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Case: 09-4209 Document: 003110221486 Page: 1 Date Filed: 07/19/2010

_____________________________________________________________

IN THE UNITED STATES COURT OF APPEALS


FOR THE THIRD CIRCUIT
_____________________________________________________________

Case No. 09-4209

CHARLES F. KERCHNER, JR. et al.,

Plaintiffs-Appellants,

v.

BARACK HUSSEIN OBAMA II et al.,

Defendants-Appellants.

_____________________________________________________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
_____________________________________________________________

ATTORNEY MARIO APUZZO’S RESPONSE TO THE COURT’S


ORDER THAT HE SHOW CAUSE WHY THE COURT SHOULD NOT
IMPOSED DEFENDANTS’ DAMAGES AND COSTS AGAINST HIM
FOR FILING A FRIVOLOUS APPEAL
_____________________________________________________________

MARIO APUZZO
Attorney for Plaintiffs-Appellants
185 Gatzmer Avenue
Jamesburg, New Jersey 08831
(732) 521-1900

On the Brief:
Mario Apuzzo
Case: 09-4209 Document: 003110221486 Page: 2 Date Filed: 07/19/2010

PROCEDURAL STATEMENT

On July 2, 2010, the Third Circuit Court of Appeals issued its decision

affirming the New Jersey Federal District Court’s dismissal of the Kerchner

et al v. Obama/Congress et al case for lack of Article III standing. Dkt.

Document No. 003110204058. The Court ordered that I show cause in 14

days why the Court should not find me liable for just damages and costs

suffered by the defendants, not in having to defend against the merits of

plaintiffs’ underlying claims that Putative President Obama is not an Article

II “natural born Citizen,” that he has yet to conclusively prove that he was

born in Hawaii, that Congress failed to exercise its constitutional duty to

properly vet and investigate Obama’s “natural born Citizen” status, and that

former Vice President and President of the Senate, Dick Cheney, and current

Speaker of the House, Nancy Pelosi, were complicit in that Congressional

failure, but rather in having to defendant against what the court considers to

be a “frivolous” appeal of the District Court’s dismissal of their claims on

the ground of Article III standing. Opinion at p. 3 and 9.

On the standing issue, the Court found that the plaintiffs did not

establish that they suffered an “injury in fact.” They said that the injury that

plaintiff allege like that of plaintiff, Philip Berg, in Berg v. Obama, 586 F.3d

234 (3d Cir. 2009), is not concrete or particularized enough to satisfy Article

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III standing. Opinion at p. 5-6. They found that these injuries are “too

generalized” for Article III courts. Opinion at p. 5. They added that

plaintiffs’ injuries are not “concrete and particularized” because there are

“harms that are suffered by many or all of the American people.” Opinion at

p. 5. Furthermore, the court said that plaintiffs’ injuries are “generalized

grievances” which “are most appropriately handled by the legislative

branch.” Opinion at p. 6. The court said that it acknowledges plaintiffs’

“frustration with what they perceive as Congress’ inaction in this area, but

their remedy may be found through their vote.” Opinion at p. 6. Finally, the

Court stated that because plaintiffs failed to show they have standing, it need

not address plaintiffs’ contention that “the original common law definition

of an Article II ‘natural born Citizen’. . . is a child born in the country to a

United States citizen mother and father.” Opinion at p. 7, n.4.

On my having to show cause why I should not have to pay damages

and costs for filing a “frivolous” appeal, the court found that “Appellants

had ample notice that this appeal had no merit. They should have been

aware that we rejected almost identical claims in Berg, as have courts in

other jurisdictions.” Opinion at p. 8. They said that an examination of this

precedent would have made it obvious to a reasonable attorney that an

appeal from the District Court was frivolous since no law or facts could

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support a conclusion that the District Court erred. Opinion at p. 8. While

the Court acknowledges that the Federal District Court did not “explicitly”

state that our claims were frivolous, the Court believes that I had meaningful

notice that the appeal was frivolous from the decisions of other courts which

dealt with “similar legal theories” and imposed sanctions on those lawyers

for bringing forth such claims. Opinion at p. 9.

LEGAL ARGUMENT

I.

THE COURT SHOULD RECONSIDER ITS FINDING THAT


ATTORNEY APUZZO FILED A FRIVOLOUS APPEAL AND ON
RECONSIDERATION IT SHOULD FIND THAT ATTORNEY
APUZZO DID NOT FILE SUCH AN APPEAL OR AT LEAST GIVE
HIM A HEARING ON THE RECORD BEFORE DECIDING THE
QUESTION

A.

The Standard For Finding That An Appeal Is Frivolous and That It Merits that the
Court Impose Upon the Attorney Filing That Appeal Rule 38 Just Damages and
Costs

The first issue that we have to address in the Court’s show cause order

is the standard to be applied by the Court in deciding whether an appeal is

frivolous which subjects the offending party or attorney to pay the other

party’s just damages and costs incurred in having to defend that appeal.

Federal Rule of Appellate Procedure 38 provides that “[i]f a court of appeals

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determines that an appeal is frivolous, it may, after a separately filed motion

or notice from the court and reasonable opportunity to respond, award just

damages and single or double costs to the appellee.” “The purpose of an

award of attorneys’ fees under Rule 38 is to compensate appellees who are

forced to defend judgments awarded them in the trial court from appeals that

are wholly without merit, and to preserve the appellate court calendar for

cases worthy of consideration.” Huck v. Dawson, 106 F.3d 45, 52 (3d Cir.

1997) (internal quotation and citation omitted). “This court employs an

objective standard to determine whether or not an appeal is frivolous” which

“focuses on the merits of the appeal regardless of good or bad faith.” Hilmon

Co. v. Hyatt Int’l, 899 F.2d 250, 253 (3d Cir. 1990) (internal quotation

omitted). In the Third Circuit, an appeal is considered to be frivolous when it

is “‘utterly without merit.’” Hilmon Co. 899 F.2d at 253 (citing and

quoting Sun Ship, Inc. v. Matson Navigation Co., 785 F.2d 59, 64 (3d Cir.

1986) or presented with no “colorable arguments” to support it. In re: Hall’s

Motor Transit Company, 889 F.2d 520, 523 (3d Cir. 1989). “[A]n appeal

from a frivolous claim is likewise frivolous.” Beam v. Bauer, 383 F.3d 106,

108 (3d Cir. 2004). “This court has been reluctant to classify as frivolous

colorable arguments on appeal even when we have found them to be without

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merit.” Sun Ship, Inc. 785 F.2d at 64 (citing Mid-Jersey National Bank v.

Fidelity-Mortgage Investors, 518 F.2d 640, 642 n. 1 (3d Cir.1975)).

In Crain v. Commissioner of Internal Revenue, 737 F.2d 1417 (5th Cir.

1984, the Fifth Circuit affirmed the Tax Court statutory penalty (26 U.S.C.

6673) against the taxpayer for filing a spurious petition which challenged the

constitutional authority of that court and the I.R.S.’ jurisdiction to levy taxes

on his income. Id. The Court said that the constitutionality of our income

tax system has long been established. Id. The Court also imposed Rule 38

damages against that taxpayer who appealed the dismissal of his Tax Court

petition to that Court. The Court found that the taxpayer’s arguments on

appeal did not even have “some colorable merit.” The Court cited to Parker

v. C.I.R., 724 F.2d 469, 472 (5th Cir. 1984), wherein it cautioned those who

may be inclined to file appeals on tax issues that have been “put to rest for

years” or to file “totally frivolous appeals.” The Court said:

We are sensitive to the need for the courts to remain open to all who
seek in good faith to invoke the protection of law. An appeal that
lacks merit is not always–or often–frivolous. However, we are not
obliged to suffer in silence the filing of baseless, insupportable
appeals presenting no colorable claims of error and designed only to
delay, obstruct, or incapacitate the operations of the courts or any
other governmental authority. Crain’s present appeal is of this sort. It
is a hodgepodge of unsupported assertions, irrelevant platitudes, and
legalistic gibberish. The government should not have been put to the
trouble of responding to such spurious arguments, nor this court to the
trouble of “adjudicating” this meritless appeal.

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B.

The Court Should Reconsider Its Finding that I Filed A Frivolous


Appeal and After Such Reconsideration It Should Conclude that I Did
Not File Such An Appeal

Knowing what the Rule 38 standard is, the Court needs to apply that

standard to the Kerchner appeal so that it may determine whether the appeal

that I filed fits under the definition of a frivolous appeal which would then

warrant the Court’s imposing damages and costs against me.

The Factual Allegations of the Complaint Are to be Accepted As True


on Defendants’ Motion to Dismiss for Lack of Standing

The Court agreed that the factual allegations of the complaint are to be

accepted as true and are to be interpreted in a light most favorable to the

plaintiffs. The Court said:

At this procedural posture, we must “accept all factual allegations as


true, construe the complaint in the light most favorable to
[Appellants], and determine whether, under any reasonable reading
of the complaint, [Appellants] may be entitled to relief.” Byers v.
Intuit, Inc., 600 F.3d 286, 291 (3d Cir. 2010) (quoting Grammar v.
John J. Kane Reg’l Ctrs.-Glen Hazel, 570 F.3d 520, 523 (3d Cir.
2009)). Nonetheless, “a complaint must . . . ‘state a claim . . . that is
plausible on its face.’” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)).

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Hence, the Court would have accepted as true plaintiffs’ well-plead

allegations that Obama has not yet conclusively proven that he was born in

Hawaii and that he is not an Article II “natural born Citizen.” The Court

would also have to accept plaintiffs’ well-plead allegations that Congress

failed to properly vet and investigate Obama under its Twentieth

Amendment powers, and that former Vice President and Senate President,

Dick Cheney, and current Speaker of the House, Nancy Polosi, were

complicit in that failure. It is also telling that defendants neither in the

District Court nor on appeal in any way disputed plaintiffs’ allegations that

Obama does not meet the definition of an Article II “natural born Citizen”

and that he has not yet conclusively proven that he was born in Hawaii.

It is also significant that no court in the United States that has rendered any

decision on the Obama eligibility issue has granted to any plaintiff any

discovery which would show that these allegations are not true. Accepting

these allegations as true is important because these accepted facts go to the

plaintiffs’ establishing an injury in fact and therefore standing.

The case law on standing is not a clear roadmap for lawyers and courts
to follow

The case law on standing is not a clear roadmap for lawyers and

courts to follow. The twists and turns of how standing has developed in our

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case law are well documented. See Sunstein, What’s Standing After Lujan?

Of Citizen Suits, “Injuries,” and Article III, 91 Mich.L.Rev. 163, 168 (1992).

There is no United States Supreme Court precedent on the question of a

citizen’s standing to enforce Article II’s “natural born Citizen” clause.

There has not yet been a decision from the United States Supreme Court on

the question of a citizen’s standing to enforce Article II’s “natural born

Citizen” clause by having the court, within the factual and legal context of

the case or controversy presented by the Kerchner case, issue a declaration

as to the meaning and application of that clause as it applies to Obama or

any other presidential candidate, president-elect, or sitting putative president,

and to issue injunctive and mandamus relief based on that declaration.

Under the same factual and legal circumstances, there also is no United

States Supreme Court precedent on the question of whether a citizen has

standing to bring an action against Congress and other government officials

in which he contends that they failed to properly exercise their Twentieth

Amendment constitutional duty to properly vet, investigate, and confirm a

President-Elect before confirming him under that amendment, when they

failed to confirm that he meets the Founders’ and Framers’ definition of an

Article II “natural born Citizen” and that he conclusively proved that he was

born in the United States, and when Congress did not equally exercise its

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power to protect the citizens under the Twentieth Amendment for the benefit

of the plaintiffs as they did for other similarly situated persons. Lack of such

precedent is confirmed by the fact that the Court did not cite to any such

cases. Hence, objective standards do not exist from that Court which could

have guided me on the question of whether the Kerchner case rested on a

sufficient factual and legal basis needed to establish standing and whether an

appeal to the Third Circuit of the District Court’s finding of no standing

would certainly be judged by a reasonable attorney and the Circuit Court as

being frivolous.

With no such cases being available, I looked to other cases of our

Supreme Court and lower courts on the issue of standing as it has been

applied in other factual and legal contexts. But that case law on standing in

general is also not a clear guide. What I have discovered is not only that

there were no Supreme Court standing cases within the Article II

presidential eligibility context, but that the Supreme Court and lower court

cases that do exist on standing have for various reasons come to different

and conflicting conclusions or rested their decisions on very narrow grounds

regarding whether a litigant has or does not have standing. After researching

this law, I concluded that these cases did not provide an objective standard

which showed that a court would most likely finding that the Kerchner

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plaintiffs did not have standing to bring their claims. On the contrary, I

concluded that I could argue for an extension of the principles that these

cases relied upon to find standing. I respectfully submit that the following

cases do not show that the Kerchner appeal would be considered frivolous:

Frothingham v. Mellon, 262 U.S. 447 (1923). A taxpayer's mere ideological

opposition to an alleged illegal expenditure of federal tax revenue failed to

provide a sufficient basis for standing.

Flast v. Cohen, 392 U.S. 83 (1968). Complicating things even more in the

area of standing is the First Amendment Establishment Clause cases. The

Court found taxpayer standing in a suit challenging as an unconstitutional

exercise of Congress’ taxing and spending power the use of federal dollars

to pay for instructional materials in religious schools because plaintiff

alleged a specific constitutional limitation, the Establishment Clause, on

Congress’ spending power. The Supreme Court was willing to carve out an

exception to the usual standing impediment that courts will normally not

accept a case in which large groups of individuals would be affected by the

government action of which the plaintiffs complain. The Court made that

exception because of the importance of the Establishment Clause is a

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“specific constitutional limitation upon the exercise of Congress of the

taxing and spending power” under Article I’s Taxing and Spending Clause.

Id. at 104-05. It is not unreasonable for plaintiffs to ask for declaratory,

injunctive, and mandamus relief and to argue that an exception should also

be made for their claims relative to Article II, Section 1, Clause 4’s “natural

born Citizen” clause under both the due process clause of the Fifth

Amendment for deprivation of life, liberty, safety, security, tranquility, and

property, and the equal protection component of that Amendment, for what

can be more important to our Constitution, our Republican form of

government, and particularly the safety and security of the plaintiffs that the

President and Commander in Chief of the Military be a person whom the

Founders and Framers trusted with the great power of those singular civil

and military offices. As Congress has limits to its spending power because of

the Establishment Clause so does Congress have limits to its power to

confirm a President-Elect under the Twentieth Amendment because of

Article II’s “natural born Citizen” clause.

Sierra Club v. Morton, 405 U.S. 727 (1972) ). An environmental

organization would have standing to challenge development on land owned

by the National Forest Service and National Park Service in the Mineral

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King Valley of California if it could show that its members were likely to

suffer an aesthetic injury were the development to go forward. This case is

best known for the dissenting opinion by Justice William O. Douglas who

asserted that natural resources, because of the importance that they play to

human life, ought to have standing to sue for their own protection.

United States v. SCRAP, 412 U.S. 669 (1973). Five law students who

formed a small environmental group had standing to challenge a decision of

the Interstate Commerce Commission allowing a 2.5% increase in rail

freight rates. The Court accepted plaintiff’s argument that they were likely

to be injured if the rate increase went into effect because the increase would

disproportionately affect recycled goods, causing fewer goods to be

recycled and the group to more likely encounter litter on its hikes in the

Washington, D. C. area.

Warth v Seldin, 422 U.S. 490 (1975). The Court threw out a suit brought by

persons challenging exclusionary zoning ordinances of a wealthy suburb of

Rochester, New York. The Court said the plaintiffs failed to identify a

specific project that would have been built but for the allegedly

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unconstitutional ordinances. Other alleged basis for standing was rejected

on grounds of an insufficient showing of causation or lack of redressibility.

Valley Forge Christian College v. Americans United for Separation of

Church and State (1982). In a case involving a donation of federal property

to a religious college, taxpayers lacked standing to challenge an

Establishment Clause violation when Congress exercised its power under the

Property Clause rather than the Spending Clause);

Allen v Wright, 468 U.S. 737 (1984). The Court found that plaintiffs

challenging tax exempt status for racially discriminatory private schools

failed to show that the injuries they alleged were "fairly traceable" to the

defendant's (the I.R.S's) illegal action (granting of tax-exempt status).

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). This case dramatically

shifted the law of standing by departing from the relaxed approach taken in

the two earlier cases. Now the Court read something new into Article III

and used a novel approach to standing and through the effect of its decision

invalidated a countless number of Congressional statutes giving citizens

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standing to sue government agencies in the area of environmental law. This

case is a prime example of how the rules of standing can change from case

to case. The Court found no standing in a case involving a national

environmental organization's challenge to a Department of Interior rule

declaring that federal agencies had no duty to consult with that department

about the impact their projects in foreign countries might have on

endangered populations of animals. The Court laid down the famous three-

prong test for standing, injury in fact, causation, and redressability. Finding

that the plaintiffs failed to show they suffered an injury in fact, the Court

found the organization lacked standing even though the complaint alleged

that members planned to visit certain foreign countries where they hoped to

see endangered species which would be threatened by projects receiving

federal assistance or visit zoos where these animals might be less likely in

the future to be found. Four members of the Court agreed that even if the

plaintiffs demonstrated an injury in fact, standing would still not exist

because the alleged injury might not be preventable by relief granted if the

court ruled in plaintiff’s favor). We distinguish the Lujan case on the

grounds that the Kerchner plaintiffs, as party citizens to the constitutional

compact with their government are the objects and beneficiaries of Article

II” “natural born Citizen” clause; the Kerchner plaintiffs allege sufficient

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facts to show they have suffered a concrete and particularized injury that is

actual and imminent and not conjectural or hypothetical. They also

adequately show causation and redressability. Id. at 560; we are not

challenging any government agency action or requesting anything which can

be perceived as the court’s interference with the executive’s constitutional

authority to “take Care that the Laws be faithfully executed” (Article II,

Section 3) or congressional power but rather the failure of the Executive and

Congress to protect the plaintiffs’ Fifth Amendment rights to life, liberty,

safety, security, tranquility, and property by failing to honor the meaning

and intent of Article II’s “natural born Citizen” clause and Congress’ failure

to provide that protection to plaintiffs equally as they did to other similarly

situated persons; Kerchner does not involve any Congressional citizen-suit

statute which violates Article III by unlawfully granting standing to citizens

who are not able to sufficiently allege facts which show that they do have

standing.

Massachusetts v. EPA, 549 U.S. 497 (2007). Here, the Court found standing

with a 5-4 vote. Chief Justice Roberts and Justice Scalia wrote separate

dissented opinions, joined by the other dissenting justices, in which they

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stated that the plaintiffs did not have standing. The split of the Court shows

how complex and debatable the issue of standing is and that there really is

no clear-cut test that can guide would-be litigants in their pursuit of what

they perceive to be justice. Justice Roberts did not believe that the plaintiffs

demonstrated concrete and particularized harm which has been the standing

issue also in the eligibility cases. He concluded that the alleged effects of

global warming are base on speculative scientific evidence at best and that

even if it did have any effects as alleged, those consequences affect everyone

on the planet and do not affect Massachusetts in any particular way. He

concluded that standing was therefore not established. We distinguish the

dissent in this case from the Kerchner case in that global warming or climate

change affects the whole world based on natural and physical properties that,

depending on their cause, may or may not be able to be controlled by man,

where the requirement that a person be a “natural born Citizen” to lead a

constitutional republic both in its civil and military capacity is based on a

policy decision made by the Founders and Framers that itself was based on

what they perceived to be the consequences to the survival and protection of

not only that republic but every one of its citizens should that person not

have love, fidelity, and allegiance only to the nation and to every one of its

citizens from the moment of his or her natural birth. It is this decision by the

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Founders and Framers which gives the individual Kerchner plaintiffs the

constitutional right to bring a legal action in which they ask, in default of

the executive and legislative branches of government and the political

majorities doing so, the judicial branch of government to protect their right

to protect their unalienable rights to life, liberty, safety, security, tranquility,

and property as guaranteed to them by the Declaration of Independence and

the Constitution.

Hein v. Freedom From Religion Foundation, 551 U.S. 587 (2007). In

another 5-4 decision, the Court adopted a new, more restrictive view of

taxpayer standing. The Court concluded that the plaintiff lacked standing to

challenge a White House program on faith-based initiatives. Taxpayer

standing, the Court said, reached only congressionally-funded programs, not

Executive Branch initiatives such as one that helps religious charities win

federal grants.

Complicating matter even worse is the fact that court have also

created the doctrine of prudential standing which is not based on Article III

“Case or Controversy” requirements but rather on policy considerations.

Flast v. Cohen, 392 U.S. 83, 92 (1968) (“confusion has developed as

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commentators have tried to determine whether Frothingham establishes a

constitutional bar to taxpayers suits or whether the Court was simply

imposing a rule of self-restraint which was not constitutionally compelled”).

Under prudential standing, the judiciary seeks to avoid deciding question of

broad social impact where no individual rights would be vindicated and to

limit access to the courts to persons best suited to assert particular claims.

Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 99-100 (1979).

The doctrine of prudential standing, with its policy and political

underpinnings, further clouds ones ability to come away from the case law

with any objective and clear test for standing. Not addressing the lower

court’s finding that plaintiffs also lack prudential standing, this Court has

concluded that plaintiffs do not have Article III standing. Opinion p. 4. But

the lower and this Court’s conclusion that plaintiffs fail to establish Article

III standing because they present “generalized grievances” “that are suffered

by many or all of the American people” and which are “most appropriately

handled by the legislative branch” (Opinion p. 5-6) is an application of

prudential standing rather than Article III constitutional standing. See

United States v. Richardson, 418 U.S. 166, 173-76 (1974) (the individual

may not litigate generalized grievances shared by a large group of

individuals). As we have seen, prudential standing is grounded to a great

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degree on political considerations. It is very amorphous since it is based on

the court’s case-by-case view of what it perceives to be its role in our

tripartite federalist system, its self-restraint within that vision, and what it

perceives to be sound public policy. Distinguishing between Article III

standing and prudential standing is critical in that Congress can by statute

waive the latter but not the former. See, e.g., Endangered Species Act, P.L.

93-205, Sec. 11(g), 16 U.S.C. Sec. 1504(g) and 5 U.S.C. Sec. 702 (a person

alleging the proper wrong can obtain judicial review of agency action). In

Federal Election Commission v. Akins, 524 U.S. 11, 25 (1998), the Court

held that the injury “is sufficiently concrete and specific such that the fact

that it is widely shared does not deprive Congress of constitutional power to

authorize its vindication in the federal courts.” In the Kerchner case, we do

not have any Congressional statute granting plaintiffs standing. But

nevertheless, we did not see any impediment to arguing and we did so argue

that plaintiffs’ injuries are sufficiently concrete and specific to them that it

did not matter that other Americans may also be damaged. Under all these

circumstances and existing case law, an attorney can hardly come away from

prudential standing analysis which is what the Court actually based its

decision upon with any clear objective standard of standing. Nor would a

reasonable attorney know with any great degree of certainty that such an

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argument would be considered as “utterly without merit” or as having no

“colorable arguments” to support it and therefore have no chance of success

on appeal.

The Berg case was not an absolute block to my filing the Kerchner
appeal to the Third Circuit Court of Appeals

I did not believe that I was precluded from advancing my clients’

rights through the judicial system because the Third Circuit had decided the

Berg case, for precedent may be either distinguished or overruled. The

Court found that the Kerchner case makes “almost” identical claims as Berg.

Opinion, p. 8. But how are we to measure by any objective standard what is

“almost” identical. On the contrary, I see the Kerchner case as a much

different case than the Berg case. The Kerchner case has different facts and

legal arguments than Berg.

The Kerchner facts are significantly different from the Berg facts

Standing cannot be decided by generalized statements. Rather,

standing analysis requires a highly fact-sensitive inquiry. We saw in the

Lujan case how standing can turn on the facts that are alleged by the

plaintiff. We submit that the Kerchner facts are not only not “almost”

identical to the Berg facts but rather are significantly different. Because the

facts are different between the two cases, I reasonably believed that the Berg

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holding was limited to its particular facts. The court in Berg relied on

different facts to reach its decision on standing.

The timing of the filing of the Kerchner complaint is significantly

different from the filing of the Berg complaint. Standing is assessed as of

the time that the complaint is filed. Lujan v. Defenders of Wildlife, 504 U.S.

555, 571 n.4 (1992) (“The existence of federal jurisdiction ordinarily

depends on the facts as they exist when the complaint is filed.” (quoting

Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 830 (1989))).

See also Wilbur v. Locke, 423 F.3d 1101, 1107 (9th Cir. 2005) (quoting

Kitty Hawk Aircargo, Inc. v. Chao, 418 F.3d 453, 460 (5th Cir. 2005)) (“‘As

with all questions of subject matter jurisdiction except mootness, standing is

determined as of the date of the filing of the complaint . . .’”). The status of

a person who is running for public office will change over time. What status

that person will have as a defendant–a mere candidate, a candidate-elect, or

even a sworn-in office holder–will depend upon when that complaint is filed

against that person.

In Kerchner, because we sued the President-Elect and the putative

sitting President, we do not have a First Amendment problem. As Judge

Carter explained:

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There may very well be a legitimate role for the judiciary to interpret
whether the natural born citizen requirement has been satisfied in the
case of a presidential candidate who has not already won the election
and taken office. However, on the day that President Obama took the
presidential oath and was sworn in, he became President of the United
States. Any removal of him from the presidency must be
accomplished through the Constitution’s mechanisms for the removal
of a President, either through impeachment or the succession process
set forth in the Twenty-Fifth Amendment. Plaintiffs attempt to subvert
this grant of power to Congress by convincing the Court that it should
disregard the constitutional procedures in place for the removal of a
sitting president. The process for removal of a sitting president–
removal for any reason–is within the province of Congress, not the
courts.

US District Court Judge David O. Carter in dismissing “Captain Pamela

Barnett, et. al. v Barack H. Obama, et. al., October 29, 2009

The Court found that “[t]he appeal in Berg presented us with a claim

similar to the one here, in which the plaintiff challenged President-elect

Obama’s eligibility to run for and serve as President.” Opinion p. 4. We

respectfully disagree with this statement. Berg as a “voter” sued candidate

and private person Obama before the general election. Berg’s challenge was

to Obama’s right to run for office and to be placed on the ballot. He never

amended his complaint to make any claim against President-Elect Obama or

putative President Obama. But the Kerchner plaintiffs sued both President

Elect Obama (after Congress confirmed him but before Chief Justice

Roberts swore him in) and putative President Obama (after the Chief Justice

swore him in).

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If we closely examine the holding of Berg, we can see that Berg filed

his complaint on August 21, 2008, well before the general election of

November 4, 2008. He never amended his complaint at any time thereafter.

The decision was all about a voter suing a candidate and private person

before a general election took place and not about suing that same person

after the political process had run its course but before that person became

constitutionally “vested” with “executive Power” under Article II, Section 1,

Clause 1 of the Constitution. Berg made claims against Obama as a

candidate, asking for injunctive relief that the Democratic National

Committee not be allowed to nominate him, that he not be allowed to run for

office, and that he not be placed on the ballot. Berg, 586 F.3d at 237. He

also filed emergency injunction motions asking that the election be stayed.

He filed an additional emergency injunction motion after Obama won the

general election, asking that the governors of each state be prohibited from

certifying their state’s electors, the electors be prohibited from casting any

votes for Obama, and Congress be prohibited from counting of the electoral

votes in Congress. Id. at 238. The Court even recognized that Berg did not

included in his complaint any allegations regarding Obama winning the

general election and Congress confirming the electoral college votes without

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any objection. Id. The Court added that Berg was challenging the

qualifications of a “2008 presidential candidate[].” Id. at 239.

In contrast, the Kerchner plaintiffs filed their complaint/petition at

about 2:50 a.m. on January 20, 2009, before Chief Justice Roberts swore

private Obama in as the new President and Commander in Chief of the

Military. Before serving the complaint upon the defendants, they amended

that complaint on January 21, 2009 and February 9, 2009 so as to be able to

also have their claims filed against Obama in his public and official capacity

as the new duly sworn in President and Commander in Chief of the Military.

The Court in Berg held that a candidate’s ineligibility under the

“Natural Born Citizen Clause does not result in an injury in fact to voters.”

Id. at 239 (quotation and citation omitted). The Court stated that “[e]ven if .

. . the placement of an ineligible candidate on the presidential ballot harmed

[the plaintiff], that injury . . . was too general for the purpose of Article III

[because the plaintiff] shared . . . his ‘interest in proper application of the

Constitution and laws’ . . . with all voters . . .’” Id., 586 F.3d at 240 (quoting

Lujan, 504 U.S. at 573). Hence, we can see that the focus of the decision

was in a “voter” challenging a candidate running for office before a general

election had even taken place and not in a “citizen” challenging that same

candidate after he becomes like Obama did the President-Elect after he won

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the popular vote in the general election and the vote of the Electoral College,

and Congress in join session confirmed that election but before he “enter[ed]

on the Execution of his Office . . .” under Article II, Section 1, Clause 8

when Chief Justice Roberts swore him into office. In Berg, candidate

Obama had yet to be the President-Elect on his way to being sworn in and

acquiring executive power which he is supposed to use to protect citizens

such as Berg. Hence, candidate Obama could not harm Berg by failing to

protect him because he had no power to affect his life and was but a mere

private person. In Kerchner, the citizen plaintiffs sued Obama knowing that

he was the President-Elect soon to have vested in him that power and also

sued him after he was sworn in at which time presumably that power

constitutionally vested in him. Their controlling status was not of mere

voters suing someone who might win an election but rather that of citizens

of the constitutional republic, the United States of America, suing someone

who won both the popular and electoral college vote and received

Congressional confirmation and then also sued that person after executive

power presumably vested in him. With Obama being the winner of the

election and also being sworn in, Congress and he now have the

constitutional duty to protect the Kerchner plaintiffs. But because Obama

has yet to and because he cannot conclusively prove that he is an Article II

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“natural born Citizen,” plaintiffs are not constitutionally expected to nor do

they trust him to protect their life, liberty, safety, security, tranquility, and

property as would a President and Commander in Chief of the Military who

is a “natural born Citizen.”

Additionally, with Berg, the other Branches of government had yet to

act. The Court could perceive acting at that stage as an interference with the

work of the other branches of government which had yet to take up the issue.

The courts could perceive this as a separation of powers problem which is

the underlying concern in any standing analysis. With Kerchner, the other

two branches of government had completed their work and they refused to

do anything on the question of Obama’s Article II eligibility. The Court

states without specific reference or explanation that its Berg decision

encompasses these facts and therefore these different circumstances are not a

basis to distinguish the Kerchner case from the Berg case. Opinion page 5.

But while the court was willing to exercise its discretion in the interest of

justice and to accelerate the time forward and address issues that were not

raised in Berg’s complaint (Id. at 238), such accommodation did not and

could not change the fact that Berg’s alleged injuries were all tied to his

status as a voter and Obama’s status as a candidate. Unlike the Kerchner

plaintiffs, Berg simply did not make any injury arguments based on Obama

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having the civil and military power of the President and how exercise of that

power has caused and is continuing to cause him an injury in fact.

If we analyze each one of Berg’s claimed injuries, we can see that

most of his claims were tied to his status as a voter and to Obama’s status as

a mere candidate. Berg argued that he suffered an injury in fact as a voter

because each state placed Obama on the ballot when there existed substantial

questions regarding his citizenship status. Id. at 239. The Court found that

Berg was not injured because he could always support a candidate that he

believed was eligible. Id. The Court found that Berg’s wish that the

Democratic primary voters had not chosen Obama and that they did not act

on the ineligibility evidence that he provided did not state a legal harm. Id.

240. The Court further found that even if the placement of an ineligible

candidate on the ballot had harmed Berg, that harm was too general. Id.

The Court said that he shared his harm with all voters and that relief he

sought would not have benefited him more than it would the public at large.

Id. The only argument that Berg made that could concern Obama as a mere

candidate or as the President was his contention of injury caused to him by

the possibility that Obama might be removed from office in the future

because of his ineligibility. Id. at 239. The Court found this injury to be

speculative and contingent on future events. Id. The Court did briefly

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consider Berg’s position “[n]ow that the election is over.” Id. 240. But it

rejected any claim of injury because it concluded that Berg shared his stake

in having Obama be eligible with an even greater number of people,

“whether voters or not.” Id. But unlike the Kerchner plaintiffs, there was no

injury that Berg alleged for the post election period and therefore there was

no such injury for the Court to analyze that may have applied to that time

period. Simply wanting Obama to be eligible did not articulate any injury in

fact. The Court then explained that the “essence of Berg’s complaint” was

that various persons were not persuaded by his claim that Obama is not

eligible to be President. Id. Calling this claim a “grievance,” the Court

concluded that it was not one to be resolved by the judiciary. Id. The Court

went on to explain that Berg’s Tenth Amendment argument that the states

and the people have the power to determine the qualifications of the

President-Elect had no relevance to the case and that the case that Berg cited

supporting his argument had nothing to do with standing. Id. 240-41. The

Court did not accept Berg’s “automatic standing” argument that he based on

Robinson v. Bowen, 567 F.Supp. 2d 1144, 1147 (N.D.Cal. 2008). Id. at 241.

Berg cited the following language of that opinion: “Judicial review [of the

claim]-if any-should occur only after the electoral and Congressional

processes have run their course.” Id. at 1147. We made the same argument

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in the Kerchner case. In Berg, the Court said that the statement goes to

ripeness and that in itself it does not support any argument for standing. But

just as mootness can eliminate a plaintiff’s personal stake and thereby cause

standing to evaporate (Arizonas for Official English v. Arizona, 520 U.S. 43,

68 n.22 (1997); Ehrheart v. Verizon Wireless, No. 08-4323, p. 5 (3rd Cir.

June 15, 2010)), ripeness can give a person a personal stake in litigation and

thereby cause standing to come into being. We therefore distinguished the

Court’s response on this argument by Berg.

Berg maintained that he has suffered damage to his reputation by

being called a racist for bringing his suit. He argued that he was injured

because he had to spend money on his lawsuit. He said he suffered injury

because he was denied some “information concerning the qualifications of

Obama.” He added he had standing under 18 U.S.C. § 1983. He asserted

that he was injured when the “President of the Senate failed to call for

objections during the counting of the electoral votes from each state....” He

pressed that he had standing because his First Amendment rights were

somehow violated when his political representatives failed to object to the

electoral votes cast in Obama’s favor as he wished them to. Finally, he

argued that the District Court violated his due process rights by dismissing

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his case. Berg, 586 F.3d at 241-42. The Court rejected all of these

arguments.

We can see from these arguments that Berg’s claims of injury are

mostly concentrated on his status as a voter and to Obama’s status as a mere

candidate. This is a critical point because whether the Berg or the Kerchner

plaintiffs can allege sufficient injury in fact is logically linked to the status of

Obama as either a mere candidate or a putative sitting President and

Commander in Chief. But as we shall see below, the injury in fact that the

Kerchner plaintiffs allege arises not from their status as mere voters, but

from their status as citizens. They do not allege that they suffered any injury

from Obama, the powerless candidate, but rather from the all-powerful

Obama, the putative President and Commander in Chief of the Military. No

where in Berg’s action did he allege any deprivation of his Fifth Amendment

due process right to life, liberty, safety, security, tranquility, and property

caused by the all-powerful putative sitting President Obama and Congress,

who, unlike a mere private person who is running for public office, became a

public actor and subject to the Fifth Amendment due process clause after

being sworn in as President.

To distinguish them from Berg and other Americans and to show that

they have a stake in this action different from other Americans, we explained

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in our complaint and briefs how Kerchner pursuant to his First Amendment

right to petition the government wrote dozens of letters to Senators,

Representatives, and President Bush petitioning them for an investigation

into Obama’s Article II eligibility before he sued. Berg did not do this. We

explained in our complaint and briefs that both Kerchner and Nelsen are

oath takers under the Armed Forces and National Guard. Berg did not have

this status. We explained in our complaint and briefs that Kerchner is a

member of the military. Berg is not. The Kerchner plaintiffs are also suing

in their capacity as citizens and not as mere voters. Hence, the Kerchner

plaintiffs are much different from plaintiff Berg. These characteristics show

that the Kerchner plaintiffs had a greater stake in the Obama eligibility issue

and that they had a greater motivation to truly litigate that issue than Berg

did.

With standing turning on factual minutia, how is a reasonable attorney

to know by any objective standard that a court would without question

consider his argument for standing in this case which has different facts

from other cases “almost” identical to the argument for standing made in

those other cases which found no standing?

The Kerchner Case Makes Different Legal Arguments than the Berg
Case

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The Kerchner case also makes different legal arguments than the Berg

case. In Kerchner, we argued that the underlying merits of the case are very

relevant to showing injury in fact and therefore standing. Berg did not make

this argument nor did he make the same legal claims as did the Kerchner

plaintiffs. Neither the District Court nor this Court addressed this argument.

The merits of the legal claims cannot simply be ignored when engaging in a

standing analysis. Modern standing analysis has placed us in a logical

inconsistency. Courts tell us that we are not to analyze the underlying merits

of a plaintiff’s claim unless that plaintiff first establishes that he has standing

to bring those claims. Does this mean that the underlying merits of a claim

are not relevant to standing analysis? On the contrary, we cannot reasonably

deny that the merits and standing analysis overlap and that one cannot be

considered without considering the other. How is injury in fact to be

measured unless we know what the merits of the claims of injury are?

Injury cannot be assessed through a purely factual inquiry without any

consideration of legal concepts that make up causes of action. We cannot

reasonably deny that standing also turns on the nature of the legal claim

being made by a litigant, for whether a person has suffered any injury surely

depends upon whether our law recognizes that a person has a cause of

action. For example, a person suffering damage from an automobile

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accident will usually not bring an action for a violation of his civil rights.

Even though the litigant could have real and serious injury caused by the

automobile accident, he simply would not have any cause of action under

our civil rights laws. The litigant would not have suffered any injury in fact

cognizable under our civil rights laws but he would have suffered such an

injury under our tort laws. Hence, the legal theory advance by a litigant is

also determinative when deciding the question of whether he or she has

suffered an injury in fact giving rise to standing. The reliance on the

underlying legal claim in standing analysis is recognized by Cass R.

Sunstein who states: “[D]espite its apparent simplicity, the notion of injury

in fact is heavily dependent on an assessment of law and is far from a law-

free inquiry into facts.” Sunstein, What’s Standing After Lujan? Of Citizen

Suits, “Injuries,” and Article III, 91 Mich. L.Rev. 163, 167 (1992).

As counterproductive as it may appear, we submit that any reasonable

standing analysis must consider the fullness of the underlying merits of a

plaintiff’s claims in order to properly determine whether that plaintiff has

indeed suffered a sufficient injury in fact. When engaged in standing

analysis, we should not only touch upon the underlying merits of a plaintiff’s

claims in some vague and limited way, for we need to fully understand the

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merits of a plaintiff’s claims of injury before we can reasonably conclude

that the plaintiff does not have sufficient injury in fact to establish standing.

In their complaint, plaintiffs have alleged that Obama is not and

cannot be an Article II “natural born Citizen” because he does not meet the

original law of nations and common law definition of that clause which is a

child born in the country to a United States citizen mother and father.

They also allege that Obama has not yet conclusively proven that he was

born in Hawaii. Additionally, they allege that Congress did not adequately

vet and investigate whether Obama was born in Hawaii and whether he

meets the definition of an Article II “natural born Citizen” and hence

violated its constitutional duty under the Twentieth Amendment to make

sure that a president-elect qualifies for the office. Finally, they allege that

Former Vice-President and Senate President, Dick Cheney, and current

Speaker of the House, Nancy Pelosi, were complicit in that Twentieth

Amendment violation.

On defendants’ motion to dismiss for standing on the face of the

complaint, the Court is to accept as true the factual allegations of the

complaint and to construe that complaint in a light most favorable to the

non-moving party. Byers v. Intuit, Inc., 600 F.3d 286, 291 (3d Cir. 2010).

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Hence, when analyzing what injury the plaintiffs have suffered and continue

to suffer which analysis goes to the question of whether they have suffered

an injury in fact which gives them standing, we must accept these allegations

as true.

Berg did not argue that Obama is not eligible because he does not

meet the original law of nations and common law definition of a “natural

born Citizen” which as we showed in our Opening Brief and Reply Brief is a

child born in the country to a citizen mother and father. While Berg

focused only on the place of birth issue which is in dispute, Kerchner argues

that Obama is not and cannot be President no matter where he was born

because he was born to a citizen mother but not also to a citizen father which

made him born a subject of a foreign power like a naturalized citizen and he

therefore is not and cannot be an Article II “natural born Citizen.” Obama

himself has admitted that his father was a British subject and that he himself

was a British subject under the British Nationality Act 1948. These facts

are not in dispute, for Obama’s admission is generally known throughout the

United States and can be accurately and readily determined by reliable

sources. The Court can therefore take judicial notice of these facts under

Fed. R. Evid. 201(d).

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The Kerchner plaintiffs argue that they each have an unalienable right

to life, liberty, safety, security, tranquility, and property, that the government

has an obligation to protect that right pursuant to the very reason why the

People constituted their government during the Founding and under the Fifth

Amendment due process clause, and that they are not expected to and have

not and will not receive that protection from a person who, not being an

Article II “natural born Citizen,” is an illegal and illegitimate President and

Commander in Chief of the Military. This is constitutional protection.

Neither the District Court nor this Court addressed this argument in its

decision that plaintiffs do not have standing. Moreover, this Court found my

appeal on the standing issue to be frivolous without addressing this

argument. But this is the most important standing argument that we made in

these two courts. The injury that is alleged in this argument is critical to

plaintiffs’ standing to bring their claims against the defendants, for lack of

protection from their President and Commander in Chief to which each

particular citizen plaintiff is entitled under our Constitutional covenant

between the People and the Government as conceived by the Founders and

Framers is more than sufficient on a motion to dismiss for lack of standing

to show the Kerchner citizen plaintiffs have each suffered an injury in fact

which is both concrete and particularized and which gives them standing

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and, under the Fifth Amendment due process clause, a right to have their day

in court.

The source of plaintiff’s individual right to protection from their

government and their right to bring a legal action to enforce is well grounded

in our constitutional history. The Declaration of Independence tells us that

“Men” are not only created equal, but that their “Creator” has also endowed

them “with certain unalienable Rights, that among these are Life, Liberty,

and the Pursuit of Happiness…” It also tells us that to secure these rights,

“Governments are instituted among Men, deriving their just Powers from the

Consent of the Governed…” Finally, it tells us that when government

becomes “destructive of these Ends, the people have “the Right” to alter or

abolish it, and to institute new government so as to best protect their “Safety

and Happiness.”

The Framers thought enough about the constitutional duty that office

holders have to act with sole loyalty, fidelity, and allegiance to the people

that they included in the Constitution provision for the punishment for

treason. See Article I, Section 6; Article II, Section 4; and Article III,

Section 3, Clause 1 and 2. It is telling that the Framers provided in Article

II, Section 1, Clause 6 (or 8) that the President specifically give an oath that

he will preserve, protect, and defend the Constitution of the United States.

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They did not place in the Constitution the same obligation upon senators,

representatives, and judges. The Constitution at Article IV, Section 4 also

provides that the United States shall protect each state from “invasion.”

Such protection would necessarily extend to each citizen of each state which

includes the plaintiffs. There are also numerous other sources that

recognize the plaintiffs’ right to receive protection from their government

which necessarily includes the President, Commander in Chief, and

Congress. I cited these sources and discussed them in my Opening Brief and

Reply Brief.

To show that they have standing to bring their action against Obama,

Congress, and the other defendants, plaintiffs argued in their Opening and

Reply briefs that after the revolution the people created a government so that

it could protect them. In return for that protection, the people pledged their

allegiance to that government. As part of that protection to each and every

person and citizen in the nation, Article II guarantees to each and every

individual American that only a natural born citizen shall be vested with the

great and singular powers of the President and Commander in Chief of the

Military. We showed that the Framers were concerned with the President

and Commander in Chief being a “natural born Citizen.” They said that no

person who does not have such status can hold those all powerful and

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singular civil and military offices. We demonstrated that the Framers did

not trust a person who does not have that status to adequately protect the

nation and its citizens. We also argued that as conceived by the Founders

and Framers in the Constitution, a covenant between the people and its

government, if Obama is not eligible for the office of President and

Commander in Chief, then he cannot be trusted or relied upon to protect the

plaintiffs’ life, liberty, safety, security, tranquility, and property. There is no

denying that the plaintiffs each make up the people and have an inalienable

constitutional right to this protection from their President and Commander in

Chief and Congress. Finally, we explained that plaintiffs’ injury in fact is

their not receiving protection from the President and Commander in Chief of

these inalienable rights as recognized by the Declaration of Independence

and the Constitution.

The safety feature of the “natural born Citizen” clause if further

evidence from the Congressional hearing in 2000 during which Congress

debated whether that clause should be amended.

We also argued that if neither Congress nor the Executive branches of

government will assure the plaintiffs that protection to which they are

entitled, the plaintiffs should have access to the courts to be able to protect

and vindicate their own rights to this protection from the defendants. We

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argued that this right to access to the courts is more critical when both the

Executive and Legislative branches of government are acting in concert to

deprive the plaintiffs of their right to this protection. We argued that the

position could be taken that since Obama has already been sworn in, that

only Congress has jurisdiction over the question of whether he is a “natural

born Citizen.” But what happens when Congress also refuses to perform its

constitutional duty under the Twentieth Amendment to make sure that only a

“natural born Citizen” is given the great and singular powers of the Office of

President and Commander in Chief of the Military? Surely the Constitution

would not leave someone like the plaintiffs without any remedy to protect

the same rights which the Declaration of Independence and the Constitution

recognize as their unalienable rights to life, liberty, and property. Marbury

v. Madison, 5 U.S. (1 Cranch) 137 (1803), did instruct that where there is a

right there is a remedy. As Alexander Hamilton in the Federalist Papers

No 78 said:

This independence of the judges is equally requisite to guard the


Constitution and the rights of individuals from the effects of those ill
humors, which the arts of designing men, or the influence of particular
conjunctures, sometimes disseminate among the people themselves,
and which, though they speedily give place to better information, and
more deliberate reflection, have a tendency, in the meantime, to
occasion dangerous innovations in the government, and serious
oppressions of the minor party in the community . . . .

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It only stands to reason that the only other branch of government to which

the plaintiffs can look for protection of those rights and receive a remedy is

the judicial branch of government, for it is that branch which has the sole

power to interpret the Constitution and thereby vindicate plaintiffs’ rights to

the protection to which they are entitled. Hence, it made perfect sense that

plaintiffs would bring their cause of action against both Obama and

Congress.

We argued that the District Court erred in finding that the plaintiffs

have no standing because there may be many other Americans who may also

be injured by the defendants’ actions. We argued that this is not a correct

statement of the law of standing. We argued that the plaintiffs have

adequately alleged that each of them have suffered an injury in fact by not

receiving from defendants the protection to which they are guaranteed under

the due process clause of the Fifth Amendment. We have adequately shown

that plaintiffs not receiving protection of their unalienable rights to life,

liberty, safety, security, tranquility, and property affects each of the plaintiffs

in a personal and individual way. We argued that the courts should not

deny plaintiffs their right to access to the courts to enforce their inalienable

right to protection from the defendants simply because there may be many

other Americans who may also be injured by the defendants’ actions. We

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argued that as long as the plaintiffs are among the injured, the fact that

others may also be injured by the defendants should not be a disqualifying

factor for them to show they have standing. The same rule was announced

in United States v. SCRAP, 412 U.S. 669, 688 (1973) which said that “[t]o

deny to persons who are in fact, injured simply because many others are also

injured, would mean that the most injurious and widespread Government

actions could be questioned by nobody.” See also Lujan, 504 U.S. at 581

(J. Kennedy concurring) (“While it does not matter how many persons have

been injured by the challenged action, the party bringing suit must show that

the action injures him in a concrete and personal way”); Federal Election

Commission v. Akins, 524 U.S. 11, 25 (1998) (holding that the injury “is

sufficiently concrete and specific such that the fact that it is widely shared

does not deprive Congress of constitutional power to authorize its

vindication in the federal courts”). This case law shows that the Supreme

Court has not required that a plaintiff show that his or her injury is more than

that of others but only that he or she has personally been injured.

Additionally, we showed that there is no reasonable way for the Court to

conclude that almost all other Americans would have suffered the same

injury as the plaintiffs if Obama is ineligible to be President because such a

statement is not supported by any evidence and is pure speculation. On the

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contrary, we argued that there is a great number of Americans who for

various reasons do not feel injured by Obama even if he should not be

eligible for the office he currently occupies.

The District Court and this Court agreed that while plaintiffs may be

frustrated by Congress’ unwillingness to act on their behalf, they may find a

remedy to their frustration “‘through their vote.’” Opinion at p. 6 (quoting

the District Court opinion). We also argued that going to the voting booth is

not the correct way to resolve a constitutional question such as whether

Obama is an Article II “natural born Citizen.” The voting booth has never in

our history been the correct vehicle by which our constitutional republic has

resolved constitutional questions. On significant questions of constitutional

law, a litigant should not be told that his remedy is not found in the judicial

branch of government but rather in the voting booth. Using the voting booth

as a means to interpret the constitution, plaintiffs would have to convince

millions of other voting citizens as to what the correct interpretation of the

“natural born Citizen” clause is. Such a task is neither warranted nor

practical. Popular elections do not and cannot amend or repeal the supreme

law of the land. Nor can they be used to interpret the meaning of the

“natural born Citizen” clause.

To establish standing a litigant’s injury need not necessarily be one to

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his or her physical person, property, or economic interest. Give case law on

this. The defendants, by allowing an ineligible person to occupy the all

powerful and singular offices of the President and Commander in Chief of

the Military, are violating their constitutional duty to protect the citizen

plaintiffs and to deny plaintiffs standing to bring their action against them is

to deprive the plaintiffs of a right to protect themselves which belongs to

them under the Constitution as citizens of the United States. In the

discrimination context, denying a person a right that belongs to them under

the Constitution, even if lacking the character of being one that injures a

person’s person or property, when combined with a defendant’s

discriminatory animus, is sufficient to make out a cause of action under 42

U.S.C. Sec. 1985(3). It is this very argument along with everything else that

we have shown that demonstrates that the plaintiffs have indeed alleged a

sufficient injury in fact, that is sufficiently concrete and particularize caused

by Obama, Congress, and the other defendants, which the Court has the

constitutional power and authority to remedy by taking judicial action to

assure the plaintiffs that Obama is an Article II “natural born Citizen”

through use of its declaratory, injunctive, and mandamus powers.

The argument that the plaintiffs have an individual right to this

protection from defendants and that they also have a right to resort to the

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courts to enforce and vindicate that right is the heart and soul of plaintiffs’

argument for standing. Plaintiffs are citizens of a constitutional republic and

not subjects of a King and in the words of the Declaration of Independence,

“endowed by their Creator with certain unalienable Rights, that among

these are Life, Liberty, and the pursuit of Happiness . . .” Not to give

plaintiffs standing when they are made to suffer a serious constitutional

violation by the putative President and Commander in Chief not proving

himself to be and by law not being eligible for those offices is to deny them

their individual right as a citizen of a constitutional republic to bring a legal

action in which they seek to protect those rights by having the judicial and

legislative branches of government work together to remove from the all

powerful and singular office of the President and Commander in Chief of the

Military a person who is not eligible to hold those positions because of

divided loyalty and allegiance to the United States and who in the eyes of

the Founders and Framers could not be trusted to wield such power. To

deny them standing is also to deny the power that the President and

Commander in Chief has over their individual lives and how Obama has

used that power and will continue to use that power to jeopardize their lives,

liberty, safety, security, tranquility, and property by acting on a daily basis

on, among many issues, national defense and security, the war on terrorism,

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relations with our enemies, and transformation of the national economy and

the health care industry. To deny them standing is to relegate the plaintiffs

to the status of subjects and not citizens.

The Kerchner plaintiffs also sue Congress under the Fifth Amendment

due process clause for failure to protect their unalienable right to life, liberty,

safety, security, tranquility, and property when it breached its constitutional

duty under the Twentieth Amendment to properly vet and confirm only a

qualified president-elect for the office of President and Commander in Chief.

They also sue Former Vice President and Senate President, Richard Cheney,

and then and current Speaker of the House, Nancy Pelosi, for their

complicity in that breach. Berg made no such claim. This is a very

important distinguishing aspect of the Kerchner case because defendants

have maintained and courts have agreed with them that the question of

presidential eligibility can be handled only by Congress and not by the

courts. We allege that since Congress failed to exercise its constitutional

duty under the Twentieth Amendment, this argument must fail, for Congress

simply refuses and continues to refuse to satisfy its obligations under that

amendment. Congress has shown that it did not have and continues not to

have any interest in challenging Obama’s eligibility. It has ignored the

petitions of not only the plaintiffs in this regard but that of countless other

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concerned citizens. In the words of District Court Judge Clay Land:

“Congress is apparently satisfied that the President is qualified to serve.

Congress has not instituted impeachment proceedings, and in fact, the House

of Representatives in a broad bipartisan manner has rejected the suggestion

that the President is not eligible for office. See H.R. Res. 593, 111th Cong.

(2009) (commemorating, by vote of 378-0, the 50th anniversary of Hawaii’s

statehood and stating, “the 44th President of the United States, Barack

Obama, was born in Hawaii on August 4, 1961”).”

http://ia311028.us.archive.org/1/items/gov.uscourts.gamd.77605/gov.uscourt

s.gamd.77605.13.0.pdf

Article II’s “natural born citizen” clause limits Congress’ Twentieth

Amendment power to confirm a president-elect and thereby allow the

vesting in him of executive power under the Constitution. The equal

protection component of the Fifth Amendment also prevents Congress from

acting in a way to violate a person’s equal protection. In Kerchner, the

citizen plaintiffs want protection from their government of their Fifth

Amendment right to life, liberty, safety, security, tranquility, and property

and that that protection be equal to the protection that it gives to other

members of American society. We saw that under Flast, the First

Amendment Establishment Clause limits Congress’ taxing and spending

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power given to it by the Spending Clause. In Flast, the taxpayers did not

want the government to use their tax dollars for prohibited religious uses.

Given the analogous nature of these two scenarios, why should the Fast

plaintiffs have standing and the Kerchner plaintiffs should not? What can be

more important to our Constitution, our Republican form of government,

and particularly the safety and security of the plaintiffs that the President and

Commander in Chief of the Military be a person whom the Founders and

Framers trusted with the great power of those singular civil and military

offices? Given the critical safety and national security role that the “natural

born Citizen” clause plays in our republic, why would a court not want to

carve out an exception to the usual standing impediment asserted by the

courts when large groups of individuals would be affected by the

government action of which the plaintiffs complain as it did in Flast which

only concerned some taxpayers’ tax dollars? We cannot deny that Article

II’s “natural born Citizen” clause is an important limitation on Congress’

power under the Twentieth Amendment to confirm a president-elect for the

office of President and Commander in Chief. Hence, asking for an

extension of the Flast doctrine to the Kerchner plaintiffs is reasonable.

We also cannot reasonably expect the Executive Branch to challenge

Obama because of its conflict of interest. Any legal action by the Executive

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Branch would be initiated by the United States Attorney General. But the

United States Attorney General, Eric Holder, his staff, and the entire

Department of Justice, have a clear conflict of interest. Mr. Holder was a

political advisor to Mr. Obama before his election. Mr. Obama appointed

Mr. Holder as his Attorney General and Mr. Holder gains both financially

and politically from his position as Attorney General and from his

relationship with Mr. Obama. Additionally, suing Congress becomes

important given that a plaintiff must establish “a causal connection between

the injury and the conduct complained of—the injury has to be ‘fairly

trace[able] to the challenged action of the defendant, and not . . . th[e] result

[of] . . . some third party not before the court.” Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560 (1992) (quoting Simon v. E. Ky. Welfare Rights

Org., 426 U.S. 26, 41-42 (1976)). There is no other political or law

enforcement institution which has been willing to step forward and take any

action on the Obama eligibility issue. Because of the failings of our

legislative and executive branches of government regarding the eligibility

issue, the task of taking up the plaintiffs’ plight falls upon the judicial branch

of government which has the ultimate power to interpret and enforce the

Constitution in general and the “natural born Citizen” clause specifically.

The courts have the responsibility under Article III to review cases and

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controversies under the Constitution over which they have jurisdiction.

Cohens v. Virginia, 19 U.S. 264 (1821) (the Court is constitutionally duty

bound to hear a case if it has jurisdiction). If the Constitution allows a court

to find that an action of Congress expressed by way of a law is

unconstitutional, then they can also find under the Constitution that another

action of Congress expressed in certifying an ineligible president is also

unconstitutional.

Our appeal on the issue of standing has more than enough merit. It is

not like I violated some objective standard that applies to appealing an

adverse ruling on standing. I made no legal error. Rather, the Circuit Court

like the District Court did not agree with me that the plaintiffs have standing.

But that is hardly a reason to find the appeal frivolous and to impose

damages and costs upon me. As we have seen in our jurisprudence, a court

can find standing just as easy as it can find no standing. Our Fifth

Amendment protection argument was well supported by legal precedent and

constitutional history. Plaintiffs’ argued that as citizens they have a personal

and individual right to receive protection from the President, Commander in

Chief of the Military, Congress, and other government officials and to bring

an action to enforce that right. They showed that their right to receive such

protection is well grounded in the founding principles of our nation. If

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plaintiffs do not present a legitimate case or controversy under the

Constitution, then the presidential eligibility clause has effectively been

nullified, not by a constitutional amendment but rather by the court-created

rule of standing which plaintiffs have in any event shown they adequately

satisfy.

Precedent may also be overruled. I did not see the Berg case as a case

that stood on strong grounds. The cases cited by the Court as support for its

decision were not really on point because the factual and legal issues of

those cases were not the same as those in Berg. For example, the Court cited

Warth v. Seldin, 422 U.S. 490 (1975) and said: “[W]hen the asserted harm

is a `generalized grievance’ shared in substantially equal measure by all or a

large class of citizens, that harm alone normally does not warrant exercise of

jurisdiction.” But the court said “normally.” We submit that the unique

circumstances of the Kerchner case show that it does not fall under this

“normal” case which would be dismissed under this rule. The Court also

cited Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). But this case

was an environmental government agency case that arose under the

Endangered Species Act of 1973. 16 U.S.C. Secs. 1531-44 (1988). Hence,

that case also had a completely different set of factual and legal issues than

the Berg case. The Court also cited Taliaferro v. Darby Twp. Zoning Bd,

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458 F.3d 181 (3d Cir. 2006. But Taliaferro was a zoning case. So as we can

see, none of the cases cited by the Court in the Berg decision were in the

same factual and legal context as the Berg case but yet the Court cited these

cases to show that Berg had no standing. The lawyers that litigated Brown

vs. Board of Education, 347 U.S. 483 (1954), had to overcome the clear

precedent of Plessy v. Ferguson, 163 U.S. 537 (1896). But even with that

precedent in their way, they persisted in their fight all the way to the United

States Supreme Court. In their journey, not once did they face any threat of

sanctions or the assessment of damages and costs. Also, Berg is a circuit

panel decision, not a circuit en banc decision. A different panel of circuit

judges could have looked at the standing issue in a different light given that

the Kerchner case differs from the Berg case on the facts and on the legal

theories advanced.

Court must honor Attorney Apuzzo’s due process rights before the
Court may deprive him of his property interest by imposing damages
and costs to be paid to the defendants

In Eash v. Riggins Trucking Inc., 757 F.2d 557 (3d Cir. 1985), the

Court in explaining that a Court must honor an attorney’s due process rights

when the government seeks to deprive that attorney of his property interest

said:

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A final point worth noting, although not raised in the briefs, is


that the due process calculus may also be affected by the "knowledge
which the circumstances show [the offending] party may be taken to
have of the consequences of his own conduct." Link, 370 U.S. at 632,
82 S.Ct. at 1390. Thus, fundamental fairness may require some
measure of prior notice to an attorney that the conduct that he or she
contemplates undertaking is subject to discipline or sanction by a
court. Consequently the absence, for example, of a statute, Federal
Rule, ethical canon, local rule or custom, court order, or, perhaps most
pertinent to the case at hand, court admonition, proscribing the act for
which a sanction is imposed in a given case may raise questions as to
the sanction's validity in a particular case.

As noted in Part V of this opinion there does not appear to be a


local rule covering the conduct of the attorney in question. Nor is it
apparent that any analogous form of actual or constructive notice was
given to the attorney whose settlement conduct was deemed
sanctionable by the district court, although there is no way of
ascertaining that fact from the record before us. Therefore, a remand
of the matter for consideration of this as well as the previously
discussed due process issues is required (footnote omitted).

Id. at 570-71. Hence, the Court recognized that due process and

fundamental fairness require that an attorney have advance notice that the

conduct in which he is about to engage can subject him to some sanction,

penalty, or payment of damages imposed by a court. The Court also said

that the absence of some statute, Federal Rule, ethical canon, local rule or

custom, court order, or court admonition may raise questions whether a

proposed sanction is warranted in a given case. As we shall see, there is no

case law, rule, or some other actual or constructive notice that would have

alerted me that the Court would most likely conclude that there exists some

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objective standard which would demonstrate to a reasonable attorney that

the Circuit Court would find plaintiffs’ appeal of the trial court’s finding of

no standing to be “utterly without merit.” Hilmon 899 F.2d at 253 (citing

and quoting Sun Ship, Inc. 785 F.2d at 64) or with no “colorable arguments”

to support it. In re: Hall’s Motor Transit Company, 889 F.2d at 523.

The Court recognizes that there needs to exist some notice to me

providing me with ample warning not to file the appeal or else I could be

punished with the imposition of Rule 38 damages and costs. To satisfy this

requirement, the court cited various cases as support for its conclusion that I

have filed a frivolous appeal and that I should have know that it was

frivolous and that filing it could subject me to Rule 38 damages and costs.

While these cases may provide general statements of the law that applies

when the court decides whether to impose damages and costs under Rule 38,

the facts of these cases do not support the Court’s conclusion that I filed a

frivolous appeal, for these cases are distinguishable from my situation. My

appeal did not include clear violations of the rules concerning res judicata,

the need to make timely service of process, or the need to include in the

appellate brief all necessary issues in order to prevail on appeal.

While the Court acknowledges that the Federal District Court did not

“explicitly” state that our claims were frivolous, the Court believes that,

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apart from the other cases that it cited on standing in general, I also had

meaningful notice that the appeal was frivolous from the Obama eligibility

decisions of two other courts which dealt specifically with “similar legal

theories” and two other courts that specifically imposed sanctions on those

lawyers for bringing forth such claims. The Court then concludes from its

statement regarding what other courts found regarding the validity of other

“legal theories” and “claims” made by other lawyers in other cases that I

should have known based on those court’s rulings that the Court would not

grant plaintiffs standing and that I would be subjected to Rule 38 damages

and costs. But equating the Kerchner plaintiffs and me with the parties and

attorneys in these four other cases presents several problems. These other

cases presented different facts and made different claims of injuries than I

did and facts and claims of injury are critical to whether one can show injury

in fact. Another problem is that the merits of the underlying claims is one

thing and the merits of whether a party has standing to make those claims is

another. Additionally, another problem is that a court can sanction an

attorney for how that attorney personally behaves toward the court and not

because of the nature of the claims made by that attorney to that court.

Let us now examine these four cases. The Court first cites Barnett v.

Obama, No. 09-0082, ___ F.Supp.2d ___, 2009 WL 3861788, at *4-*6

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(C.D.Cal. Oct. 29, 2009). But this case does not control on the question of

standing in Kerchner. This is a lower federal court case that is not from the

Third Circuit. Plaintiffs only alleged vague and generalized grievances

against defendants. Unlike the Kerchner plaintiffs, they did not allege that

defendants violated their personal and individual right to protection from

their government. Plaintiffs did not allege any injury under the Fifth

Amendment due process clause for deprivation of their rights to life, liberty,

safety, security, tranquility, and property or under that amendment’s equal

protection component. Plaintiffs did not make any claim against Congress.

The failure to make any claim against Congress prevented the plaintiffs from

asking that Flast standing be extended by analogy to them under the

Twentieth Amendment and Article II’s “natural born Citizen” clause and the

Fifth Amendment due process clause (both of which limit that power) as

standing was given to the taxpayers in Flast under Congress’ Spending

Clause and the First Amendment’s Establishment Clause (which limits that

power). Hein, 551 U.S. at 615, even explained that Fast standing should

only be extended in situation where there is Congressional action and that it

has never been used to find standing where there exists only “purely

discretionary Executive Branch expenditures.” The Court also said that as it

pertains to redressability and political question, the plaintiffs’ failure to file

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their complaint against Obama prior to his being sworn in was fatal. The

Court said that the plaintiffs were therefore suing a sitting President who

was now engaged in his official duties rather than a political candidate. We

do not have this problem in Kerchner. Unlike the Kerchner plaintiffs, the

plaintiff also did not ask the court to craft a remedy that allowed Congress to

take action against Obama rather than the court should the court declare him

to be ineligible to hold office. What is critical is that the court suggested that

since Congress has the obligation under the Twentieth Amendment to make

sure that the president-elect is qualified to serve, the court would not

necessarily have been faced with a “political question” should the plaintiffs

have filed their action before Obama became President. The court concluded

that only Congress can remove a sitting President, either under Article I’s

impeachment provision or Twenty-Fifth Amendment’s unfitness to serve

process, without any court’s involvement in that process. Again, the

Kerchner plaintiffs did file their complaint before Obama became President.

The court also said: “There may very well be a legitimate role for the

judiciary to interpret whether the natural born citizen requirement has been

satisfied in the case of a presidential candidate who has not already won the

election and taken office.” The Kerchner case presents just this exact case.

So as we can see from all these factors, the Barnett case would not have

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given me any indication that filing my appeal of the Kerchner case was

frivolous. On the contrary, the decision gave me hope that we would get

standing because our case did not suffer from the various defects which that

case had. Finally, the court was also very indulgent with plaintiffs’ counsel’s

behavior toward the court. The Court then cites Cohen v. Obama, No. 08-

2150. 2—8 WL 5191864, at *1 (D.D.C. Dec. 11, 2008), aff’d, 332 F.App’x

640 (D.C.Cir. 2009). That case also is distinguishable. This case is not from

the Third Circuit. Plaintiffs did not make any claim against Congress. This

plaintiff also did not make the many claims that the Kerchner plaintiffs

made. Hence, both of these decisions gave me no advance notice that the

the Third Circuit would consider the Kerchner appeal to be frivolous.

As to the cases in which the attorneys were personally sanctioned, the

court first cites Hollister v. Soetoro, 258 F.R.D. 1 (D.D.C. 2009), and says

that the Court there reprimanded an attorney under Federal Rule of Civil

Procedure 11(b)(2) “for signing and filing a complaint alleging that

President Obama was ineligible to serve as president because he is not a

‘natural born citizen.’” Opinion at p. 8. But like the Court here, that is not

the reason why the Court sanctioned that attorney. Neither that court nor

this Court has reached the merits of the plaintiffs’ underlying claim that

Obama is ineligible to serve as president because he is not a “natural born

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Citizen.” Hence, that Court did not and could not sanction that attorney

because of the underlying merits of his claims. Rather, the Court in the

Hollister case reprimanded the attorney for how he tried to create standing

by using interpleader which the Court said applied only to property and not

to duties to be fulfilled to the Commander in Chief. The court found the

interpleader claim frivolous. Hollister v. Soetoro, 258 F.R.D. 1 (D.D.C.

2009). Simply stated, the interpleader argument had nothing to do with the

underlying merits. The interpleader argument also cannot be used to

condemn anything that I argued regarding standing, for I made no such

argument in the Kerchner case.

To further support its claim that I should have know about the

frivolous nature of the Kerchner appeal and that I would be imposed Rule 38

damages and costs for filing it, the Court tells us that monetary sanctions

were also imposed in Rhodes v. MacDonald, 670 F.Supp. 2d 1363, 1373

(M.D.Ga. 2009), against counsel who filed “similar claims” on behalf of the

military. Opinion at p. 8. But the Court in that case did not impose the

sanction against the attorney because of the underlying merits of her claims

or because of the standing issue. Rather, the Court sanctioned the attorney

(the same plaintiffs’ attorney as in the Barnett case) for what the Court

considered to be a frivolous complaint which attempted to have the court

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interfere with the internal affairs of the armed forces and for counsel’s

political rhetoric, personal insults against President Obama and his father,

accusing the court of treason. This was contemptuous and disrespectful

behavior toward the Court by a member of the bar and officer of the court.

The Court here did not find that I in any way acted with contempt or

disrespect toward the Court or any third parties. Hence, the Rhodes case

surely cannot serve as the basis for advance notice to me about the Kerchner

case being frivolous and that filing it would most probably expose me to

Rule 38 damages and costs. Hence, the Obama eligibility cases cited by the

Court do not support the Court’s finding that I filed a frivolous appeal and

that I should be assessed Rule 38 damages and costs allegedly incurred by

the defendants in defending the appeal. The reason why the courts

sanctioned the attorney’s in those cases is not because of the underlying

merits of the claims they made, because the plaintiffs did not have standing,

or because they filed an appeal of an adverse ruling on any such issue.

Those cases are therefore inapposite and do not serve as any basis to justify

finding the Kerchner appeal to be frivolous and that the Court should impose

damages and costs on me for filing the Kerchner appeal to this Court.

As we have seen in Eash, 757 F.2d at 570-71, that an attorney have

notice that he is engaging in offending conduct goes to his right to

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fundamental fairness and due process when a government seeks to impose “a

monetary detriment” upon him because of having engaged in that conduct.

The courts have “cautioned counsel that a finding by a District Court that a

lawsuit is frivolous should serve as notice to the parties and their attorney to

exercise caution, pause, and devote additional examination to the legal

validity and factual merit of his contentions.” Beam v. Bauer, 383 F.3d 106,

109 (3d Cir. 2004) (quotation omitted). But here, neither the District Court

nor this Court found plaintiffs’ underlying claims to be frivolous.

Additionally, at no time did the defendants communicate to me that they

deemed my appeal to be frivolous, providing the legal basis for why they so

thought, and that they would request that the Court impose Rule 38 damages

and costs upon me unless I withdrew the appeal. Neither did the defendants

argue nor did the District Court nor this Court find to be frivolous plaintiffs’

claims that Obama does not meet the “natural born Citizen” requirement,

that he has not conclusively proven that he was born in Hawaii, that

Congress failed to properly vet and investigate Obama under its Twentieth

Amendment powers, and that Cheney and Pelosi were complicit in that

failure. In fact, neither court found that defendants presented any evidence

to show in any way that these allegations are not true or frivolous. Rather,

what the District Court and this Court said is that plaintiffs simply lack any

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legal capacity (standing) to ask the judicial branch of government to exercise

a role in this controversy and to do anything about the merits of their

underlying claims. So neither court found that the merits of plaintiffs’

underlying claims are frivolous. Rather, what the Court has found frivolous

is plaintiffs’ claim that, because neither the legislative nor the executive

branch of government is willing or constitutionally able to resolve the

question of whether Obama is an Article II “natural born Citizen,” the

judicial branch of government should have a constitutional role in resolving

the merits of that question. Even thought this inquiry is a highly complex

constitutional matter that rests upon what role the judicial branch of

government perceives itself to have within our Constitutional Republic

which is a question that does not find a consistent answer in the decisions of

our United States Supreme Court and among legal scholars, this Court has

nevertheless found my appeal to a higher court of justice on this highly

complex issue of constitutional law to be frivolous. The Court comes to this

conclusion while not providing any case law which would have revealed to

me that the Kerchner appeal was frivolous and that it would most likely

subject me to Rule 38 damages and costs.

The Court’s Threat of Rule 38 Imposition of Damages and Costs Is


Chilling of My and Other Attorneys’ Right to Pursue Generally
Unpopular Political and Civil Rights Cases and Specifically Obama
Eligibility Cases in the Federal Courts and Therefore Unwarranted in

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our Constitutional Republic Whose Lifeblood Is The Constitution and


the Rule of Law

In Crain, the Fifth Circuit rightfully stated that “[w]e are sensitive to

the need for the courts to remain open to all who seek in good faith to invoke

the protections of the law. An appeal that lacks merit is not always—or

often—frivolous.” 737 F.2d at 1417. Indeed, lawyers are our guardians of

our Constitution, the rule of law, and the American way of life. The court

would have virtually no business to attend to and therefore no occasion to

bring justice to the people if lawyers did not bring to them cases to be

decided. Appealing a case to a Circuit Court of Appeals is a necessary

procedural step to be satisfied to be able to ask the United States Supreme

Court to review a case. The question of the meaning of Article II’s “natural

born Citizen” clause can only be finally decided by our Supreme Court. The

plaintiffs realized this fact from the time they first filed their

complaint/petition with the federal District Court. If litigants and their

attorneys are to be unreasonably blocked from filing an appeal to the circuit

court, they will never be able to ask the Supreme Court for assistance in

correcting the Executive and Legislative Branches for not adequately

protecting their inalienable rights to life, liberty, and property. Filing the

appeal with the Circuit Court was therefore a necessary step to get to the

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Supreme Court. As we have shown, there has not yet been a decision from

the Supreme Court on the question of standing to enforce Article II’s

“natural born Citizen” clause or on the meaning and application of that

clause as it applies to Obama or any other presidential candidate, president-

elect, or sitting putative president. Under these existing circumstances,

plaintiff should not be precluded from making an attempt to get to the

Supreme Court so that they may receive the final word on whether they have

standing and if they do, whether their claims have merit.

There are cases where the courts must police the actions of litigants

and their lawyers because they violate clearly established objective legal

standards established and known by those litigants and their lawyers. But

the Court threatening damages and costs where such standards are not

established or violated is not warranted. Such judicial threats will only chill

lawyers from bringing actions in political and civil rights cases, cases in

which they normally fight for the Constitution, the rule of law, and the rights

of their clients as members of the People. We have examples in our history

in which lawyers took on unpopular cases and eventually won the day for

not only their clients but for justice and the rule of law. The Court through

its decision here is telling lawyers that they cannot file legal actions that

question the integrity or the actions of their government and Obama’s

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constitutional eligibility to be President. Taking on unpopular cases is

already a heavy enough burden for lawyers to carry. But the threat of

financial ruin and/or irreparable damage to an attorney’s legal career and

reputation is just too much for most lawyers to risk. With such threat over

their heads, parties and their lawyers will be less inclined to bring legal

actions in which they question whether their government has acted in

keeping with their constitutional duties. Such a chilling effect upon lawyers

and their clients can only damage the rule of law and the very foundation of

our Constitutional Republic. It can also cause the people themselves to lose

faith and confidence in the judicial branch of government.

Critical to the survival of our constitutional republic is our

Constitution and the rule of law and the political and civil rights which that

law guarantees to it people. What is also critical in our republic is that the

people have a real and meaningful right of access to its courts to seek and

receive meaningful relief when they perceive and can prove that their

government has violated those rights. If, based on some vague or subjective

standing standard which the court itself creates as the cases themselves are

presented to it, litigants and their attorneys are going to be prevented from

vindicating their political or civil rights because of a threat of the imposition

of damages and costs from the very judicial institution that is supposed to

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hear their case, then the rule of law, which is the very foundation of the

constitutional republic, and the people’s trust and confidence in the judicial

branch of government, which is supposed to be fair and impartial, are put at

serious risk. Under such a scenario, we no longer have a legal system

guided by the Constitution and the rule of law but rather one guided by the

personal opinion and philosophy of the judges. No legal system can endure

for long under such circumstances.

I violated no objective standard which a reasonable attorney would

conclude showed that the Circuit Court would find plaintiffs’ appeal of the

trial court’s finding of no standing to be “utterly without merit.” Hilmon

899 F.2d at 253 (citing and quoting Sun Ship, Inc. 785 F.2d at 64) or with no

“colorable arguments” to support it. In re: Hall’s Motor Transit Company,

889 F.2d at 523. I have shown that our appeal is well supported by the

unique facts of the Kerchner case and by the law of standing. My argument

that the Berg case is distinguishable from the Kerchner case both on the facts

and on the legal claims made or for an extension or modification of the law

of standing as established by Berg and other decisions is not objectively

unreasonable. Based on how the law of standing has developed over our

history, the uncertain and unclear state of that law, and plaintiffs’ claims and

arguments, I believed that our standing argument is more than reasonable. I

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believe that I could reasonably argue for an extension of legal principles that

our courts have so far developed on the law of standing.

Under all alleged facts of the Kerchner case which on a motion to

dismiss for lack of standing need to be accepted as true and interpreted in a

light most favorable to the non-moving party, we can see that Obama refuses

to show that he is an Article II “natural born Citizen” even though he has a

constitutional duty under Article II, Section 1, Clause 5 to do so before he

can assume the Offices of President and Commander in Chief of the

Military. We can also see that Congress refuses to take any action on the

question of Obama’s eligibility even though it has the constitutional duty to

do so under the Twentieth Amendment. Neither the defendants nor the

courts have found these claims to be frivolous. More importantly, we are

dealing with a constitutional interpretation of the “natural born Citizen”

clause. The Constitution gives only to the judicial branch the power to

interpret and to tell us what that clause means within the context of the

question of whether a person is eligibility to be President. Hence, unlike

Congress in the Massachusetts v. EPA case which, as per Chief Justice

Roberts, was addressing global warming but not at “the pace of progress”

which the State of Massachusetts desired, and given the limited time of the

election cycles, we cannot expect Congress and the Executive to take any

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current or future action on plaintiffs’ claimed injuries. I therefore reasonably

believe that the Kerchner case is much different from the Berg and other

eligibility cases and other standing cases and that these cases do not

necessarily preclude my clients from prevailing on appeal. There does not

exist any objective standard applicable to standing in the presidential

eligibility area and specifically to the facts and legal claims raised in the

Kerchner case that would have given a reasonable attorney notice that the

Kerchner appeal to the Third Circuit was “wholly without merit.” There is

no consistency in the court’s standing jurisprudence which would alert a

reasonable attorney that under no circumstance could a winning argument be

made to show that the court had standing under the facts and legal

circumstances of the Kerchner case. I have shown how the Kerchner case

also did not present the same or similar claims as these other cases. I also

reasonably believe that the Kerchner plaintiffs’ injuries were not mere

general grievances the redress of which belongs within “the function of

Congress and the Chief Executive” and not the federal courts. Massachusetts

v. EPA, 549 U.S. (Roberts, C.J. dissenting) (citing and quoting Lujan v.

Defenders of Wildlife, 504 U.S. 555, 576 (1992)). These arguments for an

extension of the law of standing as established by Berg and other decisions

was not objectively unreasonable. When the law of standing is not so clear

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and continuously evolving on a case-by-case basis depending on the political

environment and the nature of the issue presented to a court (e.g. New Deal

economic reform, discrimination and minority rights, religion establishment

clause and prayer, taxation, environmental regulation, gun control) and an

attorney is representing his clients on important constitutional civil rights

claims, the courts should not put up unreasonable obstacles to and chill that

attorney from bringing such cases, for to do so can only damage the rule of

law that is so vital to the proper functioning and survival of our Constitution

and Constitutional Republic, the public’s perception of whether we truly

have a rule of law, and public confidence in the judicial branch of

government.

C.

Apuzzo Is Entitled to a Hearing on the Question of Whether He Filed A


Frivolous Appeal

Let us now examine the process to which I am entitled and which

must be exhausted before the Court can come to a conclusion that I filed a

frivolous appeal. The nature of Rule 38 action is a tort with liability,

damages, and proximate cause. Huck v. Dawson, 106 F.3d 45, 52 (3d Cir.

1997) (Rule 38 is not a sanction provision and “the remedy that this rule

offers a party is more in the nature of an award upon a finding of liability in

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tort”). Huck also found that that a litigant should have “the usual

opportunities and procedures that attend a claim upon injury—i.e., demand,

discussion, settlement, alternate dispute resolution, etc.—to function before

[the Court is ] called upon to act.” Id. See also Beam v. Bauer, 383 F.3d

106 (3d Cir. 2004) (same). “Usual opportunities and procedures that attend

a claim upon injury” surely include a hearing at which a party has a fair

opportunity to call witnesses, present evidence, and be heard. Since the

process of a court assessing Rule 39 damages and costs is equivalent to a tort

action by the prevailing party against the losing party and/or his attorney for

damages, there is no sound reason why I should not have the same

protections prior to the Court compelling me under that rule to pay damages

and costs to defendants. See Sauers v. Commissioner of Internal Revenue,

771 F.2d 64 (3d Cir. 1985) (explaining that a party is not entitled to any

hearing or even to receive proof of damages when the sanction imposed is a

penalty or punishment such as is imposed under 26 U.S.C. Sec. 6673, but

would be entitled to an assessment of damages which can be made after a

hearing on the appropriate amount of compensation when the Court seeks to

impose compensatory damages and that calculation of the damages incurred

is a condition of making such an award).

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In Eash v. Riggins Trucking Inc., 757 F.2d 557 (3d Cir. 1985), the

Court explained an attorney’s due process rights as follows:

In the absence of extraordinary circumstances, procedural due


process requires notice and an opportunity to be heard before any
governmental deprivation of a property interest. Boddie v.
Connecticut, 401 U.S. 371, 379, 91 S.Ct. 780, 786, 28 L.Ed.2d 113
(1971). The form which those procedural protections must take is
determined by an evaluation of all the circumstances and an
accommodation of competing interests. Goss v. Lopez, 419 U.S. 565,
579, 95 S.Ct. 729, 738, 42 L.Ed.2d 725 (1975); Renfrew, supra, 67
Calif.L.Rev. at 281. The individual's right to fairness and accuracy
must be respected, as must the court's need to act quickly and
decisively.

In considering the imposition of a penalty upon attorneys, we


note that the Court has cautioned that like "other sanctions, attorney's
fees certainly should not be assessed lightly or without fair notice and
an opportunity for a hearing on the record." Roadway, 447 U.S. at
767, 100 S.Ct. at 2464. Similarly, a court may not disbar an attorney
without notice and a hearing. Ex parte Bradley, 74 U.S. (7 Wall.) 364,
372-74, 19 L.Ed. 214 (1869). Courts of appeals may not impose
disciplinary sanctions on attorneys until "after reasonable notice and
an opportunity to show cause to the contrary, and after hearing, if
requested." Fed.R.App.Pro. 46(c). Although in Link the Supreme
Court suggested that not every order entered without a preliminary
adversary hearing offends due process. Link, 370 U.S. at 632, 82 S.Ct.
at 1389, we believe that as a general practice a monetary detriment
should not be imposed by a court without prior notice and some
occasion to respond.

These procedural safeguards will ensure that the attorney has an


adequate opportunity to explain the conduct deemed deficient. For
example, in the present case, the attorney by affidavits disputes the
factual predicate upon which the order was based. Furthermore, such
procedures will afford the judge adequate time to evaluate the
propriety of the particular sanction in light of the offending attorney's
explanation as well as to consider alternatives. Hritz v. Woma Corp.,

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732 F.2d at 1182; Edgar v. Slaughter, 548 F.2d 770, 773 (8th
Cir.1977); see also Miranda, 710 F.2d at 522-23. Moreover, by
providing a record, a hearing will facilitate appellate review. Miranda,
710 F.2d at 522-23; Renfrew, supra, 67 Calif.L.Rev. at 281. In some
cases, it may be that the record developed at the time of the alleged
misconduct will, itself, satisfy this need as long as the attorney has
been afforded an opportunity to adduce the relevant facts. Upon
imposing such a sanction it would seem appropriate for the district
court to make adequate written findings. Renfrew, supra, 67
Calif.L.Rev. at 281; Wilson v. Volkswagon of America, Inc., 561 F.2d
494, 516 (4th Cir.1977), cert. denied, 434 U.S. 1020, 98 S.Ct. 744, 54
L.Ed.2d 768 (1978) (appellate review difficult without adequate
findings).

Id. at 570-71.

Eash instructs that I am entitled to procedural due process when the

government wants to deprive me of any property. The Court ordering me to

pay damages and costs to the defendants would surely qualify as a

deprivation of my property. The case also tells us that this process includes

notice and opportunity to be heard. I have been given notice by the Court on

its intent to impose damages and costs against me. The Court has also given

me the opportunity to respond in writing to its show cause order. But Eash

tells us that not only may I respond in writing, but I also have the right to a

hearing on the record on the issue under contention. I dispute that I filed a

frivolous appeal. I also dispute the amount of damages that defendants will

claim as a proximate cause of my having filed the appeal and they having

had to defend it. It is only fair that I be given this hearing. The Court should

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give me an adequate opportunity to explain in person why I do not believe

that I filed a frivolous appeal. The Court will have a better understanding of

the basis of the appeal after I have had this opportunity. The Court will

thereafter also have a better opportunity to make its written findings. The

hearing on the record will also create a record which will facilitate appellate

review. For these reason, I am requesting a hearing on the record on the

question of whether I filed a frivolous appeal.

Given all of the above, I am respectfully requesting that the Court

reconsider its finding that I filed a frivolous appeal and then conclude that I

did not file such an appeal or in the alternative, reconsider its finding that I

filed a frivolous appeal and grant me a hearing on the record before deciding

whether I filed such an appeal.

II.

EVEN IF THE COURT WERE TO DENY ATTORNEY APUZZO


RECONSIDERATION AND A HEARING ON THE RECORD TO
DETERMINE WHETHER HE FILED A FRIVOLOUS APPEAL, THE
COURT SHOULD NOT COMPEL HIM AT THIS TIME TO PAY TO
DEFENDANTS THEIR ALLEGED RULE 38 JUST DAMAGES AND
COSTS BECAUSE HE NEEDS A FAIR OPPORTUNITY TO
CHALLENGE THE AMOUNT OF DAMAGES AND COSTS THAT
THE DEFENDANTS HAVE YET TO CLAIM WHICH INCLUDES
THE OPPORTUNITY THROUGH DISCOVERY AND A HEARING
ON THE RECORD TO SHOW THAT DEFENDANTS HAVE FAILED
TO MITIGATE THEIR DAMAGES AND COSTS

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Let us now examine the process to which I am entitled and which

must be exhausted before the Court can fix the amount of damages and costs

that I should have to pay to defendants should it refuse to reconsider its

decision that I filed a frivolous appeal and grant me a hearing on that issue.

A review of the applicable law shows that I am entitled to discovery of and

to dispute at a hearing the amount of damages defendants claim they have

incurred as a proximate cause of having to defend the Kerchner appeal. At

this hearing, I should be given the opportunity to show that defendants have

caused themselves to incur those expenses by not satisfying their obligation

to mitigate those expenses.

There is a public policy for an award of just damages and costs to a

litigant who has to defend a frivolous appeal. “Damages [under Rule 38] are

awarded by the court in its discretion . . . as a matter of justice to the

appellee.” Beam v. Bauer, 383 F.3d 106, 108 (3d Cir. 2004) (internal

quotation and citation omitted). An “important purpose [of a damages

award] is to discourage litigants from unnecessarily wasting their

opponents’ time and resources.” Nagle v. Alspach, 8 F.3d 141, 145 (3d Cir.

1993). As we shall see, it would not be just to award any damages to the

defendants. The defendants themselves are the ones who have caused

themselves to incur any expenses and costs in having to defend not only the

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Kerchner appeal but the many other law suits that have been filed across the

nation on the question of Obama’s eligibility.

The Court came to the conclusion that I filed a frivolous appeal

without first hearing from me at a hearing on the record. For the court to do

so and impose any claimed damages and costs upon me without affording

me prior notice and an opportunity to be heard would violate due process. In

Eash v. Riggins Trucking Inc., 757 F.2d 557 (3d Cir. 1985), the Court

explained an attorney’s due process rights as follows:

In the absence of extraordinary circumstances, procedural due


process requires notice and an opportunity to be heard before any
governmental deprivation of a property interest. Boddie v.
Connecticut, 401 U.S. 371, 379, 91 S.Ct. 780, 786, 28 L.Ed.2d 113
(1971). The form which those procedural protections must take is
determined by an evaluation of all the circumstances and an
accommodation of competing interests. Goss v. Lopez, 419 U.S. 565,
579, 95 S.Ct. 729, 738, 42 L.Ed.2d 725 (1975); Renfrew, supra, 67
Calif.L.Rev. at 281. The individual's right to fairness and accuracy
must be respected, as must the court's need to act quickly and
decisively.

In considering the imposition of a penalty upon attorneys, we


note that the Court has cautioned that like "other sanctions, attorney's
fees certainly should not be assessed lightly or without fair notice and
an opportunity for a hearing on the record." Roadway, 447 U.S. at
767, 100 S.Ct. at 2464. Similarly, a court may not disbar an attorney
without notice and a hearing. Ex parte Bradley, 74 U.S. (7 Wall.) 364,
372-74, 19 L.Ed. 214 (1869). Courts of appeals may not impose
disciplinary sanctions on attorneys until "after reasonable notice and
an opportunity to show cause to the contrary, and after hearing, if
requested." Fed.R.App.Pro. 46(c). Although in Link the Supreme
Court suggested that not every order entered without a preliminary

76
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adversary hearing offends due process. Link, 370 U.S. at 632, 82 S.Ct.
at 1389, we believe that as a general practice a monetary detriment
should not be imposed by a court without prior notice and some
occasion to respond.

These procedural safeguards will ensure that the attorney has an


adequate opportunity to explain the conduct deemed deficient. For
example, in the present case, the attorney by affidavits disputes the
factual predicate upon which the order was based. Furthermore, such
procedures will afford the judge adequate time to evaluate the
propriety of the particular sanction in light of the offending attorney's
explanation as well as to consider alternatives. Hritz v. Woma Corp.,
732 F.2d at 1182; Edgar v. Slaughter, 548 F.2d 770, 773 (8th
Cir.1977); see also Miranda, 710 F.2d at 522-23. Moreover, by
providing a record, a hearing will facilitate appellate review. Miranda,
710 F.2d at 522-23; Renfrew, supra, 67 Calif.L.Rev. at 281. In some
cases, it may be that the record developed at the time of the alleged
misconduct will, itself, satisfy this need as long as the attorney has
been afforded an opportunity to adduce the relevant facts. Upon
imposing such a sanction it would seem appropriate for the district
court to make adequate written findings. Renfrew, supra, 67
Calif.L.Rev. at 281; Wilson v. Volkswagon of America, Inc., 561 F.2d
494, 516 (4th Cir.1977), cert. denied, 434 U.S. 1020, 98 S.Ct. 744, 54
L.Ed.2d 768 (1978) (appellate review difficult without adequate
findings).

Id. at 570-71.

The nature of Rule 38 action is a tort with liability, damages, and

proximate cause. Huck v. Dawson, 106 F.3d 45, 52 (3d Cir. 1997) (Rule 38

is not a sanction provision and “the remedy that this rule offers a party is

more in the nature of an award upon a finding of liability in tort”). Huck

also found that that a litigant should have “the usual opportunities and

procedures that attend a claim upon injury—i.e., demand, discussion,

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settlement, alternate dispute resolution, etc.—to function before [the Court is

] called upon to act.” Id. See also Beam v. Bauer, 383 F.3d 106 (3d Cir.

2004) (same). “Usual opportunities and procedures that attend a claim upon

injury” surely include discovery and a hearing at which a party has a fair

opportunity to be heard. Since the process of a court assessing Rule 39

damages and costs is equivalent to a tort action by the prevailing party

against the losing party and/or his attorney for damages, there is no sound

reason why I should not have the same protections prior to the Court

compelling me under that rule to pay damages and costs to defendants. See

Sauers v. Commissioner of Internal Revenue, 771 F.2d 64 (3d Cir. 1985)

(explaining that a party is not entitled to any hearing or even to receive proof

of damages when the sanction imposed is a penalty or punishment such as is

imposed under 26 U.S.C. Sec. 6673, but would be entitled to an assessment

of damages which can be made after a hearing on the appropriate amount of

compensation when the Court seeks to impose compensatory damages and

that calculation of the damages incurred is a condition of making such an

award).

In any tort action, a defendant has a right to show that the plaintiff’s

claimed damages do not exist or even if they do exist they were not

proximately caused by any conduct of the defendant. Part of the proximate

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cause issue is the question of whether a party has met his obligation to

mitigate his damages.

A party may obtain discovery regarding any matter that is relevant

and not privileged. F.R.C.P. 26(b)(1). It is also axiomatic that a defendant

is entitled to discovery by which he may discover prior to a trial or hearing

what a plaintiff’s damages are, by what means the defendant allegedly

caused those damages, and what steps that plaintiff took to mitigate those

damages. F.R.C.P. 26(a) and (b).

F.R.C.P. 26 provides in relevant part that a party must make initial

disclosures to the other party even before the other party makes a discovery

request. As part of the initial disclosure, a party must disclose to the other

party: the name, address, and telephone number of any individual likely to

have discoverable information that the disclosing party may use to support

its claims or defenses. F.R.C.P. 26 (a)(1)(A); a copy of or a description by

category and location of all documents and other tangible things that are in

the possession, custody, or control of the party and that the disclosing party

may use to support its claims or defenses, unless solely for impeachment.

F.R.C.P. 26(a)(1) (B); and a computation of damages claimed along with

documents and other evidentiary materials, not privileged or protected from

disclosure, on which such computation is based. F.R.C.P. 26(a)(1)(C).

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Plaintiffs’ action is not exempt from these requirements. F.R.C.P.

26(a)(1)(E). F.R.C.P. 26(f) also provides in relevant part that as soon as

practicable the parties are to discuss their claims and defenses and a possible

settlement of the case, make arrangements for the disclosures required by

F.R.C.P. 26(a)(1), and develop a proposed discovery plan. Finally, there

exists a strong public policy “favoring settlement of disputes, finality of

judgments, and the termination of litigation,” which not only allows for

conservation of judicial resources but also allows the parties to benefit from

avoiding the costs and risks of a protracted and complex trial. Ehrheart v.

Verizon Wireless, No. 08-4323, p. 5 (3rd Cir. June 15, 2010).

Defendants have yet to present their claim of damages. In any such

statement, defendants will have to claim that I have caused them to incur

damages and costs in having to defend the plaintiffs’ appeal which will most

probably include a claim for attorney’s fees and costs. Hence, I am at this

juncture precluded from knowing what those damages are and how I caused

the defendants to incur those damages. I therefore need an opportunity to

address these issues after the defendants present their damage claim. The

Court should also provide me a fair opportunity to show that the defendants’

claimed damages were not proximately caused by my filing the appeal.

Central to this analysis is that the defendants have woefully failed to

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mitigate their own claimed damages and costs and have therefore caused

themselves to incur them. This fair opportunity necessarily includes

discovery and a hearing.

On the question of mitigation of damages, the defendants have not

been interested in bringing the question of Obama’s eligibility to a rapid end

and thereby conserve valuable time and resources. While proof of where

and when Obama was born may not be relevant to whether he may run for

the political office of President given his First Amendment rights to make a

political statement, it is surely relevant once he wins the electoral college

vote on the question of whether he qualifies for that office under Article II,

Section 1, Clause 4 and the Twentieth Amendment. I cited these First

Amendment cases in our Brief. Obama under Article II, Section 1, Clause 4

is duty bound to conclusively prove where he was born and that he is at least

35 years of age before executive power may constitutionally vest in him

under Article II, Section 1, Clause 1. This is a burden of proof that he and

only he has and which he must satisfy in order to show that he as the

President-Elect is eligible to be President under Article II, Section 1, Clause

4 and therefore deserves to be confirmed by Congress under the Twentieth

Amendment. Because of his need to satisfy the place and date of birth

requirements of the eligibility clause, it is also not reasonable to maintain

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that Obama has a reasonable expectation of privacy as to the place and date

of his birth. Additionally, Obama did post in 2008 on the internet for the

public to view a scan of an alleged 2007 Certification of Live Birth (COLB).

Hence, Obama also waived any reasonable expectation of privacy, if any,

that he may have had as to the place and date of his birth. Hence, documents

proving such facts are also not privileged.

We know that our courts have held litigants responsible for his or her

conduct not only in a currently pending case but also for his or her conduct

in other litigations. Judicial estoppel is one example. We cannot

reasonably maintain that Obama has met his Article II burden by simply

posting on the internet in 2008 a scan of his alleged 2008 COLB.

Consequently, concerned citizens have filed numerous law suits across the

nation arguing that Obama has not conclusively shown that he born in

Hawaii or even alleging that he was born in Kenya. Philip Berg filed the

first law suit on the issue of Obama’s place of birth on August 21, 2008.

Given the nature of the issue (Berg simply demanded that Obama produce

his long-form birth certificate), this is the only law suit that needed to be

filed and it should also have had a very short judicial life. But neither in the

Berg action nor in any other action did Obama honor his Rule 26 disclosure

obligations by presenting the plaintiffs with a certified paper copy of his

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alleged 2007 Certification of Live Birth (COLB) which someone allegedly

posted on various internet web sites in 2008 and a certified copy of his

contemporaneous 1961Certificate of Live Birth which would contain the

name of the hospital where he was allegedly born, the name of the delivering

doctor, and other corroborating information. See Vassilios v. Kennedy, 95

F.Supp. 630 (D.C.Cir. 1961) (“Necessarily, a record of birth

contemporaneously made by governmental authority in official records

[such as a “contemporaneous birth certificate” when there is no indication

what one is not readily available] would be most conclusive evidence of

birth”). A simple, good faith presentation of these documents would have

put an early end to the Berg case one way or the other. What could be more

easy and cheaper than simply presenting a birth certificate which is done on

a daily basis by countless of Americans every day? If Obama had presented

the proof of his Hawaiian birth, the case would have been dismissed. If it

was shown before the election that Obama did not have that proof, he should

not have run for President with the expectation of being qualified for the

office. If shown after he became President-Elect but before Congress

confirmed him under the Twentieth Amendment, then Congress should have

refused to confirm him. If shown after Congress confirmed him, then the

United States would have asked him to and he should resign as President. If

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he refused to do so, Congress could take action either under Article I,

Section 2 and 3 and Article II, Section 4 for impeachment or under the

Twenty-Fifth Amendment for constitutional inability to serve in the Office

of President. Under all four scenarios, the Obama eligibility case would

have become moot, for his ineligibility to be President would have been

conclusively proven by a public record which would have allowed for the

constitutional finding that he is ineligible for that office. See Texas

Democratic Party v. Benkiser, 459 F.3d 582 (5th Cir. 2006). Hence, if

Obama’s documents did not conclusively prove that he was born in Hawaii

which would mean that he is not eligible to be President, no one else would

have had any reason to file any other actions against Obama on the question

of his eligibility.

The Kerchner plaintiffs filed their complaint/petition on January 20,

2009, before Chief Justice Roberts swore him in as President. As of that

time, none of the defendants or any other person produced for the public

Obama’s contemporaneous birth certificate. When the Kerchner plaintiffs

filed their action against Obama, Congress, and the other defendants, they

were in the same position as Berg and other plaintiffs on the question of

whether Obama had shown that he was born in Hawaii. Hence, plaintiffs in

the Kerchner action also claim that Obama has yet to conclusively prove that

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he was born in Hawaii. Consequently, the United States themselves along

with the courts would have benefited the same as they would have in the

earlier cases from Obama’s early disclosures which would have brought the

litigation to a rapid end and thereby reduced defendants’ litigation expenses

and saved valuable court resources.

Given the constitutional requirement under Article II, Section 1,

Clause 4 (or 5) that only a “natural born Citizen” is eligible to be President

and that in America persons are made to prove their birth events and their

identity on a regular basis for national security, employment, banking, motor

vehicle, licensing, athletics, travel, and other sundry reasons, it did not

appear to the Kerchner plaintiffs, as it probably also did not appear to Berg

and all the other plaintiffs in the other actions, to be an unfair or burdensome

request to make of the person who is supposed to be the President and

Commander in Chief of the Military that he produce an authentic

contemporaneous birth certificate proving the place and date of his birth.

For some unknown reason, Obama chose to prevent anyone from obtaining a

copy of his contemporaneous birth certificate and employed at first private

attorneys to accomplish that goal. He relied on legal arguments such as

standing, political question, separation of powers, and other procedural

issues to avoid having to produce those relevant and non-privileged

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documents. To give the appearance of having produced Obama’s “original

birth certificate,” in the Hollister v. Soetero, Obama reverted to multi-levels

of hearsay statements of Factcheck.org. which posted his COLB on the

internet, two newspapers which ran two birth announcements, and Hawaiian

officials who made statement to the public on what was contained in the

Hawaii Department of Health Obama birth file, and his request that the court

take judicial notice of those statements as his evidence of his place and date

of birth without ever producing a contemporaneous birth certificate for the

court or the plaintiff. Obama and Vice President Biden argued in their

memorandum supporting their motion to dismiss in note 1:

President Obama has publicly produced a certified copy of a birth


certificate showing that he was born on August 4, 1961, in Honolulu
Hawaii. See, e.g., Factcheck.org, “Born in the U.S.A.: The truth about
Obama’s birth certificate,” available at
http://www.factcheck.org/elections- 2008/born_in_the_usa.html
(concluding that the birth certificate is genuine, and noting a
contemporaneous birth announcement published in a Honolulu
newspaper). Hawaii officials have publicly verified that they have
President Obama’s “original birth certificate on record in accordance
with state policies and procedures.” See “Certified,” Honolulu Star
Bulletin, Oct. 31, 2008. This Court can take judicial notice of these
public news reports. See The Washington Post v. Robinson,
935 F.2d 282, 291 (D.C. Cir. 1991); Agee v. Muskie, 629 F.2d 80, 81
n.1, 90 (D.C. Cir. 1980).

In the Kerchner case, since he was then sworn in as President, Obama

employed public attorneys who work for the Department of Justice who also

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sought to accomplish that same end by resorting to the doctrines of standing

and political question. As a result, Obama and the Department of Justice

chose to cause Berg, the Kerchner plaintiffs, other plaintiffs, the courts, and

the public to expend countless valuable resources by continuously litigating

the issue of Obama’s place of birth and having the issue discussed non-stop

in the public rather than to have that issue laid to rest during Berg’s early

law suit or upon being served with the Kercher complaint/petition by simply

honoring Obama’s Rule 26 disclosure obligations and presenting his

Certification of Live Birth (COLB) and contemporaneous long-form birth

certificate (Certificate of Live Birth) as conclusive evidence that he was born

in Hawaii and by further arguing by motion that the complaint/petition

should be dismissed. A court’s ruling in defendants’ favor in the Berg or

other early cases on the relatively simple issue of place of birth would for all

intents and purposes, even with a lack of identity of parties or privity

between them, have had a preclusive effect that would have applied to all

pending and future law suits. Given the need for the defendants, plaintiffs,

and the courts to conserve time and other resources and the public interest in

wanting and needing finality to the dispute regarding the issue of Obama’s

place of birth, one would think that the only reasonable path for Obama,

other defendants, and the Department of Justice to chose would have been a

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simple and early Rule 26 disclosure of the readily available COLB and the

1961 contemporaneous birth certificate to those previous plaintiffs or to the

Kerchner plaintiffs. If Obama does not have this evidence, the United

States should have taken appropriate action against Obama including not

continuing to defend this action or any other action and thereby mitigated its

litigation damages and costs.

The defendants’ refusal to honor their early disclosure requirements is

rather troubling given the circumstantial evidence that exists against a

finding that Obama was born in Hawaii. This evidence has been included in

our verified complaint/petition. Our courts should not allow a litigant,

whether it is a private individual, the President, or the Congress, to engage in

dilatory tactics and to play games with parties and the legal system by

withholding from a litigant readily available, non-privileged evidence and

then claim they have been damaged by a party’s litigation efforts to obtain

that very same evidence when they could have all along simply produced

that evidence and thereby avoided those very same damages. Should the

Court be inclined to find that I am liable under Rule 38 for defendants’

damages and costs, I respectfully request that the Court recognize and

enforce my right to discover whether defendants had a copy of the COLB,

his 1961 long-form birth certificate, and related documents showing that

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Obama was born in Hawaii which they could have simply shared with Berg

or other plaintiffs including the Kerchner plaintiffs who would not have

come into existence if those documents do not conclusively show that

Obama was born in Hawaii, and which disclosure would have mitigated the

damages and costs they may now claim they suffered from having to defend

plaintiffs’ appeal. To confirm the veracity of the defendants’

representations, I also have a right under F.R.C.P. 26(a)(1) and 26(b)(1) to

receive a copy of those documents. Should the Court be inclined to find that

I am liable for defendants’ damages and costs, I also request that the Court

defer entering judgment on damages and costs until I have had an

opportunity to address the amount of damages claimed by defendants, the

issue of proximate cause, and whether defendants satisfied their burden to

mitigate those damages. So that I may have a meaningful opportunity to

present defenses to defendants’ claim of damages and costs, including

showing that defendants have failed to mitigate their claimed damages, I am

requesting limited discovery of Obama’s COLB, his 1961 long-form birth

certificate, and any documents that may be relevant in showing where

Obama was born, along with a hearing on the record at which I will have a

fair opportunity to present witnesses, evidence, and defenses to the

defendants’ claim of damages and costs.

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III.

THE COURT RECORD CLEARLY SHOWS THAT ATTORNEY


APUZZO DID NOT VIOLATE N.J. RULE OF PROFESSIONAL
CONDUCT 3.3(A)(3) AND SO THE COURT SHOULD CORRECT
ITS DECISION BY REMOVING ANY IMPLICATION THAT HE
DID

On November 12, 2009, about two months prior to my filing my

Opening Brief on January 19, 2010, a Third Circuit panel issued its decision

in Berg v. Obama, 586 F.3d 234 (3d Cir. 2009). This decision did address

the issue of whether plaintiff had standing to bring an eligibility claim

against Obama. The Court cites and quotes N.J. Rule of Professional

Conduct 3.3(a)(3) as follows: “A lawyer shall not knowingly . . . fail to

disclose to the tribunal legal authority in the controlling jurisdiction known

to the lawyer to be directly adverse to the position of the client . . . .”). After

citing this ethics rule, the Court “note[s] with concern that Appellants failed

to cite Berg in their opening brief.” Opinion p. 9, n.5. Needless to say, that

the Court in no uncertain terms has implied that I violated this ethics rule.

The Court’s citing of this rule and stating that “Appellants failed to cite Berg

in their opening brief” is even more damaging to me given that the court has

issued an order that I show cause why the Court should not impose damages

and costs upon me for filing what it considers to be a frivolous appeal. To a

member of the general public, it would appear that the Court wants to

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sanction me for having not only filed a frivolous appeal but also for having

violated a rule of professional ethics. But an examination of the cited ethics

rule in its entirety (not the cut off version provided by the Court in its

decision) and the record before the Court clearly show that I did not violate

this ethics rule. Because there simply is no factual or legal basis to the ethics

rule having any application to anything that I did or did not do in how I

prosecuted the Kerchner appeal to the Third Circuit Court of Appeals, I am

requesting that the Court correct its decision by removing from it the

reference to the rule and any implication therein that I violated the rule.

LAR 28.1(a)(2) provides in relevant part that an appellant’s brief shall

include, among other things, a statement of related cases and proceedings

“arising out of the same case or proceeding.” The Kerchner case in the

Third Circuit is the only one case ever filed in any court in the United States.

Hence, there never have existed any other “same case[s] or proceedings[s]”

anywhere. Nevertheless, I did mention in the Opening Brief in my

Statement of Related Cases and Proceedings (Opening Brief p. 8) that there

were other cases on the Obama eligibility issue already decided but which

were distinguishable from our case. It was my belief based on the high

notoriety of the Berg case that the Court knew that included in those cases

was the Berg case. I also distinguished the facts and legal claims of the

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Kerchner case from those of Berg and other cases in the Opening Brief. The

defendants cited and argued the Berg case in their opposition brief. I also

argued the Berg case in our Reply Brief, further distinguishing it. The Court

also relied heavily upon the Berg case in its decision. Hence, the Court had

the full benefit of the Berg case before rendering its decision in the Kerchner

appeal.

What is more concerning to me is that the Court now intimates that I

violated N.J. Rule of Professional Conduct 3.3(a)(3) Candor toward the

tribunal. See Opinion at p. 9, n.5. This is most concerning to me because a

lawyer cannot take lightly a federal court’s implication that he violated the

rules of ethics. Such a finding can do incalculable damage to a lawyer’s

career. Such a finding is even more damaging given the highly publicized

and politicized nature of the Obama eligibility cases. I have provided above

the quote of this ethics rule as provided by the Court in its precedential

opinion. What is troubling is that the Court in quoting the ethics rule did not

include in its quote a critical part which clearly and without question shows

that I did absolutely nothing ethically wrong in how I prosecuted the

Kerchner appeal to the Third Circuit Court of Appeals. The full quote is:

“A lawyer shall not knowingly . . . fail to disclose to the tribunal legal

authority in the controlling jurisdiction known to the lawyer to be directly

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adverse to the position of the client and not disclosed by opposing

counsel.” (emphasis supplied). We can see that the rule contains two

conditions that are both necessary before a lawyer may be cited for having

violated the ethics rule. The first condition is that the lawyer knowingly

failed to disclose to the court controlling legal authority known to the lawyer

to be directly adverse to his client’s position. The second condition is that

opposing counsel also did not disclose that controlling authority to the court.

Even assuming that the first condition is met, clearly and without question

the record before the Court shows the second condition is not met. The

defendants did disclose to the Court the actual citation to the Berg case and

also argued that case throughout its Opposition Brief. In their Opposition

Brief, the defendants cited the Berg case in their Table of Authorities. Def.

Br. at ii. They also cited and argued the Berg case in their brief’s Statement

of Related Cases and Proceedings and in the Standard of Review. Def. Br. at

5-6. They also cited and argued the Berg case at page 8, 9, 11, and 13 of that

brief.

In my Reply Brief, I cited the Berg case in my Table of Cases and

Authorities. Rep. Br. at i. I also cited and argued the Berg case in the

argument section of the brief, arguing that the Berg case is inapposite. I

explained how the Kerchner case was different from the Berg case. Rep. Br.

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at 24-26. The Court also relied heavily upon the Berg case in rendering its

decision. As can be so clearly seen, the Court had the benefit of both the

plaintiffs’ and defendants’ argument on the Berg case before it rendered its

decision. The Court also relied heavily upon the Berg case in rendering its

decision. The Court record clearly shows that not only did opposing counsel

disclose the Berg case to the Court, but I also disclosed and argued the case

to the same Court, and the Court relied heavily upon that decision in

rendering its decision on July 2, 2010. It should therefore be clear to the

Court that I did not violate N.J. Rule of Professional Conduct 3.3(a)(3). The

court has rendered a precedential decision which includes its statement that

places a cloud upon my ethics. Because of the serious nature of the Court’s

ethics violation implication, I am respectfully requesting that the Court issue

a corrected Opinion.

CONCLUSION

For the foregoing reasons, I respectfully request that the Court

reconsider its Rule 38 finding that I filed an appeal that is frivolous and that

the Court grant me a hearing on the record at which I would be given a fair

opportunity to present my defenses to the charge that I filed a frivolous

appeal. Should the Court still find that the appeal that I filed is frivolous, I

respectfully request that I not be compelled to pay the defendants any Rule

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38 damages and costs. Should the Court find that I did file such an appeal

and that I am compelled to pay such damages and costs, then I respectfully

request that the Court withhold imposing judgment with a fixed amount for

damages and costs until I have had a fair opportunity to discover what those

claimed damages and costs are and whether defendants met their duty to

mitigate those expenses, and grant me limited discovery for the purpose of

learning what those damages and costs are and whether defendants satisfied

their duty to mitigate those claimed expenses, along with a hearing on the

record. Finally, because of the serious nature of the Court’s implication that

I violated New Jersey Rule of Professional Conduct 3.3(a)(3), I am

respectfully requesting that since the Court record clearly shows that I did

not violate that ethics rule, the Court issue a corrected Opinion removing

from the decision any reference to the rule and any implication that I

violated it.

Dated: July 19, 2010 s/___________________


Mario Apuzzo, Esq.
Attorney for Plaintiffs-Appellants

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