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.