A kind reader has informed us that the United States Court of Appeals for the Third Circuit, in a precedential ruling, has affirmed the dismissal of the birther suit in Kerchner v. Obama, No. 09-4209.  Here’s the ruling.  The appellants’ counsel in the case is Mario Apuzzo.

Judge Sloviter wrote for a unanimous panel.  She’s a Carter appointee.  She was joined by Judges Barry and Hardiman, who were appointed by Presidents Clinton and George W. Bush, respectively.

In addition to rejecting the appeal, the court ordered Mr. Apuzzo “to show cause why just damages and costs should not be imposed on him for having filed a frivolous appeal.”  He has 14 days to show cause.

The court held that the plaintiffs lacked standing.  The court noted that it reached a similar conclusion in Berg v. Obama, 585 F.3d 234 (3d Cir. 2009).

The court notes that two of the plaintiffs “attempt to distinguish themselves from the public at large, point[ing] out that they took oaths to defend and support the Constitution as part of their past service in the Armed Forces and the National Guard.”  The court rejected that argument for standing:

Turning to the argument of Kerchner and Nelsen that their oaths to protect and defend the Constitution “increase[ ] their adversarial posture,” Appellants’ Br. at 56, no court has found that a plaintiff established “injury in fact” simply because s/he had once taken such an oath. Carving out an exception on that basis would still leave an impermissibly large class with unique ability to sue in federal court. See, e.g., 10 U.S.C. § 502(a) (requiring all military personnel to take an oath “swear[ing] . . . [to] support and defend the Constitution of the United States.”). Kerchner’s assertion of  standing on the ground that he, who has been retired from the Naval Reserves since 1995, may be required to serve the Commander in Chief as a combatant in the case of an “extreme national emergency,” Kerchner, 669 F.Supp.2d at 483 (quotation and citation omitted), is to no avail because it is conjectural. See Lujan, 504 U.S. at 560.

The court found the appeal to be frivolous.  The court explained:

We have stated that “an appeal from a frivolous claim is likewise frivolous.” Beam, 383 F.3d at 108.  Appellants had ample notice that this appeal had no merit. They should have  been aware that we rejected almost identical claims in Berg, as have courts in other jurisdictions. . . .

Examination of this precedent would have made it “obvious to a reasonable attorney that an appeal from the District Court’s order was frivolous, [as no] law or facts . . . support a conclusion that the District Court judge had erred.” Beam, 383 F.3d at 109. Moreover, other courts have imposed sanctions for similar reasons.

13 Responses to “3d Circuit affirms dismissal of birther lawsuit, rejects servicemembers’ oath as basis for standing”

  1. Anonymous says:

    Too bad for the birfers. And Apuzzo and Co. will most likely have to pay damages and costs for filing this frivoulous appeal, an appeal any reasonable attorney would not have taken. The NJ bar needs to look into whether this guano-crazy shyster is fit to practice law.

  2. John O'Connor says:

    I had a Third Circuit panel once call one of my adversary’s arguments “at best, frivolous.”

    I thought to myself, I wonder what it is “at worst.”

  3. michael says:

    Too bad the government at Courts-Martial doesn’t have to pay damages and costs when they bring a frivolous sexual assault case.

    Though like the birthers, not sure if that would stop the problem.

  4. Socrates says:

    Does anybody have a ballpark estimate of how much “damages and costs” for a frivolous lawsuit such as this will be?

  5. soonergrunt says:

    It’s got to be fifty or sixty thousand at this point for this one case, I should think. I know lawyers that charge $300/hour + expenses and I’m sure there are lawyers that charge more.

  6. logic says:


  7. tragic says:

    And, cue the guano-crazies entering the conversation.

  8. King Jorge III says:

    ‘snicker’ Must be another willfully ignorant frivoliteur…

  9. JTS says:

    And his math is wrong. It would be seven if I understand the logic correcty (i.e. No Obama appointee legitimate). Glad to see these Birthers are actually keeping up with current events, let alone reality. I somehow think 9 judges will be hearing that case if cert is ever granted, which I also doubt.

  10. Dwight Sullivan says:

    I assume logic’s post was a parody.

  11. WOW says:

    I agree, it was Sarcasm, and JTS he obviously is not counting Kagan who is an illegitimate and unqualified selection nevertheless. But what do you expect from an illegitimate process, she was asked such questions like whether she is for team Jacob in Twilight (teen girl movie) or where she was during Christmas (by the phony republicrat Graham).

    This country is gone anyways, and there isn’t anything we can do but watch them raise are taxes and appoint Harvard-Yale graduates to every office of influence.

  12. logic says:


    Next time we get together, let’s talk about your use of “raise are taxes” in that post.

    And yes, my post was 100% for the funnies.

  13. Anonymous says:

    Sarcastic parody, but it did cue some guano-crazy conversation.