U.S. Third Circuit Court of Appeals issued its precedential decision affirming the New Jersey Federal District Court’s dismissal of the Kerchner et al v. Obama/Congress et al case for lack of Article III standing which is required for the Court to have subject matter jurisdiction under that article. It also ordered that I show cause in 14 days why the Court should not find me liable for damages and costs suffered by the defendants in having to defend what the court considers to be a “frivolous” appeal. Neither the Federal District Court nor Obama/Congress et al argued that our case was frivolous. Nevertheless, the appeals court on its own gave me notice that it wants me to show cause why I should not have to pay for the defendants damages and costs incurred in defending the action.
The Court did not find that the merits of our case are “frivolous.” Rather, it found “frivolous” my appealing to the Third Circuit Court of Appeals the Federal District Court’s finding that the plaintiffs do not have standing to ask that court to decide the merits of their claim that Putative President Obama is not an Article II “natural born Citizen,” that he has yet to conclusively prove that he was born in Hawaii, that Congress failed to exercise its constitutional duty to properly vet and investigate Obama’s “natural born Citizen” status, and that former Vice President and President of the Senate, Dick Cheney, and current Speaker of the House, Nancy Pelosi, were complicit in that Congressional failure.
On the standing issue, the Court found that the plaintiffs did not establish that they suffered an “injury in fact.” They said that the injury that plaintiffs allege is like that of Philip Berg’s and is not concrete or particularized enough to satisfy Article III standing. They found that these injuries are “too generalized” for Article III courts. They added that plaintiffs’ injuries are not “concrete and particularized” because they are “harms that are suffered by many or all of the American people.” Furthermore, the court said that plaintiffs’ injuries are “generalized grievances” which “are most appropriately handled by the legislative branch.” Like the District Court, the Court acknowledged plaintiffs’ “frustration with what they perceive as Congress’ inaction in this area…” But also like the District Court, the Court concluded that the plaintiffs’ “remedy may be found through their vote.” Finally, the Court stated that because plaintiffs failed to show they have standing, it need not address plaintiffs’ contention that “the original common law definition of an Article II ‘natural born Citizen’. . . is a child born in the country to a United States citizen mother and father.”
On why I need to show cause why I should not have to pay to Obama, Congress, and the United States damages and costs for filing a “frivolous” appeal, the Court found that “Appellants had ample notice that this appeal had no merit. They should have been aware that we rejected almost identical claims in Berg, as have courts in other jurisdictions.” They said that an examination of this precedent would have made it obvious to a reasonable attorney that an appeal from the District Court was frivolous since no law or facts could support a conclusion that the District Court erred. While the Court acknowledged that the Federal District Court did not “explicitly” state that our claims were frivolous, the Court believes that I had meaningful notice that the appeal was frivolous from the decisions of other courts which dealt with “similar legal theories” and imposed sanctions on those lawyers for bringing forth such claims.
I am now preparing my response to the Court’s show cause order which I will be filing before the deadline of July 16, 2010. As to what other action my clients may take regarding the underlying claims against Obama and Congress, we will be discussing that aspect and acting accordingly.
Mario Apuzzo, Esq.
July 4, 2010