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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF NEW JERSEY
`
`CHARLES F. KERCHNER, JR., et al.
`Plaintiffs,
`
`HONORABLE JEROME B. SIMANDLE
`Civil No. 09-253 (JBS/JS)
`OPINION
`
`v.
`BARACK HUSSEIN OBAMA, II, et al.
`Defendants.
`
`APPEARANCES:
`Mario Apuzzo, Esq.
`LAW OFFICES OF MARIO APUZZO
`185 Gatzmer Avenue
`Jamesburg, NJ 08831
`Counsel for Plaintiffs Charles F. Kerchner, Jr., Lowell T.
`Patterson, Darrell James LeNormand, and Donald H. Nelsen,
`Jr.
`Paul J. Fishman
`United States Attorney
`By:
`Elizabeth A. Pascal
`Assistant U.S. Attorney
`401 Market Street
`Fourth Floor
`Camden, NJ 08101
`Counsel for Defendants Barack Hussein Obama, II, the United
`States of America, the United States Congress, the United
`States Senate, the United States House of Representatives,
`Richard B. Cheney, and Nancy Pelosi
`SIMANDLE, District Judge:
`Under Article II, Section 1, of the Constitution, a person
`must be a “natural born citizen” to be eligible for the office of
`President of the United States. Four individuals, believing that
`President Barack Obama is not eligible for his office on this
`ground, have filed suit seeking a court order to require various
`officials to look into their claims and to remove the President
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`from office. Plaintiffs present various arguments for defining
`the term “natural born citizen” accompanied by allegations of how
`President Obama does not meet their definition.
`This matter is presently before the Court on a motion to
`dismiss [Docket Item 27] submitted by Defendants President Barack
`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
`(collectively, “Defendants”). For the reasons expressed below,
`the Court finds that Plaintiffs Charles F. Kerchner, Jr., Lowell
`T. Patterson, Darrell James LeNormand, and Donald H. Nelsen, Jr.
`lack standing to pursue their claims and so the Court must grant
`Defendants’ motion to dismiss.
`I.
`BACKGROUND
`A.
`Factual Allegations
`Plaintiffs’ claims, as set forth in their Second Amended
`Complaint, arise from allegations that President Obama has
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`failed to sufficiently prove that he is a “natural born citizen”
`
` The parties dispute whether Plaintiffs filed their Second
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`Amended Complaint in conformance with Rule 15, Fed. R. Civ. P.,
`and further whether that complaint is a short and plain statement
`required under Rule 8(a)(2). The Court will address the
`allegations of the Second Amended Complaint, notwithstanding that
`it was filed without leave of Court on February 9, 2009. Because
`the Court concludes that Plaintiffs lack standing to bring these
`claims, the Court will not address the procedural disputes, and
`Plaintiffs’ belated motion for leave to assert the Second Amended
`Complaint on July 22, 2009, will be dismissed as moot.
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`eligible for the presidency and that the legislative branch has
`failed to sufficiently investigate President Obama’s citizenship
`and place of birth. Plaintiffs all voted in the November 4, 2008
`general election for president. (Second Am. Compl. ¶¶ 8-11.)
`Mr. Kerchner and Mr. Nelsen both took oaths to defend and support
`the Constitution of the United States -- Mr. Kerchner as part of
`his thirty-three years of service in the U.S. Naval Reserves and
`Mr. Nelsen as a former member of the Marine Reserves and Army
`National Guard. (Id. ¶¶ 8, 11.) In addition, Mr. Kerchner
`states that his is particularly harmed by the alleged uncertainty
`surrounding President Obama’s birthplace because “while currently
`not statutorily subject to recall, by Executive Order of the
`President or an act of Congress in extreme national emergency”
`Mr. Kerchner might be recalled. (Id. ¶ 8.)
`Plaintiffs claim violations of the First, Fifth, Ninth,
`Tenth, and Twentieth Amendments of the Constitution and seek
`declaratory and injunctive relief, as well as a writ of mandamus
`and quo warranto. In Court I, Plaintiff Kerchner alleges that
`the Congressional Defendants violated his First Amendment right
`to petition because they ignored his requests that they
`investigate President Obama’s citizenship and place of birth.
`(Id. ¶¶ 200-214.) In Counts II and X, Plaintiffs allege that the
`Congressional Defendants violated their Fifth Amendment
`procedural due process rights and their rights under the
`Twentieth Amendment by failing to conduct an appropriate
`investigation and hold a hearing regarding President Obama’s
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`place of birth. (Id. ¶¶ 215-234, 329-356.) In Counts III and
`IV, Plaintiffs allege that President Obama violated their
`substantive due process rights under the Fifth Amendment by
`holding the office of president without proving that he is a
`“natural born citizen” and that the Congressional Defendants
`violated these same rights by permitting President Obama to
`occupy the office and by failing to adequately confirm that his
`is a “natural born citizen.” (Id. ¶¶ 235-270.) In Count V,
`Plaintiffs allege that the Congressional Defendants violated
`their Fifth Amendment right to equal protection by submitting to
`the requests of citizens who requested a hearing regarding
`Senator John McCain’s place of birth and citizenship, but
`declining a similar request from Plaintiffs and other citizens
`regarding President Obama. (Id. ¶¶ 271-282.) In Counts VI, VII,
`VIII, and IX, Plaintiffs assert their rights under the Ninth and
`Tenth Amendments to compel President Obama to prove that his is a
`“natural born citizen” and to compel the Congressional Defendants
`to conduct appropriate congressional hearings under the Twentieth
`Amendment to determine whether President Obama is a “natural born
`citizen.” (Id. ¶¶ 283-328.) In Count XI, Plaintiffs seeks a
`writ quo warranto removing and excluding President Obama from the
`office of President of the United States because he is not a
`“natural born citizen.” (Id. ¶¶ 357-380.) Finally, in Count
`XII, Plaintiffs seek declaratory judgment against all Defendants
`defining “natural born citizen,” and compelling the Congressional
`Defendants to hold a congressional hearing on the question and to
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`remove President Obama from office if they determine he is not a
`“natural born citizen.” (Id. ¶¶ 381-387.)
`The harm alleged for all of these constitutional violations
`is that Plaintiffs have been deprived of their right to know
`whether President Obama is a “natural born citizen” and to have a
`president who is truly a “natural born citizen.” (Id. ¶¶ 208,
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`233, 251, 269, 282, 291, 302, 314, 325, 356, 377, 378.)
`B.
`Procedural History
`On January 20, 2009, Plaintiffs filed their initial
`complaints, which they subsequently amended twice. Plaintiffs
`filed their Second Amended Complaint on February 9, 2009. On
`June 26, 2009, Defendants filed the present motion to dismiss, in
`which they argue that Plaintiffs lack Article III standing as
`well as prudential standing to bring all of these claims before
`the Court. Defendants argue in the alternative that the United
`States, the United States Congress, and former Vice-President
`Cheney and Speaker Pelosi in their official capacities, are
`entitled to sovereign immunity. Defendants Cheney and Pelosi are
`
` To the extent Plaintiffs also allege that they were
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`injured merely by the government’s failure to respond to their
`petitions requesting investigations and hearings, this is not a
`cognizable constitutional injury. Plaintiffs “have no
`constitutional right to force the government to listen to their
`views.” Minnesota State Bd. for Community Colleges v. Knight,
`465 U.S. 271, 284-85 (1984). As the Supreme Court has explained,
`“Nothing in the First Amendment or in this Court's case law
`interpreting it suggests that the rights to speak, associate, and
`petition require government policymakers to listen or respond to
`individuals' communications on public issues.” Id. (citing Smith
`v. Arkansas State Highway Employees, Local 1315, 441 U.S. 463,
`464-466 (1979)).
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`also entitled, Defendants argue, to legislative immunity, and
`Defendants Obama, Cheney, and Pelosi are entitled to qualified
`immunity as to all of Plaintiffs’ claims.
`II. DISCUSSION
`A.
`Standard of Review
`Defendants move to dismiss for lack of subject matter
`jurisdiction under Rule 12(b)(1), Fed. R. Civ. P. A
`determination of proper subject matter jurisdiction is vital,
`because “lack of subject matter jurisdiction voids any decree
`entered in a federal court and the continuation of litigation in
`a federal court without jurisdiction would be futile.” Steel
`Valley Auth. v. Union Switch & Signal Div., 809 F.2d 1006, 1010
`(3d Cir. 1987). An attack on subject matter jurisdiction can be
`either facial -- based solely on the allegations in the complaint
`-- or factual -- looking beyond the allegations to attack
`jurisdiction in fact. Mortensen v. First Fed. Sav. & Loan Ass’n,
`549 F.2d 884, 891 (3d Cir. 1977). Where, as here, the challenge
`to subject matter jurisdiction is facial, the Court must, for the
`purposes of this motion, take all the allegations in the
`complaint to be true and construe them in the light most
`favorable to the Plaintiffs. Id.
`B.
`Article III Standing
`Federal courts are courts of limited jurisdiction and may
`only consider those actions that meet the case-or-controversy
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`requirements of Article III. Essential to Article III
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`jurisdiction is the doctrine of standing. Friends of the Earth,
`Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167,
`180 (2000). To meet the minimal constitutional mandate for
`Article III standing Plaintiffs must show (1) an “injury in
`fact,” (2) “a causal connection between the injury and the
`conduct complained of,” and (3) that the injury will “likely” be
`“redressed by a favorable decision.” Lujan v. Defenders of
`Wildlife, 504 U.S. 555, 560-61 (1992). Plaintiffs’ assertion of
`constitutional standing fails at the first prong, because
`Plaintiffs cannot establish an “injury in fact” as that phrase
`has been defined by the Supreme Court. Instead, while Plaintiffs
`feel themselves very seriously injured, that alleged grievance is
`one they share with all United States citizens.
`An “injury in fact” is defined as “an invasion of a legally
`protected interest which is (a) concrete and particularized . . .
`and (b) actual or imminent, not conjectural or hypothetical.”
`Lujan, 504 U.S. at 560. The Supreme Court has interpreted the
`requirement that an injury be “concrete and particularized” to
`preclude harms that are suffered by many or all of the American
`people. Lujan, 504 U.S. at 573-74; United States v. Richardson,
`
` Plaintiffs cite a Commonwealth Court of Pennsylvania
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`decision, Lawless v. Jubelirer, 789 A.2d 820 (Pa. Commw. Ct.
`2002), for the proposition that there are exceptions to the
`standing requirement at issue here. The Court wishes to clarify
`that Plaintiffs are asserting federal subject matter jurisdiction
`and consequently the various state court jurisdictional doctrines
`are inapplicable to this case.
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`418 U.S. 166, 176-77 (1974); Schlesinger v. Reservists Comm. to
`Stop the War, 418 U.S. 208, 220-22 (1974); Ex Parte Levitt, 302
`U.S. 633, 633 (1937). As the Court explained in Schlesinger,
`We reaffirm Levitt in holding that standing to sue
`may not be predicated upon an interest of the kind
`alleged here which is held in common by all members
`of the public, because of the necessarily abstract
`nature of the injury all citizens share. Concrete
`injury, whether actual or threatened, is that
`indispensable element of a dispute which serves in
`part to cast it in a form traditionally capable of
`judicial resolution. It adds the essential
`dimension of specificity to the dispute by
`requiring that the complaining party have suffered
`a particular injury caused by the action challenged
`as unlawful. This personal stake is what the Court
`has consistently held enables a complainant
`authoritatively to present to a court a complete
`perspective upon the adverse consequences flowing
`from the specific set of facts undergirding his
`grievance. Such authoritative presentations are an
`integral part of the judicial process, for a court
`must rely on the parties' treatment of the facts
`and claims before it to develop its rules of law.
`Only concrete injury presents the factual context
`within which a court, aided by parties who argue
`within the context, is capable of making decisions.
`418 U.S. at 221. Consequently, “a plaintiff raising only a
`generally available grievance about government -- claiming only
`harm to his and every citizen's interest in proper application of
`the Constitution and laws, and seeking relief that no more
`directly and tangibly benefits him than it does the public at
`large -- does not state an Article III case or controversy.”
`Lujan, 504 U.S. at 573-74.
`In the present case, assuming as the Court must that
`Plaintiffs’ allegations are true for the purposes of deciding
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`this jurisdictional motion, the injury, if any, suffered by
`Plaintiffs is one that would be shared by all the American
`people. Plaintiffs allege that they have been injured because
`Defendants have not adequately established that the President is
`truly a “natural born citizen” and because, according to
`Plaintiffs, President Obama is not a “natural born citizen” and
`therefore an illegitimate president. These alleged harms apply
`equally to all United States residents. In fact, Plaintiffs’
`complaint repeatedly acknowledges that the injuries they allege
`are generally applicable to “the people.” As explained above,
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`the Supreme Court has consistently held that this generalized
`harm is not sufficient to establish standing under Article III.
`Lujan, 504 U.S. at 573-74.
`In an effort to distinguish themselves from the rest of the
`citizenry, Plaintiffs point out that Mr. Kerchner and Mr. Nelsen
`have both taken oaths to protect and defend the Constitution.
`They also suggest that they feel more threatened by the alleged
`uncertainty surround President Obama’s place of birth and
`citizenship than many citizens. While the Court accepts that
`Plaintiffs are more concerned about President Obama’s birthplace
`
` By way of example, Plaintiffs’ complaint outlines the
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`various failures to adequately establish President Obama’s place
`of birth “on Behalf of the Plaintiffs and the People.” (Second
`Am. Compl. ¶¶ 84-188.) Plaintiffs identify the “Irreparable
`Harm” to be suffered as follows: “If Obama is sworn in as
`President of the United States and Commander in Chief, there will
`be substantial and irreparable harm to the stability of the
`United States, its people, and the plaintiffs.”
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`than many citizens and that they likewise feel a greater sense of
`obligation to bring the present action, Plaintiffs’ motivations
`do not alter the nature of the injury alleged. Plaintiffs state
`that they have been injured because President Obama’s birthplace
`and citizenship have not been established to their satisfaction;
`this harm is equally applicable to all American citizens.
`Finally, Plaintiffs point to the risk that Mr. Kerchner may
`be recalled to active duty in the U.S. Naval Reserves by
`Executive Order of the President or an act of Congress in an
`extreme national emergency. Under these circumstances, Mr.
`Kerchner “would need to know whether the President and Commander
`in Chief who may be giving him orders is in fact the legitimate
`President and Commander in Chief and therefore obligate him to
`follow those orders or risk being prosecuted for disobeying such
`legitimate orders.” (Second Am. Compl. ¶ 8.) While the Court
`has doubts about the particularity of this harm, the Court will
`not address this issue because the alleged harm is neither actual
`nor imminent, but rather is impermissibly conjectural. The
`hypothetical nature of this future injury, conditioned on the
`occurrence of “an extreme national emergency,” is not an “injury
`in fact” necessary to establish standing. See Storino v. Borough
`of Point Pleasant Beach, 322 F.3d 293, 297 (3d Cir. 2003) (an
`allegation of potential future property loss, should a
`municipality disallow a present non-conforming use, cannot
`demonstrate injury in fact for standing purposes because it is
`conjectural). Without an “injury in fact” necessary for Article
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`III standing, the Court cannot exercise jurisdiction over the
`present action.5
`III. CONCLUSION
`For the foregoing reasons, the Court will grant Defendants’
`motion to dismiss for lack of subject matter jurisdiction. The
`accompanying Order shall be entered.
`
`October 20, 2009
`Date
`
`s/ Jerome B. Simandle
`JEROME B. SIMANDLE
`United States District Judge
`
` Moreover, had Plaintiffs alleged an “injury in fact”
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`sufficient to satisfy Article III standing, prudential standing
`concerns would likewise prevent the Court from exercising
`jurisdiction. 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. The Court acknowledges Plaintiffs’ frustration with what
`they perceive as Congress’ inaction in this area, but their
`remedy may be found through their vote.
`To this extent, it appears that Plaintiffs have raised
`claims that are likewise barred under the “political question
`doctrine” as a question demonstrably committed to a coordinate
`political department. See Baker v. Carr, 369 U.S. 186, 216
`(1962). The Constitution commits the selection of the President
`to the Electoral College in Article II, Section 1, as amended by
`the Twelfth Amendment and the Twentieth Amendment, Section 3.
`The Constitution’s provisions are specific in the procedures to
`be followed by the Electors in voting and the President of the
`Senate and of Congress in counting the electoral votes. Further,
`the Twentieth Amendment, Section 3, also provides the process to
`be followed if the President elect shall have failed to qualify,
`in which case the Vice President elect shall act as President
`until a President shall have qualified. None of these provisions
`evince an intention for judicial reviewability of these political
`choices.
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