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Kerchner v. Obama

July 2, 2010

CHARLES F. KERCHNER, JR.; LOWELL T. PATTERSON; DARRELL JAMES LENORMAND; DONALD H. NELSEN, JR., APPELLANTS
v.
BARACK HUSSEIN OBAMA, II, PRESIDENT ELECT OF THE UNITED STATES OF AMERICA, PRESIDENT OF THE UNITED STATES OF AMERICA, AND INDIVIDUALLY; UNITED STATES OF AMERICA; UNITED STATES CONGRESS; UNITED STATES SENATE; UNITED STATES HOUSE OF REPRESENTATIVES; RICHARD B. CHENEY, PRESIDENT OF THE SENATE, PRESIDING OFFICER OF JOINT SESSION OF CONGRESS, VICE PRESIDENT OF THE UNITED STATES AND INDIVIDUALLY; NANCY PELOSI, SPEAKER OF THE HOUSE AND INDIVIDUALLY



On Appeal from the United States District Court for the District of New Jersey (D.C. Civil No.1-09-cv-00253) District Judge: Hon. Jerome B. Simandle.

The opinion of the court was delivered by: Sloviter, Circuit Judge.

PRECEDENTIAL

Submitted Under Third Circuit LAR 34.1(a) June 29, 2010

Before: SLOVITER, BARRY and HARDIMAN, Circuit Judges

OPINION OF THE COURT

Charles F. Kerchner, Jr., Lowell T. Patterson, Darrell J. LeNormand, and Donald H. Nelsen, Jr. (hereafter "Appellants") filed suit in the United States District Court for the District of New Jersey, alleging that President Barack Obama is ineligible to hold his Office as President. They rely on Article II, Section 1, Clause 4 of the United States Constitution which provides that "No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President...." U.S. Const., art. II, § 1, cl. 4.*fn1 Appellants challenge the District Court's order dismissing their complaint. We will affirm the order of dismissal and direct Appellants' counsel to show cause why just damages and costs should not be imposed on him for having filed a frivolous appeal.

I.

Appellants, seeking to compel President Obama to "conclusively prove[ ]" that he is eligible to serve as President, Appellants' Br. at 6, named as defendants President Obama, the United States of America, the United States Congress, the United States Senate, the United States House of Representatives, former Vice President and President of the Senate Richard Cheney, and Speaker of the House Nancy Pelosi (hereafter "Appellees"). Appellants allege that President Obama violated their rights under the Fifth and Ninth Amendments when he assumed office without "conclusively" proving that he is eligible for the presidency and that the legislative branch violated Appellants' right under the Petition Clause of the First Amendment when Appellants' request to investigate the President's birthplace and citizenship was ignored. Appellants also assert claims under the Fifth and Twentieth Amendments against Congress, former Vice President Cheney, and Speaker Pelosi, for failing to "properly vet and verify" Obama's citizenship. Appellants' Br. at 10. They moreover bring an equal protection claim on the ground that Congress "fully investigated... whether Republican Presidential candidate John McCain is an Article II 'natural born Citizen,'" but made no such inquiry as to President Obama. Appellants' Br. at 10-11.

At this procedural posture, we must "accept all factual allegations as true, construe the complaint in the light most favorable to [Appellants], and determine whether, under any reasonable reading of the complaint, [Appellants] may be entitled to relief." Byers v. Intuit, Inc., 600 F.3d 286, 291 (3d Cir. 2010) (quoting Grammar v. John J. Kane Reg'l Ctrs.-Glen Hazel, 570 F.3d 520, 523 (3d Cir. 2009)). Nonetheless, "a complaint must... 'state a claim... that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

The District Court concluded that Appellants lacked Article III standing.*fn2 See Kerchner v. Obama, 669 F. Supp. 2d 477, 479 (D.N.J. 2009). We agree. It is axiomatic that standing to sue is a prerequisite to Article III jurisdiction. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000). This constitutional mandate requires that Appellants show, inter alia, an "injury in fact." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). "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.'" Berg v. Obama, 586 F.3d 234, 239 (3d Cir. 2009) (quoting Lujan, 504 U.S. at 560).

The appeal in Berg presented us with a claim similar to the one here, in which the plaintiff challenged President-elect Obama's eligibility to run for and serve as President. The district court in that case dismissed the suit on standing grounds because "the alleged harm to voters like [the Plaintiff] stemming from [Obama's] failure to satisfy the eligibility requirements of the Natural Born Citizen Clause is not concrete or particularized enough to satisfy Article III standing...." Id. at 238 (quotation, citation and original internal brackets and ellipses omitted). This court affirmed the order dismissing the suit, agreeing that "a candidate's ineligibility under the Natural Born Citizen Clause does not result in an injury in fact to voters." Id. at 239 (quotation and citation omitted).

In this case, Appellants seek to respond to the District Court's dismissal on standing grounds by claiming that they have "suffered individual injuries... not shared by all members of the public," Appellants' Br. at 51, because they voted in the November 4, 2008 presidential election and because they, unlike the majority of voters, "perceive themselves to have suffered [a] violation of their constitutional rights regarding Obama's eligibility to hold office." Appellants' Br. at 44. Additionally, Appellants Kerchner and Nelsen attempt to distinguish themselves from the public at large, pointing out that they took oaths to defend and support the Constitution as part of their past service in the Armed Forces and the National Guard. We stated in Berg that "[e]ven if... the placement of an ineligible candidate on the presidential ballot harmed [the plaintiff], that injury... was too general for the purposes of Article III [because the plaintiff] shared... his 'interest in proper application of the Constitution and laws'... with all voters....'" 586 F.3d at 240 (quoting Lujan, 504 U.S. at 573). That reasoning also controls our disposition here.

In their Reply Brief, Appellants assert that their case differs from Berg in several ways, including, among others, that the plaintiff in that case filed his claim against then-candidate Obama before the election and before the "Electoral College and Congress had... acted on Obama's qualifications...." Appellants' Reply Br. at 25. On the contrary, the Berg court addressed standing based on those same assumed facts. Berg, 586 F.3d at 238-39. Just like the plaintiff in Berg, Appellants' alleged injuries are too generalized to be cognizable in Article III courts. As the District Court found, the requirement that an injury be "concrete and particularized" precludes claims based on "harms that are suffered by many or all of the American people." Kerchner, 669 F. Supp. 2d at 481 (quotation marks omitted) (citing Lujan, 504 U.S. at 573-74). The District Court further stated that:

The Supreme Court has held that "even when the plaintiff has alleged redressable injury sufficient to meet the requirements of Art. III, the Court has refrained from adjudicating 'abstract questions of wide public significance' which amount to 'generalized grievances,' pervasively shared and most appropriately addressed in the representative branches." Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 474-75 (1982). Plaintiffs' claims fall squarely into the category of generalized grievances that are most appropriately handled by the legislative branch. ...


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