Here are the court documents filed on behalf of Obama and the DNC:
DMEAST #10118497 v3
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
PHILIP J. BERG, :
:
Plaintiff :
:
v. : Civil Action No. 2:08-cv-04083-RBS
:
BARACK OBAMA, et al., :
:
Defendants :
DEFENDANT DEMOCRATIC NATIONAL COMMITTEE’S
AND DEFENDANT SENATOR BARACK OBAMA’S
MOTION TO DISMISS
Pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6), defendants Democratic National
Committee and Senator Barack Obama respectfully move the Court for an order
dismissing the Complaint on the grounds that this Court lacks subject-matter jurisdiction
over the claim asserted and that the Complaint fails to state a claim upon which relief can
be granted.
Pursuant to Local Rule 7.1, accompanying this Motion is a Brief in Support of
Motion to Dismiss and a proposed Order.
Respectfully submitted,
Dated: September 24, 2008 /s/ John P. Lavelle, Jr.
John P. Lavelle, Jr.
Attorney I.D. PA 54279
BALLARD SPAHR ANDREWS &
INGERSOLL, LLP
1735 Market Street, 51st Floor
Philadelphia, PA 19103
(215) 864-8603
(215) 864-9125 (Fax)
lavellej@ballardspahr.com
Case 2:08-cv-04083-RBS Document 12 Filed 09/24/2008 Page 1 of 11
DMEAST #10118497 v3
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Of Counsel:
Joseph E. Sandler
SANDLER REIFF & YOUNG PC
300 M Street, S.E. Suite 1102
Washington, D.C. 20003
Telephone: (202) 479-1111
Fax: (202) 479-1115
sandler@sandlerreiff.com
Robert F. Bauer
General Counsel, Obama for America
PERKINS COIE
607 Fourteenth Street N.W.
Washington, D.C. 20005-2003
Telephone: 202.628.6600
Facsimile: 202.434.1690
RBauer@perkinscoie.com
Attorneys for Defendants
Senator Barack Obama and the
Democratic National Committee
Case 2:08-cv-04083-RBS Document 12 Filed 09/24/2008 Page 2 of 11
DMEAST #10118497 v3
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
PHILIP J. BERG, :
:
Plaintiff :
:
v. : Civil Action No. 2:08-cv-04083-RBS
:
BARACK OBAMA, et al., :
:
Defendants :
:
BRIEF OF DEFENDANT DEMOCRATIC NATIONAL COMMITTEE
AND DEFENDANT SENATOR BARACK OBAMA
IN SUPPORT OF MOTION TO DISMISS
Defendants Democratic National Committee and Senator Barack Obama submit
this Brief in support of their Motion to Dismiss the Complaint for lack of subject matter
jurisdiction, pursuant to Fed. R. Civ. P. 12(b)(1), and for failure to state a claim upon
which relief can be granted, pursuant to Fed. R. Civ. P. 12(b)(6). Plaintiff’s allegations
regarding Senator Obama are patently false, but even taking them as true for purposes of
this Motion, plaintiff’s suit must be dismissed immediately. This Court lacks subject
matter jurisdiction because the plaintiff has no standing to challenge the qualifications of
a candidate for President of the United States. Plaintiff fails to state a claim in any event
because there is no federal cause of action asserted in the Complaint.
I. Allegations of the Complaint
Plaintiff Berg alleges that he is a “Democratic American,” Cmplt. ¶6, and that he
is a “Democratic American Citizen.”
Id
. ¶44. Mr. Berg then alleges that Barack Obama,
the Democratic Party’s nominee for President of the United States, is not eligible to serve
Case 2:08-cv-04083-RBS Document 12 Filed 09/24/2008 Page 3 of 11
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2
as President under Article II, section 1 of the Constitution because, Mr. Berg alleges
(contrary to fact) that Senator Obama is not a natural-born citizen.
Id
. ¶3. Mr. Berg
seeks a declaratory judgment that Senator Obama is ineligible to run for President; an
injunction barring Senator Obama from running for that office; and an injunction barring
the Democratic National Committee from nominating him.
II. Discussion
A. Standard of Review
In determining whether to grant a motion to dismiss for lack of subject matter
jurisdiction, the Court is to determine “whether the complaint alleges facts on its face
which, if taken as true, would be sufficient to invoke the district court’s jurisdiction.”
FOCUS v. Allegheny County Ct. of Common Pleas
, 75 F.3d 834, 840 (3d Cir. 1996). The
plaintiff, as the party invoking federal jurisdiction, bears the burden of establishing the
elements of standing.
Id
. And in reviewing a motion to dismiss for failure to state a
claim upon which relief can be granted, the Court “must accept all factual allegations in
the complaint as true” but “is not, however, required to accept legal conclusions either
alleged or inferred . . . .”
Washam v. Stesis
, 2008 U.S. Dist. LEXIS 50520 9 (E.D. Pa.
2008),
citing Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993);
see also Bell Atlantic
Corp. v. Twombly
, __ U.S. __, 127 S. Ct. 1955, 1964-65, 1968, 1974 (2007) (plaintiff
must state a plausible claim for relief). Thus, although Mr. Berg’s factual allegations
about Senator Obama’s citizenship are ridiculous and patently false, the Court must of
course accept them as true for purposes of this Motion.
Case 2:08-cv-04083-RBS Document 12 Filed 09/24/2008 Page 4 of 11
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B. The Court Lacks Subject-Matter Jurisdiction Because Plaintiff Has
No Standing To Assert His Claim
“‘[T]he rules of standing, whether as aspects of the Art. III case or controversy
requirement or as reflections of prudential considerations defining and limiting the role of
the courts, are threshold determinants of the propriety of judicial intervention.’”
Penn.
Prison Society v. Cortes
, 508 F.3d 156, 158 (3d Cir. 2007), quoting Warth v. Seldin
422
U.S. 490-517-18 (1975). In order to establish the “‘irreducible constitutional minimum
of standing’ under Article III of the Constitution” plaintiff must show, first, an “‘injury in
fact—an invasion of a legally protected interest which is (a) concrete and
particularized, . . . and (b) actual or imminent, not conjectural or hypothetical.’”
Goode
v. City of Philadelphia
, 539 F.3d 311, 2008 U.S. App. LEXIS 17153 *9-10 (3d Cir.
2008),
quoting Lujan v. Defenders of W
ildlife, 504 U.S. 555, 560 (1992).
In this case, Mr. Berg fails to allege any concrete, specific injury in fact to
himself. He alleges that if Senator Obama is elected as President and then discovered to
be ineligible, “plaintiff as well as other Democratic Americans will suffer Irreparable
Harm including but not limited to: (1) Functional or Actual, Disenfranchisement of large
numbers of Citizens, being members of the Democratic Party, who would have been
deprived of the ability to choose a Nominee of their liking . . . .” Complt. ¶6. It is wellestablished,
however, that a voter’s loss of the ability to vote for a candidate “of their
liking” does not confer standing because the actual injury is not to the voter but to the
candidate. “[A] voter fails to present an injury-in-fact when the alleged harm is abstract
and widely shared or is only derivative of a harm experienced by a candidate.”
Crist v.
Comm’n on Presidential Debates
, 262 F.3d 193, 194 (2d Cir. 2001)(per curiam); see
, to
the same effect,
Becker v. Federal Election Comm’n
, 230 F.3d 381, 389-90 (1st Cir.
Case 2:08-cv-04083-RBS Document 12 Filed 09/24/2008 Page 5 of 11
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2000)(supporters of a candidate lacked standing to challenge exclusion of that candidate
from Presidential debates);
Gottlieb v. Federal Election Comm’n
, 143 F.3d 618 (D.C. Cir.
1998)(supporter of a candidate had no standing to challenge dismissal of agency action
against a competing candidate).
For that reason, a voter does not have standing to challenge the qualifications of a
candidate for President of the United States. In
Jones v. Bush
, 122 F. Supp.2d 713 (N.D.
Tex.),
aff’d w/o opinion
, 244 F.3d 134 (5th Cir. 2000), voters sued to challenge the
qualifications of then-Gov. George W. Bush and Richard Cheney to be elected President
and Vice-President of the U.S., respectively, on the grounds that they were both
“inhabitants” of Texas in violation of the requirement of the Twelfth Amendment that the
President and Vice President shall not be “inhabitants” of the same state. The Court
dismissed the case on the ground that the plaintiffs lacked standing.
The Court found that plaintiffs’ assertion that a violation of the Twelfth
Amendment “will harm them by infringing their right to cast a meaningful vote . . . fails
to satisfy the Article III requirement of a ‘distinct and palpable injury.’ . . . This type of
injury is necessarily abstract and plaintiffs conspicuously fail to demonstrate how they, as
opposed to the general voting population, will feel its effects.” 122 F. Supp.2d at 717,
quoting Warth
, supra
, 422 U.S. at 501. The Court also ruled that plaintiffs lacked
standing based on harm to non-defendant candidates, recognizing that none of the cases
“established standing for voters to vindicate the interests of candidates for public office.”
Id
. “Because plaintiffs have failed to demonstrate a specific and individualized injury
from the pending alleged violation of the Twelfth Amendment and are unable to show
Case 2:08-cv-04083-RBS Document 12 Filed 09/24/2008 Page 6 of 11
DMEAST #10118497 v3
5
personal injury through harm done to non-defendant candidates, the court holds that they
do not have standing under Article III to bring this suit.”
Id
. at 717-18.
More recently, in
Hollander v. McCain
, 2008 U.S. Dist. LEXIS 56729 (D.N.H.
2008), a voter sued Senator John McCain and the Republican National Committee,
alleging that, because Senator McCain was born in the Panama Canal Zone, he is not a
“natural born citizen” and is therefore ineligible to hold the office of President. The
Court granted defendants’ motion to dismiss on the grounds that plaintiffs lacked
standing. The Court ruled that the plaintiff “does not have standing based on the harm he
would suffer should McCain be elected President despite his alleged lack of eligibility
under Art. II, §1, cl. 4. That harm, ‘standing alone, would adversely affect only the
generalized interest of all citizens in constitutional governance.’” 2008 U.S. Dist. LEXIS
at *12,
quoting Schlesinger v. Reservists Comm. to Stop the War
, 418 U.S. 208, 217
(1974).
Like Mr. Berg, the plaintiff in
Hollander
also contended that he would be
disenfranchised if he voted for Senator McCain in the general election and Senator
McCain were subsequently removed due to lack of ineligibility. This theory, the Court
held, “does not establish [plaintiff’s] standing because it does not ‘allege personal injury
fairly traceable to the defendant’s allegedly unlawful conduct,’ . . . but to the conduct of
those—whoever they might turn out to be—responsible for ultimately ousting McCain
from office. Indeed, McCain and the RNC are trying to achieve the opposite.”
Id
. at *18,
quoting Allen v. Wright
, 468 U.S. 737, 751 (1984). The court concluded that: “This is not
to demean the sincerity of Hollander’s challenge to McCain’s eligibility for the
Case 2:08-cv-04083-RBS Document 12 Filed 09/24/2008 Page 7 of 11
DMEAST #10118497 v3
6
presidency; . . . What is settled, however, is that an individual voter like Hollander lacks
standing to raise that challenge in the federal courts.”
Id
. at *21.
Like the plaintiffs in
Jones and Hollander
, Mr. Berg manifestly lacks standing to
assert his claim regarding the eligibility of Senator Obama to serve as President.
Accordingly, this Court has no subject matter jurisdiction over that claim.
C. The Complaint Fails to State a Claim Upon Which Relief Can be
Granted
In any event, the Complaint fails to state a claim upon which relief can be granted
because it fails to establish a cause of action. Mr. Berg cites the Declaratory Judgment
Act, 28 U.S.C. §2201, Cmplt. ¶8, but that Act “has only a procedural effect. Although it
enlarges the range of remedies available in federal courts, it does not create subject
matter jurisdiction. Thus, a court must find an independent basis for jurisdiction . . . .”
Mack Trucks, Inc., v. Int’l Union, UAW
, 856 F.2d 579, 583 (3d Cir. 1988). Mr. Berg also
claims that the case “presents a federal question within this Court’s jurisdiction under
Article II of the Constitution.” Cmplt. ¶7. There is no federal cause of action under or
created by Article II of the Constitution, however.
See, e.g., Catholic Charities CYO v.
Chertoff
, 2007 U.S. Dist. LEXIS 62732 (N.D. Cal. 2007).
For these reasons, the Complaint fails to state a claim upon which relief can be
granted.
Case 2:08-cv-04083-RBS Document 12 Filed 09/24/2008 Page 8 of 11
DMEAST #10118497 v3
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CONCLUSION
For the reasons set forth above, defendants Democratic National Committee and
Senator Obama’s motion to dismiss for lack of subject matter jurisdiction and for failure
to state a claim should be granted.
Respectfully submitted,
Dated: September 24, 2008 /s/ John P. Lavelle, Jr.
John P. Lavelle, Jr.
Attorney I.D. PA 54279
BALLARD SPAHR ANDREWS &
INGERSOLL, LLP
1735 Market Street, 51st Floor
Philadelphia, PA 19103
(215) 864-8603
(215) 864-9125 (Fax)
lavellej@ballardspahr.com
Of Counsel:
Joseph E. Sandler
SANDLER REIFF & YOUNG PC
300 M Street, S.E. Suite 1102
Washington, D.C. 20003
Telephone: (202) 479-1111
Fax: (202) 479-1115
sandler@sandlerreiff.com
Robert F. Bauer
General Counsel, Obama for America
PERKINS COIE
607 Fourteenth Street N.W.
Washington, D.C. 20005-2003
Telephone: 202.628.6600
Facsimile: 202.434.1690
RBauer@perkinscoie.com
Attorneys for Defendants
Senator Barack Obama and the
Democratic National Committee
Case 2:08-cv-04083-RBS Document 12 Filed 09/24/2008 Page 9 of 11
DMEAST #10118497 v3
CERTIFICATE OF SERVICE
I hereby certify that on this day, a true and correct copy of the foregoing
Defendant
Democratic National Committee’s and Defendant Senator Barack Obama’s Motion to
Dismiss
was served by First Class U.S. Mail, postage prepaid, upon the following:
Philip J. Berg, Esquire
555 Andorra Glen Court, Suite 12
Lafayette Hill, PA 09867
Plaintiff
Dated: September 24, 2008 /s/ John P. Lavelle, Jr.
John P. Lavelle, Jr.
Case 2:08-cv-04083-RBS Document 12 Filed 09/24/2008 Page 10 of 11
DMEAST #10118497 v3
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
PHILIP J. BERG, :
:
Plaintiff :
:
v. : Civil Action No. 2:08-cv-04083-RBS
:
BARACK OBAMA, et al., :
:
Defendants :
:
ORDER
AND NOW, this ______ day of _______________, 2008, upon consideration of
Defendant Democratic National Committee’s and Defendant Senator Barack Obama’s
Motion to Dismiss, it is hereby ORDERED that said Motion is GRANTED.
J.
Case 2:08-cv-04083-RBS Document 12 Filed 09/24/2008 Page 11 of 11
Citizen WElls 