IN THE UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT

PHILIP J. BERG, ) 

) 

Plaintiff-Appellant, ) 

) No. 08-4340 

v. ) 

) MOTION 

BARACK OBAMA, et al., ) 

) 

Defendants-Appellees. ) 

DEFENDANT FEDERAL ELECTION COMMISSION’S 

MOTION FOR SUMMARY AFFIRMANCE 

 Plaintiff Philip J. Berg (“Berg”) has sued President-Elect Barack Obama (“Obama”), the 

Democratic National Committee (“DNC”), the Federal Election Commission (“Commission”), 

and others in an attempt to prevent Obama from becoming the next President. He alleges that 

Obama is ineligible for that position because he is not a “natural born” citizen as required by 

Article II, Section 1 of the Constitution (the “Natural Born Citizen Clause”). On October 24, 

2008, the District Court for the Eastern District of Pennsylvania correctly dismissed Berg’s First 

Amended Complaint and its eight separate counts, holding that he lacked standing under Article 

III to bring a challenge under the Natural Born Citizen Clause and that he had otherwise failed to 

plead a valid cause of action under any of the various federal statutes he invoked. Berg v. 

Obama, 574 F. Supp. 2d 509 (E.D. Pa. 2008) (FEC Exh. 1). The Commission respectfully 

moves this Court, pursuant to Federal Rule of Appellate Procedure 27 and Local Appellate Rule 

27.4, to summarily affirm the judgment of the court below entered on October 24, 2008. 

This Court may summarily dispose of an appeal when no substantial question is 

presented. See 3d Cir. L.A.R. 27.4 (2008); Reyes-Vasquez v. U.S. Atty. Gen., No. 07-4498, 2008 

WL 5351842, at *2 (3rd Cir. Dec. 23, 2008). The Court’s review of the lower court’s decision to 

Case: 08-4340 Document: 00314857595 Page: 1 Date Filed: 01/16/2009
grant a motion to dismiss is plenary. See Angstadt v. Midd-West School Dist., 377 F.3d 338, 342 

(3rd Cir. 2004); Gallo v. City of Philadelphia, 161 F.3d 217, 221 (3rd Cir. 1998). 

BACKGROUND 

 On August 21, 2008, 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. 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 was a 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. The Amended Complaint also added seven new claims to 

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

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

Federal Election Campaign Act (“FECA”), 2 U.S.C. § 437 (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. 

2

Case: 08-4340 Document: 00314857595 Page: 2 Date Filed: 01/16/2009
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. 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). 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 515-521. 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 November 4, 2008, 

pending resolution of the appeal.1

 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 

 

1

 On that same day, 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. 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. 

3

Case: 08-4340 Document: 00314857595 Page: 3 Date Filed: 01/16/2009
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.” 

The Court should summarily affirm the district court’s decision. No substantial question 

is presented by Berg’s appeal.

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. 

“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 

4

Case: 08-4340 Document: 00314857595 Page: 4 Date Filed: 01/16/2009
[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). 

 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 

5

Case: 08-4340 Document: 00314857595 Page: 5 Date Filed: 01/16/2009
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 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 517. 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 effects too attenuated to confer standing on any and all voters.” 

574 F. Supp. 2d at 519. Because Berg does not have standing to bring a claim under the Natural 

Born Citizen Clause, the Court should summarily affirm the dismissal of this claim for lack of 

subject matter jurisdiction. 

6

Case: 08-4340 Document: 00314857595 Page: 6 Date Filed: 01/16/2009
II. THE COURT SHOULD SUMMARILY 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. Because no substantial question is 

presented by Berg’s appeal of the district court’s decision on these counts, this Court should 

summarily affirm it. 

A. 42 U.S.C. § 1983 

The court below properly concluded that Berg had failed to allege a cognizable § 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 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. 574 F. Supp. 2d at 522. The Court correctly concluded that he had 

not. Id. at 522-23. 

7

Case: 08-4340 Document: 00314857595 Page: 7 Date Filed: 01/16/2009
 The district court was unable to find any cases that even suggested that the Natural Born 

Citizen Clause creates a federal right for which violations are redressable under section 1983. Id. 

at 522. The court also noted that the parties had offered none, id.; the Commission is indeed 

unaware of any case that suggests that the Natural Born Citizen Clause creates such a right. 

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. This 

Court should summarily affirm that Berg has no cognizable claim under 42 U.S.C. § 1983. 

B. 42 U.S.C. § 1985 

The court below 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 claims under any of the three subsections, this Court 

should summarily affirm that Berg has not stated any cognizable claims under section 1985. 

C. 42 U.S.C. § 1986 

8

Case: 08-4340 Document: 00314857595 Page: 8 Date Filed: 01/16/2009
It is well-settled that a plaintiff must state a cognizable claim under § 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 that 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 summarily affirm that ruling. 

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

The court below also properly concluded that Berg had 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. Comp. ¶ 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 held, however, that no provision of FECA entitles Berg to such 

information. Id. at 525-26. Indeed, FECA only regulates the financing of federal campaigns: 

regulating the 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. Nothing in FECA addresses determinations of the constitutional 

eligibility of federal candidates or otherwise requires the Commission to provide information 

regarding their eligibility. As the court below 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. Berg has failed to state a claim under FECA for which 

9

Case: 08-4340 Document: 00314857595 Page: 9 Date Filed: 01/16/2009
relief can be granted, and this Court should summarily affirm the district court’s dismissal 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 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 

10

Case: 08-4340 Document: 00314857595 Page: 10 Date Filed: 01/16/2009
11

at 527-28. Consequently, Berg’s FOIA claim presents no substantial question, and this Court 

should summarily affirm the dismissal of this count.2

CONCLUSION 

For the foregoing reasons, the Federal Election Commission respectfully asks this Court 

to summarily affirm the district court’s order dismissing Berg’s Amended Complaint. 

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 

January 16, 2009 (202) 694-1650 

 

2

 The Court should also summarily affirm sua sponte the dismissal of the remaining two 

counts of Berg’s Amended Complaint against the other defendants. See 3d Cir. L.A.R. 27.4 

(2008). 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.

Case: 08-4340 Document: 00314857595 Page: 11 Date Filed: 01/16/2009
IN THE UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

 

 ) 

PHILIP J. BERG, ) 

 ) 

 Plaintiff-Appellant, ) 

 ) 

 v. ) No. 08-4340 

 ) 

BARACK OBAMA, et al., ) FEC Exhibit 

 ) 

 ) 

 Defendants-Appellees. ) 

____________________________________) 

FEC EXHIBIT 1 

 

Case: 08-4340 Document: 00314857597 Page: 1 Date Filed: 01/16/2009
BERG v. OBAMA 509

Cite as 574 F.Supp.2d 509 (E.D.Pa. 2008)

1 DENIED as to the following allegations without prejudice to be raised at

a later stage in the litigation:

— Causing the Bucks County land

to be transferred to a Mignatti

related company without having

first established a fair market

value price for the land;

— Causing the land profits derived

from the transfer price of the

Bucks County land to be reduced

by transferring the property to a

Mignatti related company at less

than fair market value;

— Causing the transfer and/or development of the Bucks County

land to be delayed by, inter alia,

construction of the Heritage

Creek project; and

— Anticipatorily breaching the

Bucks County and LC agreements.

· Defendants’ Motion to Dismiss Counts IV

and V (Tortious Interference) is DENIED without prejudice to be raised

again at a later stage in the litigation.

· Defendants’ Motion to Dismiss Count VI

(Civil Conspiracy) is DENIED without

prejudice to be raised again at a later

stage in the litigation.

· Defendants’ Motion to Dismiss Count VII

(Unjust Enrichment) is:

1 GRANTED as to the LC Agreement;

and

1 DENIED without prejudice to be

raised again at a later stage in the

litigation as to the Bucks County

Agreement.

· Defendants’ Motion to Dismiss Count

VIII (Declaratory Judgment) is DENIED

without prejudice to be raised again at a

later stage in the litigation.

· Defendants’ Motion to Dismiss Count IX

(the Request for Accounting) is DENIED

without prejudice to be raised again at a

later stage in the litigation.

· All claims against Tracy Mignatti in her

individual capacity are DISMISSED.

,

Philip J. BERG,

v.

Barack OBAMA, et al.

Civil Action No. 08–4083.

United States District Court

E.D. Pennsylvania.

Oct. 24, 2008.

Background: Voter sued Democratic Party’s nominee for President, Democratic

National Committee (DNC), and Federal

Election Commission (FEC), seeking declaratory judgment that nominee was ineligible to be President under Constitution’s

Natural Born Citizen Clause, and seeking

to enjoin his candidacy. Defendants moved

to dismiss.

Holdings: The District Court, Surrick, J.,

held that:

(1) voter lacked standing to bring Natural

Born Citizen Clause claim;

(2) Natural Born Citizen Clause did not

create federal right enforceable via

§ 1983;

(3) voter failed to state claim that defendants violated federal statute prohibiting conspiracy to interfere with civil

rights;

(4) voter had no cause of action under

Federal Election Campaign Act

(FECA);

(5) voter failed to state claim against FEC

under Freedom of Information Act

(FOIA);

Case: 08-4340 Document: 00314857597 Page: 2 Date Filed: 01/16/2009
510 574 FEDERAL SUPPLEMENT, 2d SERIES

(6) DNC’s national platform could not give

rise to claim of promissory estoppel;

and

(7) expatriation provision of Immigration

and Nationality Act (INA) did not give

rise to private cause of action.

Motions granted.

1. Federal Civil Procedure O103.2, 103.3

Elements of Article III standing are:

(1) party must have experienced injury in

fact, i.e. invasion of legally protected interest which is concrete and particularized

and actual or imminent, not conjectural or

hypothetical; (2) there must be causal connection between injury in fact and defendant’s conduct that is fairly traceable to

challenged action of defendant, and not

result of independent action of some third

party not before court; and (3) favorable

decision must be likely to redress complained-of injury. U.S.C.A. Const. Art. 3,

§ 2.

2. United States O26

Voter, who identified himself as lifelong Democrat, lacked standing to challenge Democratic Party’s nominee for

President based on allegation that nominee

was ineligible to hold office under Natural

Born Citizen Clause; voter’s stake was no

greater and his status no more differentiated than that of millions of other voters,

and thus voter fell short of injury-in-fact

criterion for standing. U.S.C.A. Const.

Art. 2, § 1, cl. 4; Art. 3, § 2.

3. United States O26

Candidate’s ineligibility for office of

President under Natural Born Citizen

Clause does not result in injury in fact to

voters, within meaning of Article III

standing requirement. U.S.C.A. Const.

Art. 2, § 1, cl. 4; Art. 3, § 2.

4. Civil Rights O1029

Natural Born Citizen Clause did not

create federal right, violation of which is

cognizable under § 1983; Clause did not

confer an individual right on citizens or

voters. U.S.C.A. Const. Art. 2, § 1, cl. 4;

42 U.S.C.A. § 1983.

5. Conspiracy O18

Voter failed to state claim that Democratic Party’s nominee for President, Democratic National Committee (DNC), and

Federal Election Commission (FEC) had

violated federal statute prohibiting conspiracy to interfere with civil rights by

promoting and assisting nominee’s candidacy knowing that nominee was ineligible

to take office under Natural Born Citizen

Clause; voter made no allegations that

purported conspiracy was motivated by racial animus. 42 U.S.C.A. § 1985.

6. Conspiracy O7.5(2)

Where there is no federal right that

creates basis for a § 1983 claim, there is

similarly no basis for claim under federal

statute prohibiting conspiracy to interfere

with civil rights. 42 U.S.C.A. §§ 1983,

1985.

7. Civil Rights O1039

Plaintiff must establish valid claim under federal statute prohibiting conspiracy

to interfere with civil rights in order to

state claim under statute creating right of

action for neglect to prevent such conspiracy. 42 U.S.C.A. §§ 1985, 1986.

8. Elections O317.5

Voter who sought judicial review after

Federal Election Commission (FEC) failed

to act on his administrative complaint

charging violation of Federal Election

Campaign Act (FECA) could not proceed

in any federal district court other than the

District of Columbia. Federal Election

Campaign Act of 1971, § 309(a)(1, 8), 2

U.S.C.A. § 437g(a)(1, 8).

9. Elections O317.5

Voter had no cause of action under

Federal Election Campaign Act (FECA) to

Case: 08-4340 Document: 00314857597 Page: 3 Date Filed: 01/16/2009
BERG v. OBAMA 511

Cite as 574 F.Supp.2d 509 (E.D.Pa. 2008)

seek to compel Democratic Party’s nominee for President, Democratic National

Committee (DNC), and Federal Election

Commission (FEC) to release information

concerning nominee’s birth and citizenship

history, which voter believed would reveal

violation of Natural Born Citizen Clause;

information sought was outside FECA’s

disclosure requirements. U.S.C.A. Const.

Art. 2, § 1, cl. 4; Federal Election Campaign Act of 1971, § 309(a)(1), 2 U.S.C.A.

§ 437g(a)(1).

10. Elections O317.2

Purpose of Federal Election Campaign Act (FECA) is to combat corrupting

influence of money on the political process.

2 U.S.C.A. § 431 et seq.

11. Records O51

Nominee for President, Democratic

National Committee (DNC), United States

Senator, and Senate’s Commission on

Rules and Administration were not subject

to Freedom of Information Act (FOIA),

since they were not federal executive departments. 5 U.S.C.A. §§ 551(1), 552.

12. Records O63

Voter failed to state Freedom of Information Act (FOIA) claim against Federal Election Commission (FEC) by failing

to show that he had complied with FEC

guidelines for record requests, and failing

to make clear what type of request he had

made to FEC, or if he had made any such

request. 5 U.S.C.A. § 552; 11 C.F.R.

§ 4.7.

13. Records O63

Voter failed to allege administrative

exhaustion element of his Freedom of Information Act (FOIA) claim against Federal Election Commission (FEC), by merely

alleging that FEC had ‘‘ignored’’ his information request; voter did not cite expiration of any FOIA deadlines, or other facts

that would allow invocation of FOIA’s constructive exhaustion doctrine. 5 U.S.C.A.

§ 552.

14. Records O63

Before bringing Freedom of Information Act (FOIA) claim in federal court,

plaintiff must exhaust available administrative remedies. 5 U.S.C.A. § 552.

15. Estoppel O85

Democratic National Committee’s

(DNC) statement of party’s national platform did not state any enforceable promises, and thus could not serve as basis for

claim of promissory estoppel; alleged

promises in platform were statements of

principle and intent.

16. Action O3

 Aliens, Immigration, and Citizenship

O684(2)

Expatriation provision of Immigration

and Nationality Act (INA), stating that

‘‘[w]henever the loss of United States nationality is put in issue ... the burden shall

be upon the person or party claiming that

such loss occurred,’’ did not establish private cause of action to challenge citizenship of Presidential candidate on grounds

of expatriation; provision merely set up

rules of evidence. U.S.C.A. Const. Art. 2,

§ 1, cl. 4; Immigration and Nationality

Act, § 349(b), 8 U.S.C.A. § 1481(b).

Philip J. Berg, Law Offices of Philip J.

Berg, Lafayette Hill, PA, for Philip J.

Berg.

John P. Lavelle, Ballard, Spahr, Andrews & Ingersoll, LLP, Philadelphia, PA,

for Barack Obama.

MEMORANDUM & ORDER

SURRICK, District Judge.

Presently before the Court are the Motion of Defendant Democratic National

Committee and Senator Barack Obama to

Dismiss First Amended Complaint (Doc.

Case: 08-4340 Document: 00314857597 Page: 4 Date Filed: 01/16/2009
512 574 FEDERAL SUPPLEMENT, 2d SERIES

No. 20) and the Defendant Federal Election Commission’s Motion to Dismiss for

Lack of Subject Matter Jurisdiction (Doc.

No. 24). For the following reasons, the

Defendants’ Motions to Dismiss will be

granted.

I. BACKGROUND

A. Procedural History

Philip J. Berg (hereinafter ‘‘Plaintiff’’) is

an attorney who is representing himself in

this matter. On August 21, 2008, just

prior to the Democratic National Convention, Plaintiff filed a Complaint for Declaratory and Injunctive Relief (Doc. No. 1)

and a Motion For Temporary Restraining

Order and for Expedited Discovery (Doc.

No. 2 ‘‘TRO’’) against Barack Obama

(‘‘Obama’’), the Democratic National Committee (‘‘DNC’’), the Federal Election

Commission (‘‘FEC’’), and Does 1–50 Inclusive. The Complaint and request for

TRO alleged that Obama is not eligible to

run for the Office of President of the United States because he is not a ‘‘natural born

citizen’’ as required by Article II, Section

1, Clause 4 of the United States Constitution (the ‘‘Natural Born Citizen Clause’’).

Plaintiff sought a TRO prohibiting Obama

from running for President and enjoining

the DNC from selecting Obama as the

nominee. Plaintiff also sought declaratory

and injunctive relief in the form of a declaration that Obama is ineligible to run for

the office of President under the United

States Constitution and a permanent injunction enjoining Obama from running for

President and enjoining the DNC from

making Obama the Democratic presidential nominee.

On August 22, 2008, a hearing was held

on Plaintiff’s Motion for Temporary Restraining Order.1

 At the conclusion of the

hearing an Order was entered denying the

Motion. (Doc. No. 4.)

On September 9, 2008, service of the

summons and Complaint was made on Defendants Barack Obama and the DNC.

(Doc. No. 7.) On September 12, 2008, service was made on Defendant FEC. (Doc.

No. 9.) On September 24, 2008, a Motion

to Dismiss was filed by Barack Obama

and the DNC. (Doc. No. 12.) Plaintiff’s

Response in Opposition to the Motion to

Dismiss was filed on September 29, 2008.

(Doc. No. 13.) On October 6, 2008, Plaintiff filed a Motion for Leave to File a First

Amended Complaint. (Doc. No. 14.)

Plaintiff’s First Amended Complaint for

Declaratory and Injunctive Relief

(‘‘Amended Complaint’’) was attached to

the Motion. (Doc. No. 14–2.) 2

 In addition to Defendants Barack Obama, the

DNC, and the FEC, Plaintiff’s Amended

Complaint includes the following Defendants: the Secretary of the Commonwealth of Pennsylvania Department of

State, Pedro A. Cort ́es; Secretary of the

Commonwealth in his Official Capacity;

Diane Feinstein, Chairman of the U.S.

Senate Commission on Rules and Administration in her Official Capacity; U.S.

Senate Commission on Rules and Administration; and Does 1–50 Inclusive.3

 On

1. Defendants were not represented at the

hearing. Plaintiff advised the Court that he

had faxed a copy of the Complaint and Motion for Temporary Restraining Order as well

as notice of the hearing to Defendants, but

that he could not confirm that they had been

received by Defendants. (Hr’g. Exs. P–1, P–2,

& P–9.)

2. Federal Rule of Civil Procedure 15(a) provides that ‘‘a party may amend its pleading

once as a matter of course TTT before being

served with a responsive pleading.’’ A motion to dismiss is not a responsive pleading.

The motion seeking leave to amend was unnecessary. The Amended Complaint is

deemed filed.

3. As of this date, there is no indication in this

record that any of these newly added Defendants have been served.

Case: 08-4340 Document: 00314857597 Page: 5 Date Filed: 01/16/2009
BERG v. OBAMA 513

Cite as 574 F.Supp.2d 509 (E.D.Pa. 2008)

October 20, 2008, a Motion of Defendant

Democratic National Committee and Senator Barack Obama to Dismiss First

Amended Complaint was filed. (Doc. No.

20.) On October 21, 2008 Defendant Federal Election Commission’s Motion to Dismiss for Lack of Subject Matter Jurisdiction Pursuant to Federal Rule of Civil

Procedure 12(b)(1) was filed. (Doc. No.

24.)

The Amended Complaint adds claims

that were not included in the original Complaint. In addition to the claim that Obama is not a ‘‘natural born citizen’’ and is

therefore not eligible to be President,

Plaintiff alleges that the Defendants have

deprived him of his rights in violation of 42

U.S.C. § 1983, 42 U.S.C. § 1985, and 42

U.S.C. § 1986 (Counts Two, Three, &

Four). The Amended Complaint also adds

a Claim for Promissory Estoppel (Count

Seven) and includes claims for violation of

the Federal Election Campaign Act

(‘‘Campaign Act’’), 2 U.S.C. § 437 (Count

Five), violation of the Freedom of Information Act (‘‘FOIA’’), 5 U.S.C. § 552 (Count

Six), and a Claim of Loss of Nationality

under 8 U.S.C. § 1481(b) (Count Eight).4

B. Factual Background

The Amended Complaint alleges that

Plaintiff is a life-long member of the Democratic Party (Doc. No. 14–2 ¶ 3) who fears

that Defendant DNC’s nomination of Defendant Obama as the Democratic Party’s

presidential nominee for the 2008 election

will result in irreparable harm to Plaintiff

and other ‘‘Democratic Americans.’’ (Id.

¶ 7.) Obama cannot be a presidential nominee, Plaintiff contends, because Obama is

not a ‘‘natural born citizen’’ of the United

States and is therefore barred from holding the office of President by the Natural

Born Citizen Clause.5

 (Id. ¶ 36.)

Plaintiff claims that if the evidence

shows that Obama is not a natural born

citizen, his nomination (and presumably his

election to the Presidency if he wins) will

be null and void. (Id. ¶ 7.) Plaintiff asserts

that Defendants’ collective knowledge of

this fact, or their failure to assist Plaintiff

in obtaining information from Obama and

the DNC, has deprived Plaintiff of ‘‘liberty, property, due process of law and equal

protections of the laws,’’ (id. ¶ 89), and has

caused ‘‘significant disenfranchisement of

the Democratic Party’’ generally (id.

¶ 173).

Various accounts, details, and ambiguities from Obama’s childhood form the basis of Plaintiff’s allegation that Obama is

not a natural born citizen of the United

States. To support his contention, Plaintiff cites sources as varied as the Rainbow

Edition News Letter, (id. ¶ 39), and the

television news tabloid Inside Edition (id.

¶ 45). These sources and others lead

Plaintiff to conclude that Obama is either a

citizen of his father’s native Kenya, by

birth there or through operation of U.S.

law; or that Obama became a citizen of

Indonesia by relinquishing his prior citizenship (American or Kenyan) when he

moved there with his mother in 1967. Either way, in Plaintiff’s opinion, Obama

does not have the requisite qualifications

for the Presidency that the Natural Born

Citizen Clause mandates. The Amended

Complaint alleges that Obama has actively

covered up this information and that the

4. The claims in Counts Five, Six and Eight

were not included as claims in Plaintiff’s original Complaint; however, they did appear in

Plaintiff’s brief in opposition to the Motion to

Dismiss (Doc. No. 13) as arguments in support of Plaintiff’s standing to bring this lawsuit.

5. The Natural Born Citizen Clause reads:

‘‘No Person except a natural born Citizen, or

a Citizen of the United States, at the time of

the Adoption of this Constitution, shall be

eligible to the Office of PresidentTTTT’’ U.S.

Const. art. II, § 1, cl. 5.

Case: 08-4340 Document: 00314857597 Page: 6 Date Filed: 01/16/2009
514 574 FEDERAL SUPPLEMENT, 2d SERIES

other named Defendants are complicit in

Obama’s cover-up.

Plaintiff seeks the following relief from

the Court:

1. An order compelling Defendants to

turn over: (a) a certified copy of

Obama’s ‘‘vault’’ (original long version) birth certificate; (b) certified

copies of all reissued and sealed

birth certificates of Obama in the

names referred to in the caption of

this lawsuit; (c) a certified copy of

Obama’s Certification of Citizenship;

(d) a certified copy of Obama’s Oath

of Allegiance taken upon age of majority; (e) certified copies of Obama’s admission forms for Occidental

College, Columbia University and

Harvard Law School; and (f) certified copies of any court orders or

legal documents changing Obama’s

name from Barry Soetoro to Barack

Hussein Obama;

2. A declaration that Obama is not a

natural-born citizen or naturalized

citizen of the United States;

3. A declaration that Obama is ineligible to run for the President under

the United States Constitution, Article II, Section 1;

4. A preliminary and permanent injunction enjoining Obama from any

further campaigning and from running for President;

5. An order compelling the FEC, Feinstein and the U.S. Senate Commission on Rules and Administration to

immediately open and conduct an

investigation into the fraudulent tactics of Obama and immediately open

and conduct an investigation into the

citizenship status of Obama; and

6. A preliminary and permanent injunction enjoining the DNC, the

Pennsylvania Department of State,

Pedro A. Cort ́es, Pennsylvania Secretary of the Commonwealth, and

the Bureau of Commissions, Elections and Legislation from placing

Obama’s name on the presidential

election ballot.

II. LEGAL STANDARD

A. Rule 12(b)(1)—Lack of Jurisdiction

Under Federal Rule of Civil Procedure

12(b)(1), a court must grant a motion to

dismiss if it lacks subject matter jurisdiction over the case. Fed.R.Civ.P. 12(b)(1).

The party asserting that jurisdiction is

proper bears the burden of showing that

jurisdiction exists. Kokkonen v. Guardian

Life Ins. Co. of Am., 511 U.S. 375, 377, 114

S.Ct. 1673, 128 L.Ed.2d 391 (1994); Packard v. Provident Nat’l Bank, 994 F.2d

1039, 1045 (3d Cir.1993). A challenge to

jurisdiction may be either factual or facial.

See CNA v. United States, 535 F.3d 132,

145 (3d Cir.2008) (citing 5B Charles Alan

Wright & Arthur R. Miller, Federal Practice and Procedure § 1350, at 147–55 (3d

ed.2004)). Where the challenge is facial,

as Obama and the DNC’s is here, courts

must take the well-pleaded facts of the

complaint as true and must draw all inferences in a manner most favorable to the

plaintiff, as with ruling on a Rule 12(b)(6)

motion to dismiss. See Mortensen v. First

Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891

(3d Cir.1977).

B Rule 12(b)(6)—Failure to State a

Claim

When considering a motion to dismiss a

complaint for failure to state a claim under

Federal Rule of Civil Procedure 12(b)(6),

this Court must ‘‘accept all factual allegations as true, construe the complaint in the

light most favorable to the plaintiff, and

determine whether, under any reasonable

reading of the complaint, the plaintiff may

Case: 08-4340 Document: 00314857597 Page: 7 Date Filed: 01/16/2009
BERG v. OBAMA 515

Cite as 574 F.Supp.2d 509 (E.D.Pa. 2008)

be entitled to relief.’’ Pinker v. Roche

Holdings Ltd., 292 F.3d 361, 374 n. 7 (3d

Cir.2002). However, ‘‘a court need not

credit a complaint’s ‘bald assertions’ or

‘legal conclusions’ when deciding a motion

to dismiss.’’ Morse v. Lower Merion Sch.

Dist., 132 F.3d 902, 906 (3d Cir.1997) (citations omitted).6

Thus, both the 12(b)(1) and the 12(b)(6)

challenges to the Amended Complaint

raise strictly legal questions. For purposes of this opinion, we take as true the

well-pleaded facts of the Amended Complaint.7

III. LEGAL ANALYSIS

A. Count One – The Natural Born

Citizen Clause 8

Defendants Obama and the DNC argue

that Plaintiff does not have Article III

standing to bring a challenge under the

Natural Born Citizen Clause and that as a

result this Court does not have jurisdiction

to hear the case. That Article III ‘‘restricts the federal ‘judicial Power’ to the

resolution of ‘Cases’ and ‘Controversies’ ’’

is a ‘‘basic doctrinal principle.’’ Sprint

Commc’ns. Co. v. APCC Servs., ––– U.S.

––––, 128 S.Ct. 2531, 2535, 171 L.Ed.2d 424

6. Obama and the DNC are the only Defendants that have moved this Court to dismiss

under Rule 12(b)(6). (See Doc. No. 20.)

However, we evaluate Plaintiff’s claims

against all Defendants. The Court ‘‘may on

its own initiative dismiss the complaint for

failure to state a claim upon which relief can

be granted, pursuant to [Rule] 12(b)(6), where

the inadequacy of the complaint is apparent

as a matter of law.’’ Coggins v. Carpenter,

468 F.Supp. 270, 279 (E.D.Pa.1979) (citing 5

Wright and Miller, Federal Practice and Procedure § 1357). This practice ‘‘promotes the

prompt and efficient disposition of cases and

protects valuable judicial resources by expediting the dismissal of cases that lack ‘a shred

of a valid claim.’ ’’ Pa. State Troopers Ass’n v.

Pennsylvania, No. 06–1079, 2007 WL 853958,

at *9 (M.D.Pa. Mar.20, 2007), modified, 2007

WL 1276914 (M.D.Pa. May 1, 2007) (citing

Baker v. U.S. Parole Comm’n, 916 F.2d 725,

726 (D.C.Cir.1990)). The court must accept

all of a plaintiff’s allegations as true, as we

have done here. See Bryson v. Brand Insulations, Inc., 621 F.2d 556, 559 (3d Cir.1980).

In addition, the court must give the plaintiff

notice and an opportunity to be heard on the

legal viability of his complaint. See Dougherty v. Harper’s Magazine Co., 537 F.2d 758, 761

(3d Cir.1976); Pourghoraishi v. Flying J, Inc.,

449 F.3d 751, 765 (7th Cir.2006); see also

Bethea v. Nation of Islam, 248 Fed.Appx. 331,

333 (3d Cir.2007) (‘‘However, although disfavored, a TTT dismissal may stand even if the

plaintiff is not provided notice and an opportunity to respond where it is clear that the

plaintiff cannot prevail and that any amendment would be futile.’’). This notice and opportunity to be heard may be provided by the

act of a single defendant who raises a defense

applicable to all defendants. See Pourghoraishi, 449 F.3d at 765–66; Coggins, 468

F.Supp. at 279 (dismissing the complaint with

respect to defendants who were not properly

served, where other defendants had filed motion to dismiss pursuant to Rule 12(b)(6)). In

the instant case, Plaintiff is on notice that

Obama and the DNC raised a Rule 12(b)(6)

defense applicable to all Defendants. (See

Doc. No. 20 (discussing all counts of the

Amended Complaint and alleging that ‘‘none

of the additional counts contained in the

Amended Complaint sets forth any viable federal cause of action’’).) Since the filing of the

Motion to Dismiss First Amended Complaint

(Doc. No. 20), Plaintiff has filed five different

Motions, including a Motion for Summary

Judgment. (See Doc. Nos. 21, 22, 25, 26 &

27). We assume that if Plaintiff wished to

respond to those issues raised in the Motion

to Dismiss First Amended Complaint that he

did not already address in his Response in

Opposition to the initial Motion to Dismiss

(Doc. No. 13) he would have done so.

7. We note that while we take Plaintiff’s allegations as true for purposes of this motion (as

we must), Defendants Obama and DNC characterize them as ‘‘patently false.’’ (Doc. No.

20 at 9.)

8. Because we dispose of Count One on jurisdictional grounds, we need not address

whether Plaintiff can state a claim for relief

under the Natural Born Citizen Clause. See

Ibraimi v. Chertoff, No. 07–3644(DMC), 2008

WL 3821678, at *6, 2008 U.S. Dist. LEXIS

61406, at *12 (D.N.J. Aug. 12, 2008).

Case: 08-4340 Document: 00314857597 Page: 8 Date Filed: 01/16/2009
516 574 FEDERAL SUPPLEMENT, 2d SERIES

(2008). The requirement that there be a

case or controversy ‘‘is satisfied only

where a plaintiff has standing.’’ Id.

Standing can be a difficult concept for

lawyers and non-lawyers alike. The doctrine was so vague that it led Justice

Douglas to quip, ‘‘[g]eneralizations about

standing to sue are largely worthless as

such.’’ Ass’n of Data Processing Serv.

Org. v. Camp, 397 U.S. 150, 151, 90 S.Ct.

827, 25 L.Ed.2d 184 (1970). Judge Posner

has framed the topic in the following way:

[D]esire does not create standing. If

you become indignant reading about a

case of police brutality, you cannot sue

the responsible officers in federal court

under 42 U.S.C. § 1983, though the (immediate) victim might well have a suit;

much less can you sue to force the state

to conduct a referendum on police brutality, even if the referendum would alleviate your outrage at the officers’ violation of federal civil rights law. If you

happen to think it a scandal that less

than half the eligible voters actually vote

in most American elections, still you cannot sue the government demanding that

it be ordered to punish nonvoters – and

you could not even if, as in some other

countries, the law required people to

vote. The injury brought about by a

violation of law must, to support a federal court action, be more direct and immediate than this. It must at least resemble the type of injury that would

support a lawsuit under traditional principles of common law or equity; it must

therefore affect one’s possessions or

bodily integrity or freedom of action,

however expansively defined and not

just one’s opinions, aspirations, or ideology. It must in short be fairly describable as an injury personal to the plaintiff – a deprivation of his right – rather

than a concern with another’s injury.

TTTT

[I]f you have no right to demand assistance the failure to assist you is not an

injury that will support a federal suit,

even though such a failure may make

the rights you do have, which include

the right of political advocacy, less fruitful in achieving your goals.

People for Organized Welfare and Employment Rights v. Thompson, 727 F.2d

167, 171–72 (7th Cir.1984) (Posner, J.) (citations omitted).

[1] The Supreme Court has clarified

the doctrine since Justice Douglas’s time.

It is now clear that standing is an ‘‘irreducible constitutional minimum’’ that has

three elements. Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130,

119 L.Ed.2d 351 (1992); see also Danvers

Motor Co. v. Ford Motor Co., 432 F.3d

286, 290–91 (3d Cir.2005) (employing Lujan ’s three-pronged test). First, a party

must have experienced 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.’’ Lujan, 504 U.S. at 560,

112 S.Ct. 2130 (citations and quotation

marks omitted). Second, there must be a

causal connection between the injury in

fact and the defendant’s conduct that is

‘‘fairly TTT trace[able] to the challenged

action of the defendant, and not TTT the

result [of] the independent action of some

third party not before the court.’’ Id. at

560–61, 112 S.Ct. 2130 (quoting Simon v.

E. Ky. Welfare Rights Org., 426 U.S. 26,

41–42, 96 S.Ct. 1917, 48 L.Ed.2d 450

(1976)). Third, a favorable decision must

be likely to redress the complained of injury. Lujan, 504 U.S. at 561, 112 S.Ct. 2130

(citations omitted). Where a plaintiff cannot establish each of the three elements,

the plaintiff does not have standing and

the court therefore does not have jurisdiction over the case and cannot rule on the

merits. See Goode v. City of Phila., 539

F.3d 311, 327 (3d Cir.2008) (‘‘[O]nce the

District Court determined that [plaintiffs]

Case: 08-4340 Document: 00314857597 Page: 9 Date Filed: 01/16/2009
BERG v. OBAMA 517

Cite as 574 F.Supp.2d 509 (E.D.Pa. 2008)

did not have standing, it necessarily determined that it did not have jurisdiction and

thus it could not decide the merits of the

case.’’).

The Supreme Court has

consistently held that a plaintiff raising

only a generally available grievance

about government – claiming only harm

to his and every citizen’s interest in

proper application of the Constitution

and laws, and seeking relief that no

more directly and tangibly benefits him

than it does the public at large – does

not state an Article III case or controversy.

Lujan, 504 U.S. at 573–74, 112 S.Ct. 2130.

These decisions include the somewhat rare

cases that have reached the Supreme

Court where plaintiffs allege constitutional

harms (other than taxpayer standing under the Establishment Clause of the First

Amendment) that affect broadly-defined

groups of citizens or voters. See Lance v.

Coffman, 549 U.S. 437, 127 S.Ct. 1194,

1198, 167 L.Ed.2d 29 (2007) (per curiam)

(holding that Colorado voters did not have

standing under the Elections Clause of the

Constitution, art. I, § 4, cl. 1, to challenge

a provision of the Colorado constitution

limiting the state’s congressional redistricting to once per census); Ex parte

Levitt, 302 U.S. 633, 633, 58 S.Ct. 1, 82

L.Ed. 493 (1937) (per curiam) (holding that

a citizen did not have standing to challenge

appointment of Hugo Black to the Supreme Court under the Constitution’s Ineligibility Clause, art. I, § 6, cl. 2); see also

Schlesinger v. Reservists Comm. to Stop

the War, 418 U.S. 208, 220–21, 94 S.Ct.

2925, 41 L.Ed.2d 706 (1976) (holding that

an anti-war group did not have standing to

invoke the Incompatibility Clause, art. II,

§ 6, cl. 2, to have members of Congress

stricken from the Armed Forces Reserve

List); United States v. Richardson, 418

U.S. 166, 179, 94 S.Ct. 2940, 41 L.Ed.2d

678 (1974) (holding that a taxpayer did not

have standing to obtain information about

the expenditures of the Central Intelligence Agency under the Constitution’s Accounts Clause, art I, § 9, cl. 7).

Standing has been a consistent barrier

to lower courts hearing generalized, undifferentiated claims by voters and citizens.

See Crist v. Comm’n on Presidential Debates, 262 F.3d 193, 194 (2d Cir.2001) (per

curiam) (affirming trial court’s determination that voter did not have standing to

challenge policy of non-profit corporation

responsible for organizing presidential debates); Becker v. FEC, 230 F.3d 381, 389–

90 (1st Cir.2000) (holding that supporters

of presidential candidate Ralph Nader did

not have standing to challenge FEC’s debate regulations under which Nader experienced the alleged harm); Gottlieb v.

FEC, 143 F.3d 618, 620–22 (D.C.Cir.1998)

(holding that voters, among others, did not

have standing to challenge FEC’s decision

to dismiss an administrative complaint alleging violations of the Campaign Act);

Jones v. Bush, 122 F.Supp.2d 713, 716–18

(N.D.Tex.2000) (holding that voters did not

have standing to seek injunctive relief under the Twelfth Amendment to prevent

Texas members of the Electoral College

from casting votes for both George W.

Bush and Dick Cheney).9

 Most recently,

9. This is not to say that voters never have

standing to challenge practices that restrict

their rights as voters. See, e.g., Bullock v.

Carter, 405 U.S. 134, 143–44, 92 S.Ct. 849, 31

L.Ed.2d 92 (1972) (allowing voters to intervene in suit challenging the constitutionality

of prohibitively expensive filing fees that kept

voters’ desired candidates off the ballot where

the fees in question had a ‘‘real and appreciable impact on the exercise of the franchise’’).

At first blush what concerned the Supreme

Court in Bullock appears to be present here:

Plaintiff argues that if Obama is permitted to

run and is subsequently shown to be ineligible, voters will be denied their ‘‘right’’ to vote

for an eligible candidate. (Doc. No. 13 at 17.)

However, upon further review, it becomes

Case: 08-4340 Document: 00314857597 Page: 10 Date Filed: 01/16/2009
518 574 FEDERAL SUPPLEMENT, 2d SERIES

in a well-reasoned and concise opinion,

Judge Laplante of the District of New

Hampshire ruled on a question very similar to the one before us and determined

that voters do not have standing to bring a

claim under the Natural Born Citizen

Clause to exclude a candidate from the

presidential primaries. See Hollander v.

McCain, 566 F.Supp.2d 63 (D.N.H. 2008).

1. Plaintiff Does Not Have Standing

[2, 3] ‘‘[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, 262 F.3d at 193; Jones, 122

F.Supp.2d at 717 (holding that harm experienced by ‘‘Plaintiff[s] and all other

American citizens’’ was too ‘‘undifferentiated and general nature’’ to confer standing on voters) (emphasis in original). The

alleged harm to voters stemming from a

presidential candidate’s failure to satisfy

the eligibility requirements of the Natural

Born Citizen Clause is not concrete or

particularized enough to constitute an injury in fact sufficient to satisfy Article III

standing. See Hollander, 566 F.Supp.2d

at 68 (noting that such harm ‘‘would adversely affect only the generalized interest

of all citizens in constitutional governance’’) (citations omitted).

Hollander and Jones are instructive. In

Hollander, the plaintiff alleged that the

Republican party primary candidate, John

McCain,10 was ineligible to be President

because he was born in the Panama Canal

Zone and, therefore, was not a ‘‘natural

born citizen’’ as that term is used in the

Natural Born Citizen Clause. Hollander,

at 64–69. The plaintiff believed that if the

Republican National Committee were permitted to nominate McCain, and McCain

were subsequently found ineligible to run

for President, then plaintiff and ‘‘100 million additional voters’’ would be disenfranchised. Id. at 668. The district court

ruled that the plaintiff did not have standing because the harm plaintiff alleged was

too generalized.

Id. at 67.

In Jones, the plaintiffs alleged that

George W. Bush and Dick Cheney were

both inhabitants of Texas and that members of the Electoral College from Texas

could not cast votes for both of them in the

2000 presidential election because of the

Twelfth Amendment’s requirement that

Electors ‘‘shall TTT vote by ballot for President and Vice–President, one of whom, at

least, shall not be an inhabitant of that

same state with themselves.’’ Jones, 122

F.Supp.2d at 715 (quoting U.S. Const.

amend. XII). The plaintiffs claimed their

status as voters was sufficient to confer

standing. Id. According to the plaintiffs,

by casting ballots for both Bush and Cheapparent that there are stark differences between Plaintiff’s position and the position of

the voters in Bullock.

In Bullock, the plaintiffs (both voters and

aspiring candidates) challenged the constitutionality of filing fees whose expense kept

aspiring candidates off the ballot. Bullock,

405 U.S. at 135, 92 S.Ct. 849. The Supreme

Court held that the filing fees were an unconstitutional legislative barrier that kept otherwise legitimate, aspiring candidates from appearing on the ballot. Thus, state action, in

the form of a statute, prevented voters from

voting for legitimate candidates of their

choice. That concern is not present here.

Moreover, the Court in Bullock did not limit or in any way invalidate votes that had

already been cast; nor did it void the results

of the elections that had taken place. See id.

at 136–37, 149, 92 S.Ct. 849 (affirming trial

court’s permanent injunction of the filing fee

law). By contrast, Plaintiff would have us

derail the democratic process by invalidating

a candidate for whom millions of people voted and who underwent excessive vetting during what was one of the most hotly contested

presidential primary in living memory.

10. John McCain has since secured the Republican Party’s nomination for President.

Case: 08-4340 Document: 00314857597 Page: 11 Date Filed: 01/16/2009
BERG v. OBAMA 519

Cite as 574 F.Supp.2d 509 (E.D.Pa. 2008)

ney, the Texas Electors would be ‘‘infringing [plaintiffs’] right to cast a meaningful

vote.’’ Id. at 717. The court found plaintiffs’ alleged harm insufficient to establish

standing because it was not a ‘‘particularized, palpable injury.’’ Id.

Plaintiff’s allegations of harm in the instant case suffer from the same fundamental flaws as the plaintiffs’ allegations in

Hollander and Jones: Plaintiff’s stake is

no greater and his status no more differentiated than that of millions of other voters.

Plaintiff acknowledges as much in the

Amended Complaint when he avers that he

and ‘‘other Democratic Americans’’ (Doc.

No. 14–2 ¶ 7) will experience irreparable

harm.11 This harm is too vague and its

effects too attenuated to confer standing

on any and all voters. See Becker, 230

F.3d at 390 (holding that voter-plaintiffs’

‘‘concern for corruption of the political process ‘is not only widely shared, but is also

of an abstract and indefinite nature,’ comparable to the ‘common concern for obedience to law’ ’’ (quoting FEC v. Akins, 524

U.S. 11, 23, 118 S.Ct. 1777, 141 L.Ed.2d 10

(1998))).

The party asserting that jurisdiction is

proper must establish each of the elements

established by the Supreme Court in Lujan. 505 U.S. at 561, 112 S.Ct. 2638

(‘‘Since [elements of standing] are not

mere pleading requirements but rather an

indispensable part of the plaintiff’s case,

each element must be supported in the

same way as any other matter on which

the plaintiff bears the burden of proof

TTTT’’) (emphasis added). Failure to establish any of the elements leaves the

plaintiff without standing. Plaintiff does

not, and we believe cannot, establish an

injury in fact. Therefore, he does not

have standing to pursue this matter and

we do not have jurisdiction to hear it.

2. Plaintiff’s Standing Arguments are

Unpersuasive

Plaintiff attempts to establish standing

on several additional grounds, but his arguments do not solve the fundamental

problem that the harm he alleges does not

constitute an injury in fact. His most

reasonable arguments attempt to distinguish Hollander. (Doc. No. 13 at 16–17.)

For example, he asserts that the harm he

has experienced is sufficient to constitute

an injury in fact under Akins (id. at 18–

22). However, Plaintiff ventures into the

unreasonable with arguments based on a

number of federal statutes (id. at 17–18,

22–27). We give consideration to each argument.

(a) Hollander v. McCain

In an effort to establish standing, Plaintiff attempts to distinguish Hollander on

four grounds. First, he asserts that the

plaintiff in Hollander challenged McCain’s

candidacy at the primary stage, and thus

McCain’s alleged ineligibility was ‘‘hardly a

restriction on voters’ rights.’’ (Id. at 69.)

By contrast, Plaintiff argues that Obama is

now a candidate in the general election,

which ‘‘prevents citizens from voting for

Hillary Clinton despite her immense popularity.’’ (Id. at 69.) Plaintiff is correct

that the narrow issue in Hollander was the

11. One substantive problem with Plaintiff’s

disenfranchisement theory is that it is unlikely

that ‘‘the removal of an elected official by

non-electoral means amounts to ‘disenfranchisement’ of the voters who put him there.’’

Hollander, at 69 (citing Powell v. McCormack,

395 U.S. 486, 547, 89 S.Ct. 1944, 23 L.Ed.2d

491 (1969)); see also id. at 70 n. 7 (‘‘There is

also the question of whether the ‘disenfranchisement’ resulting from a vote for an ineligible candidate is [a] sort of ‘self-inflicted’

harm caused by the voter, rather than any

state actor, which therefore does not amount

to an infringement of the franchise right.’’)

(citing 1 Lawrence H. Tribe, American Constitutional Law § 13–24, at 1122–23 (2d

ed.1988)).

Case: 08-4340 Document: 00314857597 Page: 12 Date Filed: 01/16/2009
520 574 FEDERAL SUPPLEMENT, 2d SERIES

inclusion of an allegedly ineligible candidate in a primary field of multiple (presumptively) eligible candidates. See 566

F.Supp.2d at 67. Whereas a Republican in

New Hampshire could vote for any one of

twenty-one Republican candidates in the

primary (id. at 69 n. 6), Plaintiff, as a lifelong Democrat, arguably faces a Hobson’s

choice in the general election: Obama or

nothing. Thus, we do not expect Plaintiff

to take solace in the Hollander court’s

admonition that ‘‘McCain’s candidacy for

the presidency, whatever his eligibility, is

‘hardly a restriction on voters’ rights’ because it in no way prevents them from

voting for somebody else.’’ Id. at 69 (citation omitted).

That does not mean, however, that

Plaintiff has experienced an injury in fact.

The plaintiff and the court in Hollander

specifically contemplated McCain winning

his party’s nomination:

Unlike [plaintiff’s] other ‘‘disenfranchisement’’ theory, this one does not depend

on the failure of his chosen candidate

because of McCain’s alleged ineligibility,

but on the success of [plaintiff’s] chosen

candidate – who is McCain in this scenario – despite his alleged ineligibility.

On this theory, however, [plaintiff’s] alleged ‘‘disenfranchisement’’ flows not

from the actions he has challenged here,

i.e., McCain’s presidential campaign or

the RNC’s likely selection of him as its

nominee, but from his subsequent removal from office at the hands of someone else (presumably one of the co-equal

branches), resulting (presumably, yet

again) in a President different from the

one [plaintiff] helped to elect.

Id. at 70 (emphasis in original).12 The

court found that the plaintiff still could not

meet the standing requirements on causation grounds; the harm experienced was

not traceable to the defendants’ conduct

‘‘but to the conduct of those – whoever

they might turn out to be – responsible for

ultimately ousting McCain from office.’’

Id.

We agree that such causation considerations pose an impediment to a plaintiff

obtaining standing in this context, but we

also believe that, regardless of questions of

causation, the grievance remains too generalized to establish the existence of an

injury in fact. To reiterate: a candidate’s

ineligibility under the Natural Born Citizen Clause does not result in an injury in

fact to voters.13 Cf. Lance, 127 S.Ct. at

1198 (voters did not allege harm sufficient

to invoke the Elections Clause); Ex parte

Levitt, 302 U.S. 633, 633, 58 S.Ct. 1, 82

12. Plaintiff’s argument that Obama’s nomination will deny him ‘‘the constitutional right to

vote for an eligible candidate’’ is the same as

the argument that the plaintiff made in Hollander. (Doc. No. 13 at 17.) The fact that the

plaintiff in Hollander called the harm ‘‘disenfranchisement’’ and Plaintiff identifies it as a

constitutional right to vote for an eligible candidate is a distinction without a difference.

Indeed, Plaintiff does not appear to distinguish between the two terms. (Compare Doc.

No. 13 at 17 with Doc. No. 14–2 ¶ 173 (alleging disenfranchisement will result from Obama’s nomination and election).)

13. We find Chief Justice Burger’s observation

in Richardson pertinent here:

It can be argued that if respondent is not

permitted to litigate this issue, no one can

do so. In a very real sense, the absence of

a particular individual or class to litigate

these claims gives support to the argument

that the subject matter is committed to the

surveillance of Congress, and ultimately to

the political process.

418 U.S. at 179, 94 S.Ct. 2940. If, through

the political process, Congress determines

that citizens, voters, or party members should

police the Constitution’s eligibility requirements for the Presidency, then it is free to

pass laws conferring standing on individuals

like Plaintiff. Until that time, voters do not

have standing to bring the sort of challenge

that Plaintiff attempts to bring in the Amended Complaint.

Case: 08-4340 Document: 00314857597 Page: 13 Date Filed: 01/16/2009
BERG v. OBAMA 521

Cite as 574 F.Supp.2d 509 (E.D.Pa. 2008)

L.Ed. 493 (citizen could not articulate

harm under the Ineligibility Clause). By

extension, the theoretical constitutional

harm experienced by voters does not

change as the candidacy of an allegedly

ineligible candidate progresses from the

primaries to the general election.

Plaintiff’s second attempt to distinguish

Hollander folds into his first. He argues

that because he is denied his constitutional

right to vote for an eligible candidate, his

harm is more particularized than the plaintiff’s in Hollander. (See Doc. No. 13 at

17.) As we explained above, however,

there is no meaningful distinction between

the harm alleged here and the harm alleged in Hollander.

Plaintiff’s third and fourth arguments

are factual in nature. He argues that the

harm created by Obama’s ineligibility is a

result of subterfuge and fraud by Obama

as opposed to the situation in Hollander

where there was no substantive dispute

about where McCain was born. (Id.) He

also claims that Defendants – presumably

in their Motion to Dismiss – ‘‘have failed to

show that Mr. Obama is ‘unquestionably

an American citizen.’ ’’ (Id. (quoting Hollander, at 65).) These distinctions fail to

take into account the procedural posture of

the case here and in Hollander. We have

taken Plaintiff’s factual allegations as true

and drawn all inferences in his favor. The

court in Hollander operated under the

same standard. Hollander, at 63. Raising

these factual discrepancies is unavailing to

Plaintiff.

(b) Statutory standing arguments

Plaintiff also attempts to obtain standing

to bring his Natural Born Citizen Clause

claim under the Campaign Act, 2 U.S.C.

§ 431 et seq.; the Administrative Procedure Act (‘‘APA’’), 5 U.S.C. § 702; the

Immigration and Nationality Act, 8 U.S.C.

§ 1481(b); FOIA, 5 U.S.C. § 552; 28

U.S.C. § 1343; and 28 U.S.C. § 1331.

Plaintiff cites no authority under which

any of these statutes would confer standing on him to bring his Natural Born

Citizen Clause claim and we are aware of

none. We therefore find that Plaintiff’s

attempt to use these statutes to gain

standing to pursue his Natural Born Citizen Clause claim are frivolous and not

worthy of discussion. Plaintiff avers violations of some of these statutes as freestanding causes of action in the Amended

Complaint. We address the merit of those

causes of action below.

B. Counts Two, Three, & Four – Civil Rights Violations, 42 U.S.C.

§ 1983, 42 U.S.C. § 1985, and 42

U.S.C. § 1986

The Amended Complaint alleges deprivation of Plaintiff’s civil rights in violation

42 U.S.C. § 1983 (Count Two), 42 U.S.C.

§ 1985 (Count Three), and 42 U.S.C.

§ 1986 (Count Four). The DNC and Obama argue that Plaintiff has failed to properly allege a deprivation of his constitutional or statutory rights by state action

and has failed to properly allege a conspiracy. We address each of Plaintiff’s claims

in turn.

1. 42 U.S.C. § 1983

[4] Plaintiff makes several allegations

that he believes entitle him to § 1983 relief. First, he claims that he ‘‘has been

deprived of money and billable hours by

fraudulent means as a result of donating

money and billable hours to secure, as

promised, an eligible Democratic candidate

for Office of the President TTT [and that

he] has been deprived of his right to vote

for an eligible Democratic Nominee for the

U.S. Office of the President.’’ (Doc. No.

14–2 ¶ 93.) Second, he claims that he has

been a victim of racial animosity perpetrated by Obama’s supporters, including being

labeled in public as a racist for bringing

Case: 08-4340 Document: 00314857597 Page: 14 Date Filed: 01/16/2009
522 574 FEDERAL SUPPLEMENT, 2d SERIES

this suit. (Id. ¶¶ 94–99.) Third, he claims

that Defendants are ‘‘attempting to change

our United States Constitution without

proper due process of law by allowing

Obama to continue his campaignTTTT’’

(Id. ¶ 100.) Fourth, he claims that his

‘‘Life, Liberty and Property rights guaranteed by the Fourteenth Amendment of the

U.S. Constitution will further be violated if

Obama is allowed to be voted into the

position of PresidentTTTT’’ (Id. ¶ 101.)

Finally, he claims that all the Defendants

(other than Obama) have damaged Plaintiff by failing to act in their official capacities to stop Obama from running. (Id.

¶¶ 104–08.)

Section 1983 protects civil rights. It

creates 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. A § 1983 claimant must

allege violations of ‘‘rights independently

‘secured by the Constitution and laws’ of

the United States.’’ Gonzaga Univ. v.

Doe, 536 U.S. 273, 285, 122 S.Ct. 2268, 153

L.Ed.2d 309 (2002). ‘‘One cannot go into

court and claim a ‘violation of § 1983’ – for

§ 1983 by itself does not protect anyone

against anything.’’ Id. (citing Chapman v.

Houston Welfare Rights Org., 441 U.S.

600, 617, 99 S.Ct. 1905, 60 L.Ed.2d 508

(1979)). We therefore must inquire into

whether Plaintiff has alleged a violation of

a right that would entitle him to redress

under § 1983.

The irreducible basis of all Plaintiff’s

alleged violations is that Obama might be

elected to the Office of President despite

being constitutionally ineligible under the

Natural Born Citizen Clause. This alleged

fact underscores his claim that he has been

deprived of money and billable hours, his

claim that he has been insulted in public,

his claim that he is being deprived of a

chance to vote for an eligible candidate, his

claim that he will be deprived of life, liberty and property, and his claim that the

non-Obama Defendants are causing him

harm by not stopping Obama. The question, therefore, is straightforward: Does

the Natural Born Citizen Clause create a

federal right the violation of which results

in a cognizable § 1983 claim? We think

not.

After a diligent search, we have been

unable to find any cases that address the

matter and the parties have not offered

any. However, other courts have addressed the application of § 1983 in analogous situations. See, e.g., Dennis v. Higgins, 498 U.S. 439, 111 S.Ct. 865, 112

L.Ed.2d 969 (1991) (‘‘The Supremacy

Clause TTT is ‘not a source of any federal

rights’; rather, it ‘ ‘‘secure[s]’’ federal

rights by according them priority whenever they come in conflict with state law.’ ’’

(citing Chapman, 441 U.S. at 613, 99 S.Ct.

1905)); White Mountain Apache Tribe v.

Williams, 810 F.2d 844, 848 (9th Cir.)

(amended opinion), cert. denied, 479 U.S.

1060, 107 S.Ct. 940, 93 L.Ed.2d 990 (1987)

(‘‘[T]he Supremacy Clause, standing alone,

secures federal rights only in the sense

that it establishes federal-state priorities;

it does not create individual rights, nor

does it secure such rights within the meaning of 42 U.S.C.S. § 1983.’’); Maryland

Pest Control Ass’n. v. Montgomery County, 884 F.2d 160 (4th Cir.1989) (same);

Gerling Global Reinsurance Corp. of Am.

v. Garamendi, 400 F.3d 803, 811 (9th Cir.

2005) (Graber, J., concurring) (‘‘[T]he foreign affairs power, like the Supremacy

Clause, creates no individual rights enforceable under 42 U.S.C. § 1983.’’). Like

the Supremacy Clause and the foreign affairs powers, the Natural Born Citizen

Case: 08-4340 Document: 00314857597 Page: 15 Date Filed: 01/16/2009
BERG v. OBAMA 523

Cite as 574 F.Supp.2d 509 (E.D.Pa. 2008)

Clause does not confer an individual right

on citizens or voters. Therefore, Plaintiff

cannot state a cognizable § 1983 claim.14

2. 42 U.S.C. § 1985

[5] The facts that Plaintiff alleges in

support of his 42 U.S.C. § 1985 claim are

substantively the same as the facts he

alleges in support of his § 1983 claim.15

(See Doc. No. 14–2 ¶¶ 110–22.) He believes that the Defendants are promoting

and assisting Obama’s candidacy knowing

that Obama is ineligible to take office.

Plaintiff avers that Defendants’ conduct

amounts to a conspiracy in violation of

§ 1985. He does not, however, indicate

the sub-section of § 1985 on which he

premises his claim.

[6] As a preliminary matter, where

there is no federal right that creates a

basis for a § 1983 claim there is similarly

no basis for a § 1985 claim. See Escamilla v. Santa Ana, 606 F.Supp. 928, 934

(C.D.Cal.1985) (granting summary judgment to defendants on plaintiff’s § 1985

and § 1986 claims where plaintiff could not

establish a § 1983 claim); Wiggins v.

Hitchens, 853 F.Supp. 505, 510 (D.D.C.

1994) (‘‘There can be no recovery under

section § 1985(3) absent a violation of a

substantive federal right.’’). This alone

stands as an impediment to Plaintiff stating a cognizable § 1985 claim.

Moreover, none of the § 1985 clauses

apply here. Section 1985(1) deals with

interference with officers of the United

States, and Plaintiff has not alleged that

he is an officer of the United States. See

Silo v. City of Phila., 593 F.Supp. 870, 873

(E.D.Pa.1984). Section 1985(2) ‘‘creates a

claim for conspiracy to intimidate witnesses, jurors, or parties in a federal case.’’

Id. Plaintiff has made no allegations that

would support such a claim. That leaves

14. State action is also a necessary element of

a § 1983 claim. See Mark v. Borough of Hatboro, 51 F.3d 1137, 1141–45 (3d Cir.1995)

(discussing state action requirement). While

we do not need to reach this question because

Plaintiff does not allege the violation of any

legally protected right, we note that he would

likely have difficulty showing that either Obama or the DNC are state actors or acting

under color of law. We have found no cases

where a presidential candidate has been treated as a state actor merely for running for

office. To the contrary, the few cases that we

have found suggest that presidential candidates are not state actors or engaged in state

action for purposes of § 1983. See, e.g., Fulani v. McAuliffe, No. 04–6973, 2005 WL

2276881, at *5, 2005 U.S. Dist. LEXIS 20400,

at *17 (S.D.N.Y. Sept. 19, 2005) (dismissing

§ 1983 claim against defendants, including

the DNC and 2004 presidential candidate

John Kerry, because they were not ‘‘acting

under color of state law’’); Riches v. Giambi,

No. 07–0623, 2008 U.S. Dist. LEXIS 53123, at

*20 (N.D.Cal. Jan. 2, 2008) (dismissing

§ 1983 claim against 2008 Republican presidential candidate Mike Huckabee because he

was a private individual). The claim that the

DNC is not a state actor or acting under color

of state law in conducting a presidential campaign is slightly more ambiguous, but the

more recent cases appear to conclude that the

DNC is not a state actor. See LaRouche v.

Fowler, 152 F.3d 974, 990 (D.C.Cir.1998) (‘‘If

a party must produce the nation’s ‘uncontested choice’ for President of the United State to

qualify as a state actor, the Democratic (or

Republican) Party plainly does not qualify’’).

But cf. Lynch v. Torquato, 343 F.2d 370, 372

(3d Cir.1965) (‘‘The people, when engaged in

primary and general elections for the selection of their representatives in government,

may rationally be viewed as the ‘state’ in

action, with the consequence that the organization and regulation of these enterprises

must be such as accord each elector equal

protection of the laws.’’).

15. Plaintiff makes additional claims about

Obama and his campaign ‘‘abus[ing] their

position and the law for intimidation purposes to stop people from free speech when

the speech includes criticism or questioning

of ObamaTTTT’’ (Doc. No. 14–2 ¶ 115.) The

Amended Complaint makes no attempt to allege facts in support of these claims, which

standing on their own are nothing more than

conclusory allegations.

Case: 08-4340 Document: 00314857597 Page: 16 Date Filed: 01/16/2009
524 574 FEDERAL SUPPLEMENT, 2d SERIES

§ 1985(3). A claim under § 1985(3) arises

when:

(1) two or more persons conspire to deprive any person of the equal protection

of the law; (2) one or more of the conspirators performs or causes to be performed any overt act in furtherance of

the conspiracy; and (3) that overt act

injures the plaintiff in his person or

property or deprives the plaintiff of any

right or privilege of a citizen of the

United States.

Barnes Found. v. Twp. of Lower Merion,

242 F.3d 151, 162 (3d Cir.2001). In addition, § 1985(3) ‘‘requires allegation of

‘some racial, or perhaps otherwise classbased, invidiously discriminatory animus

behind the conspirators’ actionTTTT’ ’’

Silo, 593 F.Supp. at 873 (citing Griffin v.

Breckenridge, 403 U.S. 88, 102, 91 S.Ct.

1790, 29 L.Ed.2d 338 (1971)).

We do not reach an analysis of the three

elements of § 1985(3) because Plaintiff has

made no allegations that the purported

conspiracy is motivated by racial animus.16

Instead, the Amended Complaint is focused entirely on an alleged conspiracy to

conceal Obama’s true nationality. Therefore, Plaintiff cannot state a cognizable

§ 1985 claim.

3. 42 U.S.C. § 1986

[7] It is well settled that ‘‘[a] plaintiff

must establish a valid § 1985 claim in order to state a claim under § 1986.’’ Carrington v. City of Jersey City, No. 06–

5367, 2008 WL 2061147, at *7, 2008 U.S.

Dist. LEXIS 38808, at *19 (E.D.Pa. May

12, 2008) (citing Clark v. Clabaugh, 20

F.3d 1290 (3d Cir.1994)). Since the

Amended Complaint does not articulate a

cognizable § 1985 claim, Plaintiff’s § 1986

claim must fail as well.

C. Count Five – Campaign Act

Claims, 2 U.S.C. § 431 et seq.

Count Five of the Amended Complaint

alleges a violation of the Campaign Act. 2

U.S.C. § 431 et seq. Specifically, it alleges that ‘‘[t]he DNC, FEC, Feinstein and

the U.S. Senate Commission on Rules

and Administration’’ are aware of ‘‘Obama’s illegal activities, encouraging racial

tension, encouraging violence, his fraudulent campaigning, fraudulently attempting

to secure the position of President of the

United States.’’ (Doc. No. 14–2 ¶ 139.)

Despite this knowledge, these Defendants

‘‘have allowed Obama’s illegal and fraudulent campaign, [through] which Obama

has received in excess of $450 Million in

donations.’’ (Doc. No. 14–2 ¶ 141.) Plaintiff argues that this entitles him to the information regarding Obama that he seeks

in the Amended Complaint.

The Amended Complaint does not allege

any facts regarding Plaintiff’s attempts to

obtain the information he seeks by means

of the Campaign Act. However, Plaintiff’s

Opposition informs us that he ‘‘complained’’ to the FEC prior to instigating

his current suit and that the FEC has

‘‘completely ignored’’ him. (Doc. No. 13 at

18.) Although Plaintiff alleged these facts

in his Opposition and not in the Amended

Complaint, in the interest of rendering a

decision that addresses Plaintiff’s arguments, we will construe the allegations in a

light most favorable to Plaintiff and treat

the Amended Complaint as if it had alleged that the FEC failed to act on an

administrative complaint.

Congress has charged the FEC with

administering the Campaign Act, 2 U.S.C.

§ 437c(b). ‘‘As commonly understood, the

[Campaign Act] seeks to remedy any actu16. We note that the Amended Complaint alleges that Obama’s supporters have made racially charged remarks (see Doc. No. 14–2

¶ 94) and that Obama ‘‘is furthering racial

tension’’ (see id. ¶ 96), but there are no factual

allegations whatsoever that tie any Defendant

to any racially motivated tortious conduct of

the sort § 1985 was intended to redress.

Case: 08-4340 Document: 00314857597 Page: 17 Date Filed: 01/16/2009
BERG v. OBAMA 525

Cite as 574 F.Supp.2d 509 (E.D.Pa. 2008)

al or perceived corruption of the political

processTTTT’’ Akins, 524 U.S. at 14, 118

S.Ct. 1777. The Campaign Act confers

standing on ‘‘[a]ny person who believes a

violation of this Act or of chapter 95 or

chapter 96 of the Internal Revenue Code

of 1954 has occurred’’ to file an administrative complaint with the FEC. 2 U.S.C.

§ 437g(a)(1). When the FEC fails to act

on an administrative complaint, as Plaintiff

seems to argue here, a party may file a

suit in district court.17 2 U.S.C.

§ 437g(a)(8); Stockman, 138 F.3d at 153,

156 n. 18 (5th Cir.1998) (noting that

§ 478g(a)(8) is the only private remedy

afforded by the Campaign Act). There

are, however, two fatal flaws with Plaintiff’s theory: one procedural and one substantive.

[8] First, if the FEC failed to act on a

complaint filed by Plaintiff, this is the

wrong court to hear the action. The Campaign Act specifically requires that grievances regarding the FEC’s failure to enforce the Act must be filed in the District

Court for the District of Columbia. 2

U.S.C. § 437g(a)(8); Beam v. Gonzales,

548 F.Supp.2d 596, 611–12 (N.D.Ill.2008)

(‘‘[T]he only FECA provision empowering

private parties to seek judicial review extends to administrative complainantsTTTT

Even if such a suit were proper [here],

FECA would require that it be brought in

the United States District Court for the

District of Columbia.’’).

[9, 10] Second, neither the Amended

Complaint nor the Opposition identifies a

specific provision of the Campaign Act that

entitles Plaintiff to information concerning

Obama’s citizenship. Instead, Plaintiff relies on generalized arguments about political corruption and the purpose of the Campaign Act. (See Doc. No. 13 at 20–22.)

Congress intended the Campaign Act to

combat the corrupting influence of money

on the political process. See Karl Rove &

Co. v. Thornburgh, 39 F.3d 1273, 1281 (5th

Cir.1994) (‘‘The primary purpose of [the

Campaign Act] TTT is to regulate campaign

contributions and expenditures in order to

eliminate pernicious influence – actual or

perceived – over candidates by those who

contribute large sums TTTT’’ (footnote

omitted)). It seems clear that the Campaign Act does not address the sort of

corruption that Plaintiff alleges in his

Complaint. Nevertheless, Plaintiff cites to

the Supreme Court’s decision in Akins,

524 U.S. 11, 118 S.Ct. 1777, 141 L.Ed.2d 10

passim, to support his claim of standing.

(See Doc. No. 13 at 20–22.) Reliance on

Akins, however, merely accentuates the

problems with Plaintiff’s argument.

Akins involved a challenge by voters to

the FEC’s determination that the American Israel Public Affairs Committee (‘‘AIPAC’’) was not a ‘‘political committee’’

within the meaning of the Campaign Act.

524 U.S. at 13, 118 S.Ct. 1777. The effect

of this determination was to shield AIPAC

from the Campaign Act’s disclosure requirements and deprive plaintiffs of information regarding, among other things, AIPAC’s lobbying activities. Id. at 15–16,

118 S.Ct. 1777. On certiorari, the Supreme Court addressed whether the plaintiffs (respondents) had ‘‘standing to challenge the [FEC’s] decision not to bring an

enforcement action in this case.’’ Id. at 18,

118 S.Ct. 1777. In holding that the plaintiffs did have standing, the Court deter17. If we have extended Plaintiff too favorable

an inference and he in fact did not file an

administrative complaint, then he lacks standing to pursue the theory outlined in his

Amended Complaint because section 437d(e)

of the Campaign Act provides that ‘‘the power

of the [FEC] to initiate civil actions TTT shall

be the exclusive civil remedy for the enforcement of the provisions of this Act.’’ 2 U.S.C.

§ 437d(e) (emphasis added). See also Stockman, 138 F.3d at 152 (‘‘The [Campaign Act]

provides a strong basis for scrupulously respecting the grant by Congress of ‘exclusive

jurisdiction’ to the FECTTTT’’).

Case: 08-4340 Document: 00314857597 Page: 18 Date Filed: 01/16/2009
526 574 FEDERAL SUPPLEMENT, 2d SERIES

mined that ‘‘[t]he ‘injury in fact’ that

[plaintiffs] have suffered consists of their

inability to obtain information – lists of

AIPAC donors (who are, according to AIPAC, its members), and campaign-related

contributions and expenditures – that, on

[plaintiffs’] view of the law, the statute

requires that AIPAC make public.’’ Id. at

21, 118 S.Ct. 1777. Plaintiff reasons that

he has standing because his request for

information is analogous to the plaintiffs in

Akins. (See Doc. No. 13 at 21–22.)

Plaintiff’s argument has superficial appeal, but does not take into account the

underlying consideration in Akins that was

necessary to the Supreme Court’s determination. There, plaintiffs sought disclosures that were required by the Campaign

Act. See Akins, 524 U.S. at 16, 118 S.Ct.

1777. Here, the Campaign Act does not

require Defendants to disclose the sort of

information that Plaintiff seeks in the

Amended Complaint. Accordingly, even if

Plaintiff had followed the proper administrative procedure, Plaintiff still would face

an insurmountable obstacle to obtaining

the information he now seeks through the

courts. See Gottlieb, 143 F.3d at 620–21

(holding that voters did not have standing

to challenge ‘‘supposed injury to their ‘ability to influence the political process’ ’’ because such a claim was too vague to constitute an injury in fact – even where voters

had followed the appropriate procedure

under § 437g(a)(8)). If Congress had intended the Campaign Act to require presidential candidates to make public disclosures of the sort that Plaintiff requests

here – and therefore expose candidates to

legal challenges permitted by the broad

grant of standing pursuant to § 437g(a)(1)

of the Act — then it would have done so

explicitly.

D. Count Six – Freedom of Information Act, 5 U.S.C. § 552 et seq.

In Count Six of the Amended Complaint,

Plaintiff alleges violations of FOIA. 5

U.S.C. § 552 et seq. The gravamen of

Plaintiff’s allegation is that he ‘‘attempted

to secure documents proving the citizenship status of Obama from Obama[,] the

FEC, DNC, Feinstein, [and the] U.S. Senate, Commission on Rules and Administration,’’ but ‘‘has been refused.’’ (Doc. No.

14–2 ¶ 146.) Plaintiff’s allegation fails to

state a claim under FOIA for at least three

reasons.

[11] First, FOIA applies only to government agencies. Here, all but one of the

Defendants are not government agencies

as Congress has defined them. Under

FOIA, ‘‘[e]ach agency shall make available

for public inspection and copying’’ certain

government records. 5 U.S.C. § 552(a)(2).

Congress defined the term ‘‘agency’’ under

FOIA to include:

any executive department, military department, Government corporation, Government controlled corporation, or other

establishment in the executive branch of

the Government (including the Executive Office of the President), or any independent regulatory agency.

Id. at § 552(f)(1) (emphasis added). Congress is not subject to FOIA. Id. at

§ 551(1) (noting that for purposes of

FOIA, the term agency ‘‘does not include

the Congress.’’). Defendants Obama, the

DNC, Feinstein, and the U.S. Senate,

Commission on Rules and Administration

are not federal executive departments.

See id. at § 552(f)(1). They are not independent regulatory agencies. Id. Indeed,

they are not even in the executive branch.

Id. Accordingly, Plaintiff cannot state a

claim against them under FOIA.18 See, e.g.,

18. Plaintiff does not assert that he ‘‘attempted

to secure documents’’ under FOIA from Defendant Cort ́es, the Secretary of the Commonwealth of Pennsylvania. Even if he had, such

an allegation would not state a claim. Defendant Cort ́es is an official of a Pennsylvania

state agency. State agencies and officials are

Case: 08-4340 Document: 00314857597 Page: 19 Date Filed: 01/16/2009
BERG v. OBAMA 527

Cite as 574 F.Supp.2d 509 (E.D.Pa. 2008)

Sweetland v. Walters, 60 F.3d 852, 855

(D.C.Cir.1995) (affirming dismissal of

FOIA complaint where the plaintiff sought

records from an entity that ‘‘was not an

agency’’); St. Michael’s Convalescent

Hosp. v. State of California, 643 F.2d 1369,

1373 (9th Cir.1981) (FOIA applies only to

‘‘agencies’’ as defined in 5 U.S.C. §§ 551(1)

& 552(f)); Citizens for Responsibility and

Ethics in Wash. v. Office of Admin., 559

F.Supp.2d 9, 19 (D.D.C.2008) (granting

motion to dismiss and finding that plaintiff

failed to state a FOIA claim where defendant was not an agency under FOIA);

Aitro v. Clapper, No. 05–3120, 2005 WL

1384063, at *2 (W.D.Mo. Jun.8, 2005) (‘‘As

neither [entity] is a government agency,

FOIA is inapplicable and Plaintiff has

failed to state a claim TTT for which relief

can be granted by this court.’’).

[12] Second, FOIA requires a valid request for records, and Plaintiff does not

allege that he made such a request from

the FEC. The FEC is an independent

regulatory agency, so it is subject to

FOIA. FOIA ‘‘requires federal agencies to

allow access to their records to any person

who complies with the procedures set forth

in the Act.’’ St. Mary Hosp. v. Phila.

Prof. Standards Review Org., Inc., No. 78–

2943, 1980 WL 19448, at *1 (E.D.Pa. June

25, 1980). However, Plaintiff does not allege that he complied with FEC guidelines

regarding FOIA requests. See generally

11 C.F.R. § 4.7(b) (setting forth FEC

guidelines for record requests under

FOIA). It is entirely unclear from Plaintiff’s Amended Complaint what type of

request he actually made to the FEC. This

alone warrants dismissal of the claim.

See, e.g., Caraveo v. EEOC, 96 Fed.Appx.

738, 740 (2d Cir.2004) (unpublished opinion) (affirming dismissal of FOIA claim

where Plaintiff ‘‘failed to allege that he

complied with [agency] guidelines regarding FOIA requests.’’). Moreover, it is unclear when or if Plaintiff made his alleged

FOIA request to the FEC. See 11 C.F.R.

§ 4.7(c) (establishing procedures and deadlines for the FEC to respond to FOIA

requests). ‘‘Without any showing that the

agency received the request, the agency

has no obligation to respond to it.’’

Hutchins v. Dep’t of Justice, No. 00–2349,

2005 WL 1334941, at *1–2 (D.D.C. June 6,

2005).

[13, 14] Third, before bringing a FOIA

claim in federal court, a plaintiff must

exhaust the available administrative remedies. See Wilbur v. CIA, 355 F.3d 675, 676

(D.C.Cir.2004) (per curiam) (‘‘Exhaustion

of administrative remedies is a mandatory

prerequisite to a lawsuit under FOIA.’’);

McDonnell v. United States, 4 F.3d 1227,

1240 (3d Cir.1993) (holding that plaintiff

had an obligation to pursue administrative

remedies prior to filing suit). In addition,

a plaintiff must allege in his complaint that

‘‘he exhausted his remedies under FOIA’’

in order to properly plead a case. Scherer

v. Balkema, 840 F.2d 437, 443 (7th Cir.

1988) (citing Hedley v. United States, 594

F.2d 1043 (5th Cir.1979)). Exhaustion allows ‘‘the agency [ ] an opportunity to exnot subject to FOIA. See Dunleavy v. New

Jersey, 251 Fed. App’x 80, 83 (3d Cir.2007)

(unpublished opinion) (‘‘FOIA does not impose [an] obligation on state agencies.’’);

Grand Central Partnership, Inc. v. Cuomo, 166

F.3d 473, 484 (2d Cir.1999) (‘‘[I]t is beyond

question that FOIA applies only to federal and

not to state agencies.’’); Philip Morris, Inc., v.

Harshbarger, 122 F.3d 58, 83 (1st Cir.1997)

(‘‘FOIA TTT applies only to federal executive

branch agencies’’); Day v. Shalala, 23 F.3d

1052, 1064 (6th Cir.1994) (APA ‘‘pertains to

federal agencies’’); Brown v. Kelly, No. 93–

5222, 1994 WL 36144, at *1 (D.C.Cir. Jan.27,

1994) (per curiam) (FOIA does not apply to

state agencies); St. Michael’s Convalescent

Hosp. v. State of California, 643 F.2d 1369,

1373 (9th Cir.1981) (definition of ‘‘agency’’

under FOIA ‘‘does not encompass state agencies or bodies’’); Johnson v. Wells, 566 F.2d

1016, 1018 (5th Cir.1978) (state board of parole not agency within meaning of FOIA).

Case: 08-4340 Document: 00314857597 Page: 20 Date Filed: 01/16/2009
528 574 FEDERAL SUPPLEMENT, 2d SERIES

ercise its discretion and expertise on the

matter and to make a factual record to

support its decision.’’ Wilbur, 355 F.3d

675, 677. ‘‘In the absence of such an allegation, [a plaintiff] states no claim upon

which relief can be granted.’’ Scherer, 840

F.2d at 443. Plaintiff alleges that the

FEC has ‘‘ignored’’ his request. (Doc. No.

14–2 ¶ 146.) While FOIA ‘‘recognizes a

constructive exhaustion doctrine for purposes of judicial review upon the expiration of certain relevant FOIA deadlines,’’

Spannaus v. U.S. Dep’t of Justice, 824

F.2d 52, 58 (D.C.Cir.1987), Plaintiff does

not allege expiration of any FOIA deadlines. Indeed, Plaintiff alleges no facts in

his Amended Complaint that allow us to

invoke the constructive exhaustion doctrine. Accordingly, Plaintiff’s FOIA claim

must be dismissed for this additional reason.

E. Count Seven – Promissory Estoppel

[15] In Count Seven, Plaintiff brings a

promissory estoppel claim against Obama

and the DNC. (See Doc. No. 14–2 ¶¶ 153–

79.) Plaintiff asserts that he has ‘‘donated

money and billable hours to Democratic

Presidential candidates as well as the

Democratic National Committee.’’ (Id.

¶ 154.) In support of his claim, Plaintiff

alleges, among other things, that the DNC

promised to (a) ‘‘ ‘use technology to make

government more transparent, accountable, and inclusive,’ ’’ (id. ¶ 159), (b) ‘‘maintain and restore our Constitution to its

proper place in our government and return

our Nation to the best traditions, including

their commitment to government by law’’

(id. ¶ 161), and (c) ‘‘ ‘work fully to protect

and enforce the fundamental Constitutional right of every American vote – to ensure

that the Constitution’s promise is fully realized’ ’’ (id. ¶ 163). The source of these

‘‘promises’’ is a document titled ‘‘Renewing

America’s Promise,’’ which presents the

2008 Democratic National Platform.

Plaintiff alleges that the DNC breached

these promises by (1) promoting an ‘‘illegal

candidate’’ to serve as President; (2) failing to investigate Obama’s citizenship; and

(3) failing to provide ‘‘accurate information’’ about Obama’s eligibility for presidential office. (Id. ¶¶ 162, 165.) Plaintiff

also asserts that Obama ‘‘has promised to

uphold the United States Constitution and

to be open and honest with all questions

presented.’’ (Id. ¶ 167.) He claims that

Obama has violated both of these promises

by refusing to provide proof of his citizenship status and by running for office even

though ‘‘he is aware he is ineligible to

serve as the Pressident [sic] of the United

States.’’ (Id. ¶ 167.) Plaintiff also claims

that Obama has breached his promise to

uphold the Constitution by committing

massive voter fraud to the tune of more

than $450 million. (Id.) Plaintiff concludes:

All elements required to invoke Promissory Estoppel have been met by Plaintiff. The DNC and Obama made a

promise to Plaintiff, which Plaintiff relied upon and expected. Not only has

Plaintiff suffered economic losses; [sic]

he has lost his constitutional right to

vote for an eligible Democratic candidate who can serve as the President of

the United States, if elected. The only

way justice can be served is by the

Court enforcing the promise of the DNC

and Obama.

(Id. ¶¶ 177–78.)

Although Plaintiff does not specify the

law on which he bases his claim, under any

30 definition of promissory estoppel there

must be an enforceable promise. See, e.g.,

168th & Dodge, LP v. Rave Reviews Cinemas, LLC, 501 F.3d 945, 955 (8th Cir.2007)

(finding, under Nebraska law, that

‘‘[p]romissory estoppel requires evidence

that the promisor made a ‘promise’ to the

promisee. A statement of opinion or fuCase: 08-4340 Document: 00314857597 Page: 21 Date Filed: 01/16/2009
BERG v. OBAMA 529

Cite as 574 F.Supp.2d 509 (E.D.Pa. 2008)

ture intent is insufficient to give rise to a

promise’’); Garwood Packaging, Inc. v. Allen & Co., 378 F.3d 698, 702, 706 (7th

Cir.2004) (finding, under Indiana law, that

‘‘the promise relied on to trigger an estoppel must be definite in the sense of being

clearly a promise and not just a statement

of intentions’’ and that ‘‘if the statements

are not reasonably understood as legally

enforceable promises there can be no action for promissory estoppel’’); DeVoll v.

Burdick Painting, 35 F.3d 408, 412 n. 4

(9th Cir.1994) (finding that, ‘‘[u]nder both

California and federal common law, to establish an enforceable contract based on

promissory estoppel, the promisee must

show (1) the existence of a promiseTTTT’’);

Ankerstjerne v. Schlumberger Ltd, No. 03–

3607, 2004 WL 1068806, at *3, 2004 U.S.

Dist. LEXIS 9927, at *13–14 (E.D.Pa. May

12, 2004) (finding that, under Pennsylvania

law, ‘‘[a] broad and vague implied promise

is not enough to satisfy’’ the promissory

estoppel requirement that a promisor

make a promise that he should reasonably

expect will induce action or forbearance on

the part of promisee) (citing C & K Petroleum Prods., Inc. v. Equibank, 839 F.2d

188, 192 (3d Cir.1988)), aff’d 155 Fed.Appx.

48 (3d Cir.2005); see also Minehan v.

United States, 75 Fed.Cl. 249, 260 (2007)

(finding that ‘‘the IRS’s mission statement

[‘to provide America’s taxpayers top quality service by helping them understand and

meet their tax responsibilities and by applying the tax law with integrity and fairness to all’] is aspirational, and it makes no

specific promise or offer which could be

deemed the basis for a contract’’); Estate

of Bogley v. United States, 206 Ct.Cl. 695,

514 F.2d 1027, 1033 (1975) (finding that the

passing of a motion and adopting of a

resolution by a corporation’s board of directors did not constitute an offer or promise because ‘‘ ‘[a] gratuitous and unsolicited

statement of policy or of intention which

receives the concurrence of the party to

whom it is addressed, does not constitute a

contract’’ (quoting Goetz v. State Farm

Mut. Auto. Ins. Co., 31 Wis.2d 267, 142

N.W.2d 804, 807 (1966))). The Restatement Second of Contracts provides that a

‘‘Promise Reasonably Inducing Action or

Forbearance’’ is

[a] promise which the promisor should

reasonably expect to induce action or

forbearance on the part of the promisee

or a third person and which does induce

such action or forbearance is binding if

injustice can be avoided only by enforcement of the promise. The remedy

granted for breach may be limited as

justice requires.

Restatement (Second) of Contracts § 90(1)

(1981). The Restatement defines a promise as ‘‘a manifestation of intention to act

or refrain from acting in a specified way,

so made as to justify a promisee in understanding that a commitment has been

made.’’ Restatement § 2(1).

The ‘‘promises’’ that Plaintiff identifies

are statements of principle and intent in

the political realm. They are not enforceable promises under contract law. Indeed,

our political system could not function if

every political message articulated by a

campaign could be characterized as a legally binding contract enforceable by individual voters. Of course, voters are free

to vote out of office those politicians seen

to have breached campaign promises.

Federal courts, however, are not and cannot be in the business of enforcing political

rhetoric.

F. Count Eight – Immigration and

Nationality Act, 8 U.S.C. § 1481(b)

[16] In Count Eight of the Amended

Complaint, Plaintiff alleges ‘‘loss of nationality’’ under an expatriation provision of

the Immigration and Nationality Act, 8

U.S.C. § 1481(b). That provision provides:

Case: 08-4340 Document: 00314857597 Page: 22 Date Filed: 01/16/2009
530 574 FEDERAL SUPPLEMENT, 2d SERIES

Whenever the loss of United States nationality is put in issue TTT, the burden

shall be upon the person or party claiming that such loss occurred, to establish

such claim by a preponderance of the

evidence. Any person who commits or

performs TTT any act of expatriation TTT

shall be presumed to have done so voluntarily, but such presumption may be

rebutted upon a showing, by a preponderance of the evidence, that the act or

acts committed or performed were not

done voluntarily.

8 U.S.C. § 1481(b). The provision establishes the burden of proof in expatriation

proceedings where ‘‘nationality is put in

issue.’’ In such a case, the Act places the

burden of proving loss of citizenship ‘‘upon

the person or party claiming that such loss

occurred.’’ Id. The provision on which

Plaintiff relies sets up rules of evidence; it

does not establish a private cause of action.

See Vance v. Terrazas, 444 U.S. 252, 265,

100 S.Ct. 540, 62 L.Ed.2d 461 (1980) (citing H.R.Rep. No. 1086, 87th Cong., 1st

Sess., 41, U.S.Code Cong. & Admin. News,

p. 2985 (1961) (‘‘The provision ‘sets up

rules of evidence under which the burden

of proof to establish loss of citizenship by

preponderance of the evidence would rest

upon the Government.’ ’’)). Because the

provision does not establish a cause of

action, Plaintiff fails to state a claim under

8 U.S.C. § 1481(b).

IV. CONCLUSION

For the foregoing reasons, we will grant

Defendants’ Motions to Dismiss. An appropriate Order follows.

ORDER

AND NOW, this 24th day of October,

2008, upon consideration of the Motion of

Defendant Democratic National Committee and Senator Barack Obama to Dismiss

First Amended Complaint (Doc. No. 20)

and the Defendant Federal Election Commission’s Motion to Dismiss for Lack of

Subject Matter Jurisdiction (Doc. No. 24),

it is ORDERED that:

1. The Motion of Defendant Democratic National Committee and Senator

Barack Obama to Dismiss First

Amended Complaint (Doc. No. 20) is

GRANTED;

Defendant Federal Election Commission’s Motion to Dismiss for

Lack of Subject Matter Jurisdiction (Doc. No. 24) is

GRANTED; and

Plaintiff’s First Amended Complaint for

Declaratory and Injunctive

Relief is DISMISSED.

IT IS SO ORDERED.

,

UNITED STATES of America

v.

Tyrone D. WILLIAMS, Defendant.

Criminal No. 3:2007–5.

United States District Court,

W.D. Pennsylvania.

Sept. 2, 2008.

Background: Defendant, indicted for unlawful possession of a firearm by a convicted felon, moved to suppress evidence.

Holdings: The District Court, Gibson, J.,

held that:

(1) exigent circumstances did not justify

warrantless entry and search of defendant’s home;

(2) co-tenant’s actions constituted a governmental search;

(3) police escort of co-tenant into defendant’s home constituted a seizure;

Case: 08-4340 Document: 00314857597 Page: 23 Date Filed: 01/16/2009
IN THE UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT

PHILIP J. BERG, ) 

) 

Plaintiff-Appellant, ) 

) No. 08-4340 

v. ) 

) CERTIFICATE OF SERVICE 

BARACK OBAMA, et al., ) 

) 

Defendants-Appellees. ) 

CERTIFICATE OF SERVICE 

 I, Steve N. Hajjar, hereby certify that through the Court’s case management and 

electronic case filing system, I served copies of the Federal Election Commission’s 

Motion for Summary Affirmance upon the following counsel this 16th day of January, 

2009. 

Philip J. Berg, Esq. 

555 Andorra Glen Court, Suite 12 

Lafayette Hill, PA 19444-2531 

philjberg@gmail.com 

John P. Lavelle, Jr., Esq. 

Morgan, Lewis & Bockius, LLP 

1701 Market St. 

Philadelphia, PA 19103-2921 

jlavalle@morganlewis.com 

 /s/ Steve N. Hajjar 

 Steve N. Hajjar 

 

 

January 16, 2009 

Case: 08-4340 Document: 00314857598 Page: 1 Date Filed: 01/16/2009