UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT 

No. 08-4340 

PHILIP J. BERG, Plaintiff-Appellant, 

v. 

BARACK OBAMA, et al., Defendants-Appellees. 

On Appeal from the United States District Court 

for the Eastern District of Pennsylvania 

BRIEF OF APPELLEE FEDERAL ELECTION COMMISSION 

THOMASENIA P. DUNCAN 

General Counsel 

DAVID KOLKER 

Associate General Counsel 

KEVIN DEELEY 

Assistant General Counsel 

STEVE N. HAJJAR 

Attorney 

Federal Election Commission 

999 E Street NW 

 Washington, DC 20463 

FEBRUARY 19, 2009

Case: 08-4340 Document: 00316587388 Page: 1 Date Filed: 02/19/2009
TABLE OF CONTENTS 

 Page 

COUNTERSTATEMENT OF 

JURISDICTION....................................................................1 

COUNTERSTATEMENT OF ISSUES PRESENTED.......................1 

COUNTERSTATEMENT OF THE CASE.....................................2 

COUNTERSTATEMENT OF FACTS..........................................3 

COUNTERSTATEMENT OF RELATED CASES & 

PROCEEDINGS.....................................................................7 

STANDARD OF REVIEW........................................................7 

SUMMARY OF ARGUMENT...................................................7 

ARGUMENT........................................................................9 

I. THE DISTRICT COURT CORRECTLY HELD THAT 

BERG LACKS STANDING TO BRING A CLAIM 

UNDER THE NATURAL BORN CITIZEN CLAUSE 

AND THEREFORE CORRECTLY DISMISSED THIS 

CLAIM FOR WANT OF JURISDICTION.............................9 

II. THE COURT SHOULD AFFIRM THE DISMISSAL OF 

BERG’S REMAINING CLAIMS, NONE OF WHICH 

STATES A VALID CAUSE OF ACTION............................19 

A. 42 U.S.C. § 1983......................................................19 

B. 42 U.S.C. § 1985......................................................22 

C. 42 U.S.C. § 1986......................................................23 

 

D. Federal Election Campaign Act, 2 U.S.C. §§ 431-55............23 

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E. Freedom of Information Act, 5 U.S.C. §§ 552 et seq.............25 

CONCLUSION ..................................................................27 

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TABLE OF CITATIONS 

Cases 

Accardi v. U.S., 435 F.2d 1239 (3rd Cir. 1970)........................................ 21 

Berg v. Obama, et al., 574 F. Supp. 2d 509 (E.D. Pa. 2008). .... 1,5,11,12, 

......................................................................13,19,20,21,22,23,24,25,26,27 

Berg v. Obama, et al., Civ. Action No. 08-570 (S. Ct. Oct. 31, 2008)....... 7 

 

Berg v. Obama, et al., 129 S. Ct. 920 (2009) ............................................. 7 

Brown v. Philip Morris Inc., 250 F.3d 789, 799 (3rd. Cir. 2001) ............ 14 

Clark v. Clabaugh, 20 F.3d 1290 (3rd Cir. 1994)...................................... 23 

Crist v. Comm’n on Presidential Debates, 

 262 F.3d 193 (2nd Cir. 2001).......................................................... 11, 12 

Donohue v. Board of Elections of New York, 

 435 F. Supp. 957 (E.D. N.Y. 1976) ...................................................... 20 

FEC v. Akins, 524 U.S. 11 (1998)....................................................... 11, 24 

FOCUS v. Allegheny County Court of Common Pleas, 

 75 F.3d 834 (3rd Cir. 1996) .................................................................. 10 

Franki Found. Co. v. Alger-Rau & Assocs., Inc., 

 513 F.2d 581 (3rd Cir. 1975) ................................................................ 14 

Gonzaga Univ. v. Doe, 536 U.S. 273 (2002)............................................ 19 

Gottlieb v FEC, 143 F.3d 618 (D.C. Cir. 1998) ....................................... 17 

Gould Elecs. Inc. v. United States, 220 F.3d 169 (3rd Cir. 2000)........ 7, 10 

Gregory v. Ashcroft, 501 U.S. 452 (1991)................................................ 15 

Hindes v. FDIC, 137 F.3d 148 (3rd Cir. 1998)......................................... 21 

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Hollander v. McCain, 566 F. Supp. 2d 63 (D.N.H. 2008) ................. 13, 17 

Kucinich v. Bush, 236 F. Supp. 2d 1 (D.D.C. 2002)................................. 10 

Lora-Pena v. FBI, 529 F.3d 503 (3rd Cir. 2008)........................................ 7 

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ................... 11, 13, 15 

McCann v. Newman Irrevocable Trust, 458 F.3d 281 (3rd Cir. 2006) .... 10 

Page v. Shelby, 995 F. Supp. 23 (D.D.C. 1998) ....................................... 13 

Richardson v. McKnight, 521 U.S. 399 (1997) ........................................ 19 

Robinson v. Bowen, 567 F. Supp. 2d 1144 (N.D.Cal. 2008).................... 16 

Shaw by Strain v. Strackhouse, 920 F.2d 1135 (3rd Cir. 1990) ............... 21 

Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998) .................... 10 

United States v. Pelullo, 399 F.3d 197 (3rd Cir. 2005) ............................ 25 

United States v. Williams, 510 F.3d 416 (3rd Cir. 2007).......................... 14 

Valley Forge Christian Coll. v. Americans United for 

 Separation of Church & State, Inc., 454 U.S. 464 (1982).................... 10 

Warth v. Seldin, 422 U.S. 490 (1975)........................................... 10, 11, 16 

Whitmore v. Arkansas, 495 U.S. 149 (1990) ........................................ 9, 10 

Wilbur v. CIA, 355 F.3d 675 (D.C. Cir. 2004).......................................... 26 

Statutes and Regulations 

Age Discrimination in Employment Act, 29 U.S.C. §§ 621-34............... 15 

Federal Election Campaign Act, 2 U.S.C. §§ 431-55............. 1, 3, 8, 19, 24 

Freedom of Information Act, 5 U.S.C. §§ 552 et seq............. 2, 5, 8, 19, 25 

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v

Immigration and Nationality Act, 8 U.S.C. § 1481(b) ............................... 5 

Presidential Election Campaign Fund Act, 

 26 U.S.C. §§ 9001-9013 ............................................................. 3, 18, 24 

Presidential Primary Matching Payment Account Act, 

 26 U.S.C. §§ 9031-9042 ................................................................... 3, 24 

2 U.S.C. § 437c ......................................................................................... 24 

2 U.S.C. § 437c(b)(1).................................................................................. 3 

2 U.S.C. § 437d(a) ...................................................................................... 3 

2 U.S.C. § 437d(a)(7).................................................................................. 4 

2 U.S.C. § 437d(a)(8).................................................................................. 4 

2 U.S.C. § 437f............................................................................................ 4 

2 U.S.C. § 437g........................................................................................... 4 

3 U.S.C. § 15......................................................................................... 3, 14 

5 U.S.C. § 702............................................................................................. 1 

28 U.S.C. § 1291......................................................................................... 1 

28 U.S.C. § 1331......................................................................................... 1 

28 U.S.C. § 1343......................................................................................... 1 

42 U.S.C. § 1983....................................................................... 1, 2, 5, 8, 19 

42 U.S.C. § 1985................................................................. 1, 2, 5, 8, 19, 22 

42 U.S.C. § 1986................................................................. 1, 2, 5, 8, 19, 23 

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COUNTERSTATEMENT OF JURISDICTION 

Philip J. Berg (“Berg”) alleged that the district court had jurisdiction under 

28 U.S.C. §§ 1331 and 1343, and 5 U.S.C. § 702. (Am. Compl. ¶¶ 12-14.) The 

district court granted the defendants’ motions to dismiss by opinion and order 

dated October 24, 2008. Berg v. Obama, et al., 574 F. Supp. 2d 509 (E.D. Pa. 

2008). The district court held that it did not have jurisdiction over Berg’s Natural 

Born Citizen Clause claim because he lacked Article III standing to bring it. Id. 

This Court has jurisdiction pursuant to 28 U.S.C. § 1291 over the appeal of the 

district court’s dismissal of Berg’s First Amended Compliant for lack of subject 

matter jurisdiction and for failure to state a claim upon which relief can be granted. 

Berg filed his notice of appeal on October 30, 2008. (App. 1-3). 

COUNTERSTATEMENT OF ISSUES PRESENTED 

1. Whether the district court properly dismissed Berg’s Natural Born 

Citizen Clause claim for lack of subject matter jurisdiction because any injury 

alleged by Berg is undifferentiated and widely-shared, and thus fails to satisfy the 

injury-in-fact requirement for standing under Article III. 

2. Whether the district court properly dismissed Berg’s First Amended 

Complaint because he had failed to plead valid causes of action under (1) 42 

U.S.C. § 1983; (2) 42 U.S.C. § 1985; (3) 42 U.S.C. § 1986; (4) the Federal 

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Election Campaign Act, 2 U.S.C. §§ 431-55; and (5) the Freedom of Information 

Act, 5 U.S.C. §§ 552 et seq.

COUNTERSTATEMENT OF THE CASE 

 Philip J. Berg attempts through this case to present the claim that Barack 

Obama is ineligible to be President of the United States because he is not a “natural 

born” citizen as required by Article II, Section I of the Constitution (the “Natural 

Born Citizen Clause”). In the district court, Berg sought a declaration that Obama 

could not become President, as well as permanent injunctions barring him from 

running for the office, and barring the Democratic National Committee (“DNC”) 

from selecting him as the party’s nominee. On October 24, 2008, the district court 

granted the defendants’ motions to dismiss for lack of subject matter jurisdiction 

and for failure to state a claim. The district court correctly held that Berg had not 

established injury-in-fact, and therefore standing, to bring a challenge under the 

Natural Born Citizen Clause because the alleged injuries were widely-shared and 

undifferentiated. The district court also correctly held that Berg had otherwise 

failed to bring a claim for which relief could be granted under various federal 

statutes, including 42 U.S.C. §§ 1983, 1985 and 1986; the Freedom of Information 

Act; and the Federal Election Campaign Act, the statute the appellee Federal 

Election Commission is empowered to administer and enforce. Berg now appeals 

the district court’s ruling. 

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 For the first time on appeal, Berg attempts to raise new alleged facts, legal 

arguments, and causes of action concerning events that took place after the district 

court reached its decision. In particular, Berg raises (Br. 18-19) new arguments 

about the counting of the electoral votes on January 8, 2009, and 3 U.S.C. § 15. 

See, e.g., Berg’s Statement of Issues Presented, Nos. 2, 4-7. 

COUNTERSTATEMENT OF FACTS 

 The Federal Election Commission is the independent agency of the United 

States government empowered to administer, interpret and enforce three federal 

statutes: the Federal Election Campaign Act of 1971, as amended (“FECA” or 

“Act”), 2 U.S.C. §§ 431-55, the Presidential Election Campaign Fund Act, 

26 U.S.C. §§ 9001-9013,1

 and the Presidential Primary Matching Payment 

Account Act, 26 U.S.C. §§ 9031-9042.2

 See generally 2 U.S.C. §§ 437c(b)(1), 

437d(a), and 437g. These statutes regulate the manner in which campaigns for 

federal elective office are financed and how information about that financing is 

disclosed to the public. The Commission is empowered to “formulate policy” wit

respect to the Act, 2 U.S.C. § 437c(b)(1); “to make, amend, and repeal such ru

h 

les 

 

1

 The Presidential Election Campaign Fund Act (“Fund Act”) provides for a 

voluntary program of public financing of the general election campaigns of eligible 

major and minor party nominees for the offices of President and Vice President of 

the United States. 

2

 The Presidential Primary Matching Payment Account Act (“Matching 

Payment Act”) provides partial federal financing for the campaigns of presidential 

primary candidates who qualify and choose to participate. 

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. . . as are necessary to carry out the provisions of [the] Act,” 2 U.S.C. § 

437d(a)(8); to issue advisory opinions construing the Act, 2 U.S.C. §§ 437d(a)(7), 

437f; and to civilly enforce against violations of the Act. 2 U.S.C. § 437g. 

On August 21, 2008, Philip J. Berg filed a complaint for declaratory and 

injunctive relief and a motion for a temporary restraining order and for expedited 

discovery against Barack Obama, the Democratic National Committee, the Federal 

Election Commission, and Does 1-50. (Compl. for Declaratory and Injunctive 

Relief, Docket No. 1; Mot. for TRO and for Expedited Disc., Docket No. 2.) In his 

Complaint and motion for a TRO, Berg alleged that then-Senator Obama was 

constitutionally ineligible to become President of the United States because he was 

not a “natural born” citizen as required by Article II, Section 1. Berg sought a 

declaration that Obama could not become President, as well as permanent 

injunctions barring him from running for the office, and barring the DNC from 

selecting him as the party’s nominee. 

 On October 6, 2008, Berg filed an Amended Complaint for declaratory and 

injunctive relief that added several defendants, including Pedro Cortes, the 

Secretary of the Commonwealth of Pennsylvania, and the U.S. Senate Committee 

on Rules and Administration as well as its Chairman, Senator Dianne Feinstein. 

(Docket No. 14.) The Amended Complaint also added seven new claims to the 

original National Born Citizen Clause allegation (Count 1). The new claims were 

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brought under 42 U.S.C. §§ 1983, 1985, and 1986 (Counts 2-4, respectively), as 

well as provisions of the FECA (Count 5); the Freedom of Information Act 

(“FOIA”), 5 U.S.C. § 552 (Count 6); and the Immigration and Nationality Act 

(“INA”), 8 U.S.C. § 1481(b) (Count 8). Berg’s Amended Complaint also included 

a claim for Promissory Estoppel (Count 7). Counts 1-6 are directed to all 

defendants. The promissory estoppel claim (Count 7) is directed to defendants 

Obama and the DNC, while the INA claim (Count 8) is directed only to the former. 

Pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), Obama 

and the DNC moved to dismiss Berg’s First Amended Complaint on October 20, 

2008. (Mot. to Dismiss, Docket No. 20.) The following day, the Commission 

moved to dismiss this action for lack of subject matter jurisdiction pursuant to 

Federal Rule of Civil Procedure 12(b)(1). (Mot. to Dismiss, Docket No. 24, Oct. 

21, 2008.) Three days later, on October 24, the district court dismissed Berg’s 

Amended Complaint. Taking as true the well-pleaded facts of the Amended 

Complaint, the court held that Berg had not established injury-in-fact, and 

therefore standing, to bring a challenge under the Natural Born Citizen Clause. 

Berg, 574 F. Supp. 2d at 515-21. The court also held that Berg had not otherwise 

brought a claim for which relief could be granted. Id. at 521-30. 

Berg filed a notice of appeal in this Court on October 30, 2008, as well as an 

Emergency Motion for an Immediate Injunction to Stay the Presidential Election of 

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November 4, 2008, pending resolution of the appeal. This Court denied Berg’s 

Emergency Motion on October 31. The Court held that “[f]or the reasons ably 

expressed by the District Court — and not addressed in [Berg’s] Emergency 

Motion — it appears that [Berg] lacks standing to challenge Senator Obama’s 

candidacy for the Presidency of the United States. Accordingly, [Berg] has not 

shown a likelihood of success with respect to his appeal.” 

 On December 4, 2008, Berg returned to this Court moving for an Immediate 

Injunction Pending the Resolution of Petitioner’s Appeal. In his motion, Berg 

asked the Court to stay the certification of electors, stay the Electoral College from 

casting any votes for Obama on December 15, 2008, and to stay the counting of 

any votes in Congress on January 6, 2009. The Court denied Berg’s Motion on 

December 9, once again finding that he had not shown a likelihood of success with 

respect to his appeal. The Court explained, “As ably expressed by the District 

Court, it appears that [Berg] lacks standing to challenge the election of Barack H. 

Obama to the Presidency of the United States. Even if [Berg] possessed standing 

to raise the issue of President-Elect Obama’s constitutional eligibility to be 

President, no justiciable controversy is presented, as [Berg] seeks adjudication of a 

political question.” 

 On January 16, 2009, the Commission moved for summary affirmance of the 

lower court’s opinion. The motion remains pending. 

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COUNTERSTATEMENT OF RELATED CASES & PROCEEDINGS 

On October 31, 2008, Berg filed a Petition for Writ of Certiorari Before 

Judgment in the Supreme Court, as well as an application with Justice Souter for 

an Immediate Injunction to Stay the Presidential Election of November 4, 2008 

Pending Resolution of the Petition for Certiorari. Berg v. Obama, et al., No. 08-

570. Justice Souter denied Berg’s motion on November 3, 2008. A little more 

than two months later, on January 12, 2009, the Court denied his petition for a writ 

of certiorari. Berg v. Obama, et al., 129 S. Ct. 920 (2009).

STANDARD OF REVIEW 

This Court’s review of a district court’s dismissal for lack of subject matter 

jurisdiction or for failure to state a claim is plenary. See Gould Elecs. Inc. v. 

United States, 220 F.3d 169, 176 (3rd Cir. 2000) (lack of subject matter 

jurisdiction); Lora-Pena v. FBI, 529 F.3d 503, 505 (3rd Cir. 2008) (failure to state 

a claim). Plenary review requires the Court to accept as true all allegations in the 

complaint and all reasonable inferences that can be drawn therefrom, and view 

them in the light most favorable to the plaintiff. Id. 

SUMMARY OF ARGUMENT 

 The court below correctly held that Berg has neither established standing, 

nor pled a valid cause of action, to bring his claim that President Barack Obama is 

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ineligible to be president because he is not a “natural born” citizen as required by 

Article II, Section I of the Constitution (the “Natural Born Citizen Clause”). 

 Berg lacks standing to bring a challenge under the Natural Born Citizen 

Clause. The injuries he claims to have suffered are undifferentiated and widelyshared by all voters generally, and thus do not satisfy Article III’s injury-in-fact 

requirement. Obama’s alleged unconstitutional candidacy results in no harms that 

redound particularly to Berg’s detriment. 

 In this Court, Berg now argues for the first time that the alleged failure of 

Members of Congress to object to the counting of the electoral votes on January 8, 

2009, gives him standing under the Tenth Amendment. This argument is not 

properly before the Court. In any event, this argument does not suggest that Berg’s 

purported injuries are personal to him, as opposed to generalized grievances that 

affect all voters in substantially equal measure. 

 Moreover, even if Berg could show that he has suffered an Article III injuryin-fact, he nonetheless cannot establish the two remaining standing requirements to 

sue the Commission: causation, that the challenged conduct of the Commission 

bears a causal connection to Berg’s alleged injuries, and redressibility, that the 

claimed injury will be redressed by a favorable decision of the Court. 

 Berg has also failed to plead a valid cause of action under 42 U.S.C. 

§§ 1983, 1985 and 1986; the Federal Election Campaign Act; and the Freedom of 

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Information Act. As to section 1983, Berg has yet to cite any case which suggests 

that the Natural Born Citizen Clause creates an individual right redressible under 

that section. Having failed to establish such a right cognizable under section 1983, 

Berg’s derivative section 1985 and section 1986 claims must fail as well. Berg has 

failed to state a cognizable claim under the FECA, and has no standing to pursue it, 

because no provision of this statute entitles Berg to the information regarding 

Obama’s citizenship that Berg seeks. Berg has also failed to state a cognizable 

claim under FOIA because he does not allege that he actually made a FOIA request 

to the Commission, let alone that he complied with the FEC’s regulations for 

making such a request. In any event, Berg has waived appeal of his FECA and 

FOIA claims by failing to mention them in his opening brief.

ARGUMENT 

I. THE DISTRICT COURT CORRECTLY HELD THAT BERG LACKS 

STANDING TO BRING A CLAIM UNDER THE NATURAL BORN 

CITIZEN CLAUSE AND THEREFORE CORRECTLY DISMISSED 

THIS CLAIM FOR WANT OF JURISDICTION 

The court below correctly dismissed Berg’s Natural Born Citizen Clause 

claim for lack of subject matter jurisdiction. Berg lacks standing to bring this 

claim, and thus fails to bring a “case or controversy” under Article III of the 

Constitution. Whitmore v. Arkansas, 495 U.S. 149, 155 (1990). The dispute Berg 

raises is not one “appropriately resolved through the judicial process.” Id. 

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“Standing must be determined as a threshold jurisdictional matter.” 

Kucinich v. Bush, 236 F. Supp. 2d 1, 3 n.5 (D.D.C. 2002) (citing Whitmore, 495 

U.S. at 155, and Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 101-02 

(1998)). The doctrine of standing identifies those disputes that are properly 

resolved through the judicial process. See Valley Forge Christian Coll. v. 

Americans United for Separation of Church & State, Inc., 454 U.S. 464, 471-76 

(1982). 

“The party invoking federal jurisdiction bears the burden of establishing the 

elements of standing, and each element must be supported in the same way as any 

other matter on which the [party] bears the burden of proof . . .” FOCUS v. 

Allegheny County Court of Common Pleas, 75 F.3d 834, 838 (3rd Cir. 1996) 

(internal quotations and citation omitted). In deciding this case, “the court must 

only consider the allegations of the complaint and documents referenced therein 

and attached thereto, in the light most favorable to the plaintiff.” Gould Elecs., 

Inc. v. United States, 220 F.3d 169, 176 (3rd Cir. 2000); McCann v. Newman 

Irrevocable Trust, 458 F.3d 281, 290 (3rd Cir. 2006). This Court’s threshold 

inquiry into standing “in no way depends on the merits of [Berg’s] contention that 

particular conduct is illegal . . . .” Warth v. Seldin, 422 U.S. 490, 500 (1975) 

(citations omitted). 

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 Three elements constitute the “irreducible constitutional minimum” of 

standing: (1) an injury-in-fact, (2) a causal connection between the injury and the 

challenged conduct of the defendant, and (3) a likelihood that the injury will be 

redressed by a favorable decision of the court. Lujan v. Defenders of Wildlife, 504 

U.S. 555, 560-61 (1992) (citations omitted). The injury-in-fact required by Article 

III is an invasion of a legally protected interest that is “concrete and particularized” 

as well as “actual or imminent,” rather than “conjectural” or “hypothetical.” Id. at 

560 (citations omitted). “[P]articularized” “mean[s] that the injury must affect the 

plaintiff in a personal and individual way.” Lujan, 504 U.S. at 560 n.1. Thus, the 

injury cannot be merely a generalized grievance about the government that affects 

all citizens or derives from an interest in the proper enforcement of the law. FEC 

v. Akins, 524 U.S. 11, 23 (1998); Lujan, 504 U.S. at 573-74; see also Warth, 422 

U.S. at 499 (“[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.”). 

“Standing has been a consistent barrier to lower courts hearing generalized, 

undifferentiated claims by voters and citizens.” See Berg, 574 F. Supp. 2d at 517-

18 (citing cases). “‘[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.’” Id. at 518 (quoting Crist v. Comm’n on Presidential Debates, 262 

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F.3d 193, 195 (2nd Cir. 2001)). Any injury alleged by Berg is undifferentiated and 

widely-shared, and thus fails to satisfy the injury-in-fact requirement for standing. 

Berg never asserts that the purportedly unconstitutional candidacy of Barack 

Obama results in any harm that redounds particularly to his detriment. Rather, he 

broadly identifies those who may suffer as: “Plaintiff as well as other Democratic 

Americans” (Am. Compl. ¶ 7), “Plaintiff and the American Citizens” (id. ¶133), 

and “Plaintiff and the American people” (id. ¶¶ 134, 135). 

Thus, as the lower court correctly held, Berg’s stake is “no greater and his 

status no more differentiated than that of millions of other voters.” 574 F. Supp. 2d 

at 519. Berg does not claim that he has suffered any injury or harm that, if true, 

would not also be shared by every American, all of whom would appear to suffer, 

if at all, in equal measure. Because it is well-settled that claims advanced on behalf 

of such all-encompassing groups do not satisfy the injury-in-fact requirement, 

Berg’s generalized grievance on behalf of the American citizenry cannot satisfy 

Article III. See Crist 262 F.3d at 195 (citing cases) (“Several other Circuit Courts 

have also concluded that 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.”). Accordingly, the court below correctly concluded that the harm 

allegedly suffered by Berg and “other Democratic Americans” is “too vague and its 

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effects too attenuated to confer standing on any and all voters.” 574 F. Supp. 2d 

at 519. 

The district court properly explained that Berg’s allegations of harm are as 

flawed as the plaintiff’s allegations in Hollander v. McCain, 566 F. Supp. 2d 63 

(D.N.H. 2008). In Hollander, the plaintiff brought an action similar to Berg’s, 

challenging the eligibility of Senator John McCain to serve as president of the 

United States in light of his birth in the Panama Canal Zone to American parents. 

The Hollander court held that the plaintiff lacked standing because any harm from 

McCain’s election would “adversely affect only the generalized interest of all 

citizens in constitutional governance.” Id. at 68 (internal citations omitted). Such a 

claim alleges “only an abstract injury insufficient to confer standing.” Page v. 

Shelby, 995 F. Supp. 23, 27 (D.D.C. 1998). 

Accordingly, Berg has failed to articulate any concrete or particularized 

injury-in-fact. His claims are coexistent with those of American voters generally 

and such generalized grievances do not confer standing. As the Supreme Court 

noted in Lujan: 

Whether the courts were to act on their own, or at the invitation of 

Congress, in ignoring the concrete injury requirement described in our 

cases, they would be discarding a principle fundamental to the 

separate and distinct constitutional role of the Third Branch — one of 

the essential elements that identifies those “Cases” and 

“Controversies” that are the business of the courts rather than of the 

political branches. “The province of the court,” as Chief Justice 

Marshall said in Marbury v. Madison, 5 U.S. 137, 1 Cranch 137, 170 

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(1803) “is, solely, to decide on the rights of individuals.” Vindicating 

the public interest (including the public interest in Government 

observance of the Constitution and laws) is the function of Congress 

and the Chief Executive. 

504 U.S. at 576. 

For the first time on appeal, Berg relies (Br. at 19) upon 3 U.S.C. § 15 and 

asserts (Br. at 18) that he has standing “under the Tenth Amendment because the 

power to determine the qualifications of the President-elect is left to the states and 

the people after the Congressmen and Senators failed to object to the counting of 

the electoral votes on January 8, 2009.” This claim lacks merit for several reasons 

and is not properly before this Court. First, it relies upon alleged facts that took 

place after the district court reached its decision. Berg obviously could not have 

raised these facts for the district court to consider in the first instance, and he relies 

upon 3 U.S.C. § 15 for the first time before this Court. Absent exceptional 

circumstances, “[i]t is well established that a point not raised in the district court 

generally will not be heard by an appellate court.” United States v. Williams, 510 

F.3d 416, 430 (3rd Cir. 2007); accord Franki Found. Co. v. Alger-Rau & Assocs., 

Inc., 513 F.2d 581, 586 (3rd Cir. 1975) (“[A]bsent exceptional circumstances, an 

issue not raised in the district court will not be heard on appeal.”).3

 Second, the 

 

3

 This Court has explained that exceptional circumstances include, “e.g., the 

public interest requires that the issues be heard or manifest injustice would result 

from the failure to consider such issues.” Brown v. Philip Morris Inc., 250 F.3d 

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“existence of federal jurisdiction ordinarily depends on the facts as they exist when 

the complaint is filed.” Lujan, 504 U.S. at 569 n.4 (internal quotation marks and 

citation omitted). Standing cannot be acquired by facts that may develop 

subsequently. 

Third, even if this claim were properly before the Court, neither the Tenth 

Amendment, 3 U.S.C. § 15, nor Gregory v. Ashcroft, 501 U.S. 452 (1991), confers 

Article III standing on Berg. The Tenth Amendment provides that “[t]he powers 

not delegated to the United States by the Constitution, nor prohibited by it to the 

States, are reserved to the States respectively, or to the people.” We are aware of 

no case that has ever construed that Amendment to provide standing to an 

individual voter. Berg relies heavily (Br. at 20-22) upon Gregory, but that case 

neither addressed standing in general nor relied upon the Tenth Amendment to find 

standing. The plaintiffs in that case were state judges who argued that a Missouri 

statute which provided for their own mandatory retirement at age 70 violated the 

Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621-34, and the 

Equal Protection Clause. Their personal stake in the outcome was unquestioned, 

and the Supreme Court’s limited discussion of the Tenth Amendment was in the 

context of Missouri’s power to determine the qualifications of its own government 

 

789, 799 (3rd. Cir. 2001). Given the weakness of Berg’s arguments, no such 

exceptional circumstances exist here. 

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officials, not part of any discussion of standing. Berg does not explain how the 

authority of the people through their state legislature to set mandatory retirement 

ages has any relationship to any of Berg’s alleged injuries from Obama’s allegedly 

ineligible candidacy. Nor does Berg does explain how any purported injury under 

the Tenth Amendment is personal to him, as opposed to a “generalized grievance 

shared in substantially equal measure by all or a large class of citizens,” Warth, 422 

U.S. at 499 (internal quotation omitted).4

 

For his Tenth Amendment argument, Berg also relies (Br. at 19-20) on 

Robinson v. Bowen, 567 F. Supp. 2d 1144 (N.D.Cal. 2008), but that case supports 

the Commission’s position, not his. The Robinson plaintiff, slated to appear on the 

California presidential ballot as an elector pledged to a third-party candidate, 

brought suit challenging Senator John McCain’s eligibility to serve as president 

due to his birth in the Panama Canal Zone to American parents. The court 

specifically held that the plaintiff, having “no greater stake in the matter than a 

taxpayer or voter,” had no standing to bring his claim. Id. at 1146. 

 

4

 Berg’s reliance (Br. at 19) on 3 U.S.C. § 15 is unclear. On its face, the 

provision he cites gives Members of Congress the ability to “call for objections” to 

the electoral vote count; it provides no such right for individual citizens. Berg also 

argues (Br. at 28) that his free speech rights and fundamental right to vote were 

infringed because he was purportedly denied “the opportunity to express his 

objection [to Obama’s election] through his elected representatives.” Again, this 

new claim was not raised before the district court and, in any event, Berg does not 

cite any evidence that he was denied an opportunity to make his objections known 

to his own representatives. Berg also fails to explain how these purported injuries 

are personal to him and not widely shared by all other citizens. 

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Similarly, in Hollander, the district court explained that an individual voter 

does not have standing to bring a claim that an allegedly unlawful candidacy 

infringed the voter’s right to vote. Addressing the plaintiff’s assertion that his 

individual right to vote would be harmed by McCain’s election, the court reasoned 

that the presence of an allegedly ineligible candidate on the ballot would not impair 

that right because voters would still be able to vote for other candidates of their 

choice. Hollander, 566 F. Supp. 2d at 68-71. The inclusion of a putatively 

ineligible candidate (in contrast with the illegal exclusion of a qualified candidate) 

does “not impede the voters from supporting the candidate of their choice and thus 

does not cause the legally cognizable harm necessary for standing.” Id. at 69 

(internal citations omitted) (citing Gottlieb v FEC, 143 F.3d 618, 622 (D.C. Cir. 

1998)). Berg, like Hollander, is not himself a candidate who might arguably have 

standing to challenge the inclusion of an ineligible candidate. Rather, he is a voter 

who has “no standing to complain about the participation of an ineligible candidate 

in an election, even if it results in the siphoning of votes away from [the] candidate 

[he] prefer[s].” Id. 

Even if Berg could demonstrate an Article III injury-in-fact, Berg 

nonetheless fails to establish the two remaining standing requirements vis-à-vis the 

FEC: causation, that the challenged conduct of the Commission bears a causal 

connection to Berg’s alleged injuries, and redressibility, that the claimed injury will 

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be redressed by a favorable decision of the court. Regarding causation, Berg’s 

Complaint makes no allegation that any action taken by the Commission injured 

him. Berg claims repeatedly that the Commission allowed Obama’s ineligible 

candidacy to proceed by failing to verify the candidate’s citizenship. But nowhere 

does Berg cite to any provision of law that requires the Commission to take such 

action. Berg cites (Am. Compl. ¶ 83) the Presidential Election Campaign Fund 

Act, 26 U.S.C. §§ 9001-9013, which authorizes the Commission to distribute 

public funds to finance the general election campaigns of certain presidential and 

vice presidential candidates. But Berg does not allege that the Commission 

distributed any public funds to Obama, nor could he. 

 Finally, Berg cannot meet the redressibility requirement because there is no 

remedy involving the Commission that this Court could grant Berg to provide the 

relief he seeks. Even if his lawsuit had merit, Berg does not allege or explain how 

this Court’s remedy would in any way involve the Commission’s powers and 

responsibilities as set forth in its enabling statutes. Because any conceivable relief 

would be directed against parties other than the Commission, Berg’s alleged injury 

could not be redressed by relief against the Commission. 

Since Berg does not have standing to bring a claim under the Natural Born 

Citizen Clause against the Commission or any of the other defendants, the Court 

should affirm the dismissal of this claim for lack of subject matter jurisdiction. 

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II. THE COURT SHOULD AFFIRM THE DISMISSAL OF 

BERG’S REMAINING CLAIMS, NONE OF WHICH STATES A 

VALID CAUSE OF ACTION 

In his First Amended Complaint, Berg added seven claims to his Natural 

Born Citizen Clause claim. Five of those additional claims, Counts 2-6, were 

directed at all the defendants, including the Federal Election Commission. Counts 

2-6 alleged violations of 42 U.S.C. §§ 1983, 1985, 1986, FECA, and FOIA, 

respectively. The court below correctly dismissed these claims for failure to state a 

claim. 574 F. Supp. 2d at 521-24. This Court should affirm the district court’s 

decision on these counts. 

A. 42 U.S.C. § 1983 

The court below properly concluded that Berg had failed to allege a 

cognizable section 1983 claim. 574 F. Supp. 2d at 521-23. Section 1983 provides 

a cause of action against 

[e]very person who, under color of any statute, ordinance, regulation, 

custom, or usage, of any State or Territory or the District of 

Columbia, subjects, or causes to be subjected, any citizen of the 

United States or other person within the jurisdiction thereof to the 

deprivation of any rights, privileges, or immunities secured by the 

Constitution and laws. 

42 U.S.C. § 1983. See generally Richardson v. McKnight, 521 U.S. 399, 403 

(1997). “A § 1983 claimant must allege violations of ‘rights independently 

secured by the Constitution and laws of the United States.’” Berg, 574 F. Supp. 2d 

at 522 (quoting Gonzaga Univ. v. Doe, 536 U.S. 273, 285 (2002)). Thus, the 

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district court properly framed the relevant inquiry as whether Berg had alleged a 

violation of a right under the Natural Born Citizen Clause that would entitle him to 

relief under section 1983. Id. at 522. The Court correctly concluded that he had 

not. Id. at 522-23. 

 No case even suggests that the Natural Born Citizen Clause creates a federal 

right for which violations are redressible under section 1983. Id. at 522. Absent 

any precedent supporting Berg, the court properly concluded that the Natural Born 

Citizen Clause “does not confer an individual right on citizens or voters.” Id. at 

522-23. 

 Berg attempts (Br. at 16, 24, 26) to recast his claim as alleging a violation of 

his right to cast an informed vote for an eligible candidate. As the district court 

explained, “the irreducible basis of all [Berg’s] alleged violations” is that Obama is 

constitutionally ineligible to be president under the Natural Born Citizen Clause. 

Id. at 522. Yet in this Court, Berg again fails to cite to any case which suggests 

that the Natural Born Citizen Clause creates an individual right redressible under 

section 1983. Donohue v. Board of Elections of New York, 435 F. Supp. 957 (E.D. 

N.Y. 1976), upon which Berg relies, involved allegations of equal protection and 

20

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due process violations from the casting of illegal votes, and makes no mention of 

the Natural Born Citizen Clause.5

 

Even if Berg had brought a cognizable claim to vindicate an individual right 

redressible under section 1983, he cannot state a claim for relief against the FEC 

under this section. “In order to prevail in a § 1983 action, a plaintiff must establish 

. . . that the conduct complained of was committed by a person acting under color 

of state law.” Shaw by Strain v. Strackhouse, 920 F.2d 1135, 1141-42 (3rd Cir. 

1990) (internal quotation marks omitted). The Commission, an independent 

agency of the federal government, is clearly not a state actor within the meaning of 

section 1983, and Berg does not allege any facts to show otherwise. See Accardi v. 

U.S., 435 F.2d 1239, 1241 (3rd Cir. 1970) (“Under Section 1983, only ‘persons’ 

may be sued for deprivation of civil rights. The United States and other 

governmental entities are not ‘persons’ within the meaning of Section 1983.”); 

Hindes v. FDIC, 137 F.3d 148, 158 (3rd Cir. 1998) (“Because section 1983 

provides a remedy for violations of federal law by persons acting pursuant to state 

law, federal agencies and officers are facially exempt from section 1983 liability 

inasmuch as in the normal course of events they act pursuant to federal law.”). 

 

5

 Much of Berg’s section 1983 argument is devoted to the contention (Br. 

at 24-27) that the district court wrongly dismissed this count of his Amended 

Complaint for want of state action. As that court explained, however, it did “not 

need to reach this [state action] question because Plaintiff does not allege the 

violation of any legally protected right . . .” 574 F. Supp. 2d at 523 n.14. 

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 Regardless, because Berg has failed to allege the violation of any right 

independently secured by the Constitution and laws of the United States, this Court 

should affirm the ruling in the court below that Berg has brought no cognizable 

claim under 42 U.S.C. § 1983.6

B. 42 U.S.C. § 1985 

The district court properly concluded that Berg had failed to allege a 

cognizable section 1985 claim. 574 F. Supp. 2d at 523-24. Section 1985 creates a 

cause of action for various conspiracies which deprive individuals of federal rights 

or privileges. As the court below observed, however, “where there is no federal 

right that creates a basis for a § 1983 claim there is similarly no basis for a § 1985 

claim.” Id. at 523. Accordingly, the court properly held that because Berg had not 

stated a cognizable § 1983 claim, he could not state a cognizable § 1985 claim. Id. 

Moreover, as the court below specifically explained, id. at 523-24, section 

1985(1) involves interference with officers of the United States, section 1985(2) 

creates a claim for conspiracies to intimidate witnesses, jurors, or parties in a 

federal case, and section 1985(3) involves alleged conspiracies motivated by racial 

animus. Because Berg has not made any factual allegations that would support any 

 

6

 Although the district court dismissed Berg’s § 1983 claim as not cognizable, 

Berg mischaracterizes (Br. at 24-27) the district court’s decision as having erred by 

finding that he had no “standing” to bring this claim. 

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claims under any of the three subsections, this Court should affirm the lower 

court’s ruling that Berg has not stated any cognizable claims under section 1985. 

C. 42 U.S.C. § 1986 

It is well-settled that a plaintiff must state a cognizable claim under 

section 1985 in order to state a claim under section 1986, and the court below 

correctly concluded that Berg had not stated a cognizable claim under the latter 

section. See 574 F. Supp. 2d at 524; Clark v. Clabaugh, 20 F.3d 1290, 1295 (3rd

Cir. 1994) (“§ 1986 constitutes an additional safeguard for those rights protected 

under 42 U.S.C. § 1985, and transgressions of § 1986 by definition depend on a 

preexisting violation of § 1985 . . . ”) (citation, footnote, and internal quotation 

marks omitted). This Court should affirm that ruling. 

D. Federal Election Campaign Act, 2 U.S.C. §§ 431-55 

Berg has failed to state a cognizable claim under FECA. 574 F. Supp. 2d at 

524-26. Berg alleges that the defendants have allowed Obama’s purportedly 

illegal campaign to receive more than $450 million in donations (Am. Compl. 

¶ 141) and that this somehow entitles him to the information he seeks regarding 

Obama’s citizenship. 574 F. Supp. 2d at 524. 

The court below correctly observed, however, that no provision of FECA 

entitles Berg to such information. Id. at 525-26. FECA and the public financing 

statutes only regulate the financing of federal campaigns: regulating the 

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organization of campaign committees; the raising, spending, and disclosing of 

campaign funds; and the receipt and use of public funding for qualifying 

candidates. See generally 2 U.S.C. §§ 431-55, 26 U.S.C. §§ 9001-9013, 26 U.S.C. 

§§ 9031-9042. Nothing in FECA or the public financing statutes addresses 

determinations of the constitutional eligibility of federal candidates or otherwise 

requires the Commission to provide information regarding their eligibility. The 

Commission’s jurisdiction relates solely to the administration, interpretation, and 

enforcement of federal campaign finance laws. See 2 U.S.C. § 437c. The FECA 

nowhere grants the Commission any responsibility for, or oversight over, the 

Constitution’s Presidential Qualifications Clause, or any authority to administer 

any activity by the Electoral College or the counting of votes for the Presidency. 

As the district court aptly explained, “[i]t seems clear that the [Federal Election] 

Campaign Act does not address the sort of corruption that [Berg] alleges in his 

Complaint.” 574 F. Supp. 2d at 525. 

For the same reasons, Berg has no standing to bring a claim under FECA to 

obtain information regarding Obama’s citizenship. In the court below, Berg had 

argued that he had standing to pursue his FECA claim under FEC v. Akins, 524 

U.S. 11 (1998). In Akins, the Supreme Court held that the plaintiff voters could 

suffer “informational injury” if they lacked particular information directly related 

to voting that the FECA specifically required the Commission to disclose. The 

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district court properly rejected Berg’s argument, explaining that while the plaintiff 

voters in Akins sought campaign finance-related information the FECA required to 

be disclosed, the FECA does not “require defendants to disclose the sort of 

information that [Berg] seeks in the Amended Complaint” regarding Obama’s 

citizenship. 574 F. Supp. 2d at 526. 

In any event, Berg has waived his appeal of the district court’s dismissal of 

his FECA claim. “It is well-settled that an appellant’s failure to identify or argue 

an issue in his opening brief constitutes waiver of that issue on appeal.” United 

States v. Pelullo, 399 F.3d 197, 222 (3rd Cir. 2005). Berg does not make any 

FECA-related arguments in this Court. Nowhere in his opening brief, in fact, does 

Berg even mention the FECA, the Commission, or Count 5 of his Complaint. 

Since Berg has failed to state a claim under FECA for which relief can be 

granted, and failed to argue otherwise here, this Court should affirm the district 

court’s dismissal by the court below of this claim. 

E. Freedom of Information Act, 5 U.S.C. §§ 552 et seq.

Finally, the court below correctly held that Berg had failed to state a 

cognizable FOIA claim against any of the defendants, including the Commission. 

574 F. Supp. 2d at 526-28. As the court explained, id. at 526, FOIA applies only to 

government agencies. See 5 U.S.C. § 552(a)(2) (requiring “each agency” to make 

certain records available for public inspection and copying). Because the 

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Commission is the only government agency defendant here within the meaning of 

FOIA, the district court correctly concluded that Berg had not stated a FOIA claim 

against the non-FEC defendants. 574 F. Supp. 2d at 526-27. 

Although the Commission is subject to FOIA, the court below properly held 

that Berg had failed to state a FOIA claim against the Commission for at least two 

reasons. First, Berg does not allege that he actually made a FOIA request to the 

Commission, let alone that he complied with the FEC’s regulations for making 

such a request. 574 F. Supp. 2d at 527. The court below correctly held these 

failures sufficient to dismiss Berg’s FOIA claim. Id. Second, a FOIA claimant 

must exhaust available administrative remedies before bringing a FOIA suit; the 

exhaustion requirement allows an agency sufficient time to exercise its discretion 

and compile a record supporting its decision. See Wilbur v. CIA, 355 F.3d 675, 

676-77 (D.C. Cir. 2004). As detailed by the district court, however, Berg’s 

complaint contains no allegations that any applicable FOIA deadlines expired 

before he brought suit under the statute. 574 F. Supp. 2d at 527-28. 

In any event, Berg has also waived his appeal of the district court’s holding 

that he has not brought a cognizable FOIA claim. Just like his FECA claim, Berg 

does not make any FOIA-related arguments in his opening brief, or even so much 

26

Case: 08-4340 Document: 00316587388 Page: 32 Date Filed: 02/19/2009
as mention that statute. Consequently, this Court should affirm the dismissal by 

the court below of this count as well.7

CONCLUSION 

 For the foregoing reasons, the district court’s opinion granting the 

defendants’ Motions to Dismiss should be affirmed.

Respectfully submitted, 

 

 Thomasenia P. Duncan 

 General Counsel 

 David Kolker 

 Associate General Counsel 

 

 Kevin Deeley 

 Assistant General Counsel 

 

 /s/ Steve N. Hajjar 

 Steve N. Hajjar 

 Attorney 

 

 FOR THE APPELLEE 

 FEDERAL ELECTION COMMISSION 

 999 E Street, N.W. 

 Washington, DC 20463 

February 19, 2009 (202) 694-1650 

 

7

 The Court should also affirm the dismissal of the remaining two counts of 

Berg’s First Amended Complaint against the other defendants. Berg does not 

challenge the district court’s dismissal of these claims in his opening brief. 

Moreover, the promissory estoppel claim (Count 7) is frivolous on its face, and it is 

beyond dispute that the INA does not establish the alleged cause of action (Count 

8). See Berg, 574 F. Supp. 2d at 528-30. 

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CERTIFICATION OF BAR MEMBERSHIP 

Counsel represent the Federal Election Commission, an agency of the United 

States, and therefore need not be admitted to the Court’s bar to practice before it. 

See Committee Comments, 3rd Cir. L.A.R. 28.3. 

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Case: 08-4340 Document: 00316587388 Page: 34 Date Filed: 02/19/2009
CERTIFICATION OF WORD COUNT 

This brief complies with the type-volume limitation of Fed. R. App. P. 

32(a)(7)(B) because this brief contains 6,125 words, excluding the parts of the 

brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 

This brief complies with the typeface requirements of Fed. R. App. P. 

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this 

brief has been prepared in a proportionally spaced typeface using Microsoft Word 

2003 in 14-point Times New Roman font. 

 /s/ Steve N. Hajjar 

Steve N. Hajjar 

Attorney 

COUNSEL FOR APPELLEE 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

February 19, 2009 Washington, DC 20463 

29

Case: 08-4340 Document: 00316587388 Page: 35 Date Filed: 02/19/2009
CERTIFICATE OF SERVICE UPON COUNSEL 

I hereby certify that on February 19, 2009, I electronically filed the 

foregoing using the Court’s CM/ECF system, which sent a notification of such 

filing to the following: 

John P. Lavelle, Jr., jlavelle@morganlewis.com 

 

 Philip J. Berg, philjberg@gmail.com 

Also on this day, I sent 10 copies of the foregoing to the Office of the Clerk of 

Court.

 /s/ Steve N. Hajjar 

Steve N. Hajjar 

Attorney 

COUNSEL FOR APPELLEE 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

February 19, 2009 Washington, DC 20463 

30

Case: 08-4340 Document: 00316587388 Page: 36 Date Filed: 02/19/2009
CERTIFICATION OF IDENTICAL COMPLIANCE OF BRIEFS 

 I certify that the E-Brief and Hard Copies of the brief are identical. 

 /s/ Steve N. Hajjar 

Steve N. Hajjar 

Attorney 

COUNSEL FOR APPELLEE 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

February 19, 2009 Washington, DC 20463 

31

Case: 08-4340 Document: 00316587388 Page: 37 Date Filed: 02/19/2009
32

CERTIFICATION OF VIRUS CHECK 

 I hereby certify that a virus check was performed on the E-Brief using 

McAfee VirusScan Enterprise 8.0.0 and that no viruses were found. 

 /s/ Steve N. Hajjar 

Steve N. Hajjar 

Attorney 

COUNSEL FOR APPELLEE 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

February 19, 2009 Washington, DC 20463 

Case: 08-4340 Document: 00316587388 Page: 38 Date Filed: 02/19/2009