CASE NO. 08-4340 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

_____________ Ο

_____________ 

PHILIP J. BERG, ESQUIRE 

 Plaintiff - Appellant 

v. 

BARACK HUSSEIN OBAMA, JR., et al, 

 Respondents - Appellee 

_____________ Ο

_____________ 

RESPONSE OF APPELLANT, PHILIP J. BERG, 

ESQUIRE TO APPELLEE’S, THE FEDERAL 

ELECTION COMMISSION’S 

MOTION FOR SUMMARY AFFIRMANCE 

_____________ Ο

_____________ 

 PHILIP J. BERG, ESQUIRE 

 555 Andorra Glen Court, Suite 12 

 Lafayette Hill, PA 19444-2531 

 Identification No. 09867 

 (610) 825-3134 

 Attorney in Pro Se 

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TABLE OF CONTENTS 

 

Page(s) 

TABLE OF CONTENTS..........................................................i-ii 

TABLE OF AUTHORITIES.....................................................iii-vi 

STATEMENT OF THE CASE.....................................................1-9 

ARGUMENT.......................................................................9-20 

 I. How Judge Surrick Decided the Issues......................... .9-10 

 II. The District Court erred in Denying Petitioner Standing....10-15

 A. Petitioner Has Standing under the 

 Tenth Amendment........................................10-11 

 B. Petitioner has Standing to Challenge the 

 Qualifications of the President-Elect under 

 Gregory v. Ashcroft, 501 U.S. 452, 463 (1991)......11-13 

 C. Petitioner Meets the Constitutional Elements 

 of Standing................................................13-14

III. The District Court Erred in Dismissing Petitioner’s 

 Claims under 42 U.S.C. §1983.................................15-17 

 IV. Petitioner has Raised Questions which are Strictly 

 a Question of Law, however, are of Political 

 Interest; and therefore, do not fall Under the 

 Political Question Doctrine.....................................17-20 

 

CONCLUSION......................................................................20 

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TABLE OF CONTENTS, Continued 

 

Page(s) 

CERTIFICATE OF COMPLIANCE WITH RULE 32(a).....................21 

CERTIFICATE OF SERVICE.................................................22-23 

. 

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TABLE OF AUTHORITIES

Page(s)

Cases 

United States of America v. Cervantes-Nava, 281 F.3d 501 (2002)............2 

Drozd v. I.N.S., 155 F.3d 81, 85-88 (2d Cir.1998)................................2 

Solis-Espinoza v. Gonzales, 401 F.3d 1090 (9th Cir. 2005).....................2 

Marquez-Marquez a/k/a Moreno v. Gonzales, 

455 F.3d 548 (5th Cir. 2006).........................................................2 

Runnet v. Shultz, 901 F.2d 782, 783 (9th Cir. 1990)..............................2 

Crist v. Comm’n on Presidential Debatest, 

262 F.3d at 193 (2d Cir.(2001).......................................................9 

Jones v. Bush, 122 F.Supp. 2d 713 (N.D. Tex. 2000).............................9 

Hollander v. McCain, 2008 U.S. Dist. LEXIS 56729......................9 & 13 

Robinson v. Bowen, et al, 

2008 U.S. Dist. LEXIS 82306 (N.D. Ca. 2008)..................................11 

Texas v. United States, 523 U.S. 296, 300-02, 

118 S. Ct. 1257, 140 L.Ed. 2d 406 (1998).......................................11 

Gregoy v. Ashcroft, 501 U.S. 452, 463 (1991)..............................11-13 

Bernal v. Fainter, 467 U.S. 216, 220, 

81 L.Ed. 2d 175, 104 S. Ct. 2312 (1984).........................................12 

Nyquist v. Mauclet, 432 U.S. 1, 11, 

53 L. Ed. 2d 63, 97 S. Ct. 2120 (1977)...........................................12 

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TABLE OF AUTHORITIES, Continued 

Page(s)

Cases 

Foley v. Connelie, 435 U.S. 291, 295-296, 

55 L. Ed. 2d 287, 98 S. Ct. 1067 (1978)..........................................12 

Ambach v. Norwick, 441 U.S. 68, 73-74 

60 L. Ed. 2d 49, 99 S. Ct. 1589 (1979)...........................................12 

Cabell v. Chavez-Salido, 454 U.S. 432, 439-441 

70 L. Ed. 2d 677, 102 S. Ct. 735 (1982)..........................................12 

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 

112 S. Ct. 2130, 119 L. Ed.2d 351 (1992).......................................13 

Donohue v. Board of Elections of State of New York, 

435 F.Supp. 957, 966-68 (S.D.N.Y. 1976) 

Affirmed, 559 F.2d 1202 (2d Cir. 1977), 

denied 434 U.S. 861 (1977).....................................................15-16 

Baker v. Carr, 369 U.S. 186 (1962)...........................................17-19 

Powell v. McCormack, 395 U.S. 486 (1969)..................................17-19 

Nixon v. United States, 506 U.S. 224 (1993)..................................17-19 

Bell v. Hood, 327 U.S. 678 (1946).................................................18 

United States. v. Munoz-Flores, 495 U.S. 385 (1990)..........................19 

Bush v. Palm Beach County Canvassing Bd., 531 U.S. 70 (2000)............20 

Bush v. Gore, 531 U.S. 98 (2000).................................................20 

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TABLE OF AUTHORITIES, Continued 

Page(s)

STATUTES 

8 USC §1481(a)(2).....................................................................7 

8 U.S.C. §1401(a)(1)..................................................................7 

42 U.S.C. §1983...................................................................15 & 17 

3 U.S.C. §15..........................................................................10 

UNITED STATES CONSTITUTION 

Article II, Section I...................................................................18 

Fourteenth Amendment.............................................................12 

Tenth Amendment....................................................10, 11, 13 & 18 

MISCELLANEOUS 

Federal Rules of Civil Procedure, Rule 12(b)(1)...........................8 & 15 

Federal Rules of Civil Procedure, Rule 12(b)(6)...........................8 & 15 

Nationality Act of 1940 revised June 1952........................................1 

Hague Convention of 1930...........................................................6 

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TABLE OF AUTHORITIES, Continued 

Page(s) 

INDONESIAN LAWS 

Republic of Indonesia Constitution 1945 

Article 2.................................................................................5 

Chapter X, Citizens and Residents, Article 26....................................5 

Law No. 62 of 1958...................................................................5 

Law No. 12 

Concerning citizenship of Republic of Indonesia.................................5 

Law No. 9 

concerning Immigration Affairs and Indonesian Civil Code 

(Kitab Undang-undang Hukum Perdata) (KUHPer) 

(Burgerlijk Wetboek voor Indonesie)..............................................5 

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 Appellee, the Federal Election Commission [hereinafter the “FEC”] filed a 

Motion for Summary Affirmance of the lower Court’s Dismissal of Appellant’s 

case based on Standing and Failure to state a Claim that Relief could be granted. 

Appellant opposes said Motion and incorporates his Opening Brief, Appendix 

Volume I and Appendix Volume II, filed with this Court January 20, 2009, as if 

fully set forth herein. 

STATEMENT OF THE CASE

Petitioner’s case involves national security, extraordinary public significance 

and requires action urgently as Obama was due to be inaugurated on the 20th of 

January, 2009 and take the Office of President of the United States, and he was 

sworn in so we have greater problems. 

 Obama’s birth is reported as occurring at two (2) separate hospitals, 

Kapiolani Hospital and Queens Hospital in Hawaii. 

 Through extensive investigation, Petitioner learned that Obama was born in 

Mombasa, Kenya located in Coast Province. Obama’s biological father was a 

Kenyan citizen and Obama’s mother a U.S. citizen. Under the laws in effect 

between December 24, 1952 and November 14, 1986 (Obama was born in 1961), a 

child born abroad, to one U.S. citizen parent and one foreign national, could 

acquire “natural born” United States citizenship if the United States citizen parent 

had been physically present in the United States for ten (10) years prior to the 

child’s birth, five (5) of those years being after age fourteen (14). Nationality Act 

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of 1940, revised June 1952; United States of America v. Cervantes-Nava, 281 F.3d 

501 (2002), Drozd v. I.N.S., 155 F.3d 81, 85-88 (2d Cir.1998), Solis-Espinoza v. 

Gonzales, 401 F.3d 1090 (9th Cir. 2005). Obama’s mother was only eighteen (18) 

when Obama was born in Kenya and therefore, did not meet the age and residency 

requirements for her child to have acquired “natural born” U.S. citizenship. 

Therefore, Obama is not considered a “natural born” United States citizen. The 

law that applies to a birth abroad is the law in effect at the time of birth, MarquezMarquez a/k/a Moreno v. Gonzales, 455 F. 3d 548 (5th Cir. 2006), Runnett v. 

Shultz, 901 F.2d 782, 783 (9th Cir.1990) (holding that "the applicable law for 

transmitting citizenship to a child born abroad when one parent is a U.S. citizen is 

the statute that was in effect at the time of the child's birth"). 

Obama’s Kenyan step-grandmother, Sarah Obama, has repeatedly stated 

Obama was born in Kenya and she was present, in the hospital, during his birth. 

Bishop Ron McRae and Reverend Kweli Shuhubia, had the opportunity recently to 

interview Sarah Obama. Reverend Kweli Shuhubia went to the home of Sarah 

Obama located in Kogello, Kenya. Reverend Kweli Shuhubia called Bishop 

McRae from Ms. Obama’s home and placed the call on speakerphone. Bishop 

McRae obtained permission from the parties to tape the interview. Because Ms. 

Obama only speaks Swahili, Reverend Kweli Shuhubia and another grandson of 

Ms. Obama’s, translated the telephone interview. Bishop McRae asked Ms. 

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Obama where Obama was born; Ms. Obama answered in Swahili and was very 

adamant that Obama was born in Kenya and she was present during his birth. 

 After the interview of Sarah Obama in October 2008, Reverend Shuhubia 

had meetings with the Provincial Civil Registrar. Reverend Shuhubia learned there 

were records of Ann Dunham giving birth to Barack Hussein Obama, Jr. in 

Mombosa, Kenya on August 4, 1961. Reverend Shuhubia spoke directly with an 

Official, the Principal Registrar, who openly confirmed that the birthing records of 

Senator Barack H. Obama, Jr. and his mother were present; however, the file on 

Barack H. Obama, Jr. was classified. The Official explained Barack Hussein 

Obama, Jr.’s birth in Kenya is top secret. 

 Obama allowed the Daily Kos, Factcheck and his campaign website to post a 

Hawaiian Certification of Live Birth, purported to be Obama’s birth certificate on 

their websites. The image posted on dailykos.com, factcheck.org and 

fightthesmears.com has been deemed an altered and forged document according to 

document image specialists. Even if this document purported to be Obama’s 

Certification of Live Birth was an accurate document, it does not prove “natural 

born” U.S. citizenship status. The Hawaii Department of Health issues a 

Certification of Live Birth to births that occurred abroad in foreign countries as 

well as birth’s that occurred at home and not in a Hospital. Certifications of Live 

Birth are issued to those births as “naturalized” U.S. citizens as well as “natural 

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born” U.S. citizens. A Certification of Live Birth is not sufficient evidence to 

prove you are in fact a “natural born” U.S. citizen. 

 Dr. Fukino, Director of the Hawaiian Department of Health released a press 

release stating she saw Obama’s “vault” version birth certificate in a file. 

However, Dr. Fukino does not claim Obama was born in Hawaii or the U.S. for 

that matter, she simply confirms Obama’s “vault” version birth certificate exists. 

Once again, Obama has not released access to his “vault” version birth certificate, 

which shows doctors signatures, city, state and country of birth and of course, this 

would solve the issue of where he was in fact born.

 In or about 1965, when Obama was approximately four (4) years old, his 

mother, Stanley Ann Dunham, after being divorced from Obama’s father, married 

Lolo Soetoro, a citizen of Indonesia and moved to Indonesia with Obama. A 

minor child follows the naturalization and citizenship status of their custodial 

parent. A further issue is presented that Obama’s Indonesian stepfather, Lolo 

Soetoro, either signed a governmental acknowledgement form legally 

“acknowledging” Obama as his son and/or adopted Obama, either of which 

changed any citizenship status of Obama to a “natural citizen” of Indonesia. 

 Obama was registered in a public school as an Indonesian citizen by the 

name of Barry Soetoro and his father was listed as Lolo Soetoro, M.A. Indonesia 

did not allow foreign students to attend their public schools in the 1960’s and any 

time a child was registered for a public school, their name and citizenship status 

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was verified through the Indonesian Government. The school record indicates that 

Obama’s name is “Barry Soetoro;” his nationality is “Indonesia;” and his religion 

as “Islam”. There was no other way for Obama to have attended school in Jakarta, 

Indonesia as Indonesia was under tight rule and was a Police State. See Indonesian 

Constitution Article 2 and Chapter X, Article 26 (citizens and Residents). These 

facts indicate that Obama is an Indonesian citizen, and therefore, he is not eligible 

to be President of the United States. 

Under Indonesian law, when a male acknowledges a child as his son, it 

deems the son — in this case Obama — to be an Indonesian State citizen. 

Constitution of Republic of Indonesia, Law No. 62 of 1958 Law No. 12 concerning 

Citizenship of Republic of Indonesia; Law No. 9 concerning Immigration Affairs 

and Indonesian Civil Code (Kitab Undang-undang Hukum Perdata) (KUHPer) 

(Burgerlijk Wetboek voor Indonesie). 

 Furthermore, under the Indonesian adoption law, once adopted by an 

Indonesian citizen, the adoption severs the child’s relationship to the birth parents, 

and the adopted child is given the same status as a natural child. Indonesian 

Constitution, Article 2. 

 The Indonesian citizenship law was designed to prevent apatride (stateless) 

or bipatride (dual citizenship). Indonesian regulations recognize neither apatride 

nor bipatride citizenship. Since Indonesia did not allow dual citizenship, neither 

did the United States, and since Obama was a “natural” citizen of Indonesia, the 

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United States would not step in or interfere with the laws of Indonesia. Hague 

Convention of 1930. 

As a result of Obama’s Indonesia “natural” citizenship status, Obama would 

never regain U.S. “natural born” status, if he in fact he ever held such. Obama 

could have only become “naturalized” if the proper paperwork were filed with the 

U.S. State Department, in which case, Obama would have received a Certification 

of Citizenship, after U.S. Immigration. 

Petitioner is informed, believes and thereon alleges Obama was never 

naturalized in the United States after his return. Obama was ten (10) years old 

when he returned to Hawaii to live with his grandparents. Obama’s mother did not 

return with him. If citizenship of Obama had been applied for in 1971, Obama 

would have a Certification of Citizenship. If Obama returned in 1971 to Hawaii 

without going through U.S. Immigration, today he would be an illegal alien – and 

obviously not able to serve as President, but also his term as a United States 

Senator from Illinois for the past three (3) years was illegal in the absence of a 

Certification of Citizenship. 

Obama’s mother, Stanley Ann Dunham, a/k/a Soetoro divorced Lolo 

Soetoro in 1980 in Honolulu, Hawaii. In the divorce papers it clearly states the 

couple had two (2) children. Stanley Ann Dunham a/k/a Soetoro and Lolo 

Soetoro, M.A. only birthed one child, Maya, thus the second child being Obama. 

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 Obama traveled to Indonesia, Pakistan and Southern India in 1981. The 

relations between Pakistan and India were extremely tense and Pakistan was in 

turmoil and under martial law. Pakistan was so dangerous that it was on the 

United States State Department's travel ban list for US Citizens. According to the 

State Department records, Non-Muslim visitors were not welcome unless 

sponsored by their embassy for official business. A Muslim citizen of Indonesia 

traveling on an Indonesian passport would have success entering Indonesia, 

Pakistan and India. Therefore, it is believed Obama traveled on his Indonesian 

passport entering those Countries. Indonesian passports require renewal every five 

(5) years. At the time of Obama’s travels to Indonesia, Pakistan and India, Obama 

was twenty (20) years old. If Obama would have been a U.S. citizen, 8 USC 

§1481(a)(2) provides loss of nationality by native born citizens upon "taking an 

oath or making an affirmation or other formal declaration of allegiance to a foreign 

state...after having attained the age of eighteen years”, in violation of 8 U.S.C. 

§1401(a)(1). 

 As a result of the above, Petitioner, Philip J. Berg, Esquire, filed suit August 

21, 2008 for Declaratory and Injunctive Relief. At the same time, Petitioner filed a 

Motion for a Temporary Restraining Order [TRO] prohibiting the DNC from 

nominating Obama as the Democratic Presidential Nominee and prohibiting 

Obama from further campaigning for the Office of President of the United States, 

which was denied on August 22, 2008. Petitioner filed a Motion for Expedited 

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Discovery, Extensive Discovery and Appointment of a Special Master on 

September 9, 2008. Although unopposed, the District Court failed to rule upon or 

set a hearing on the matter. Petitioner served upon Defendants Requests for 

Admissions and Requests for Production of Documents, which were not objected 

to and/or answered by Defendants. On September 24, 2009, Defendants filed a 

Motion to Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 

12(b)(6). At request of the Court, Petitioner filed his Opposition in response to 

Defendants Motion to Dismiss on September 29, 2008. On October 6, 2008, 

Defendants filed a Motion for a Protective Order Staying all Discovery. Petitioner 

filed his Response in Opposition to Defendants Motion for Protective Order on 

October 9, 2008. Defendants Motion for Protective Order was not ruled upon by 

the District Court. October 21, 2008, Petitioner filed a Motion for Summary 

Judgment as there were no undisputed material facts remaining as Obama failed to 

object to and/or answer Petitioner’s request for Admissions and therefore they 

were deemed admitted. Petitioner filed a Motion for an expedited ruling on his 

Motion for Summary Judgment. The District Court failed to rule upon Petitioner’s 

Summary Judgment Motion and instead granted Defendants Motions to Dismiss on 

October 24, 2008. Petitioner immediately appealed. 

The citizenship status of Obama is a critical issue; an issue which needs to 

be addressed to uphold the Constitution of the United States. If Obama’s 

citizenship status is not ascertained and it is later found Obama is ineligible to 

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serve as the President of the United States due to his non-natural born citizen 

status, the consequences could provide long-term damage to America. This would 

set a precedent for future variances from our United States Constitution without 

due process of law, and ultimately, all citizens of the United States would no 

longer enjoy the same protections secured by the United States Constitution. 

Therefore, it is incumbent on this Honorable Court to allow the 

ascertainment of truth concerning Obama’s constitutional qualifications to serve as 

President of the United States. 

ARGUMENT

I. How Judge Surrick Decided the Issues: 

The District Court reviewed the Defendants, the DNC, Obama and the 

FEC’s Motions to Dismiss and issued his Memorandum and Order granting the 

Defendants Motions to Dismiss based on standing. The Court found “[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” quoting Crist v. 

Comm’n on Presidential Debatest, 262 F.3d at 193, 194 (2d Cir. 2001); Jones v. 

Bush, 122 F.Supp. 2d 713 (N.D. Tex. 2000). The Court went on further stating 

“the alleged harm to voters stemming from a presidential candidate’s failure to 

satisfy the eligibility requirement of the Natural Born Citizen Clause is not 

concrete or particularized enough to constitute an injury in fact sufficient to satisfy 

Article III standing quoting Hollander v. McCain, 2008 U.S. Dist. LEXIS 56729 at 

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*12. In taking the facts asserted in the Complaint as true for purposes of 

determining Defendants Motion to Dismiss, specifically, Petitioner’s contention 

that Defendant is not a “natural born” American citizen, it is unjust to deny 

Petitioner standing just because other voters have suffered the same harm. 

II. The District Court erred in Denying Petitioner Standing: 

A. Petitioner Has Standing under the Tenth Amendment: 

 Petitioner has standing under the Tenth Amendment because the power to 

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

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

electoral votes on January 8, 2009. The Tenth Amendment to the United States 

Constitution provides that “[t]he powers not delegated to the United States by the 

Constitution, nor prohibited by it to the states, are reserved to the states 

respectively, or to the people.” 

 3 U.S.C. §15 provides a method for challenges to any Presidential candidate 

to be presented. This statute provides the process for counting electoral votes in 

Congress and a mechanism for objections then to be registered and resolved. 

 If only one [1] Member of the House and one [1] Member of the Senate 

object to the Electoral Vote in any/every state, the counting of the votes would stop 

and the Joint Session would cease until the House and Senate meet, discuss and 

vote on each States Electoral Votes. When the electoral votes were counted in 

Congress on January 8, 2009, the President of the Senate failed to call for 

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objections at the end of the counting of each state’s electoral votes and Petitioner 

has no knowledge of any objections that were submitted by any Congressman and 

Senator. Since the legislative mechanism for challenging the qualifications of the 

President has expired, the power to make such a challenge is “reserved to the states 

respectively, or to the people” pursuant to the Tenth Amendment. 

 That the power to challenge the qualifications of the President-elect is left to 

the states or to the people is consistent with the decision in Robinson v. Bowen,

2008 U.S. Dist. LEXIS 82306 (N.D. Ca. 2008), where the District Court stated at 

*7: 

“Therefore, this order holds that the challenge presented by plaintiff is 

committed under the Constitution to the electors and the legislative 

branch...review--if any--should occur only after the electoral and 

Congressional processes have run their course. Texas v. United States, 523 

U.S. 296, 300-02, 118 S. Ct. 1257, 140 L. Ed. 2d 406 (1998).” Robinson v. 

Bowen, at *7. 

 Since the “electoral and Congressional processes have run their course” this 

Court’s review of Petitioner’s challenges to the President-elect’s qualifications 

is required. 

 B. Petitioner has Standing to Challenge the Qualifications of the 

 President-Elect under Gregory v. Ashcroft, 501 U.S. 452, 463 

 (1991): 

 Petitioner has standing to challenge the qualifications of the President-elect 

under Gregory v. Ashcroft, 501 U.S. 452, 463 (1991), which recognizes the 

authority of the people of the States under the Tenth Amendment to determine the 

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qualifications of their “most important government officials:” In the face of 

challenges under the Age Discrimination in Employment Act of 1967 (ADEA), 29 

U.S.C. 621-634 and the Equal Protection Clause, U.S. Constitution, Amendment 

XIV, the Court in Aschcroft upheld a state constitutional provision which provided 

that all judges other than municipal judges must retire at the age of 70 years. The 

Court compared the situation presented in Gregory to a group of Supreme Court 

cases discussing the degree to which the Equal Protection Clause of the Fourteenth 

Amendment restricted a state from prohibiting aliens from gaining public 

employment. Gregory v. Ashcroft, 501 U.S. 452, 461 (1991). In those cases, the 

Court held that while the Equal Protection Clause posed a check on state power to 

exclude aliens from service, the standard of reviewing exclusions would be 

lowered in “recognition of the authority of the people of the States to determine the 

qualifications of their most important government officials”: 

 “In several subsequent cases we have applied the "political function" 

exception to laws through which States exclude aliens from positions 

"intimately related to the process of democratic self-government." See 

Bernal v. Fainter, 467 U.S. 216, 220, 81 L. Ed. 2d 175, 104 S. Ct. 2312 

(1984). See also Nyquist v. Mauclet, 432 U.S. 1, 11, 53 L. Ed. 2d 63, 97 S. 

Ct. 2120 (1977); Foley v. Connelie, 435 U.S. 291, 295-296, 55 L. Ed. 2d 

287, 98 S. Ct. 1067 [*463] (1978); Ambach v. Norwick, 441 U.S. 68, 73-

74, 60 L. Ed. 2d 49, 99 S. Ct. 1589 (1979); Cabell v. Chavez-Salido, 454 

U.S. 432, 439-441, 70 L. Ed. 2d 677, 102 S. Ct. 735 (1982). "We have... 

lowered our standard of review when evaluating the validity of exclusions 

that entrust only to citizens important elective and nonelective positions 

whose operations 'go to the heart of representative government.'" Bernal, 

467 U.S. at 221 (citations omitted)...” 

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“These cases stand in recognition of the authority of the people of the 

States to determine the qualifications of their most important 

government officials. It is an authority that lies at "'the heart of 

representative government.'" Ibid. It is a power reserved to the States 

under the Tenth Amendment and guaranteed them by that provision of 

the Constitution under which the United States "guarantee[s] to every 

State in this Union a Republican Form of Government." U.S. Const., 

Art. IV, § 4. See Sugarman, supra, at 648 (citing the Guarantee Clause and 

the [***426] Tenth Amendment). See also Merritt, 88 Colum. L. Rev., at 

50-55.” Gregory v. Ashcroft, 501 U.S. 452, 463 (1991) [emphasis added].

Under this standard, the power to determine the qualifications of the 

President-elect lies with the people of the States, including the Petitioner. This 

precept lies at the heart of our representative government. 

C. Petitioner Meets the Constitutional Elements of Standing: 

 Petitioner meets the Constitutional elements of standing: (1) he has suffered 

an injury in fact; (2) that injury has been caused by the Defendants’ challenged 

conduct; and (3) a simple favorable judicial decision ordering the production of 

Obama’s original vault version birth certificate will, in part, provide Petitioner with 

redress from that injury. Article III standing has three requirements: “(1) the 

plaintiff has suffered 'an injury in fact,' (2) that injury bears a causal connection to 

the defendant's challenged conduct, and (3) a favorable judicial decision will likely 

provide the plaintiff with redress from that injury." Hollander v. McCain, 566 F. 

Supp. 2d 63, 67 (D.N.H. 2008) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 

555, 560-61, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992)). Petitioner has standing 

because he meets the three-factor test. Petitioner has suffered Injury-in-Fact and 

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this harm was caused by Defendants’ brazen misrepresentations. The particular 

harm suffered by Petitioner is the following: (1) he was denied information 

concerning the qualifications of Obama, thereby infringing on his fundamental 

right to cast an informed, meaningful vote for a Democratic candidate; (2) 

Petitioner’s fundamental First Amendment right to freedom of speech has been 

violated because he was denied the opportunity to object through his 

representatives to the counting of votes when the President of the Senate failed to 

call for objections upon counting the electoral votes; (3) Petitioner was harmed by 

each state’s action in placing Defendant on the ballot when there were substantial 

questions concerning his citizenship status and certifying the electoral votes; (4) 

Petitioner’s reputation has been harmed by constant accusations that he is a racist 

when Petitioner’s quest for the truth is not, by any stretch of the imagination, 

related to race, and in fact, Petitioner is a life member of the NAACP; and (5) 

Petitioner has spent huge amounts of money and time in trying to ascertain an 

uncomplicated truth, and Defendants have brazenly continued denying Petitioner this 

information knowing full well the expense of this litigation. A simple favorable 

judicial decision granting Petitioner standing to challenge the qualifications of the 

President-elect and ordering full disclosure of Obama’s original vault version birth 

certificate will, in part, provide Petitioner with redress from that injury. 

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III. The District Court Erred in Dismissing Petitioner’s Claims under 

 42 U.S.C. §1983: 

The District Court erred in denying Petitioner’s claim pursuant to Federal 

Rules of Civil Procedure 12(b)(1) and 12(b)(6) based on standing under 42 U.S.C. 

§1983 for Standing and Failure to State a Claim that Relief could be granted. The 

District Court reasoned Petitioner failed cite a state action, when, in fact, each state 

effectuated Defendant’s scheme by placing Defendant on the ballot without 

ascertaining his citizenship status and certifying the electoral vote in each 

respective state. 

 The Court in Donohue v. Board of Elections of State of New York, 435 F. 

Supp. 957, 966-68 (S.D.N.Y. 1976), affirmed, 559 F.2d 1202 (2d Cir. 1977), cert. 

Denied, 434 U.S. 861 (1977), recognized its jurisdiction and authority to provide 

an equitable remedy for electoral irregularities under 42 U.S.C.S. § 1983, provided 

that the plaintiffs met their burden of proof. The Donohue court established a fourfactor test for applying § 1983 to electoral disputes. First, one must "plead and 

prove specific acts of misconduct, including time, place and circumstances of the 

alleged deprivation of the right to vote." Second, one must show intentional or 

purposeful discrimination. The Court clarified that intentional or purposeful 

discrimination included not only traditional race or gender discrimination, but also 

intentional conduct designed to deprive any qualified voter of his or her right to 

vote. Third, one must prove that the defendant acted under color of state law. It is 

Case: 08-4340 Document: 00315472460 Page: 22 Date Filed: 01/27/2009
16 

important to note that the court included the actions of “private persons acting 

jointly with state officials within the category of state actions." Finally, one must 

prove that the “fraud or other unlawful behavior changed the outcome of the 

election." Donohue v. Board of Elections of State of New York, 435 F. Supp. 957, 

966-68 (S.D.N.Y. 1976), affirmed, 559 F.2d 1202 (2d Cir. 1977), cert. Denied, 434 

U.S. 861 (1977). Petitioner will show that these four factors have been met, 

conferring standing upon Petitioner to seek redress for the infringement upon his 

fundamental right to vote. 

 Petitioner has plead and proven specific acts of misconduct by Obama and 

the DNC, namely, the failure to provide proof of Obama’s citizenship and the 

posting on several websites of a document intended to mislead the public into 

believing that Obama was presenting genuine proof of his “natural born” 

citizenship status. This deception was intended to deprive citizens of their right to 

make an informed voting decisions, thereby debasing and diluting Petitioner’s 

legitimate vote. Defendants have acted jointly with state officials to commit this 

deception by allowing each state to put Obama’s name on the ballot and by 

allowing the certification of each state’s electoral votes without providing proof of 

Obama’s citizenship. Further, the statement made on October 31, 2008 by the 

Director of Hawaii’s Department of Health, Dr. Chiyome Fukino, that she has 

“personally seen and verified that the Hawaii State Department of Health has Sen. 

Obama’s original birth certificate on record in accordance with state policies and 

Case: 08-4340 Document: 00315472460 Page: 23 Date Filed: 01/27/2009
17 

procedures” appears to be a deliberate attempt by a state official to misrepresent 

proof of Obama’s birth in Hawaii when such statement did not confirm this fact. 

The District Court clearly erred in dismissing Petitioner’s claims under 42 

U.S.C. §1983. 

V. Petitioner has Raised Questions which are Strictly a Question of Law, 

 however, are of Political Interest; and therefore, do not fall Under the 

 Political Question Doctrine: 

Political questions include such areas as the conduct of foreign policy, the 

ratification of constitutional amendments, and the organization of each state's 

government as defined in the Constitution, none of which is the basis of 

Petitioner’s suit. The Political Question Doctrine only applies in cases where a 

specific interpret of power is granted by the Constitution to branches of 

Government other than the Judiciary. The Courts continued to evidence the view 

that only questions textually committed to another branch are political questions. 

See Baker v. Carr, 369 U.S. 186 (1962), Powell v. McCormack, 395 U.S. 486 

(1969) and Nixon v. United States, 506 U.S. 224 (1993). 

Petitioner raised questions as to Obama’s citizenship status and 

qualifications to serve as President of the United States pursuant to the United 

States Constitution, which are questions of law, even though they are of political 

interest. The issues concern the inherent rights secured to Petitioner and all 

citizens of the United States by the U.S. Constitution and are therefore, clear legal 

questions of law. 

Case: 08-4340 Document: 00315472460 Page: 24 Date Filed: 01/27/2009
18 

 Article II, Section I, Clause 5 of the United States Constitution dictates the 

qualifications of the President of the United States. The Constitution clearly states 

our President must be a “natural born” citizen. Although the Constitution dictates 

the qualifications of our President, the Constitution does not confer the 

responsibility to ensure this portion of our U.S. Constitution is upheld to any 

branch of Government, thus, it is not a political question; it is a question of law. 

Baker v. Carr, 369 U.S. 186 (1962), Powell v. McCormack, 395 U.S. 486 (1969), 

Nixon v. United States, 506 U.S. 224 (1993). Furthermore, since the responsibility 

is not conferred to any Branch of Government, the responsibility is reserved to the 

States or the People. Tenth Amendment of the United States Constitution. 

Petitioner’s case herein is one “arising under” the Constitution within the 

meaning of Article III of the Constitution, since Petitioner’s claims will be 

sustained if the Constitution...[is] given one construction and will be defeated if it 

[is] given another. Therefore, the Court has subject matter jurisdiction over 

Petitioner’s action. Powell v. McCormack, 395 U.S. 486 (1969) at pp. 512-516 

quoting Bell v. Hood, 327 U.S. 678. 

 The Court in Powell v. McCormack, 395 U.S. 486 (1969) at P. 517 stated, 

“In deciding generally whether a claim is justiciable, a court must determine 

whether "the duty asserted can be judicially identified and its breach 

judicially determined, and whether protection for the right asserted can be 

judicially molded." Quoting Baker v. Carr, 369 U.S. 186 supra, at 198. 

Case: 08-4340 Document: 00315472460 Page: 25 Date Filed: 01/27/2009
19 

 Petitioner’s litigation is justiciable because the claims presented and the 

relief sought, which is Ordering Obama to prove he is constitutionally qualified to 

serve as President of the United States by turning over his “vault” version birth 

Certificate, which Hawaii states they have, turning over certified court documents 

showing where his name was legally changed to Barack Hussein Obama, Jr. from 

Barry Soetoro and provide satisfactory proof he is in fact a “natural born” U.S. 

Citizen and not an Indonesian Citizen are within the Court’s power. Moreover, the 

Court can mold the right asserted by Petitioner. The relief Petitioner is seeking is 

susceptible of judicial resolutions since regardless of the appropriateness of a 

coercive remedy, declaratory relief is independently available. Powell v. 

McCormack, 395 U.S. 486 (1969), Baker v. Carr, 369 U.S. 186, Nixon v. United 

States, 506 U.S. 224 (1993). 

 In United States v. Munoz-Flores, 495 U.S. 385 (1990), the Court rejected 

the contention that, because the case did not involve a matter of individual rights, it 

ought not be adjudicated. 

 The Constitution vests in Congress the authority to count electoral 

votes and provides for selection of the President by the House of Representatives if 

no candidate receives a majority of electoral votes. Twelfth Amendment of the 

United States. Despite this, the Court did not make any mention of the Political 

Question Doctrine while resolving issues arising from Florida’s recount of votes in 

Case: 08-4340 Document: 00315472460 Page: 26 Date Filed: 01/27/2009
20

the 2000 Presidential Election that was contested. See Bush v. Palm Beach County

Canvassing Bd., 531 U.S. 70 (2000) and Bush v. Gore, 531 U.S. 98 (2000).

CONCLUSION

For the aforementioned reasons, Petitioner respectfully requests this

Honorable Court to deny Defendant, FEC’s Motion for Summary Affirmance and

hear the merits of the case.

Dated: January 26, 2009 Respectfully submitted,

____________________________

Philip J. Berg, Esquire

555 Andorra Glen Court, Suite 12

Lafayette Hill, PA 19444-2531

Identification No. 09867

(610) 825-3134

s/ Philip J. Berg

Case: 08-4340 Document: 00315472460 Page: 27 Date Filed: 01/27/2009
21

CERTIFICATE OF COMPLIANCE

1. This brief complies with the type-volume limitation of Federal Fed. R.

App. P. 32(a)(7)(B) because this brief contains 4,799 words excluding the parts of

the brief excluding the parts of the brief exempted by Fed. R. App. P.

32(a)(7)(B)(iii).

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

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

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

Office Professional (2000) in font 14, Times New Roman.

Dated: January 26, 2009 _________________________

Philip J. Berg, Esquire

Attorney in Pro Se

s/ Philip J. Berg

Case: 08-4340 Document: 00315472460 Page: 28 Date Filed: 01/27/2009
22 

CERTIFICATE OF SERVICE

 I, Philip J. Berg, Esquire, hereby certify that Petitioner-Appellant’s 

Response in Opposition to Defendant-Appellee, the Federal Election Committee’s 

Motion for Summary Affirmance was served upon Defendants via electronic filing 

on the ECF System, this 26th day of January 2009 upon the following: 

John P. Lavelle, Jr., Esquire 

Attorney I.D. PA 54279 

BALLARD SPAHR ANDREWS & 

 INGERSOLL, LLP 

1735 Market Street, 51st Floor 

Philadelphia, PA 19103 

(215) 864-8603 

(215) 864-9125 (Fax) 

lavellej@ballardspahr.com

Joseph E. Sandler, Esquire 

SANDLER REIFF & YOUNG PC 

300 M Street, S.E. Suite 1102 

Washington, D.C. 20003 

Telephone: (202) 479-1111 

Fax: (202) 479-1115 

sandler@sandlerreiff.com

Robert F. Bauer, Esquire 

General Counsel, Obama for America 

PERKINS COIE 

607 Fourteenth Street N.W. 

Washington, D.C. 20005-2003 

Telephone: (202) 628-6600 

Facsimile: (202) 434-1690 Attorney’s for Defendant’s 

RBauer@perkinscoie.com Barack Hussein Obama and 

 The Democratic National Committee 

Steven N. Hajjar 

Attorney 

FEDERAL ELECTION COMMISSION 

999 E. Street NW 

Washington, D.C. 20463 

(202) 694-1650 Attorney for Defendant 

shajjar@fec.gov Federal Election Commission 

Benjamin A. Streeter III Attorney for Defendant 

Case: 08-4340 Document: 00315472460 Page: 29 Date Filed: 01/27/2009
23

Attorney Federal Election Commission

FEDERAL ELECTION COMMISSION

999 “E” Street, N.W.

Washington, DC 20463

(202) 694-1650

bstreeter@fec.gov

Secretary of the Commonwealth

Pennsylvania Department of State

Bureau of Commissions, Elections and Legislation

210 N. Office Building

Harrisburg, PA 17120 In Pro Se

By regular mail

Pedro A. Cortés

Secretary of the commonwealth

Pennsylvania Department of State

210 N. Office Building

Harrisburg, PA 17120 In Pro Se

By regular mail

U.S. Senate

Commission on Rules and Administration

305 Russell Building, United States Senate

Washington D.C. 20510 In Pro Se

By regular mail

Diane Feinstein

Chairman of the U.S. Senate Commission on Rules and Administration

305 Russell Building, United States Senate

Washington D.C. 20510 In Pro Se

By regular mail

Dated: January 26, 2009 _____________________________

Philip J. Berg, Esquire

Attorney in Pro Se

555 Andorra Glen Court, Suite 12

Lafayette Hill, PA 19444-2531

Identification No. 09867

(610) 825-3134

s/ Philip J. Berg

Case: 08-4340 Document: 00315472460 Page: 30 Date Filed: 01/27/2009