RALPH J. MARRA, JR.

Document Electronically Filed

Acting United States Attorney
ELIZABETH A. PASCAL
Assistant U.S. Attorney
Camden Federal Building
and U.S. Courthouse
401 Market Street
P.O. Box 2098
Camden, NJ 08101
(856) 757-5412
Attorneys for Defendants

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

:
Charles F. Kerchner, Jr., :
Lowell T. Patterson, :
Darrell James LeNormand, and :
Donald H. Nelsen, Jr., :
:
Plaintiffs, : HONORABLE JEROME B. SIMANDLE
:
v. :
:
Barack Hussein Obama II, :
President Elect of the :
United States of America, : CIVIL ACTION NO.: 09-253
President of the United States :
of America, and Individually, :
a/k/a Barry Soetoro, :
United States of America, et al., :
:
Defendants. :
___________________________________:

DEFENDANTS’ MEMORANDUM OF LAW IN REPLY TO PLAINTIFFS’

OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS AND IN OPPOSITION
TO PLAINTIFFS’ CROSS-MOTION FOR LEAVE TO FILE THEIR
SECOND AMENDED VERIFIED COMPLAINT NUNC PRO TUNC

INTRODUCTION

On January 20, 2009, Plaintiffs Charles F. Kerchner, Jr.,

Lowell T. Patterson, Darrell James LeNormand, and Donald H. Nelsen,

Jr. (collectively “Plaintiffs”) filed the present action

challenging President Barack Obama’s eligibility to hold the Office

of President of the United States. Dkt. Entry 1. On June 26,

2009, Defendants filed a Motion to Dismiss this action. Dkt. Entry

27. On July 20, 2009, Plaintiffs filed their opposition to

Defendants’ Motion to Dismiss the Complaint. Dkt. Entry 34. On

July 22, 2009, Plaintiffs filed a Cross-Motion for Leave to File a

Second Amended Verified Complaint nunc pro tunc. Dkt. Entry 36.

Defendants now reply to Plaintiffs’ opposition to their Motion to

Dismiss and oppose Plaintiffs’ Cross-Motion to Amend. For the

reasons stated in Defendants’ moving brief to dismiss the complaint

and herein, Defendants’ Motion to Dismiss the Complaint should be

granted and Plaintiffs’ Cross-Motion to Amend should be denied.

ARGUMENT

I. Plaintiffs Lack Standing to Maintain this Action.

In their opposition brief, Plaintiffs offer the following

points in response to Defendants’ arguments that Plaintiffs lack

standing: (1) none of the cases cited by the Defendants in its

moving brief address the specific factual and/or legal issues

presented in this case, Pl.s’ Br. at 7; (2) the cases cited by

Defendants disposing of challenges to President Obama’s citizenship

are factually distinguishable because President Obama was only a

candidate when those lawsuits were decided or only involved

secretaries of state, id.; (3) even though Plaintiffs’ alleged

injuries are shared in common with the public (“the whole”), the

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Plaintiffs as “parts” of that “whole” have also suffered an injury

(i.e., a violation of their constitutionally protected liberty

interests), Pl.s’ Br. at 8-9; (4) the Plaintiffs, as parties to a

contract (the Constitution), have standing to enforce it in court,

Pl.s’ Br. at 10; and (5) Plaintiff Kerchner, as a retired member of

the military subject to recall to active duty, has alleged a

particularized injury-in-fact, Pl.s’ Br. at 13-16.1 Points 1, 2,

and 4 above do not merit discussion because they do not rebut

Defendants’ arguments in its moving brief. Defendants will briefly

address points 3 and 5 below.

A. Plaintiffs’ Injuries Are Widely-Shared with Others.

Plaintiffs allege that even though their claims of injury may

be widely-shared with others, that does not mean that they lack

standing. Pl.s’ Br. at 8-9. Plaintiffs proffer that just because

the general public shares their injuries does not mean that they do

not have injuries particular to them. Id. However, to accept

Plaintiffs’ interpretation of the injury-in-fact component of

Article III standing would render it meaningless. Moreover, the

United States Supreme Court has rejected that very argument.

In Ex Parte Levitt, plaintiff, a citizen and a member of the

1
Plaintiffs also assert that Plaintiff Kerchner should be
able to assert the rights of other members of the military. Pl.s’
Br. at 16. However, prudential standing requirements dictate that
a party cannot assert the legal rights of third parties. See
Valley Forge Christian Coll. v. American United for Separation of
Church & State, Inc., 454 U.S. 464, 474 (1982).

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bar, sought an order to show cause to challenge the appointment of

a Supreme Court Justice on the basis that his appointment violated

the Ineligibility Clause of the United States Constitution. 302

U.S. 633, 633 (1937) (per curiam). The Court rejected plaintiff’s

petition stating,

It is an established principle that to entitle

a private individual to invoke the judicial
power to determine the validity of executive
or legislative action he must show that he has
sustained, or is immediately in danger of
sustaining, a direct injury as the result of
that action and it is not sufficient that he
has merely a general interest common to all
members of the public.

Id. at 634 (emphasis added).

In United States v. Richardson, a federal taxpayer filed suit

seeking a declaration that the Central Intelligence Agency Act

violated the Accounts Clause of the United States Constitution.

418 U.S. 166, 168-69 (1974). The Court held that the taxpayer

lacked standing because his harm was a generalized grievance that

was “plainly undifferentiated and ‘common to all members of the

public.’” Id. at 176-77 (quoting Levitt, 302 U.S. at 634). The

Court discussed Levitt and noted that the Richardson plaintiff’s

claim that the Act violated the Accounts Clause was similar to the

plaintiff’s allegations in Levitt. The Court further noted that

if Levitt’s allegations were true, they made

out an arguable violation of an explicit
prohibition of the Constitution. Yet even
this was held insufficient to support standing
because, whatever Levitt’s injury, it was one
he shared with “all members of the public.”

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418 U.S. at 178 (emphasis added) (quotation omitted).

In Schlesinger v. Reservists Comm. to Stop the War, 418 U.S.

208, 211-12 (1974), the plaintiffs challenged the reserve

membership of members of Congress as a violation of the

Incompatibility Clause of the United States Constitution. The

Court held that the plaintiffs lacked standing and in so doing,

expressly reaffirmed the principles of Levitt and Richardson:

“[S]tanding to sue may not be predicated upon an interest . . .

which is held in common by all members of the public, because of

the necessarily abstract nature of the injury all citizens share.”

Schlesinger, 418 U.S. at 220. The Court further explained why a

concrete injury is necessary to satisfy the case or controversy

requirement of the Constitution:

[W]hen a court is asked to undertake

constitutional adjudication, the most
important and delicate of its
responsibilities, the requirement of concrete
injury further serves the function of insuring
that such adjudication does not take place
unnecessarily. This principle is particularly
applicable here, where respondents seek an
interpretation of a constitutional provision
which has never before been construed by the
federal courts. First, concrete injury
removes from the realm of speculation whether
there is a real need to exercise the power of
judicial review in order to protect the
interests of the complaining party.

. . . .

Second, the discrete factual context within

which the concrete injury occurred or is
threatened insures the framing of relief no
broader than required by the precise facts to

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 which the court’s ruling would be applied.
This is especially important when the relief
sought produces a confrontation with one of
the coordinate branches of the Government; . .
. .

To permit a complainant who has no concrete

injury to require a court to rule on important
constitutional issues in the abstract would
create the potential for abuse of the judicial
process, distort the role of the Judiciary in
its relationship to the Executive and the
Legislature and open the Judiciary to an
arguable charge of providing “government by
injunction.”

Id. at 221-22.

Plaintiffs here are asking this Court to undertake the

constitutional adjudication of a matter that it should not. For

the reasons articulated in Levitt, Richardson, and Schlesinger,

Plaintiffs lack standing to maintain this suit: They have not

identified any particularized, concrete harm that President Obama

has personally caused them. It is irrelevant that as a “part” of

the public (“the whole”), they share a generalized grievance. And,

those generalized grievances regarding President Obama’s

citizenship are simply not the concrete injuries required to invoke

the jurisdiction of the federal courts.

B. Plaintiff Kerchner’s Military Status Does Not Confer

Standing.

Plaintiff Kerchner further asserts that he has standing

because of his military status.2 Kerchner alleges that he has

2
This argument has been offered before in a different
procedural context. See, e.g., Hollister v. Soetoro, --- F.R.D. --

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suffered an injury because if he is ever recalled to active duty,

he is entitled to know whether he should obey possible orders from

President Obama as Commander-in-Chief. Pl.s’ Br. at 13-14.

Kerchner offers that his lack of knowledge about President Obama’s

citizenship “has caused, is causing, and will cause him personal

injury emanating from the thought that he may be recalled to duty

(even if it never happens) and be compelled to serve an

illegitimate President and Commander in Chief.” Id. at 14

(emphasis added). Kerchner’s alleged injury, however, requires one

to engage in pure speculation because he does not allege a basis

for his belief that he may be recalled to active duty, or that such

an eventuality is likely. Instead, he alleges that just the

thought that he “may be recalled to duty” is causing him harm.

That is not the type of concrete harm that Article III standing

requires. Accordingly, Kerchner’s retired military status does not

provide the particularized injury-in-fact necessary to confer

standing.

II. Plaintiffs’ Complaint Violates Rule 8(a)’s Requirement of a

Short and Plain Statement.

Plaintiffs allege that their voluminous second amended

verified complaint complies with Federal Rule of Civil Procedure

-, No. 08-2254, 2009 WL 1706726 (D.D.C. Mar. 27, 2009); Hollister

v. Soetoro, 601 F. Supp. 2d 179 (D.D.C. Mar. 5, 2009) (rejecting
retired military officer’s suit in interpleader because his
possible recall to active duty not “property” to which interpleader
statute applies).

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8(a)(2) because “it is much more than just [a] complaint.” Pl.s’

Br. at 36. The Federal Rules of Civil Procedure provide that a

civil action is commenced with the filing of a complaint with the

court, nothing more. See Fed. R. Civ. P. 3. Moreover, the only

pleadings allowed in a civil action are outlined in Rule 7(a),

which includes a complaint. A verified complaint is necessary when

a party moves for emergency relief. See L.Civ.R. 65.1. While it

is true that a verified complaint may need greater detail to

explain the necessity of emergent relief, no where in the Federal

Rules of Civil Procedure is a verified complaint exempt from the

“short and plain statement” requirement of Fed. R. Civ. P. 8(a).

Plaintiffs also raise the specious argument that because they

raise factual issues of “fraud” and “mistake” in their second

amended verified complaint regarding President Obama’s citizenship,

they are required to plead those facts with specificity. Pl.s’ Br.

at 37; see Fed. R. Civ. P. 9(b). However, Plaintiffs do not assert

claims of fraud or mistake. Thus, Rule 9(b) is inapplicable here.

Plaintiffs’ second amended verified complaint plainly does not

comport with Rule 8(a). The complaint contains 387 paragraphs of

allegations, a 30-paragraph prayer for relief, and 43 single-spaced

endnotes. As such, the Defendants cannot respond to it in its

present form, and it should be dismissed.

III. Plaintiffs’ Cross-Motion to Amend the Complaint Should Be

Denied.

Plaintiffs oppose Defendants’ argument to strike Plaintiffs’

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second amended verified complaint because Plaintiffs failed to file

it in conformance with Federal Rule of Civil Procedure 15. Pl.s’

Br. at 38-39. In their opposition brief, Plaintiffs do not dispute

that they filed their second amended verified complaint without

Defendants’ written consent or leave of Court as required by Rule

15(a). Id. Instead, Plaintiffs explain that “[i]t would be a

great inconvenience and a waste of time and resources” to strike

their pleading. Pl.s’ Br. at 39. Plaintiffs then state in one

sentence that they are now cross-moving for leave of court to file

their second amended verified complaint nunc pro tunc. Id. Two

days later, they filed a notice of cross-motion. Dkt. Entry 36.

Plaintiffs’ Cross-Motion to Amend is wholly improper. It does

not set forth the legal standard to amend a complaint, see, e.g.,

In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d

Cir. 1997), nor does it provide any factual basis supporting why

the proposed amendment is necessary. It does not include a

proposed pleading as required by L.Civ.R. 7.1(f). Nevertheless,

any amendments Plaintiffs seek should be denied because they are

futile as Plaintiffs lack standing. Accordingly, the second

amended verified complaint should be stricken.

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 CONCLUSION

For the reasons stated in Defendants’ moving brief to dismiss

the complaint and herein, Defendants respectfully urge this Court

to grant their Motion to Dismiss and to deny Plaintiffs’ Cross-

Motion to Amend.

Respectfully submitted,

RALPH J. MARRA, JR.

Acting United States Attorney

s/Elizabeth A. Pascal
By: ELIZABETH A. PASCAL
Assistant U.S. Attorney

Dated: July 27, 2009

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