Berg v Obama – FCA – Petition for rehearing en banc denied

A victory for Berg who can now quickly move onwards to the Supreme Court… Where SCOTUS will decline to hear the case…

09/20/2010 Open Document PER CURIAM ORDER, En Banc, filed [1266812] denying petition for rehearing en banc [1255291-2] Before Judges: Sentelle, Ginsburg, Henderson, Rogers, Tatel, Garland, Brown, Griffith and Kavanaugh. [09-5362]

Berg v Obama – Qui Tam Appeal Denied

Another one bites the dust…

06/30/2010 Open Document PER CURIAM JUDGMENT filed [1252747] (without memorandum) that the district court’s orders filed June 9, 2009, and September 21, 2009, be affirmed (SEE JUDGMENT FOR DETAILS), withholding issuance of the mandate. Before Judges: Rogers, Garland and Brown. [09-5362]

Berg v Obama (Qui Tam) – No Oral Arguments

06/16/2010 Open Document PER CURIAM ORDER filed [1250272] that the court will dispose of the appeal without oral argument on the basis of the record and presentations in the briefs pursuant to Fed. R. App. 34(a)(2); D.C.Cir.Rule 34(j). Before Judges: Rogers, Garland and Brown. [09-5362]

Berg v Obama (Qui Tam) – Appellant Brief Filed

02/17/2010 Open Document APPELLANT BRIEF [1230292] filed by Philip J. Berg, Esquire [Service Date: 02/17/2010 ] Length of Brief: 6,090 Words. [09-5362]

02/17/2010 Open Document APPENDIX [1230293] filed [Volumes: 1] [Service Date: 02/17/2010 ] [09-5362]

Just in time… but…but…

02/17/2010 Open Document APPENDIX [1230294] filed [Volumes: 1] [Service Date: 02/17/2010 ] [09-5362]

Ahhhh, a corrected filing…

I love predictability…

Enjoy…

Berg v Obama (Qui Tam) – Doc 20 – Motion for Reconsideration denied

A little bit late but Berg’s motion for reconsideration was denied. It is now on the schedule for October 26 (no oral hearings needed)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

PHILLIP J. BERG,
Plaintiff,
v.
BARACK HUSSEIN OBAMA JR.,
Defendant.

MEMORANDUM OPINION

Relator Philip J. Berg moves for reconsideration of an order dismissing his qui tam action against President Obama after Berg failed to convince the United States not to seek dismissal of the case. Because Berg does not show that justice requires reconsideration, his motion will be denied.

Berg v Obama (Qui Tam) – US Memorandum in Opposition for Reconsideration (Doc 19)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA EX REL.
PHILLIP J. BERG,
Plaintiff;
BARACK HUSSEIN OBAMA, JR.,
Defendant.
Civ. No. 1:08-1933 (RWR)

UNITED STATES’ MEMORANDUM OF LAW IN OPPOSITION TO RELATOR PHILIP J. BERG’S MOTION FOR RECONSIDERATION

The United States respectfully opposes the Relator Philip J. Berg’s motion for reconsideration of the Court’s June 9, 2009 Order dismissing this action with prejudice under 31 U.S.C. § 3730(c)(2)(A). The Order followed the clear and binding precedent of this Circuit which recognizes the United States’ ’°virtually ’unfettered’ discretion” to dismiss a qui tam suit as an exercise of prosecutorial discretion. See United States ex rel. Hoyte v. American National Red Cross, 518 F. 3d 61, 65 (D.C. Cir. 2008); Swift v. United States, 318 F.3d 250, 251-54 (D.C. Cir. 2003). As the Court acknowledged: “Nothing in § 3730(c)(2)(A) purports to deprive the Executive Branch of its historical prerogative to decide which cases should go forward in the name of the United States.” Swift, 318 F. 3d at 253. Relator points to no new fact or law that would meet his heavy burden of justifying reconsideration. He misapplies the governing conflict of interest statutes and asks the Court to radically rewrite the False Claims Act (FCA) to permit private citizens to proceed with actions on behalf of the United States with no mechanism for government control over the litigation.

2009-06 Berg v Obama (Qui Tam) – Motion to Extend time to File opposition to motion for reconsideration

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
___________________________________________
UNITED STATES OF AMERICA EX REL.
PHILLIP J. BERG,
Plaintiff,
v.

BARACK HUSSEIN OBAMA, JR.,
Defendant.

Civ. No. 1:08-1933 (RWR)

UNITED STATES’ CONSENT MOTION FOR AN EXTENSION OF TIME TO FILE AN OPPOSITION TO RELATOR’S MOTION FOR RECONSIDERATION

The United States of America, through its undersigned counsel, respectfully moves the Court for a one week extension of time to file an Opposition to Relator’s Motion for Reconsideration of this Court’s Order of June 9, 2009 (“Opposition”).  This Opposition is due on July 6, 2009.   The attorneys for the government have not been in the office at the same time for the last two weeks.   As a result they have not been able to confer about the Opposition.   This brief enlargement of time will allow them to consult on the preparation of the Opposition and to submit it for appropriate review.    Hence, the government request an extension until July 13, 2009 to file the Opposition.

Relator consents to this motion.

2009-06-22 – Berg v Obama: Motion for Reconsideration

See also: Kerchner v Obama category postings

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

PHILIP J. BERG, ESQUIRE, pro se, on his
own BEHALF and on BEHALF of the
GOVERNMENT OF THE UNITED STATES
OF AMERICA,
Relator,
vs.
BARACK HUSSEIN OBAMA,
Defendant.

CIVIL ACTION NO.  08-cv-01933

RELATOR’S MOTION FOR RECONSIDERATION

NOW COMES the Relator, Philip J. Berg, Esquire [hereinafter “Berg”], and hereby submits the within Motion for Reconsideration of this Court’s Order of June 9, 2009 on the following grounds:

• Relator has discovered new law and new information pertaining to the Conflict-of-Interest with both the United States Attorney General’s Office as well as the United States Department of Justice;
• This Court never addressed the issue of the Conflict-of-Interest;
• A Conflict-of-Interest exists with U.S. Attorney General Eric Holder; the U.S. Attorney General’s Office as well as the United States Department of Justice in violation of the Federal Conflict-of-Interest Laws and the Code of Federal Regulations;
• The Relator has met the burden and this Court has the inherent power to Reconsider the Order issued June 9, 2009; and
• In the interest of Justice, this Court should grant the Relator’s Motion; Conflict out U.S. Attorney General Eric Holder, the U.S. Attorney General’s Office and the United States Department of Justice.  This Court has the inherent power to appoint the Relator or appoint a Special Prosecutor should this Court feel it necessary.

Berg v Obama (Sealed Case) unsealed and denied w. prejudice

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.

False Claims Act (Qui Tam) – Introduction

Comment: The top-sekrit Berg v Obama case has an interesting history (See also: Qui Tam or False Claims Act). In the next few Qui Tam articles I will address the nature of such lawsuits, the legal hurdles, the Federal Rules and the legal precedents.

From Dockets at Justia.com where the case docket can still be found:

BERG v. OBAMA

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

Case Number:    1:2008cv01933
Filed:    November 7, 2008

Court:    District Of Columbia District Court
Office:    Other Statutory Actions Office
County:    88888
Presiding Judge:    Judge Richard W. Roberts

Nature of Suit:    Other Statutes – Other Statutory Actions
Cause:    U.S. Government Defendant
Jurisdiction:    U.S. Government Defendant
Jury Demanded By:    31:3729 False Claims Act

Berg v Obama (DC) – Docket

District of Columbia District Court

The Infamous ‘sealed’ case

Plaintiff:	PHILIP J. BERG
Defendant:	BARACK HUSSEIN OBAMA, JR.
Case Number:	1:2008cv01933
Filed:	November 7, 2008
Court:	District Of Columbia District Court
Office: