PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 08-4340

 

PHILIP J. BERG, ESQUIRE,

 Appellant

v.

BARACK HUSSEIN OBAMA, a/k/a BARRY SOETORO, a/k/a

BARRY OBAMA, a/k/a BARACK DUNHAM, a/k/a

BARRY DUNHAM; THE DEMOCRATIC NATIONAL

COMMITTEE; THE FEDERAL ELECTION COMMISSION;

THE SECRETARY OF THE COMMONWEALTH,

PENNSYLVANIA DEPARTMENT OF STATE;

PEDRO A. CORTÉS, Secretary of the Commonwealth in his

official capacity; DIANNE 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

 

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil No. 2-08-cv-04083)

District Judge: Hon. R. Barclay Surrick

 

Submitted Under Third Circuit LAR 34.1(a)

October 26, 2009

Before: SLOVITER, FUENTES and HARDIMAN, Circuit

Judges

(Filed: November 12, 2009 )

 

Case: 08-4340 Document: 00319899570 Page: 1 Date Filed: 11/12/2009
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Philip J. Berg

Lafayette Hill, PA 19444-2531

Attorney Pro Se

John P. Lavelle, Jr.

Morgan, Lewis & Bockius LLP

Philadelphia, PA 19103

Of counsel:

Robert F. Bauer

Perkins Coie LLP

Washington, D.C. 20005-2003

Joseph E. Sandler

Sandler, Reiff & Young, P.C.

Washington, D.C. 20003

Attorneys for Democratic National

Committee and Barack Obama

Thomasenia P. Duncan

General Counsel

David Kolker

Associate General Counsel

Kevin Deeley

Assistant General Counsel

Steve N. Hajjar

Attorney

Federal Election Commission

Washington, D.C. 20463

Attorneys for Federal Election Commission

OPINION OF THE COURT

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That clause states, “No person except a natural born 1

Citizen, or a Citizen of the United States, at the time of the

Adoption of this Constitution, shall be eligible to the Office of

President . . . .” U.S. Const., art. II, § 1, cl. 4.

 In the “Issues Presented” section of Berg’s brief, issue 2

nine is whether the District Court erred in “dismissing [Berg’s]

claims under Promissory Estoppel [by holding that] the DNC . . .

and Obama’s promise[s] to uphold the United States Constitution

are simply statements of principle and intent in the political realm

and are not enforceable promises[.]” Appellant’s Br. at 3. Berg

does not mention his promissory estoppel theory again, let alone

explain why the District Court’s holding was in error. In any event,

3

SLOVITER, Circuit Judge.

Philip Berg, a lawyer acting pro se, filed this action

challenging Barack Obama’s eligibility to run for and serve as

President of the United States. The District Court dismissed

Berg’s action on the grounds that he lacks standing and failed to

state a cognizable claim.

I.

Before the 2008 presidential election, Berg sued thenPresidential candidate Barack Obama, the Democratic National

Committee, and the Federal Election Commission, among

others, alleging that Obama was ineligible to run for and serve as

President because he was born in Kenya and therefore is not a

“natural born citizen” within the meaning of Article II, Section

1, Clause 4 of the United States Constitution. Berg sought, in

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relevant part, a declaratory judgment that Obama was ineligible,

an injunction barring Obama from running for that office, and an

injunction barring the Democratic National Committee from

nominating him.

Although Berg brought a grab-bag of claims before the

District Court, he appeals only the dismissal of those brought

under the Natural Born Citizen Clause of the Constitution and 42

U.S.C. § 1983. The District Court – assuming the factual 2

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the District Court was certainly correct that “[f]ederal courts . . . are

not and cannot be in the business of enforcing political rhetoric.”

App. at 35.

On the day that we denied Berg’s motion, he petitioned 3

the Supreme Court for certiorari and applied to Justice Souter, who

was at the time the Circuit Justice for the Third Circuit, for an

injunction to stay the November 2008 election. The Supreme

Court denied the petition for certiorari and Justice Souter denied

the application for an injunction.

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allegations made by Berg to be true for the purposes of the

Defendants’ motion to dismiss those claims – dismissed the first

claim because “[t]he alleged harm to voters [like Berg]

stemming from a presidential candidate’s failure to satisfy the

eligibility requirement[s] of the Natural Born Citizen Clause is

not concrete or particularized enough to . . . satisfy Article III

standing,” App. at 15, and dismissed the § 1983 claim because

the “Natural Born Citizen Clause does not confer an individual

right on citizens or voters,” App. at 23.

Berg filed a notice of appeal and moved this court for an

“emergency” injunction to stay the presidential election of

November 4, 2008 pending resolution of that appeal. We

declined to stay the election, noting that it appeared that Berg

lacked standing and thus failed to show a likelihood of success

on the merits.3

Obama won the election and Berg subsequently made

another “emergency” motion, asking this court to issue an order

prohibiting the certification of electors by the governors of each

state, to stay the members of the Electoral College from casting

their votes for Obama, and to stay the counting of electoral votes

in Congress. We also denied that motion, reiterating Berg’s

apparent lack of standing and also stating that Berg’s lawsuit

seemed to present a non-justiciable political question.

The electoral votes have since been cast without objection

to Obama’s qualifications by any members of Congress, and

Obama was inaugurated. Berg nonetheless persists in this

Case: 08-4340 Document: 00319899570 Page: 4 Date Filed: 11/12/2009
 See, e.g., Hollister v. Soetoro, 601 F. Supp. 2d 179, 181 4

(D.D.C. 2009) (dismissing challenge to Obama’s eligibility);

Cohen v. Obama, No. 08-2150, 2008 WL 5191864, at *1 (D.D.C.

2008) (dismissing challenge to Obama’s eligibility), aff’d, 2009

WL 2870668 (D.C. Cir. 2009) (summary affirmance); Hollander

v. McCain, 566 F. Supp. 2d 63, 68 (D.N.H. 2008) (dismissing

challenge to Senator John McCain’s eligibility); Robinson v.

Bowen, 567 F. Supp. 2d 1144, 1147 (N.D. Cal. 2008) (dismissing

5

litigation.

II.

We have jurisdiction to consider this appeal under 28

U.S.C. § 1291. Our review of the District Court’s dismissal for

lack of subject matter jurisdiction is plenary. Taliaferro v.

Darby Twp. Zoning Bd., 458 F.3d 181, 188 (3d Cir. 2006)

(citation omitted). Because the Defendants’ challenge to subject

matter jurisdiction was a “facial” one, we will accept the

allegations in the complaint as true. Id. It is Berg’s burden to

establish his standing. FOCUS v. Allegheny County Court of

Common Pleas, 75 F.3d 834, 838 (3d Cir. 1996).

We note that most of Berg’s arguments on appeal were

not made before the District Court and rest on facts that did not

exist when his complaint was filed, i.e., Obama’s election and

the casting of the electoral votes without objection. Ordinarily,

we would not reach such arguments. See United States v.

Anthony Dell’Aquilla, Enters. & Subsidiaries, 150 F.3d 329, 335

(3d Cir. 1998) (“[A]bsent exceptional circumstances, an issue

not raised in district court will not be heard on appeal.”) (citation

omitted); Lujan v. Defenders of Wildlife, 504 U.S. 555, 571 n.4

(1992) (“The existence of federal jurisdiction ordinarily depends

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

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

(1989))). In light of the public’s interest in the final resolution

of this case – which is one of a series of cases brought

challenging the qualifications of the 2008 presidential candidates

from both of the major political parties – and the obvious lack 4

Case: 08-4340 Document: 00319899570 Page: 5 Date Filed: 11/12/2009
challenge to McCain’s qualifications). These cases have been

denominated by the press as “birther” cases.

 Although the defendants argue that this point is moot 5

because the election is over, we consider the issue because “[t]his

controversy, like most election cases, fits squarely within the

‘capable of repetition yet evading review’ exception to the

mootness doctrine.” Merle v. United States, 351 F.3d 92, 94 (3d

Cir. 2003).

6

of any merit in Berg’s contentions, we will exercise our

discretion and address them to put some finality to the dispute.

In sum, we agree with the District Court that Berg lacks

standing to bring this suit because he has suffered no injury

particularized to him. A prerequisite of standing is that the

litigant has suffered or will suffer an injury in fact that is caused

by the complained-of conduct by a defendant and that can be

redressed by the court. Taliaferro, 458 F.3d at 188. An “injury

in fact” is “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 (internal

citations and quotations omitted). “[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.” Warth v. Seldin, 422 U.S.

490, 499 (1975) (citation omitted).

We consider first the District Court’s holding that Berg’s

status as a voter did not provide him standing to challenge

Obama’s candidacy. The District Court held that “a candidate’s 5

ineligibility under the Natural Born Citizen Clause does not

result in an injury in fact to voters.” App. at 19. Berg specifies

no error in the District Court’s reasoning. Instead, he merely

asserts, generally, that he was somehow harmed by each state

having “plac[ed] [Obama] on the ballot when there were

substantial questions concerning his citizenship status . . . .”

Appellant’s Br. at 17.

Berg’s worry that Obama, if elected, might someday be

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7

removed from office was not an injury cognizable in a federal

court because it was based on speculation and was contingent on

future events. As a practical matter, Berg was not directly

injured because he could always support a candidate he believed

was eligible. See Becker v. Fed. Election Comm’n, 230 F.3d

381, 390 (1st Cir. 2000) (no cognizable injury to voters when

they can still cast for preferred candidate), cert. denied, 532 U.S.

1007 (2001); Gottlieb v. Fed. Election Comm’n, 143 F.3d 618,

622 (D.C. Cir. 1998) (no harm to voters who could support the

candidate of their choice); Hollander, 566 F. Supp. 2d at 68; cf.

Gottlieb, 143 F.3d at 621 (injury to voters’ ability to influence

the political process too speculative for purposes of standing).

Berg’s wish that the Democratic primary voters had

chosen a different presidential candidate, and his dissatisfaction

that they apparently did not credit the evidence he tendered, do

not state a legal harm. Similarly, Berg’s angst that the presence

on the ballot of an ineligible candidate might lessen the chances

that an eligible candidate might win was a non-cognizable

derivative harm. See Crist v. Comm’n on Pres. Debates, 262

F.3d 193, 195 (2d Cir. 2001) (agreeing that “a voter fails to

present an injury-in-fact when the alleged harm . . . is only

derivative of a harm experienced by a candidate.”); Becker, 230

F.3d at 390; Gottlieb, 143 F.3d at 622.

Even if we assume that the placement of an ineligible

candidate on the presidential ballot harmed Berg, that injury,

including any frustration Berg felt because others refused to act

on his view of the law, was too general for the purposes of

Article III: Berg shared both his “interest in proper application

of the Constitution and laws,” and the objective uncertainty of

Obama’s possible removal, pari passu with all voters; and the

relief he sought would have “no more directly and tangibly

benefit[ed] him than . . . the public at large.” Lujan, 504 U.S. at

573-74; see also Crist, 262 F.3d at 195; Becker, 230 F.3d at 389-

90; Gottlieb, 143 F.3d at 622; Hollander, 566 F. Supp. 2d at 68

(dismissing voter’s suit alleging that Senator McCain was

ineligible to be President under the Natural Born Citizen

Clause); Jones v. Bush, 122 F. Supp. 2d 713 (N.D. Tex. 2000)

(dismissing voter’s suit alleging that the Twelfth Amendment

Case: 08-4340 Document: 00319899570 Page: 7 Date Filed: 11/12/2009
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barred electors from voting for President George Walker Bush

and Vice President Cheney), aff’d, Jones v. Bush, 244 F.3d 134

(5th Cir. 2000) (summary affirmance), cert. denied, 531 U.S.

1062 (2001); cf. Cohen, 2008 WL 5191864 at *1 (dismissing

citizen challenge to Obama’s eligibility); Robinson, 567 F. Supp.

2d at 1146-47 (dismissing elector’s suit challenging McCain’s

eligibility).

Now that the election is over, Berg’s stake in the

legitimacy of Obama’s presidency is shared by an even greater

number of people, i.e., all 300 million-plus U.S. citizens,

whether voters or not. Lujan, 504 U.S. at 573-74; see Lance v.

Coffman, 549 U.S. 437, 441-42 (2007) (Colorado voters lacked

standing to assert that a provision of the Colorado Constitution

violated the Elections Clause of the United States Constitution);

Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208,

222 (1974) (citizens lacked standing to litigate under the

Incompatibility Clause the eligibility of members of Congress to

serve simultaneously in the military reserves); Ex parte Lévitt,

302 U.S. 633 (1937) (per curiam) (private individual lacked

standing to invoke judicial power to determine validity of Justice

Black’s appointment to the Supreme Court).

The essence of Berg’s complaint is that the defendants,

the states, presidential candidates other than Obama, political

parties, a majority of American voters, and Congress – a list that

includes some who could have challenged, or could still

challenge, Obama’s eligibility through various means – have not

been persuaded by his claim. That grievance, too, is not one

“appropriately resolved through the judicial process.” Whitmore

v. Arkansas, 495 U.S. 149, 155 (1990).

Berg also argues that he has standing “under the Tenth

Amendment because the power to determine the qualifications of

the President-elect is left to the states and the people after the

Congressmen and Senators failed to object to the counting of the

electoral votes” pursuant to 3 U.S.C. § 15 – a statute that

provides a mechanism for members of Congress to object to

electoral votes after they are cast. Appellant’s Br. at 18. The

Tenth Amendment states: “The powers not delegated to the

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United States by the Constitution, nor prohibited by it to the

States, are reserved to the States respectively, or to the people.”

U.S. Const., amend. X. That clause has no apparent relevance to

this case and Berg’s citation to Gregory v. Ashcroft, 501 U.S.

452 (1991), is not helpful.

In Gregory, the Supreme Court upheld a state’s ability to

determine the qualifications for its state judiciary. Id. at 455-56.

The plaintiffs were state court judges who alleged that the

section of the Missouri Constitution mandating that they retire at

the age of seventy violated the Age Discrimination in

Employment Act of 1967 and the Equal Protection Clause of the

Fourteenth Amendment. Id. at 456. The Gregory opinion does

not mention the word “standing,” and Berg’s citation to it is

inapposite.

Berg also cites to Robinson, 567 F. Supp. 2d at 1147, for

the proposition that he should be granted “automatic standing.”

Appellant’s Br. at 2. The reference is baffling. The district

court in Robinson held that an elector pledged to Alan Keyes

lacked standing to bring a suit challenging Senator McCain’s

qualifications under the Natural Born Citizen Clause. Id. at

1146-47. Berg cites to the following language of that opinion:

“Judicial review [of the claim]-if any-should occur only after the

electoral and Congressional processes have run their course.” 

Id. at 1147. Berg incorrectly takes that to mean that he can bring

suit after members of Congress have declined to object pursuant

to 3 U.S.C. § 15. It means no such thing. The language is part

of an alternative holding made in anticipation of the “plaintiff’s

standing-cure suggestion that the American Independent Party 

. . . be allowed to intervene.” Robinson, 567 F. Supp. 2d at

1147. The Court held, in the alternative, that, even assuming

that the American Independent Party had standing, the claim was

unripe. Id. (citing Texas v. United States, 523 U.S. 296, 300-02

(1998)).

Berg maintains that he has suffered damage to his

reputation as a result of bringing this suit – he claims that he has

been accused of being a racist by unnamed others. This “injury”

is not attributed to the Defendants. Berg’s assertion that he has

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 Berg’s arguments that the District Court ignored some of 6

his voluminous motions and other pleadings not only suffer from

fatal defects in their reasoning, but are irrelevant. If a District

Court does not have subject matter jurisdiction, it must dismiss.

10

been harmed because he has spent money on this lawsuit fails for

the same reason; the Defendants’ efforts to legally defend

themselves cannot cause injury that gives rise to Article III

standing or the doctrine would have no meaning. Berg’s passing

reference that he was injured because he was denied some

“information concerning the qualifications of Obama” was made

in a vacuum, providing this court with no basis to analyze the

claim.

Berg asserts that the District Court erred in denying him

standing under 18 U.S.C. § 1983 because of a lack of state

action. State action is not one of the three elements of standing.

See Taliaferro, 458 F.3d at 188. In any event, the District Court

did not rely on a lack of state action to dismiss his case. See

App. at 23-24 n.14.

Among the litany of Berg’s claims is his argument that he

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

objections during the counting of the electoral votes from each

state . . . .” Appellant’s Br. at 28. Berg supplies no factual basis

for that assertion and we have no idea if it is true, but, assuming

it is, Berg has been no more injured by that omission than any

other United States citizen. Berg alternatively argues that he has

standing because his First Amendment rights were somehow

violated when his political representatives failed to object to the

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

That argument is frivolous. Berg’s final claim that the District

Court violated his due process rights by dismissing his case is

equally frivolous.

“Absent Article III standing, a federal court does not have

subject matter jurisdiction to address a plaintiff’s claims, and

they must be dismissed.” Taliaferro, 458 F.3d at 188. 6

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III.

Because there is no case or controversy, we will affirm

the District Court’s order dismissing Berg’s action.

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