Tuesday, October 27, 2009

Kerchner Appeal Filed with Third Circuit Court of Appeals in Philadelphia PA

This is to give notice that today, Tuesday, October 27, 2009, at 2:19 p.m., I filed a Notice of Appeal to the Third Circuit Court of Appeals in Philadelphia PA of Judge Jerome B. Simandle’s dismissal of the Kerchner et al. v. Obama & Congress et al. case.

Recently, the Hon. Jerome B. Simandle decided the Kerchner case, granting the defendants’ motion to dismiss the case. As I explained, through the dismissal, Judge Simandle avoided having to reach the merits of the question of whether Obama is an Article II “natural born Citizen” and eligible for the Office of President and Commander in Chief.

In the Kerchner complaint/petition, we allege that Obama has not conclusively proven that he was born in Hawaii. More importantly, we also allege that he is not an Article II "natural born Citizen" because when Obama was born his father was a British subject/citizen and Obama himself was the same, citing E. Vattel’s, The Law of Nations (1758) and John Jay’s letter of 1787 to then-General George Washington regarding providing a strong check on keeping foreign influence out of the Office of Commander in Chief by requiring that only a “natural born Citizen” occupy that critical and powerful office. As a naturalized citizen cannot be President because of being born subject to a foreign power, neither can Obama. It is important to understand that the Court did not rule in the Kerchner case that Obama has conclusively proven that he was born in Hawaii. It is also important to understand that the Court did not rule that Obama is an Article II “natural born Citizen.” Rather, the Court dismissed the plaintiffs’ case because of jurisdiction (Article III standing and prudential standing) and the political question doctrine without commenting on the underlying merits of whether Obama is constitutionally qualified to be President and Commander in Chief of the Military. The Court also did not rule that the plaintiffs’ claims are frivolous. By the Court finding that plaintiffs do not have standing and that their claims present a political question, the Court was able to avoid having to address the underlying merits of the Kerchner case. With such a decision, the American People unfortunately still do not know where Obama was born and whether he is an Article II “natural born Citizen” and therefore constitutionally eligible to be President and Commander in Chief.

A court cannot refuse to hear a case on the merits merely because it prefers not to due to grave social or political ramifications. As I have shown in my essay entitled, The 'Real' Kerchner v. Obama & Congress Case Is On Its Way to the Higher Courts of Justice, the Court’s opinion dismissing the Kerchner complaint/petition did not address the real Kerchner case but rather looked for a way to dismiss the case without having to reach the merits of the question of whether Obama is an Article II “natural born Citizen.” It is my hope that the public will take the time to read the Kerchner complaint/petition and the legal briefs that were filed supporting and opposing the defendants’ motion to dismiss so that it can learn first hand what the Obama ineligibility case is really about and draw an intelligent and informed decision on whether Obama is constitutionally qualified to be President and Commander in Chief of the Military.

The case is now with the Third Circuit Court of Appeal in Philadelphia, PA, which court we hope will decide the real Kerchner case and thereby reverse the decision of the Federal District Court. The American people deserve to know whether Obama was in fact born in Hawaii. More importantly, even if he is born in Hawaii, given that he was born with dual allegiance and citizenship, the American people deserve to know whether he is an Article II “natural born Citizen” which would make him eligible to be President and Commander in Chief of the Military. It is our position that because Obama was born with conflicting allegiances and citizenships at birth (British and U.S., if he was born in Hawaii), he cannot be President and more so Commander in Chief of our military men and women.

Mario Apuzzo, Esq.
185 Gatzmer Avenue
Jamesburg, New Jersey 08831
October 27, 2009

P.S. Here is a link to educational information on Understanding the Federal Courts Appeal Process.


cfkerchner said...

Excellent news for all today, except the usurper resident of the Oval Office and the complicit Congress. Hopefully we will have some judges at the Federal 3rd Circuit Court of Appeals in the city of brotherly love in Philadelphia, a former capitol of this nation, who still remember, understand, and will still uphold their oath to the Constitution.


James said...

Good Luck with your appeal. Can post the appeal document? I hope the judges look at your appeal soon. However, I am not optamistic. Its very possible your appeal might not be looked or considered for at least year perhaps 2. You will have to push the courts to make a ruling on your appeal. Appeals take a very long time to run their course.

Unknown said...

Absent proper enforcement of Constitutional law by the courts, we no longer have our republic. Likewise, Congress continues to ignore its solemn oath, thus the Citizens are now forced to take action to remedy the problems.

jayjay said...

At least there is some movement at long last!

Glad to hear it!!

Sallyven said...

I truly believe this is THE case. Mr. Apuzzo's arguments are solid. What I now fear is this--that at the point this case heats up, the Hawaii Birth certificate will finally be released, focusing everyone's attention again on it, and not on the real natural-born citizenship issue. We must be prepared for this. Mr. Kerchner, I would suggest using the next advertisement that your organization publishes to be very simple, very bold, and to the point: Even if a Hawaii birth is proven, Obama's father was NOT a US citizen and therefore Obama Jr. is NOT natural born, as required by the Constitution. You don't need to list all of the detailed arguments; people can look it up. You just need to plant a seed of doubt in their minds--that the birth certificate doesn't make the problem go away. US citizen does not necessarily equal Natural Born citizen. This is not a conspiracy theory, it is not racist, it is simply a request for observance of the Constitution.

Everyone here participating on this blog should seriously consider contributing to this cause at the link provided, and suggest the same to friends and other supporters. The legal arguments presented here, to be decided by the courts, are compelling; however, informing the general public, the "court of public opinion", of which Obama and company are the masters, must also be done so that judges cannot escape the sound of the people's cry for justice. And this cry will become louder as we bring more and more people on board.

Bob said...

Let me understand this --

If the Plaintiff is retired Commander Charles F. Kerchner, Jr. (USNR), this matter is dismissed for 'lack of standing.'

However, if the Plaintiff were to be (let's say) the Commander of the Joint Chiefs of Staff, then the Plaintiff arguing the exact same case WOULD have standing!

Isn't there something wrong with this picture? Something about 'justice denied' springs to mind right now.

Mario Apuzzo, Esq. said...


There is so much more to our standing argument than Commander Kerchner's military status. The Court simply picked our last point when we argued the standing issue and highlighted it as the main basis for denying us standing. The Court did not address the main standing arguments.

James said...

When you write your appeal, you should definitely focus your appeal almost on entirely on standing (Injury In Fact) and juristication. Arguing on the merits are worthless if you can't get past standing. Addition, it would be prudent to cite as much case law as possible in support of your argument. For reading the many dismissals, it seems the Federal court focus much more on case law rather direct intereptions of constitional law. You cite many arguments directly from the Constitution and it's admendments. You need to tie those arguments in relevent case law if you expect to win. You should take a look at present case found on judicial watch that challenging the constitutionality of Hillary Clinton's position. In those briefs, the issue of standing if hammered on a great deal.

jayjay said...


Right you are - as the casse goes "up the ladder" things seem to just keep increasing in price - did you note that just the plain old filing fee for this appeal is $455.00.

Where is the money from all of the presumed "patriots" that offer advice/commentary but don't even kick in $5.00.

The Kerchner et al case is not at all a taxpayer supported effort - some seemed to have confused it with Mr. Obama's legal defenders, the DOH attorneys paid by YOU!!!

Let's spring for a few bux, eh???

Just go to

and "do your thing".

Anonymous said...

Thanks Charles and Mario...

Mario Apuzzo, Esq. said...

I just read something very interesting as a comment to an article written by Dianna Scott in the Portland Civil Rights Examiner at

The comment is by citizenscott who cites On his comment, citizenscott states that Professor Obama used Vattel as part of his course work when teaching constitutional law.

Citizenscott provides the following link to Obama's actual course materials for the Spring 1994:

You will note in his reading list Obama cites "Vattel, The Law of Nations, p. 29" on the issue of Indian removal.

This is the first time that I saw anything like this mentioned. I would like to confirm that this list of readings is authentic. Can anyone add information on this interesting find?

Doublee said...


"[I]t seems the Federal court focus much more on case law rather direct intereptions of constitional law."

This agrees with a couple of commentaries that I have read, which said that lawyers are no longer taught constitutional law; they are taught case law.

From where I sit, this practice has led us to where we are today, a constitutional republic in name only. So, in effect, we are a "case law" republic instead of a constitutional republic.

How do we get back to arguing what the constitution says, rather than what case law says, if that case law contradicts or otherwise weakens the constitution?

Mario Apuzzo, Esq. said...

Nbc at Dr. Conspiracy's site and Dr. Conspiracy want to create a new theme: "Mario Borthers."

I have come up with a better theme. I call it "Mario Nobama."

Jim said...

Thanks for fighting the Beast--both the system and more directly :the son of perdition.You know,Barry declared a nat emegency last Friday,and last night there was a report of hundreds of school closings due to the arrival of the 2nd wave of the lab created H1N1 virus.He signed the hate bill into law yesterday which will kill free speech.Martial Law is nigh --

whistleblower said...


Isn't your case about Obama's qualifications as mandated by Article II?

If it is, isn't that what an information on quo warranto is for?

If it is quo warranto, and Congress already created an inferior court with subject matter jurisdiction; why hasn't a case been filed in the D.C. court?

Have you petitioned the AG ot U.S. Attorney for the District? Have you requested leave to file in the name of the United States?

Do you consider Kerchher to have standing IAW the SCOTUS holding in Newman?

Mario Apuzzo, Esq. said...


I do not need to file in the DC circuit. I also do not need the AG's permission to challenge Obama. How absurd to believe that the person appointed by Obama is going to go against his boss.

I do believe that my plaintiffs have standing. See my brief and reply brief in connection to the defendants' motion to dismiss. Also, Newman is not the bible on standing.

Anonymous said...

Can we get a crowd of support at the courthouse demanding the case be heard on the merits finally? Esp. military/retired military (can they wear their uniforms?)

whistleblower said...

Mario said; "How absurd to believe that the person appointed by Obama is going to go against his boss."

I agree. It would be prudent to ask for a special prosecutor to be appointed. -We already know there is a conflict of interest.

--After the Hayes vs. Tilden election of 1876, the first attempts to provide a means of obtaining an information on quo warranto were initiated. It wasn't until 1902 that the effort became law.

While I also agree that the holding in Newman could be expanded to include "interested persons" other than those specifically addressed in Newman, I think it does provide good guidance for identifying a plaintiff that the court will consider to have standing.

Unknown said...

It is really very bleak out there...Berg's case at the circuit just had its date for oral argument cancelled by the panel hearing it and they will decide on the papers.
You know what that means!

Taitz was just fined $20k for a case she had in Atlanta.

She was also bounced in Central CA along with Gary Kreep of the USJF on standing.

Strange how the judge in the case challenging McCain's requirements to be a natural born citizen found venue and all these guys claim no one can challenge Obama. I think that is what WFB Jr would've called a "paradoxical incongruency"?

William said...


It is indeed apparently a bleak judicial system pertaining to this issue and most certainly makes me wonder about many others be-it past, present or future rulings. I hope that by Taitz being fined will allow her to file for some discovery in her defense with the Georgia case. As far as Judge Carter’s ruling I must admit I am completely baffled! The most interesting portion of Judge Carter’s summary that caught my attention was his focal point on whether or not the Judicial Brach has the authority to remove a sitting President? This was an argument created by the defense (DOJ) which they themselves argued in their motion. However, no where in the Plaintiffs complaint did Orly ask the District Court to Remove a sitting President; the Straw Man argument on their part.

At best, I can only correlate such nonsense directed in past cases such as Richard Nixon and Bill Clinton. Clearly the Judicial Branch and the People of the U.S. had standing and surely we know the outcomes from the past legal interventions. No where at No time did the Judicial Branch take the High Road and claim this would be interpreted as the Judicial Branch removing a sitting President. Rather the Judicial Brach played its constitutional role and the aftermath was left in the hands of Congress once discovery was exposed.

I too find it quite fascinating, indulging to say the least with curiosity, why some of these Judges are accepting cases “without” oral arguments and instead rather rely on written only? Surely there is a tactical advantage to this methodology from the Judges point of avenue if willingness to dismiss from the onset?

Lastly, it is my opinion that Usurpation of a Federal office position is a Federal Crime. To Usurp is to take by coercive force or coercion of fraud, either of which is illegal

Andy said...

In retrospect, do you wish that you had left out whether or not he was born in Hawaii and simply made the argument that by his own admission, he is not a natural born citizen. Introduce his own statements as evidence.

Mario Apuzzo, Esq. said...


A lawyer presents a case not as a sound bite for mass media consumption, but rather as a technical presentation of facts and law. In presenting a case to a court, a lawyer must raise all applicable issues that serve his client's best interests. The court will deem any issue not raised as waived. The court cannot give a litigant any relief on any waived issue. Additionally, any issue not raised in the trial court cannot be raised on appeal.

Hence, I rightfully raised both issues, place of birth and failure to meet the Article II "natural born Citizen" standard (born in the country to citizen parents). The former is a factual issue while the latter is a legal constitutional one. The court is intelligent and capable enough to see and understand that the two issues are raised in the case. How the court characterizes the case for media consumption is another issue.

cfkerchner said...

Hi Mario,

Spot on and well said!


William said...


Having exhausted my research on Federal Court of Appeals to no avail, would you be so kind to educate me in the process, timeline and possible actions that an attorney filling such to such an appeal?

I find that there is indeed a timeline due by the petitioner, but none from the panel reviewing? Is there such a timeline?

The best review research I am reading comes from this government website:


Mario Apuzzo, Esq. said...

A federal jury in New Jersey convicted former Bergen County Democratic Organization chairman Joseph Ferriero of conspiracy and mail fraud in connection with a scheme to defraud Bergenfield of the honest services of its borough attorney Dennis Oury, according to a report obtained by the National Association of Chiefs of Police's Fraud & White Collar Crime Committee.

Ferriero now faces a 60-year prison sentence when he is sentenced on February 10, 2010. The conviction also carries a fine of $250,000.00, according to Judge Stanley R. Chesler, who presided over the trial.

FBI Special Agent in Charge Weysan Dun, had this to say:

“From this verdict, we learn again that the citizens of New Jersey must play an active role in their government and question their leaders. They must inquire who stands to profit from the deals and decisions off their leaders. If the answers to those questions don't add up or are unsatisfactory, then citizens must not be afraid to enlist the help of the FBI.”

The reason that I am reporting on this case and what the FBI agent said is because as one can see, the FBI commended the public citizenry for keeping a close eye on their political leaders. Is this not what so many of the American public have done and are doing when it comes to Obama's eligibility to be President and Commander in Chief? The difference however is that with Obama, these concerned citizens have been meet with government scorn and ridicule rather than assistance and praise as in the Ferriero case.

Edward said...

I live in New Jersey, and am a registered Democrat, and I check your website frequently for news on your case, and find your blog to be interesting and informative.

Mario Appuzo should be complimented for being a gentleman and a professional in this case. If someone is to review Obama's background, through discovery, which is a very personal issue for Obama, Mario Apuzzo shows the professionalism to be trusted to do so honestly, to reveal what needs to be revealed and to respect the man's privacy if necessary.

It is very possible that Obama, no matter how honest or dishonest he may be, has not seen his own vault birth record. If this is the case there may be unknowns and emotional implications for Obama as well. He certainly did not have any say in his background. Whether we agree with his policies or not, or is a criminal or not, he is still human. I would trust Mario Apuzzo with the records, and that is important.

Yes, the government will try to ignore and dismiss the cases brought against it. They will try to delay the issue until this entire generation dies off. Eisenhower, Kennedy, and before them Herbert Hoover warned us of what is happening today.

Something similar happened once before with Chester A. Arthur, with similar results.

I do not want to go into the history of government control in Europe, China, and US, but to say that men must fight to remain free, or our children will live under tryanny.

Although I would like for this issue to be settled in court, knowing the bully tactics of government, I tend to think it will be settled out of court.

I have been working on another issue in Europe for almost 15 years, and the government seems that they can only ignore, twist, and use force to accomplish their goals.

Thank you for your diligence, and respect for human dignity,


(CFA Society,
College for Financial Planning,
University of London,
State University of New York,
West Virginia University)

William said...

Mario, Charles:

During my research to further educate myself pertaining to the Federal Court Responsibility, I question their narrative of purpose statement on their own website. (I’ll break their statement down into bullet points, with questions.
About U.S. Federal Courts
In full: “The federal courts often are called the guardians of the Constitution because their rulings protect rights and liberties guaranteed by it. Through fair and impartial judgments, the federal courts interpret and apply the law to resolve disputes. The courts do not make the laws. That is the responsibility of Congress. Nor do the courts have the power to enforce the laws. That is the role of the President and the many executive branch departments and agencies. The Founding Fathers of the nation considered an independent federal judiciary essential to ensure fairness and equal justice for all citizens of the United States.”
Allow me to break this down:
1) The federal courts often are called the guardians of the Constitution because their rulings protect rights and liberties guaranteed by it.
1a) my question: if this is true, then “All” rights and liberties are protected, regardless of the person or persons at harm, so long as Constitutional rights and liberties are in harms way via violation of the U.S. Constitution?
2) Through fair and impartial judgments, the federal courts interpret and apply the law to resolve disputes.
2a) my question: According to their minimum standard aforementioned, then the federal courts do indeed have the jurisdictional avenue to apply their guardianship of the U.S. Constitution interpretation, as they so stated in point number 1. This is not the role of Congress, as passing the buck with ongoing and past cases pertaining to Obama.
3) The courts do not make the laws. That is the responsibility of Congress. Nor do the courts have the power to enforce the laws. That is the role of the President and the many executive branch departments and agencies.
3a) No interpretation needed for this statement, I understand this one.
4) The Founding Fathers of the nation considered an independent federal judiciary essential to ensure fairness and equal justice for all citizens of the United States.
4a) my question/statement: Now, this one really perturbs me. This statement by their own admission of their “independent” role and as the U.S. legal judiciary process since the time of our forefathers outlines a point very “specific”. This specificity is “Equal Justice for ALL CITIZENS”. (Emphasis mine) Nowhere did their own statement exclude certain citizens harmed, may be harm, possibly harm or if all U.S. citizens are harmed equally, by such clarification of Constitutional role. This is their mission statement, live up to it I say.

cfkerchner said...

Hi William,

A most excellent find and set of points. Possibly Mario can call judicial notice to those very words in his appeal brief to the 3rd Circuit Court of Appeals.


William said...

Charles, Mario,

Here is the Federal Court website in which I sited above.

Unknown said...

There is no measn for discovery by Orly Taitz in her sanctioning. She can either pay it or appeal it.

These judges just don't want to be bothered with this stuff unless and until you have a "smoking gun"...such as his real birth certificate or another document showing that he has claimed Indonesian or Kenyan citizenship. If you got that then you won't need no Federal judges ...just like Monica the media will do the rest once it appears on Drudge...or elsewhere.

The only person who has a chance for discovery on Obama himself is the fellow from upstate NY who was fired from his IG Post by Obama. He's got a case in the DC District against Obama for Unlawful Termination of his services. If discovery comes from that, then it would be interesting to see if his attorney's would entertain asking Obama the question call America wants to here...where were you born? Remember in a deposition his answers are he could be impeached for prejury if he lies.