Berg's "whistleblowing" lawsuit - "Illegal Alien" claim made against Obama

UPDATE - 17 November - Berg seems to have corrected his mistake, the case is now sealed.

I stumbled across an interesting bit of news. Interesting because:

a) It's so far flown under the radar, and
b) Philip J. Berg may have done a massive screwup.

Now, some of you may know what PACER is. PACER is an "electronic public access service that allows users to obtain case and docket information from Federal Appellate, District and Bankruptcy courts, and from the U.S. Party/Case Index. " It is a Government website, and is pretty reliable. It's a good resource for lawyers, but non-lawyer and "legal geeks" can also use it.

It's free to use, downloads will cost money though. Not a lot however.

While searching "All Courts", I found Philip J. Berg's name attached to a new case, "Berg vs. Obama", 1:08-cv-01933-RWR, filed in the US District Court for the District of Columbia on 7 November 2008.

So I brought up the information available, mostly information about who filed it and when. The Case Summary showed the following data:

1:08-cv-01933-RWR BERG v. OBAMA, Richard W. Roberts, presiding
Date filed: 11/07/2008, Date of last filing: 11/07/2008

Office: Washington, DC Filed: 11/07/2008
Jury Demand: None Nature of Suit: 890
Cause: 31:3729 False Claims Act Jurisdiction: U.S. Government Defendant
County: 88888 Origin: 1
Lead Case: None Related Case: None
Other Court Case: None Flags: PROSE-NP, TYPE-F

Plaintiff: PHILIP J. BERG Defendant: BARACK HUSSEIN OBAMA, JR.

Curious, I downloaded them. Three documents, total pages of 37, total cost to download $2.96.

The three documents were all PDF files:

1) "Complaint Pursuant to Federal False Claims Act"
2) Exhibits for the above-mentioned complaint
3) The "Case Form" filled out on filing.

The PDF files are not hosted on a free site, however, getting a PACER account is easy and the cost of the files is very low.

According to the complaint on this lawsuit, Berg is claiming President-elect Obama needs to return his Senatorial salary because he's an "illegal alien", and that he has committed fraud against the US Government by accepting the salary of a US Senator.

From page 2, paragraph 5 of his complaint:

"The Defendant, Barack Hussein Obama, Jr. [hereinafter "Obama"], is not a citizen of the United States but is nevertheless a United States Senator from the State of Illinois, elected to that office, improperly in November 2004, as will be seen more fully, infra."

The evidence form (PDF #2) actually bears the case number from his previous case, Civil Action # 08-cv-04083, and is the "evidence" from "Bishop" Ron McRae, "Kweli Shuhubia", the supposed interview of Obama's step grandmother, and the Indonesian school record that he submitted as part of his Supreme Court appeal.

The complaint goes on, in page 4, section 12, to request the US Attorney General to secure the "vault" birth certificate from Hawaii, Kenya, name change documents, Indonesian adoption records, and "Certificate of Citizenship".

On the Case Form, Berg checks the box to state that Defendant is "Citizen or Subject of a Foreign Country" It looks like Berg has expanded his "illegal alien" claim to claim that Barack Obama was elected to the Senate improperly and should be removed forthwith.

Curiously enough, while this is in the PACER system, there's nothing about it on Berg's own website as of 13 November 2008. With good reason it seems. You see, fraud charges are very serious, and this is the section of US law that handles "whistleblowing". And the False Claims Act, (31 U.S.C. § 3729–3733) which Berg filed his complaint under, states:

1) a complaint under the False Claims Act must be filed under seal; 2) the complaint must be served on the government but must not be served on the defendant; 3) the complaint must be buttressed by a comprehensive memorandum, not filed in court, but served on the government detailing the factual underpinnings of the complaint.

Philip Berg did NOT file this under seal. Jeff Schreiber at "America's Right" acknowledged this in a comment, stating:

"jeff schreiber said...

And YES, I am aware that Philip Berg has filed an action under the False Claims Act in DC Federal Court. However, as the action SHOULD be filed under seal (but for some reason has not been), I am NOT touching it.

November 12, 2008 5:19 PM"

I understand Mr. Schreiber wishing to protect himself and his future career as a law student. Since I am not in the legal field nor am I studying it, I see no reason not to post the information that is freely available on the US District Court computer systems.

So basically it already it looks like Berg may be in trouble due to the complaint not being under seal. As for the other parts, we have yet to see if it's been "buttressed by a comprehensive memorandum, not filed in court, but served on the government detailing the factual underpinnings of the complaint", since all we have is the complaint, the case form, and the recycled "evidence".

Hardly enough evidence to justify a claim that a US Senator is, in fact an "illegal alien" defrauding the government and taxpayers.

I will leave it up to those skilled in the legal craft to determine what, if any, repercussions of Berg's misfiling will happen, and what punishments or damages Berg might take as a result. It seems very unusual that an Attorney of the level Berg professes to be, would make such a serious mistake. Unless he knows the case is without merit and the sole purpose of this lawsuit, among others, is to further attack and defame without a single credible speck of evidence.

Which really seems to have been Philip Berg's plan from day one.

Comments

[rachel]

love your blog. thanks for keeping us updated. mr berg never fails to provide hilarity. his incompetence seems to be an ongoing problem that doesn't phase him in the least. question - who can file a complaint about an unprofessional seemingly insane attorney? is it impossible to do, do you have to be involved in a case, etc. thanks in advance for any info. keep up the good work. rachel

[Viper]

Usually they are weeded out by judges who see their actions as unworthy of keeping the ability to practice law. Example: Jack Thompson, anti-game lawyer was disbarred earlier this year. I'm not sure if you can file a complaint but if Jacky went down I'm sure Berg will too.

[GeorgetownJD]

As a legal professional, I predict that this case will be tossed on jurisdictional grounds. Berg must have missed this provision in the Act:

"(2) (A) No court shall have jurisdiction over an action brought under subsection (b) against a Member of Congress, a member of the judiciary, or a senior executive branch official if the action is based on evidence or information known to the Government when the action was brought."

[Dibble]

See what Bishop McRaes daughter Cherie has to say about him on Factnet forum.

[Ron Schwartz]

How do you search "All Courts"? Where is the feature on Pacer?

Ron Schwartz

Concentrating our practice of law in Workers' Compensation, Labor & Employment, Personal Injury, and False Claims

Ronald B. Schwartz
Katz, Friedman, Eagle, Eisenstein, Johnson & Bareck, P.C.
77 W. Washington St., 20th Floor
Chicago, IL 60602
(312)263-6330
(312)372-5555 -- fax
mailto:ronschwartz@gmail.com
http://workplacelawyer.com

THIS IS A CONFIDENTIAL COMMUNICATION. PLEASE NOTIFY
THE SENDER IMMEDIATELY IF YOU ARE NOT THE INTENDED PARTY.

[StrangeAppar8us]

Add Alan Keyes to the Legion of Litigious Loonies:

http://www.aipnews.com/talk/forums/thread-view.asp?tid=973&posts=1

[Patrick McKinnion]

StrangeAppar8us - Not surprising, Keyes' running mate had already announced they were going to do just that.

I doubt they will get anywhere.

[StrangeAppar8us]

Patrick: ...and this time, it's PERSONAL. Keyes has an ax to grind. But, yes, not likely to get any traction.

[Patrick McKinnion]

GeorgetownJD - I suspect Berg would use the excuse that "he's an illegal alien, therefore cannot be a Member of Congress, so that provision doesn't apply.

I also suspect the case will get thrown out so hard it bounces.

[Citizen Cane]

I for one encourage Berg’s "legal" activities – damn he’s good!

Idiocy of the most zealous neo-cons is purely amazing: Berg is milking donations from them "in order to carry on his righteous cause" like charm - and they deserve it.

http://hillarynme.wordpress.com/2008/11/13/obamabot-challenge-2-using-logic-defend-obamas-refusal-to-produce-relevant-documents-proving-his-citizenship/#comment-566

[velveeta jones]

Another lawsuit? Where does Philip find the time? This man has made suing Obama a hobby! Well, good for him, I suppose it keeps him out of trouble.

[StrangeAppar8us]

Citizen Cane -- The proprietor of "Hillary & Me" already deleted two reasonably intelligent and polite responses to the challenge, dismissing them as "drivel." I suspect that "drivel" is a code word for any form of logical disputation that does not accept as axiomatic that Obama is an evil foreigner.

[Citizen Cane]

StrangeAppar8us, I noticed that, but soon after few Obots emerged again on that awesome blog and spoiled the idyll.

OMG, those evil Obots are ruining a real-American dream! Donate to Berg and Donofrio, they’re our only hope!!!!

[Bruce]

Good post. Would love to see this backfire on Berg and come crashing down on him.

[cpabooks]

Speaking about lawyers. how about that Michelle Obama being forced by the courts to withdraw her license after only four years of parctice. What did they forget to teach her at Harvard Law School?

[Patrick McKinnion]

cpabooks - Ah, that old chestnut. When an attorney isn't practicing law, they don't have to keep up insurance or continuing education and go inactive. After a certain amount of time, the courts will move the licence from "inactive" to "withdrawn" due to the fact that the attorney hasn't kept up on the continuing education aspects of the license.

Since there's no record of disiplinary actions taken against Michelle Obama, it's likely to assume that she let her license to practice law expire. I'm sure one of the lawyers that frequent this blog may answer the question better than I can

[Brian]

I am a lawyer, but not in Illinois. But in any state, disbarment is a public record. There is no logical assumption other than that Michelle Obama voluntarily gave up her law license because she wasn't using it anymore. In addition to continuing education and insurance, usually the annual licensing fee alone is a fair amount.

I was previously licensed in a state other than the one I practice in. For years I paid out several hundred dollars a year just to keep my name on the books in that state. Eventually, I listened to my wife and withdrew from practice in that state.
I can put the money to better use.

[GeorgetownJD]

Ah, cpabooks, it's a good thing you are a bean counter because your deductive reasoning and research skills are wanting. You've already concluded that Michelle was "forced by the courts to withdraw her license after only four years of parctice [sic - practice]", so I don't know how much explaining I can do to shake yiou of this. But here goes.

In Illinois, the REGISTRATION OF and disciplinary proceedings affecting members of the Illinois bar has been delegated by the Illinois Supreme Court to a board called the Attorney REGISTRATION and Disciplinary Commission. The ARDC collects bar dues, administers an orientation program for newly-admitted members, and oversees the mandatory continuing legal education program.

Pursuant to Illinois Supreme Court Rule 756, annual bar dues and registration is required. An attorney may voluntarily transfer to involuntary status if he or she does not engaged in practice before the Illinois courts. Most often this statuts is sought when attorney moves to another state but wants to maintain Illinois bar membership; when an attorney retires; when he/she takes an in-house position and thus does not hold himself/herself out for legal representation of members of the public (when you are in house, you have only one client); or when the attorney takes a position in a non-legal field, but wants to retain the ability to return to the active practice of law.

The advantage of transferring to inactive status is that bar dues are only $90 annually (whereas for active members they are $239) (see Rule 756(a)(5); the inactive attorney is exempt from the minimum CLE (see Rule 791(a)(1); and he/she does not have to maintain a policy for professional errors and omissions (that's malpractice insurance for you gringoes).

So what's all this fuss about "court ordered" inactive status, you ask? Well, a visit to the ARDC's website would answer that. See ://www.iardc.org/rule770inactivestatus.html . To summarize it for you, cpabooks, "Court ordered" refers to former Illinois Supreme Court 770, which applied to registration status PRIOR TO NOVEMBER 1, 1999. Under that former Rule, an attorney who wished to VOLUNTARILY transfer to inactive status had to petition the Court for an order allowing such. It was simply administrative -- no hearing was required, just paperwork.

Michelle Obama left Sidley in 1993 to take a position in the nonprfit sector in 1993. Notice that the ARDC site shows she went to inactive status in 1993. In 1993, when former Rule 770 was the operative provision for ransfer to voluntary inactive status, MO was required to petition for a court order. As should be obvious, the order was granted.

In short, there is nothing nefarious about MO's law license going inactive.

Stick to preparing tax returns.

[GeorgetownJD]

Again, apologies for all the typos. Lawyers are not good at word processing. My secretary's job is to protect me from embarassing myself in the written work product that goes out the firm's door.

[John Dean]

LOL, looks like you guys drowned the troll with truth.

But cpabooks, please feel free to post any other things you are concerned about...and we'll blow them away to.

[GeorgetownJD]

Maybe I was a little too sarcastic. It's just that I've growing impatient with stupid people who could easily find the truth with a few keystrokes on a Google search.

[GeorgetownJD]

Speaking of dumbsh*ts, Dr. Orly has announced that Chief Justice John Roberts has agreed to "hear" her case. In reality, he bucked the emergency application for stay to conference:

No. 08A524
Title: Gail Lightfoot, et al., Applicants
v.
Debra Bowen, California Secretary of State

Docketed:
Lower Ct: Supreme Court of California
Case Nos.: (S168690)

~~~Date~~~ ~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~
Dec 12 2008 Application (08A524) for a stay pending the filing and disposition of a petition for a writ of certiorari, submitted to Justice Kennedy.
Dec 17 2008 Application (08A524) denied by Justice Kennedy.
Dec 29 2008 Application (08A524) refiled and submitted to The Chief Justice.
Jan 7 2009 DISTRIBUTED for Conference of January 23, 2009

As the SCOTUS website explains(Reporter's Guide to Stays), when the Circuit Justice (Kennedy) has denied a stay application, and the application is resubmitted, it is routine for the second Justice (Roberts) to refer the application to conference rather than deny it. That saves the petitioner from taking it from one Justice to the next until the stay has been denied by five.

Unlike the realtor/dentist/handwriting instructor/lawyer/property records investigator, who is peddling this as a positive development for her cause(DONATIONS, PLEASE!!!!), I see this as a positive sign that Lightfoot v. Bowen will denied. And just in the nick of time -- three days after the inauguration.