Native and Natural Born Citizenship Explored (Re-opened for limited business)

Breaking news:

According to my sources, Phil Berg’s super-sekrit case against Obama has been denied w. prejudice meaning that it cannot be refiled.

The case involved the false claim act and accused President Obama for having inappropriately received federal funds when he was a Senator for Illinois because, as Berg ‘argued’ he was not eligible to serve as such.

The PR from Berg reads in part

U.S. Attorney General Eric Holder Refuses to Prosecute President Obama Under False Claims Act whereby Obama was accused of Defrauding the U.S. Treasury by Illegally being a U.S. Senator from Illinois as Obama is an Illegal Alien, not a U.S. Citizen

Another one ‘bites the dust’

In other news, the fact that the case was dismissed with prejudice suggests that the court found that the plaintiff failed to follow the mandatory procedures for a Qui Tam proceedings. Most likely, the failure to seal the case was the cause of its demise.  This may be one of the reasons why the details of the investigation were not provided to Berg. As Berg states is his press release

I also raised the issue that any Discovery used in the Government’s decision to have the case dismissed, which was secured by the U.S. Department of Justice and U.S. Attorney General’s Office should be turned over to me as the Relator, however, no Discovery was turned over.”

Alternatively, under Section 3730(2)(A) “The Government may dismiss the action notwithstanding the objections of the person initiating the action if the person has been notified by the Government of the filing of the motion and the court has provided the person with an opportunity for a hearing on the motion.” Furthermore there is the possibility that Berg failed rule 9(b)

As of Jun 13, 2009, no Pacer documents have been located. I am looking forward to the ruling as to why it was dismissed with prejudice.

The reason why I believe the case was dismissed with prejudice based on a failure to seal the case is based on UNITED STATES of America, ex rel. James PILON and Jill
Pilon, v MARTIN MARIETTA CORPORATION and General Electric Company, 60 F.3d 995 in which the United States Court of Appeals for the Second Circuit ruled that:

The Pilons’ counsel asserted at oral argument that his clients should not be penalized, because he had done his best to satisfy the dictates of Sec. 3730(b)(2). The record reveals, however, a considerable lack of good faith. Counsel made only a marginal effort to ensure that the complaint would be filed under seal. Further, once he learned that it had not been so filed, rather than inquiring of the clerk as to what had happened and whether the situation could be remedied, he immediately allowed his clients to give a detailed interview to the press concerning both the complaint’s allegations and matters not mentioned in that pleading. Moreover, remarks by counsel at oral argument suggested that his and the Pilons’ primary objective was to obtain James Pilon’s reinstatement at Martin Marietta. The failure to serve the government supports the likelihood that this was the primary motive for the litigation.

The case for dismissal of the Pilons’ qui tam claims with prejudice is supported not only by policy considerations and the record presented on this appeal, but also by pertinent authority.4 See, e.g., United States ex rel. Texas Portland Cement Co. v. McCord, 233 U.S. 157, 162-63, 34 S.Ct. 550, 552-53, 58 L.Ed. 893 (1914) (dismissing action brought prematurely in violation of statute creating cause of action; statute “creates a new liability and gives a special remedy for it, and upon well-settled principles the limitations upon such liability become a part of the right conferred, and compliance with them is made essential to the assertion and benefit of the liability itself…. [I]t is only the province of the courts to enforce the statute in accordance with its terms.”); Reich v. Dow Badische Co., 575 F.2d 363, 367-70 (2d Cir.) (failure to comply with statutory procedural requirements attendant to bringing complaint alleging age discrimination warrants grant of summary judgment in favor of defendants absent circumstances that might excuse failure), cert. denied, 439 U.S. 1006, 99 S.Ct. 621, 58 L.Ed.2d 683 (1978); United States ex rel. Lujan v. Hughes Aircraft Co., CV 92-1282 JMI (SHx), slip op. (C.D.Cal. Nov. 9, 1993) (relator’s public disclosure of existence and substance of sealed qui tam complaint warrants dismissal); Erickson ex rel. United States v. American Institute of Biological Sciences, 716 F.Supp. 908, 912 (E.D.Va.1989) (McCord and Reich, as well as policy considerations, compel dismissal of qui tam complaint when relator’s “failure to comply with the filing and service provisions irreversibly frustrates the congressional goals underlying those provisions”). We note that while the Erickson court did not specify whether the dismissal was with or without prejudice, when the relator attempted to bring a second action, the court dismissed the successor action and ruled that the prior dismissal had been with prejudice. See Erickson v. American Institute of Biological Sciences, Civ.Action No. 89-1259-A, slip op. at 2 (E.D.Va. Dec. 20, 1989).5

Not only did Berg fail to file the document under seal but also revealed the content and nature of the suit to the public in November 2008

Berg takes this in stride. His writ, he says, requires Obama and the Democratic National Council to respond by December 1. Also, he has another arrow in his quiver. He’s filed in the U.S. District Court in Washington, D.C., under the False Claims Act, which is often used in Medicaid fraud. “I am basing this on the fact that as a U.S. senator [Obama] is collecting money illegally because he is not a citizen of this country,” he says.