Академический Документы
Профессиональный Документы
Культура Документы
July 2, 2010
Mario Apuzzo
185 Gatzmer Avenue
Jamesburg, NJ 08831-0000
Eric Fleisig-Greene
United States Department of Justice
Civil Division
950 Pennsylvania Avenue, N.W.
Room 7214
Washington, DC 20530-0000
ENTRY OF JUDGMENT
Today, July 02, 2010 the Court entered its judgment in the above-captioned matter pursuant to
Fed. R. App. P. 36.
If you wish to seek review of the Court's decision, you may file a petition for rehearing. The
procedures for filing a petition for rehearing are set forth in Fed. R. App. P. 35 and 40, 3rd Cir.
LAR 35 and 40, and summarized below.
Page Limits:
15 pages
Case: 09-4209 Document: 003110204066 Page: 2 Date Filed: 07/02/2010
Attachments:
A copy of the panel's opinion and judgment only. No other attachments are permitted without
first obtaining leave from the Court.
Unless the petition specifies that the petition seeks only panel rehearing, the petition will be
construed as requesting both panel and en banc rehearing. If separate petitions for panel rehearing
and rehearing en banc are submitted, they will be treated as a single document and will be subject
to a combined 15 page limit. If only panel rehearing is sought, the Court's rules do not provide
for the subsequent filing of a petition for rehearing en banc in the event that the petition seeking
only panel rehearing is denied.
A party who is entitled to costs pursuant to Fed.R.App.P. 39 must file an itemized and verified
bill of costs within 14 days from the entry of judgment. The bill of costs must be submitted on
the proper form which is available on the court's website.
A mandate will be issued at the appropriate time in accordance with the Fed.R.App.P. 41.
Please consult the Rules of the Supreme Court of the United States regarding the timing and
requirements for filing a petition for writ of certiorari.
By:
Christina M. Koperna, Case Manager
267-299-4930
Case: 09-4209 Document: 003110204065 Page: 1 Date Filed: 07/02/2010
No. 09-4209
v.
JUDGMENT
This cause came on to be considered on the record from the United States District
Court for the District of New Jersey and was submitted under Third Circuit LAR 34.1(a)
judgment of the District Court entered October 21, 2009, be and the same is hereby
affirmed. Costs taxed against Appellants. All of the above in accordance with the
Attest:
PRECEDENTIAL
No. 09-4209
Tony West
Assistant Attorney General
Paul J. Fishman
United States Attorney
Mark B. Stern, Esquire
Eric Fleisig-Greene, Esquire
Attorneys, Appellate Staff
Civil Division
United States Department of Justice
Washington, D.C. 20530-0001
1
There is a dispute, among courts and commentators, as to
whether the provision known as the “Natural Born Citizen” clause
should be cited as clause 4 or clause 5 of Article II, § 1 of the
Constitution. Compare Hollander v. McCain, 566 F. Supp. 2d 63,
2
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I.
3
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2
Appellants invoked the District Court’s jurisdiction under
28 U.S.C. §§ 1331, 1343(a)(3)-(4), 1346(a)(2), 1361, 1651(a), and
2201(a)-2202. We have jurisdiction to review the District Court’s
order of dismissal under 28 U.S.C. § 1291.
4
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5
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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.
6
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III.
3
The District Court, as an alternate holding, found that
Appellants’ claims are “barred under the ‘political question
doctrine’ as . . . question[s] demonstrably committed to a
coordinate political department.” Kerchner, 669 F. Supp. 2d at 483
n.5. In light of our decision that Appellants lack standing, we need
not discuss that issue.
4
We need not discuss Appellants’ 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.” Appellants’ Br. at 18. That assertion goes to
the merits of whether President Obama is in fact eligible to hold
office, which we cannot address unless Appellants first establish
Article III standing.
7
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8
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IV.
5
We also note with concern that Appellants failed to cite
Berg in their opening brief. See, e.g., N.J. Rule of Professional
Conduct 3.3(a)(3) (“A lawyer shall not knowingly . . . fail to
disclose to the tribunal legal authority in the controlling jurisdiction
known to the lawyer to be directly adverse to the position of the
client . . . .”). Although Berg was filed only some two months
before Appellants’ brief, it is unlikely it had not come to their
attention given the identity of the issues.
9
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No. 09-4209
v.
For the reasons set forth in the Opinion of this Court dated July 2, 2010, it is
Appellants’ counsel shall show cause in writing within fourteen days of the date of
this Order why he should not be subject to an order pursuant to FRAP 38 setting just
Case: 09-4209 Document: 003110204089 Page: 2 Date Filed: 07/02/2010
By the Court,