CERTIFICATE OF BAR MEMBERSHIP

I, John P. Lavelle, Jr., Esquire, hereby certify that I am admitted in the

Third Circuit Court of Appeals.

[ John P. Lavelle, Jr.

Dated: October 31, 2008


Appellant Philip Berg has appealed from the decision of the District
Court dismissing his complaint for lack of subject matter jurisdiction and failure to
state a claim upon which relief can be granted. Memorandum and Order, Berg v.
Obama, Civ. No. 08-cv-4083 (E.D. Pa. filed Oct. 24, 2008)(“District Court
Decision”), attached hereto as Exhibit 1. Berg has now filed an “Emergency
Motion for an Immediate Injunction to Stay the Presidential Election of November
4, 2008 Pending Resolution of the Petitioner’s Appeal” (“Emergency Motion”).
Pursuant to FRAP 27(a)(3) and this Court’s Order of October 30, 2008, appellees
Senator Barack Obama and the Democratic National Committee (“DNC”) hereby
respond to the Emergency Motion.

The Emergency Motion should be denied for three reasons. First,
Berg’s Emergency Motion is effectively a new original case, seeking directly from
this Court relief not sought below and based largely on facts and legal grounds not
raised in his complaints. Accordingly this Court lacks jurisdiction over the
Emergency Motion. The All-Writs Act does not afford any basis for jurisdiction in
this case. Second, Berg failed to comply with Rule 8(a) of the Federal Rules of
Appellate Procedure, requiring that he move first in the district court for any order
granting an injunction while an appeal is pending. Third, there is no possibility
that Berg will prevail on the merits. Not only are Berg’s allegations patently false,

but, as the District Court correctly found, he lacks standing to bring the action and

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issuance of the stay will substantially injure the other parties interested in the
proceeding; and (4) where the public interest lies.” Hilton v. Braunskill, 481 U.S.
770, 776 (1987). Here there is no possibility whatsoever, let alone a likelihood,
that Berg will succeed on the merits.

As the District Court correctly concluded, Berg does not have
standing under Article III to bring a claim under the Natural Born Citizen Clause.
District Court Decision at 9-17. Standing requires an injury in fact that is concrete
and particularized Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). It is
well established 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.” Crist v. Com’n on Presidential Debates, 262 F.3d 193, 194 (2d Cir.
2001)(per curiam). For that reason, a voter does not have standing to challenge the
qualifications of a presidential candidate under the Constitution. Hollander v.
McCain, No. 08-0099, 2008 U.S. Dist. LEXIS 56729 (D.N.H. 2008); Jones v.
Bush, 122 F. Supp. 2d 7133 (N.D. Tex. 2000).

With respect to the other causes of action asserted by Berg in his First
Amended Complaint, it is clear, and the District Court correctly held, that no cause
of action lies under the Civil Rights Acts, §§1983, 1985 or 1986; the Federal
Election Campaign Act of 1971, as amended; the Freedom of Information Act; the

Immigration or Nationality Act; or under theory of promissory estoppel. Berg does

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Committee to conduct an investigation into Senator Obama’s citizenship status and
an injunction barring the Pennsylvania Department of State and the DNC from
placing Senator Obama’s name on the presidential general election ballot. On
October 20, 2008, defendants Obama and the DNC filed a motion to dismiss the
First Amended Complaint. That motion was granted by the District Court on
October 24, 2008. See Exhibit 1 hereto. The District Court found that Berg lacked
standing to assert any claim under the Natural Born Citizen Clause and that his
complaint did not state a claim under any of the other statutory provision he
invoked.

Berg has now filed his Emergency Motion, again alleging falsely that
Senator Obama was not born in the United States, setting forth various other
allegations about the Senator, and requesting an injunction “to stay the Presidential
Election of November 4, 2008 pending the resolution of Petitioner’s Appeal.”
Emergency Motion at 17.

ARGUMENT

The Emergency Motion should be denied. First, this Court has no
jurisdiction to entertain the Emergency Motion. It is not a motion for stay of the
judgment or order of the District Court pending appeal and does not address the
merits of the District Court’s decision at all. Nor does it request that the relief

sought from the District Court be granted during the pendency of the appeal.

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there is no federal cause of action in any event for enforcement of the

constitutional provision he invokes.

STATEMENT OF THE CASE

On August 21, 2008, appellant Philip Berg filed a complaint in the
District Court alleging (falsely) that Senator Barack Obama is not a “natural born
citizen” and is therefore ineligible to serve as President of the U.S. under Article II,
section |, clause 4 of the Constitution, the Natural Born Citizen Clause. Berg
sought a declaration that Senator Obama is ineligible to run for President and a
permanent injunction enjoining him from running for President and enjoining the
DNC from nominating him. On September 24, 2008, defendants Senator Obama
and the Democratic National Committee (“DNC”) filed a motion to dismiss,
pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6), for lack of subject matter
jurisdiction and failure to state a claim upon which relief can be granted.

On October 6, 2008, Berg filed a First Amended Complaint, adding
several new defendants and asserting causes of action under the Civil Rights Acts,
42 U.S.C. §§1983 and 1985, the Federal Election Campaign Act of 1971 as
amended, 2 U.S.C. §§431 et seq., the Freedom of Information Act, 5 U.S.C. §552
and the Immigration and Nationality Act, 8 U.S.C. §1481(b). In his First Amended
Complaint, Berg sought the same relief as that sought in the original complaint

and, additionally, an order compelling the FEC and the U.S. Senate Rules

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U.S. District Court, 426 U.S. 394, 403 (1976). Such a showing cannot be made
where the petitioner has “made no effort to secure relief from the trial court
involved....” Jn re Montes, 677 F.2d at 416.

To be sure, this Court may also issue a writ in order to preserve its
own jurisdiction over an appeal. E.g., United States v. Rowlands, 451 F.3d 173 3d
Cir. 2006). Berg has not made any showing, however, that enjoining the
Presidential election is necessary in order for this Court to review the District
Court’s ruling that Berg lacked standing to assert his constitutional claim and that
his complaint failed to state a claim under any of the other statutory provisions
invoked in his complaint.

Second, Berg also failed to comply with FRAP 8(a)(1) and (2) by
failing to seek the requested relief first from the District Court. “Application for a
stay may be made in the first instance to the court of appeals only when application
to the district court for the relief sought is not practicable. Since the [appellant]
has not applied to the district court for a stay we cannot consider such a motion.”
United States ex. Rel. Barnwell v. Rundle, 461 F.2d 768, 769 (3d Cir. 1972).

Finally, the factors regulating issuance of a stay or injunction pending
appeal dictate denial of the Emergency Motion. Those factors are “(1) whether the
stay applicant has made a strong showing that he is likely to succeed on the merits;

(2) whether the applicant will be irreparably injured absent a stay; (3) whether

~DMEAST #9614996 v 5


CASE NO. 08-4340

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

PHILIP BERG,
Appellant
Vv.
BARACK OBAMA, et. al.,

Appellees

RESPONSE OF APPELLEES SENATOR BARACK OBAMA
AND DEMOCRATIC NATIONAL COMMITTEE
TO APPELLANT’S EMERGENCY MOTION

John P. Lavelle, Jr.

Attorney I.D. Pa. 54279
BALLARD SPAHR ANDREWS &
INGERSOLL, LLP

1735 Market Street, 51% Floor
Philadelphia, PA 19103-7599
(215) 864-8603

(215) 864-9125 (Fax)
lavellej@ballardspahr.com

Of Counsel:

Joseph E. Sandler

General Counsel, Democratic National Committee
SANDLER, REIFF & YOUNG, P.C.

300 M Street, S.E. #1102

Washington, D.C. 20003

Telephone: (202) 479-1111

Fax: (202) 479-1115


CONCLUSION

For the reasons set forth above, the Emergency Motion should be

denied.

OL YY Nef 7 fT A

(John P. Lavelle, Jr.
Attorney I.D. Pa. 54279
BALLARD SPAHR ANDREWS &
INGERSOLL, LLP
1735 Market Street, 51“ Floor
Philadelphia, PA 19103-7599
(215) 864-8603
(215) 864-9125 (Fax)
lavellej@ballardspahr.com

Of Counsel:

Joseph E. Sandler

General Counsel, Democratic National Committee
SANDLER, REIFF & YOUNG, P.C.

300 M Street, S.E. #1102

Washington, D.C. 20003

Telephone: (202) 479-1111

Fax: (202) 479-1115

Robert F. Bauer

General Counsel, Obama for America
PERKINS COIE

607 Fourteenth Street, N.W.
Washington, D.C. 20005-2003
Telephone: (202) 628-6600

Fax: (202) 434-1690
RBauer@perkincoie.com

Attorneys for Appellees
Senator Barack Obama and
Democratic National Committee

-DMEAST #9614996 v 8


not, in his Emergency Motion, take issue with the District Court’s rulings that none

of these theories affords Berg any basis for the relief he sought.

-DMEAST #9614996 v 7


Rather, the Emergency Motion seeks a form of relief which was not requested at
all in either the original Complaint or First Amended Complaint, namely, an order
enjoining the conduct of the Presidential general election next Tuesday, November
4, 2008. Further, the Emergency Motion includes a number of factual allegations
not included in either the original Complaint or First Amended Complaint and not
otherwise raised in the District Court. See Emergency Motion ff 4, 5, 6, 19-25.
Among other things, attached to the Emergency Motion are two affidavits, one
from a “Bishop Ron McRae” and another from a “Reverend Kiori,” both executed
after the District Court issued its decision.

In these circumstances, this Court lacks jurisdiction to consider the
Emergency Motion. The Emergency Motion is an original action seeking relief not
sought in the court below and based substantially on different factual grounds. In
the absence of a special statutory basis for jurisdiction, however, a Court of
Appeals “cannot take evidence or hear matters initially.” In re Montes, 677 F.2d
415, 416 (5" Cir. 1982).

Nor does the All-Writs Act, 28 U.S.C. §1651(a), relied upon by Berg
(Emergency Motion at 11), provide any basis for the relief sought in the
Emergency Motion. Relief under the All-Writs Act is not available unless the
applicant has “no other ‘adequate means to attain the [desired] relief...” Jn re

School Asbestos Litigation, 921 F.2d 1310, 1314 (3d Cir. 1990), quoting Kerr v.

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TABLE OF AUTHORITIES

CASES
Page(s)
Berg v. Obama, Civ. No. 08-CV-4083 .....ccsceseceeeeseeeeeeeeneeeenneaseeensenenceneeee 1
Crist v. Com'n on Presidential Debates, 262 F.3d 193 cece reeeeeees 6

Hilton v. Braunskill, 481 U.S. 770...

Hollander v. McCain, No. 08-0099, 2008 U.S.Dist. LEXIS 56729 .......6 6
Jones v. Bush, 122 F.Supp.2d 7133 ....cccccccccsesesssseseseeeseeseseeeeeseeeeneneneneenenenes 6

Lujan v. Defenders of Wildlife, 504 U.S. 555...

In re Montes, 677 F.2d 41S vo ccsscscsseessesesnerseeeeesessnensneseseteneeesenesesanenrenseees 4
United States ex. Rel. Barnwell v. Rundle, 461 F.2d 768... ccc 5
United States v. Rowlands, 451 F.3d 173.0. cceseessseseeeesseesseseseseeserseeeneees 5
FEDERAL STATUTES
2 US.C. 88431 ef SCG cecccsecccsseseseseesereeseseseseerereneeneseseeneeeeeeeeneessneananenrseneeesees 2
Civil Rights Acts, 42 U.S.C. §§ 1983 ...ccccsecsesnseseeseeeeeneeereeseensenseneeneennenees 2
Fed. R. Civ. P. 12(b) v.ceecececceseseenecseseresissessesesscseenssesneasseeasssssesesesesiceneneenenennes 2
Freedom of Information Act, 5 U.S.C. §552 ..ccccccsessesessssesesererenereeseneentees 2
Immigration and Nationality Act, 8 U.S.C. §14 81... eeeeeeeeeeresesnenteseesiens 2
Nor does the All-Writs Act, 28 U.S.C. S165] ccscseessessessseeesestseseeeeneees 4
Civil Rights Acts, §§1983, 1985.......cccscsssessecsseeseesneenseeseenessnesneenessneennesereenes 6
U.S. under Article II, section 1, Clause 4.0... cecseessseeecseeseceeneteeeeseneseneeees 2

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CERTIFICATION OF IDENTICAL FILING AND VIRUS CHECK

I hereby certify that the text of the E-Brief and hard copies of the brief
are identical.
I further certify that a virus check was performed by the McAfee

VirusScan Enterprise 8.5i, and is free of viruses according to that program.

/ MA

AD LF

(John P. Lavelle, Jr

Dated: October 31, 2008


TABLE OF CONTENTS

Page
Table of Authorities 0... cccssseseesesssssssesssessseseeessessseseasseesenerenenesensacseserentesennenss il
STATEMENT OF THE CASE... escescssessssssssessesseesecssssessesneseesseseenseneaneneenaeeneanenecens 2
ARGUMENT o...ecescesceseesessessesseeseesessneseesessnsscssneseesserersesseqseeseeneessceesesensneenneeneneenneanes 3
CONCLUSION oo. eeceseeseeseesesstessesessetsnsunenecssesessesessusensassesssseeusenssneersnecasanenusenseanenenee 8

-DMEAST #9614996 v i


Robert F, Bauer

General Counsel, Obama for America
PERKINS COIE

607 Fourteenth Street, N.W.
Washington, D.C. 20005-2003
Telephone: (202) 628-6600

Fax: (202) 434-1690

RBauer@perkincoie.com

Attorneys for Appellees
Senator Barack Obama and
Democratic National Committee

-DMEAST #9614996 v


FED.R.APP.P. 32(a)(7)(c) CERTIFICATE OF COMPLIANCE

I, John P. Lavelle, Jr., Esquire, the attorney for Defendants Senator
Barack Obama and Democratic National Committee, hereby certify that the
foregoing Response of Appellees Senator Barack Obama and Democratic National
Committee to Appellant’s Emergency Motion complies with the type-volume
limitation set forth in Rule 32(a)(7)(B) of the Federal Rules of Appellate

Procedure. The total number of words in the foregoing Brief is 1,495.



CERTIFICATE OF SERVICE

I, John P. Lavelle, Esquire, hereby certify that two copies of the
foregoing Response of Appellees Senator Barack Obama and Democratic
National Committee to Appellant’s Emergency Motion was served upon the
following counsel for Appellant by first class mail, postage prepaid, this 31st
day of October, 2008:

Philip J. Berg, Esquire
555 Andorra Glen Court, Suite 12
Lafayette Hill, PA 19444-2531

Benjamin A. Streeter, III, Esquire

The Federal Election Commission (FEC)
999 E. Street, NW

Washington, DC 20463

ae,
John P. Lavelle, Jr.

4

{

Date: October 31, 2008