual
assertions or legal conclusions" that we need not accept as true when
reviewing the grant of a motion to dismiss for failure to state a claim.
Irish, 864 N.E.2d at 1120.
Id. at 689. Hence, because the court did not agree with the merits of
plaintiffs’ legal position on the meaning of a “natural born Citizen,” it
3
refused to accept as true the factual allegations of their complaint. See USA.
v. Spectrum Emergecy Care, 190 F.3d 1156 (10th Cir., 1999) (“unsupported,
conclusory allegations are insufficient to establish jurisdiction”); Phelps v.
Lockheed Missiles & Space, Co., Inc., 995 F.2d 232 (9th Cir. 1993)
(allegations that are conclusory fail to establish federal jurisdiction). We
therefore address the merits of plaintiffs’ claims before the Court not only
because the merits of their claims are intertwined with the question of
standing but also to show that there is much more evidence of plaintiffs’
position on how the Founders and Framers defined an Article II “natural
born Citizen” and to avoid the possibility that this Court would treat the
factual allegations of their complaint as the Indiana Court of Appeals treated
those of the plaintiffs in that case.
We are therefore requesting leave to file Plaintiffs’-Appellants’
Supplemental Appendix to the Opening Brief. These additional documents
pertain to the Opening Brief at pp. 17-29 and the Reply Brief at pp. 6-14
regarding defining Article II “natural born Citizen.” We request permission
to include in a Supplemental Appendix David Ramsay’s, A Dissertation on
the Manners of Acquiring the Character and Privileges of a Citizen (1789)
(attached at SA-1), important in defining a “natural born Citizen.” David
Ramsay (April 2, 1749 to May 8, 1815) was an American physician and
4
historian from South Carolina and a delegate from that state to the
Continental Congress in 1782-1783 and 1785-1786. He was one of the
American Revolution’s first major historians. Ramsay “was a major
intellectual figure in the early republic, known and respected in America and
abroad for his medical and historical writings, especially for The History of
the American Revolution (1789)…” Arthur H. Shaffer, Between Two
Worlds: David Ramsay and the Politics of Slavery, J.S.Hist., Vol. L, No. 2
(May 1984).
In his 1789 article, Ramsay first explained that there is an “immense”
difference between a British “subject” and a United States “citizen,” with
the former being “under the power of another” and the latter being “a unit of
mass of free people, who, collectively, posses sovereignty.” He informed
that “Republics, both ancient and modern, have been jealous of the rights of
citizenship.” He then explained that the “original citizens” of the United
States were those who were parties to the Declaration of Independence and
thereby adhered to the revolutionary cause. But the importance of his work
does not stop there, for he also described a “natural born Citizen, whom he
defined as a child born to citizen parents. He said concerning the children
born after the declaration of independence, “[c]itizenship is the inheritance
of the children of those who have taken part in the late revolution; but this is
5
confined exclusively to the children of those who were themselves
citizens….” Id. at 6. He added that “citizenship by inheritance belongs to
none but the children of those Americans, who, having survived the
declaration of independence, acquired that adventitious character in their
own right, and transmitted it to their offspring….” Id. at 7. He continued
that citizenship “as a natural right, belongs to none but those who have been
born of citizens since the 4th of July, 1776….” Id. at 6. Here, Ramsay
referred to “natural right,” which ties into the Framers’ use of the clause
“natural born Citizen.” By focusing on citizenship that occurs by “natural
right,” Ramsay distinguished citizenship that occurs naturally versus
citizenship that occurs by operation of law. It is evident from his writing
that in defining a “citizen of the United States” and a “natural born Citizen,”
Ramsay did not look to English common law but rather to natural law, the
law of nations, and Vattel, Sec. 212.
We are also requesting leave to include in our supplemental appendix
an article from George D. Collins, Are Persons Within the United States
Ipso Facto Citizens Thereof? Am.L.Rev. (1866-1906), Sept./Oct. 1884 (“the
subject of citizenship being national, questions relating to it are to be
determined not by the English common law but rather by the general
principles of the law of nations” with Vattel, in The Law of Nations, Sec.
6
212, providing the rule which explains that the children born in the country
of citizen parents are “natural born citizens,” none of which was changed by
the Fourteenth Amendment) (attached at SA-8); an article from Alexander
Porter Morse, Natural-Born Citizen of the United States: Eligibility for the
Office of President, Alb.L.J. Vol. 66 (1904-1905) (“the child of citizens of
the United States, wherever born, is “‘a natural-born citizen of the United
States’”) (attached at SA-16); and an article written by Breckenridge Long,
Is Mr. Charles Evans Hughes a “Natural Born Citizen” Within the Meaning
of the Constitution?” Chicago Legal News, Vol. 146, p. 220 (1916) (there is
a distinction between a “native born” and “natural born;” a “citizen of the
United States” is not the same as a “natural born Citizen;” a “natural born
Citizen” is one made by the laws of nature and not by operation of law and
from the moment of birth owes allegiance exclusively to the United States; a
person who is born with dual or conflicting allegiances and citizenships,
naturally caused by being born in the country to an alien father which causes
the person to acquire one allegiance and citizenship by jus soli and the other
by jus sanguinis, respectively, which birth circumstance causes a foreign
power to be able to lay a claim of allegiance or jurisdiction over that person,
cannot be a “natural born Citizen;” a child born in the United States to an
alien father may become a “citizen of the United States” by becoming a
7
citizen by naturalization either upon his father naturalizing before the child
reaches majority or through his own naturalization application thereafter.)
(attached at SA-20). Justices of the United States Supreme Court have
utilized newspaper articles to support their arguments. See, e.g., Ashcroft v.
ACLU, 535 U.S. 564, 567 n.2 (2002); Boy Scouts of America v. Dale, 530
U.S. 640, 692 n.20 (2000) (Stevens, J., dissenting); City of Boerne v. Flores,
521 U.S. 507, 522 (1997); Georgia v. McCollum, 505 U.S. 42, 61 n.1 (1992)
(Thomas, J., concurring) (surveying the New York Times, Los Angeles
Times, and Chicago Tribune to show that the public cares about the racial
mix of juries); City of Akron v. Akron Ctr. for Reproductive Health, Inc.,
462 U.S. 416, 457 (1983) (O’Connor, J., dissenting) (citing Washington Post
to show that advances in medical technology meant that the viability of a
fetus could no longer be determined according to Roe v. Wade’s 28 week
rule).
Dated: April 10, 2010 Respectfully submitted,
s/Mario Apuzzo
Mario Apuzzo
185 Gatzmer Avenue
Jamesburg, New Jersey 08831
(732) 521-1900
FAX (732) 521-3906
apuzzo@erols.com
8
CERTIFICATION OF ELECTRONIC FILING AND SERVICE

OF MOTION AND PROPOSED PLAINTIFFS’-APPELLANTS’
SUPPLEMENTAL APPENDIX AND OF FILING AND SERVICE OF
HARD COPIES THEREOF, HARD COPIES THEREOF BEING
IDENTICAL, AND AS TO VIRUS SCAN PERFORMED
I, Mario Apuzzo, Esq., attorney representing plaintiffs-appellants in
this matter, certify that on April 10, 2010, I filed the attached motion for
leave to file Plaintiffs’-Appellants’ Supplemental Appendix, along with the
proposed Plaintiffs’-Appellants’ Supplemental Appendix electronically with
the Clerk of the United States Third Circuit Court of Appeals and that I
served a copy of the same documents upon all other parties to this matter, by
forwarding same to their respective attorney’s e-mail by electronically filing
the documents through the Court’s CM/ECF. The attorneys to which I
forwarded these materials are set forth below. I also certify that on April 10,
2010, I will place in the United States Postal Service by Express Mail 4 hard
copies of the proposed Plaintiffs’-Appellants’ Supplemental Appendix to be
filed with the United States Court of Appeals for the Third Circuit at:
Clerk
United States Court of Appeals
For the Third Circuit
21400 US. Courthouse
Independence Mall West
601 Market Street
Philadelphia, PA 19106-1790
9
2. On April 10, 2010, I will also cause 1 hard copy of proposed
Plaintiffs’-Appellants’ Supplemental Appendix to be served upon defendants
by serving the document on each of the attorneys listed below, by delivering
the document to the United States Postal Service via Federal Express at
Monroe, New Jersey, addressed to:
Eric Fleisig-Greene, Esq.

U.S. Department of Justice
Civil Division, Appellate Staff
950 Pennsylvania Avenue, N.W.
Room 7214
Washington, DC 20530-0001
3. I certify that the content of the electronic proposed Plaintiffs’-
Appellants’ Supplemental Appendix and Hard Copies thereof are identical.
4. I certify that I have caused a virus scan to be done of this
document using Norton 360.
5. Pursuant to 28 U.S.C. Sec. 1746, I certify under penalty of
perjury that the foregoing is true and correct.
Dated: April 10, 2010 s/Mario Apuzzo

Mario Apuzzo
Attorneys for Appellants
Law Offices of Mario Apuzzo
185 Gatzmer Avenue
Jamesburg, NJ 08831
(732) 521-1900
10

Kerchner V Obama Appeal - Motion For Leave To File Supplemental Appendix Filed 10 Apr 2010 W/appx

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Case: 09-4209 Document: 003110096600 Page: 1 Date Filed: 04/10/2010

IN THE UNITED STATES CIRCUIT COURT OF APPEAL

TO: Clerk of the Court

Eric Fleisig-Greene, Esq.

PLEASE TAKE NOTICE that the undersigned counsel for the

plaintiffs-appellants hereby moves the United States Third Circuit Court of

Appeals, at 21400 US. Courthouse Independence Mall West, 601 Market

Street, Philadelphia, PA 19106-1790, for entry of an Order granting

plaintiffs-appellants leave to file a Supplemental Appendix.

We explained in Appellants’ Opening Brief and Reply Brief that

plaintiffs’ claims is made evident by the recent state court decision in

binding on the federal courts. We nevertheless cite to it because it is the

without considering or even discussing much case law and authorities

showing otherwise and by improperly conflating the clauses “natural born

Citizen” of Article II and “citizen of the United States” of the Fourteenth

Amendment, has reached the merits of the constitutional question of what is

Section 1 purposes, regardless of the citizenship of their parents….” Id. at

most favorable to the nonmoving party, with every reasonable inference

‘conclusory, non-factual assertions or legal conclusions.’” Id. at 681. The

court then said:

The Plaintiffs do not mention the above United States Supreme

plaintiffs’ legal position on the meaning of a “natural born Citizen,” it

conclusory allegations are insufficient to establish jurisdiction”); Phelps v.

(allegations that are conclusory fail to establish federal jurisdiction). We

position on how the Founders and Framers defined an Article II “natural

factual allegations of their complaint as the Indiana Court of Appeals treated

those of the plaintiffs in that case.

We are therefore requesting leave to file Plaintiffs’-Appellants’

Supplemental Appendix to the Opening Brief. These additional documents

regarding defining Article II “natural born Citizen.” We request permission

to include in a Supplemental Appendix David Ramsay’s, A Dissertation on

the Manners of Acquiring the Character and Privileges of a Citizen (1789)

(attached at SA-1), important in defining a “natural born Citizen.” David

Ramsay (April 2, 1749 to May 8, 1815) was an American physician and

Continental Congress in 1782-1783 and 1785-1786. He was one of the

American Revolution’s first major historians. Ramsay “was a major

the American Revolution (1789)…” Arthur H. Shaffer, Between Two

In his 1789 article, Ramsay first explained that there is an “immense”

difference between a British “subject” and a United States “citizen,” with

mass of free people, who, collectively, posses sovereignty.” He informed

citizenship.” He then explained that the “original citizens” of the United

defined as a child born to citizen parents. He said concerning the children

born after the declaration of independence, “[c]itizenship is the inheritance

confined exclusively to the children of those who were themselves

citizens….” Id. at 6. He added that “citizenship by inheritance belongs to

declaration of independence, acquired that adventitious character in their

own right, and transmitted it to their offspring….” Id. at 7. He continued

“natural born Citizen.” By focusing on citizenship that occurs by “natural

right,” Ramsay distinguished citizenship that occurs naturally versus

citizenship that occurs by operation of law. It is evident from his writing

law of nations, and Vattel, Sec. 212.

We are also requesting leave to include in our supplemental appendix

Ipso Facto Citizens Thereof? Am.L.Rev. (1866-1906), Sept./Oct. 1884 (“the

subject of citizenship being national, questions relating to it are to be

the Fourteenth Amendment) (attached at SA-8); an article from Alexander

Office of President, Alb.L.J. Vol. 66 (1904-1905) (“the child of citizens of

States’”) (attached at SA-16); and an article written by Breckenridge Long,

a distinction between a “native born” and “natural born;” a “citizen of the

person who is born with dual or conflicting allegiances and citizenships,

by jus sanguinis, respectively, which birth circumstance causes a foreign

power to be able to lay a claim of allegiance or jurisdiction over that person,

cannot be a “natural born Citizen;” a child born in the United States to an

alien father may become a “citizen of the United States” by becoming a