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U.S. District Court, 

Eastern District of Pennsylvania Case Number: 08-cv-4083 

Court of Appeals 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 _____________ 

EMERGENCY MOTION FOR AN IMMEDIATE INJUNCTION TO STAY 

THE PRESIDENTIAL ELECTION OF NOVEMBER 4, 2008 

PENDING RESOLUTION OF THE PETITIONER’S APPEAL

_____________________ 

NOW COMES the Petitioner, Philip J. Berg, Esquire, and hereby makes 

this Motion for an emergency Injunction to Stay the Presidential Election of 

November 4, 2008 pending resolution of the Petitioner’s Appeal. 

I. REQUEST FOR EMERGENCY RELIEF

1. The United States Constitution, Article II, Section I, Clause 4 states 

in pertinent part, “No person except a “natural born” Citizen, or a Citizen of 
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the United States, at the time of the Adoption of this Constitution, shall be 

eligible to the Office of President...”

2. As this Court is aware, the Presidential Election is Tuesday, 

November 4, 2008. It is imperative to ensure our Democratic Presidential 

Candidate is a “natural born” United States citizen and eligible to run for and/or 

serve as President of the United States.

3. Evidence points to the fact that Barack Hussein Obama, Jr., 

[hereinafter “Obama”] was born in Mombosa, Kenya to a U.S. citizen mother 

and a Kenyan citizen father on August 4, 1961. Obama’s mother was not old 

enough to register Obama’s birth in Hawaii as a “natural born” United States 

citizen. The laws on the books at the time of Obama’s birth required the U.S. 

citizen to have resided in the Untied States for ten (10) years, five (5) of which 

were after the age of fourteen (14). Obama’s mother was only eighteen (18) 

when Obama was born in Kenya. Nationality Act 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). 

4. Obama’s Kenyan grandmother, Sarah Obama has repeatedly stated 

Obama was born in Kenya and she was present during his birth. Bishop Ron 

McRae, who oversees the Anabaptists Churches in North America and 

Reverend Kweli Shuhubia, had the opportunity recently to interview Sarah 
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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 speaker phone. Bishop McRae asked if it 

was okay to tape the conversation, which permission was granted. Because Ms. 

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

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

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

adamant that Obama was born in Kenya. Bishop McRae asked Ms. Obama if 

she was present during her grandson’s birth and Ms. Obama answered, “Yes.” 

A copy of Bishop McRae’s affidavit is attached hereto as EXHIBIT “1”. 

5. Reverend Kweli Shuhubia left Kisumu City and traveled to 

Mombosa, Kenya. Reverend Kweli Shuhubia interviewed personnel at the 

hospital in which Senator Obama was born in Kenya. Reverend Kweli 

Shuhubia then had meetings with the Provincial Civil Registrar. Reverend 

Kweli Shuhubia learned there were records of Ann Dunham giving birth to 

Barack Hussein Obama, Jr. in Mombosa, Kenya on August 4, 1961. Reverend 

Kweli Shuhubia spoke directly with an Official, the Principal Registrar, who 

openly confirmed the birthing records of Senator Barack H. Obama, Jr. and his 

mother were present, however, the file on Barack H. Obama, Jr. was classified 

and profiled. The Official explained Barack Hussein Obama, Jr. birth in Kenya 
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is top secret. Reverend Kweli Shuhubia was further instructed to go to the 

Attorney General’s Office and to the Minister in Charge of Immigration if I 

wanted further information. See the Affidavit of Reverend Kirori, attached 

hereto as EXHIBIT “2”. 

6. Obama continues to verbally deny he was born in Kenya and states he 

was born in Hawaii. Upon investigation into the alleged birth of Obama in 

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

hospitals, Kapiolani Hospital and Queens Hospital. The Rainbow Edition News 

Letter, November 2004 Edition, published by the Education Laboratory School, 

attached as EXHIBIT “3”, did a several page article of an interview with 

Obama and his half-sister, Maya. The Rainbow Edition News Letter reports 

Obama was born August 4, 1961 at Queens Medical Center in Honolulu, 

Hawaii. More interesting in February 2008, Obama’s half-sister, Maya, was 

again interviewed in the Star Bulletin, attached as EXHIBIT “4”, and this 

time, Maya states Obama was born August 4, 1961 in Kapiolani Medical 

Center for Women & Children. 

7. Matters are further complicated by the fact Obama in or about 1965, 

when Obama was approximately four (4) years old, his parents divorced and 

thereafter, Obama’s mother, Stanley Ann Dunham, married Lolo Soetoro, a 

citizen of Indonesia. Obama lost his U.S. citizenship, when his mother married 
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Lolo Soetoro, and took up residency in Indonesia. 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 an 

acknowledgement acknowledging Obama as his son or Lolo Soetoro adopted 

Obama, giving Obama natural Indonesia citizenship which explains the name 

Barry Soetoro and his citizenship listed as Indonesian on his school record. 

8. Obama admits in his book, “Dreams from my father” Obama’s 

memoir (autobiography), that after his mother and Lolo Soetoro were married, 

Lolo Soetoro left Hawaii rather suddenly and Obama and his mother followed 

thereafter. Obama admits when he arrived in Indonesia he had already been 

enrolled in an Indonesia school. Lolo Soetoro, an Indonesian State citizen, 

could not have enrolled Obama in school unless Lolo Soetoro signed an 

acknowledgement acknowledging Obama as his son, which had to be filed with 

the Government. Under Indonesian law, when a male acknowledges a child as 

his son, it deems the son, in this case Obama, as an Indonesian State citizen. 

Constitution of Republic of Indonesia, Law No. 62 of 1958 Law No. 12 of 2006 

dated 1 Aug. 2006 concerning Citizenship of Republic of Indonesia, Law No. 9 

of 1992 dated 31 Mar. 1992 concerning Immigration Affairs and Indonesian 

Civil Code (Kitab Undang-undang Hukum Perdata) (KUHPer) (Burgerlijk 

Wetboek voor Indonesie). 
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9. 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. 

10. The public schools in Indonesia did not allow foreign students, only 

citizens were allowed to attend as Indonesia was under strict rule and decreed a 

number of restrictions; therefore, in order for Obama to have attended school in 

Jakarta, which he did, he had to be a citizen of Indonesia, as the citizenship 

status of enrolled students was verified with Government records. 

11. Obama was enrolled by his parents in a public school, Fransiskus 

Assisi School in Jakarta, Indonesia. Plaintiff has received a copy of the school 

registration, attached as EXHIBIT “5”, in which it clearly states Obama’s 

name as “Barry Soetoro,” and lists his citizenship as Indonesian. Obama’s 

father is listed as Lolo Soetoro. At the time Obama was registered the public 

schools obtained and verified the citizenship status and name of the student 

through the Indonesian Government. 

12. Regardless of whether Obama was officially adopted, (which 

required a Court process), by his Indonesian stepfather, Lolo Soetoro, or his 

birth was acknowledged (which only required the signing of a birth 

acknowledgement form), by Lolo Soetoro, one of which had to occur in order 
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for Obama to have the name Barry Soetoro and his citizenship status listed as 

“Indonesian”, in either and/or both cases Obama’s name was required to be 

changed to the Indonesian father’s name, and Obama became a natural citizen 

of Indonesia. This is proven by the school records in Jakarta, Indonesia 

showing Obama’s name as Barry Soetoro and his citizenship as Indonesian. 

Again, the registration of a child in the public schools in Jakarta, Indonesia was 

verified with the Government Records on file with the Governmental Agencies. 

13. The Indonesian citizenship law was designed to prevent apatride 

(stateless) or bipatride (dual citizenship). Indonesian regulations recognized 

neither apatride nor bipatride citizenship. 

14. In addition, since Indonesia did not allow dual citizenship; neither did 

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

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

Convention of 1930. 

15. In or about 1971, Obama’s mother sent Obama back to Hawaii. 

Obama was ten (10) years of age upon his return to Hawaii. 

16. As a result of Obama’s Indonesia “natural” citizenship status, there is 

absolutely no way Obama could have ever regained U.S. “natural born” status, 

if he in fact ever held such. Obama could have only become “naturalized” if 

the proper paperwork was filed with the U.S. State Department, in which case, 
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Obama would have received a Certification of Citizenship, after U.S. 

Immigration. 

17. Plaintiff 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, and therefore, unable to apply for citizenship of Obama in 

the United States. If citizenship of Obama had been applied for in 1971, 

Obama would have a Certification of Citizenship. If Obama was returned in 

1971 to Hawaii without going through U.S. Immigration, today he would be an 

illegal alien. 

18. There is serious question into the eligibility of Barack Hussein 

Obama, Jr. to run for and/or serve as the President of the United States. Barack 

Hussein Obama, Jr. may not be a “natural born” citizen or a “naturalized” 

citizen for that matter. Therefore, he is ineligible to serve as the President of 

the United States should he be elected. 

19. Plaintiff as well as all citizens of the United States are in grave danger 

if Obama is not a “natural born” citizen. Obama has been privy to our 

Country’s top secret information and classified information. 

20. On July 27, 2008, a New York Times Op-Ed Columnist wrote, in an 

article entitled, “How Obama Became Acting President”, that Obama has been 
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“treated as a president-in-waiting by heads of state” and noted the “raw power 

Mr. Obama has amassed: the power to start shaping events.” One event that 

Obama has tried to shape, according to the New York Post, dated September 

15, 2008, is the withdrawal of American troops: 

“While campaigning in public for a speedy withdrawal of 

U.S. troops from Iraq, Sen. Barack Obama has tried in 

private to persuade Iraqi leaders to delay an agreement on 

a draw-down of the American military presence.” 

21. According to Iraqi Foreign Minister Hoshyar Zebari, Obama made his 

demand for delay a key theme of his discussions with Iraqi leaders in Baghdad 

in July. 

22. Zebari said in an interview, "He [Obama] asked why we were not 

prepared to delay an agreement until after the U.S. elections and the formation 

of a new administration in Washington." 

23. Obama insisted that Congress should be involved in negotiations on 

the status of U.S. troops - and that it was in the interests of both sides not to 

have an agreement negotiated by the Bush administration in its "state of 

weakness and political confusion." 

24. Obama has also been given important intelligence information. On 

September 2, 2008 CNN, the cable channel, reported that Obama received 
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“private intelligence briefings” from the FBI. On September 15, 2008, The 

Washington Post reported: 

“At the CIA, as with most federal agencies, officials are 

beginning to prepare for the first new president in eight 

years. During a "town meeting" with agency employees 

last Wednesday, Director Michael V. Hayden discussed 

the upcoming transition, describing it as an opportunity 

for the agency to demonstrate its skill and agility to new 

"customers." 

25. Hayden told employees that Obama had his first intelligence briefing 

last week (McCain will get one soon), and among the subjects covered was 

terrorism. After the November 4th election, the process will become even more 

active, with the President-elect offered the daily briefing received by the 

President, Hayden told the group. “Writers Post That Foreign Policy Could Be 

a Bush Legacy.” Washington Post, September 15, 2008. 

26. These reports show the urgency and extreme public importance of this case. 

If Obama is not eligible to be President his receipt of intelligence information 

and his power to negotiate with Heads of State puts the citizens of this country 

at great risk. Therefore, this matter requires an immediate determination by this 

Honorable Court. 

27. The deprivation of the right to such a challenge would result in the 

infringement on a citizen’s Constitutional right to vote. Although this case is 

pending before this very Court, and the Court has not entered any order or 
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judgment, the Supreme Court may still rule and grant a stay of the Presidential 

election or an Injunction staying the Presidential election because these issues 

herein are of such imperative public importance as to justify deviation from 

normal appellate practice and to require immediate determination of this Court. 

A. Standards to Be Applied on an Application for an Injunction to 

 Stay the Presidential Election

28. This Court has jurisdiction and the inherent power to issue an 

Injunction to Stay the Presidential Election, until Petitioner’s Appeal is heard 

and resolved, 28 U.S.C. §1651(a) (the All Writs Act). Before seeking release 

from the United States Supreme Court, or from a single Justice, a stay must first 

be requested from the Court below or a Judge thereof, Rule 23.3 is mandatory. 

Bush v. Gore, 531 U.S. 1046 (2000) [granted stay while application for a stay 

was pending in State Court]. The issuance of the requested Injunction to Stay 

the Presidential Election is imperative to protect Plaintiff and all citizens of the 

United States from being further harmed by allowing an ineligible Presidential 

candidate to continue campaigning and take the Office of the Presidency if 

elected. Thus, the issue is clear and appropriate for this Court to grant 

Petitioner’s request. Communist Party of Indiana v. Whitcomb, 409 U.S. 1235 

(1972), (Rehnquist, J., in chambers).”); Ohio Citizens for Responsible Energy, 

479 U.S. at 1313 (Scalia, J.) (because a Justice’s grant of a writ of injunction, 
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“unlike a §2101(f) stay; does not simply suspend judicial alternation of the 

status quo but grants judicial intervention that has been withheld by lower 

courts”. Lucas v. Townsend, 486 U.S. 1301 (1988) (Kennedy, J.) (enjoining 

referendum pending appeal to Supreme Court of denial of Voting Rights Act 

challenge. Clark v. Roemer, 498 U.S. 953 (1990) (granting application for 

injunction to prevent election being held). Wisconsin Right to Life v. Federal 

Election Comm’n, 542 U.S. 1305, 1306 (2004) (Rehnquist, C.J.) (observing that 

such an injunction is appropriate only “where necessary or appropriate in aid of 

[the Supreme Court’s] jurisdiction and where “the legal rights at issue are 

indisputably clear”) (citations and internal quotations omitted). 

29. The standard to be applied in regards to an emergency Motion for an 

Injunction requires the Court to consider: (1) the threat of irreparable harm if 

the stay is not granted; (2) the absence of harm to opposing parties if the stay or 

temporary injunction is granted; (3) the likelihood of success, and (4) whether 

there was any prior ruling on the application by another judge of a lower court. 

Rosker v. Goldberg, 448 U.S. 1306, 1308 (1980). 

B. Likelihood of Success on the Merits of the Writ

30. Of the four (4) considerations, the likelihood of success is arguably 

the most important. Here Petitioner has attempted to verify the United States 
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Citizenship status of Obama, however, has been refused. Petitioner filed suit in 

the United States District Court, Eastern District of Pennsylvania, instead of 

simply providing the proof necessary to show his eligibility to run for and/or 

serve as the President of the United States, Obama chose to litigate the issues. 

Obama and the DNC filed a joint Motion to dismiss pursuant to Federal Rules 

of Civil Procedure, Rule 12(b)(1) and 12(b)(6). Although discovery had been 

served on Obama and the DNC by way of Request for Admissions and Request 

for Production of Documents, Obama and the DNC filed for a Protective Order 

staying all discovery pending the decision on their Motions to Dismiss, a 

Motion that was not ruled on. Moreover, Obama and the DNC failed to 

respond, by answer or objection, the Request for Admissions, therefore, they 

are deemed admitted pursuant to Federal Rules of Civil Procedure Rule 36. A 

true and correct copy of the Request for Admissions served upon Obama is 

attached hereto as EXHIBIT “6”. Obama’s stubborn refusal to provide what 

he claims is “his own” country with conclusive proof on that score compels the 

presumption that he knows, or at least strongly suspects, that no sufficient 

evidence in his favor exists. Obama has only been asked to provide the public 

with the original copy of some official records that establishes his citizenship. 

The vast majority of Americans could easily do so. Why will Obama not dispel 

the doubts about his eligibility — unless he cannot? 
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31. Now that Obama’s citizenship has been seriously questioned, the 

burden of proof rests squarely on his shoulders. The “burden of establishing a 

delegation of power to the United States * * * is upon those making the claim.” 

Bute v. Illinois, 333 U.S. 640, 653 (1948). 

32. Thus, no issues remained for the trial Court. For these reasons, the 

consideration – a likelihood of success on the merits – falls strongly in favor of 

the Petitioner. 

 C. Irreparable Harm if the Injunction to Stay Election is not 

 Granted

33. Allowing an ineligible Presidential candidate to run for Office of the 

Presidency and serve if elected is in clear violation of our United States 

Constitution, Article II, Section I, Clause 4 without proper due process of law 

and in violation of the Fourteenth Amendment. Furthermore, sharing the 

United States top secrets and classified information with a person who may not 

be a legal citizen at all places Petitioner and all citizens of the United States in 

grave danger. Moreover, the issues presented are of public importance and 

national security. Petitioners as well as all citizens of the United States are in 

grave danger if the issues are not resolved and will continue to suffer violations 

of their legally protected rights to life, liberty and property guaranteed by the 

Fourteenth Amendment, due process of laws, and equal protection of the laws. 
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34. America is facing potentially the gravest constitutional crisis in her 

history. If Obama is not eligible to serve as the President of the United Sates, if 

elected, and allowed to take Office of the Presidency, Obama will not 

constitutionally be the “Commander in Chief of the Army and Navy of the 

United States, and of the Militia of the several States, when called into the 

actual Service of the United States” (see Article II, Section 2, Clause 1). 

Therefore, he will be entitled to no obedience whatsoever from anyone in those 

forces. Indeed, for officers or men to follow any of his purported “orders” will 

constitute a serious breach of military discipline — and in extreme 

circumstances perhaps even “war crimes.” In addition, no one in any civilian 

agency in the Executive Branch of the General Government will be required to 

put into effect any of Obama’s purported “proclamations,” “executive orders,” 

or “directives.” “We the people” of the United States will suffer irreparable 

harm to all the protections guaranteed by the United States Constitution. 

 

D. Harm to Opposing Party

35. If the injunction for stay is issued staying the Presidential election, 

there will be absolutely no harm to the Defendants of this case. If Obama is 

able to prove his citizenship status and eligibility to serve as President of the 

United States, if elected, the Presidential election will reinstate and Obama’s 
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name will be on the ballots for citizens to cast their votes. However, if Obama 

is unable to prove his United States “natural born” citizenship status, then he 

will be replaced on the ballots with a qualified and eligible Democratic 

Presidential candidate and Petitioner as well as all other democratic citizens will 

be able to cast their vote for an eligible democratic candidate, who will be able 

to serve as President of the United States, if elected. Therefore, there is not 

even an arguable harm to Obama or the other Defendants in the granting of an 

injunction staying the Presidential election. The only person who has the power 

to resolve the citizenship and eligibility issues is Obama. 

 

E. Risk to the Public Interest

36. The risk to the public interest is huge, just as the risk to the Petitioner. 

If it is later learned that Obama is not a “natural born” citizen and eligible to 

serve as the President of the United States, all the democratic votes will be 

deemed void and the democratic citizens are deprived of their rights to vote. 

Moreover, the fact Obama was born in Kenya, if he takes the Office of the 

Presidency, he is subjected to being blackmailed for not only money including 

Government funds (taxpayers money), but government contacts and top secret 

information, which if placed in the wrong hands places Petitioner and all 

citizens of the United States in great danger. Allowing a candidate who may 
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not be eligible to serve as the President of the United States, if elected, is not in 

the public interest. 

37. Allowing the Presidential election to continue, without verifying the 

citizenship status and eligibility of Obama, where many questions have been 

raised as to whether or not he is a United States “natural born” citizen or 

“naturalized” citizen, to run for and/or serve as President of the United States, if 

elected, would be unfair, unjust, and a violation of Petitioner’s rights to 

procedural and substantive due process of law, and not in the public interest. 

WHEREFORE, for good cause shown, Petitioner, Philip J. Berg, Esquire, 

respectfully requests this Honorable Court for an emergency Injunction to Stay 

the Presidential Election of November 4, 2008 pending the resolution of 

Petitioner’s Appeal. 

 Respectfully submitted, 

Dated: October 30, 2008 s/ Philip J. Berg 

 Philip J. Berg, Esquire 

 Attorney in Pro Se 

 555 Andorra Glen Court, Suite 12 

 Lafayette Hill, PA 19444-2531 

 (610) 825-3134 
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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 _____________ 

CERTIFICATE OF SERVICE 

_____________________ 

 I, Philip J. Berg, Esquire, hereby certify that Petitioner’s Motion for stay or 

temporary Injunction staying the Presidential Election pending the resolution of 

Petitioner’s Appeal was served upon the following Defendants via First Class Mail, 

postage fully prepaid, this 30th day of October 2008 

Benjamin A. Streeter, III, Esquire 

The Federal Election Commission (FEC) 

999 E. Street, NW 

Washington, D.C. 20463 In Pro Se 

Secretary of the Commonwealth, 

Pennsylvania Department of State, 

Bureau of Commissions, Elections and Legislation 

210 N. Office Building 

Harrisburg, PA 17120 In Pro Se 
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CERTIFICATE OF SERVICE, Continued 

John P. Lavelle, Jr. Joseph E. Sandler 

Attorney I.D. PA 54279 SANDLER REIFF & YOUNG PC 

BALLARD SPAHR ANDREWS &00 300 M Street, S.E. Suite 1102 

INGERSOLL, LLP Washington, D.C. 20003 

1735 Market Street, 51st Floor Telephone: (202) 479-1111 

Philadelphia, PA 19103 

Telephone: (215) 864-8603 

Robert F. Bauer 

General Counsel, Obama for America 

PERKINS COIE 

607 Fourteenth Street N.W. 

Washington, D.C. 20005-2003 Attorney’s for Defendant’s 

Telephone: 202.628.6600 Barack Hussein Obama and 

 The Democratic National Committee 

Pedro A. Cortés, 

Secretary of the Commonwealth, 

Pennsylvania Department of State, 

210 N. Office Building, Harrisburg, 

PA 17120 In Pro Se

The U.S. Senate, Commission on Rules and Administration 

305 Russell Building, United States Senate 

Washington D.C. 20510. In Pro Se

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 

 s/ Philip J. Berg 

 _____________________________ 

 PHILIP J. BERG, ESQUIRE 

 Attorney for Plaintiff 

555 Andorra Glen Court, Suite 12 

Lafayette Hill, PA 19444-2531 

(610) 825-3134 
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CERTIFICATE OF COMPLIANCE WITH WORD COUNT LIMITATIONS

 I, Philip J. Berg, Esquire, Petitioner and a member of the Bar of this Court, 

certify that the Application for a Stay of the Presidential election and/or a 

temporary Injunction staying the Presidential election contains 3,690 words, 

excluding the parts of the Application that are exempted. 

 

Dated: October 30, 2008 s/ Philip J. Berg 

 Philip J. Berg, Esquire 

 Attorney in Pro Se 

 555 Andorra Glen Court, Suite 12 

 Lafayette Hill, PA 19444-2531 

 (610) 825-3134 
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EXHIBIT “1” 
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EXHIBIT “2” 
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EXHIBIT “3” 
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EXHIBIT “4” 
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EXHIBIT “5” 
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EXHIBIT “6”