HASSAN v. FEDERAL ELECTION COMMISSION

Filing 16

MEMORANDUM OPINION. Signed by Judge Emmet G. Sullivan on September 28, 2012. (lcegs6)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
________________________________
)
)
)
Plaintiff,
)
)
v.
)
)
FEDERAL ELECTION COMMISSION,
)
)
Defendant.
)
________________________________)
ABDUL KARIM HASSAN,

Civil Action No. 11-2189 (EGS)

MEMORANDUM OPINION
Plaintiff Abdul Karim Hassan brings this action against the
Federal Election Commission (“FEC”), seeking a declaratory
judgment that (1) the Presidential Election Campaign Fund Act,
26 U.S.C. §§ 9001-9013, which provides public funding to
Presidential nominees of major or minor political parties, is
unconstitutional and invalid, and (2) the natural born citizen
clause of the Constitution1 is irreconcilable with, and has been
“trumped, abrogated and implicitly repealed” by, the Equal
Protection guarantee of the Fifth Amendment and the Citizenship
Clause of the Fourteenth Amendment.

Compl. ¶¶ 1, 31-32.

Pending before the Court is Defendant’s Motion to Dismiss for
lack of jurisdiction under Rule 12(b)(1), or in the alternative,

1

Article II, section 1, clause 5 of the United States
Constitution provides, in pertinent part, “[n]o person except a
natural born Citizen . . . shall be eligible to the Office of
President.”

for failure to state a claim under Rule 12(b)(6) of the Federal
Rules of Civil Procedure.

Also pending before the Court is

Plaintiff’s Application for a Three-Judge Court.

Upon

consideration of the motions, the responses and replies thereto,
the applicable law, the entire record in this case, and for the
reasons set forth below, the Court will GRANT Defendant’s Motion
to Dismiss and will DENY Plaintiff’s Application for a ThreeJudge Court.
I.

BACKGROUND
A.

Statutory Background

The Presidential Election Campaign Fund Act (the “Fund
Act”) offers the Presidential candidates of major and minor
political parties the option of public financing for their
general election campaigns.

See 26 U.S.C. §§ 9001-9013.

The

amount of funding that a candidate is eligible to receive is
based upon the percentage of the popular vote the candidate’s
party received in the prior election.

A “major” party is one

that receives 25 percent or more of the popular vote; major
party candidates receive the largest subsidy.
9004(a).

Id. §§ 9002(6),

A “minor” party is one whose candidate received

between 5 and 25 percent of the total popular vote in the
preceding presidential election; minor party candidates receive
a lesser subsidy, proportionate to the number of votes received
in the preceding election.

Id. §§ 9002(7), 9004(a).
2

Candidates

of parties receiving less than five percent of the vote receive
nothing.

Id. § 9004(a).

Only “candidates” of a political party

are eligible for payments, pursuant to 26 U.S.C. § 9003(a).2

The

Fund Act provides for actions to construe it to be heard by a
three-judge panel, in accordance with the provisions of 28
U.S.C. § 2284, with direct appeal to the Supreme Court.

Id. §

9011(b).
B.

Factual and Procedural Background

Plaintiff Hassan is a Guyana native and a naturalized
American citizen.

See Compl. ¶¶ 1, 8, 10.

In March of 2008,

Hassan announced his candidacy for President of the United
States through his website, www.abdulhassanforpresident.com.
Compl. ¶ 13.

Hassan alleges that he is running in the 2012

election and intends to continue his campaign uninterrupted
until the 2016 election if he is not successful this year.
Compl. ¶ 14.

In his Opposition, Hassan makes clear that he is

seeking the nomination of the Democratic Party in 2012 and in
2016.

Pl.’s Opp’n at 1; see also Pl.’s Reply in Supp. of Appl.

for Three-Judge Ct. at 1.

Hassan satisfies all constitutional

requirements for holding the Office of the President except the
2

The Fund Act defines a “candidate” as “an individual who
(A) has been nominated for election to the office of President
of the United States . . . by a major party, or (B) has
qualified to have his name on the election ballot . . . as the
candidate of a political party . . . in 10 or more States.” 26
U.S.C. § 9002(2).
3

requirement established in Article II, section 1, clause 5 that
the President be a natural born citizen (the “natural born
citizen requirement”).

Compl. ¶ 12.

In support of his

campaign, Hassan alleges that he has created and maintained a
campaign website, implemented a paid advertising campaign
through the Google search engine to promote his candidacy, run
videos on Youtube.com, and participated in interviews.

Compl.

¶¶ 13, 15-22.
In July 2011, Hassan requested an advisory opinion from the
FEC concerning the application of the Presidential Primary
Matching Payment Account Act, 26 U.S.C. §§ 9031-9042 (“Matching
Payment Act”),3 to Hassan’s presidential campaign.

On September

2, 2011, the FEC issued its response, in which it stated that
Hassan is not eligible to receive matching funds under the
Matching Payment Act because he is not a natural born citizen.
See Compl. ¶ 24; see also FEC Advisory Opinion 2011-15 at 3-4
(Sept. 2, 2011), available at
http://saos.nictusa.com/saos/searchao (accessed by searching
“2011-15” in “Go to AO number” field).

This ruling did not

address the Fund Act, but according to Plaintiff, the logic and
reasoning of the FEC’s opinion would lead to the conclusion that

3

The Matching Payment Act establishes a voluntary system of
public financing for major and minor party primary elections,
rather than the general election.
4

Hassan similarly is ineligible to receive funds under the Fund
See Compl. ¶ 25.4

Act.

Plaintiff alleges that because he

cannot obtain funds under the Fund Act, his chances of becoming
the nominee of a major political party -- and thus winning the
Presidency -- are destroyed.

Compl. ¶ 26.

Plaintiff filed his Complaint in this Court on December 8,
2011.

Simultaneously therewith, Plaintiff filed an Application

for a Three-Judge Court pursuant to 26 U.S.C. § 9011.

In

response, Defendant argued that this Court should deny
Plaintiff’s Application because the Complaint fails to present
an Article III case or controversy, and alternatively, because
it does not present a substantial constitutional question.

On

February 27, 2012, Defendant filed a Motion to Dismiss the
Complaint pursuant to Rules 12(b)(1) and 12(b)(6).

The motions

are ripe for determination by the Court.
II.

STANDARDS OF REVIEW
A.

Rule 12(b)(1)

Federal district courts are courts of limited jurisdiction,
Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994),
and a Rule 12(b)(1) motion for dismissal presents a threshold
challenge to a court’s jurisdiction, Haase v. Sessions, 835 F.2d
902, 906 (D.C. Cir. 1987).

On a motion to dismiss for lack of

subject matter jurisdiction pursuant to Rule 12(b)(1), the
4

Defendant does not appear to dispute this assertion.
5

plaintiff bears the burden of establishing that the court has
jurisdiction.
(1992).

Lujan v. Defenders of Wildlife, 504 U.S. 555, 561

In evaluating such a motion, the court must accept as

true all of the factual allegations contained in the complaint,
and should review the complaint liberally while accepting all
inferences favorable to the plaintiff.

See Barr v. Clinton, 370

F.3d 1196, 1199 (D.C. Cir. 2004); Wilson v. Dist. of Columbia,
269 F.R.D. 8, 11 (D.D.C. 2010).

Because subject matter

jurisdiction focuses on the court’s power to hear the claim,
however, the court must give the plaintiff’s factual allegations
closer scrutiny when resolving a Rule 12(b)(1) motion than would
be required for a Rule 12(b)(6) motion.

Macharia v. United

States, 334 F.3d 61, 67-68 (D.C. Cir. 2003).

Thus, to determine

whether it has jurisdiction over a claim, the court may consider
materials outside the pleadings where necessary to resolve
disputed jurisdictional facts.

Herbert v. Nat’l Acad. of Scis.,

974 F.2d 192, 197 (D.C. Cir. 1992).
B.

Rule 12(b)(6)

A motion to dismiss under Rule 12(b)(6) tests the legal
sufficiency of a complaint.
242 (D.C. Cir. 2002).

Browning v. Clinton, 292 F.3d 235,

A complaint must contain “a short and

plain statement of the claim showing that the pleader is
entitled to relief, in order to give the defendant fair notice
of what the . . . claim is and the grounds upon which it rests.”
6

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal
quotation marks and citations omitted).

“‘[W]hen ruling on a

defendant’s motion to dismiss, a judge must accept as true all
of the factual allegations contained in the complaint,’”
Atherton v. D.C. Office of the Mayor, 567 F.3d 672, 681 (D.C.
Cir. 2009) (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007)),
and grant the plaintiff “the benefit of all inferences that can
be derived from the facts alleged.”

Kowal v. MCI Commc’ns

Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994).

A court need not,

however, “accept inferences drawn by plaintiffs if such
inferences are unsupported by the facts set out in the
complaint.

Nor must the court accept legal conclusions cast in

the form of factual allegations.”

Id.

In addition,

“[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550
U.S. at 555).

“[O]nly a complaint that states a plausible claim

for relief survives a motion to dismiss.”

Id. at 679.

Federal courts have long recognized that the pleadings of a
pro se litigant must be construed liberally and held “to less
stringent standards than formal pleadings drafted by lawyers.”
Erickson, 551 U.S. at 94 (citation omitted).

Hassan is a

lawyer, however; therefore, the Court need not afford him the
benefits of liberal construction to which an untrained pro se
7

litigant is entitled.

See, e.g., Harbulak v. Suffolk, 654 F.2d

194, 198 (2d Cir. 1981) (“[Plaintiff] is a lawyer and,
therefore, he cannot claim the special consideration which the
courts customarily grant to pro se parties.”); Davey v. Dolan,
453 F. Supp. 2d 749, 754 (S.D.N.Y. 2006); Guardino v. Am. Sav. &
Loan Ass’n, 593 F. Supp. 691, 694 (E.D.N.Y. 1984); see also
Kroger v. Legalbill.com LLC, 436 F. Supp. 2d 97, 107-08 (D.D.C.
2006) (recognizing that because pro se plaintiff was a lawyer,
allegations raised for the first time in his opposition were not
entitled to a greater degree of leniency).
III. ANALYSIS
A.

Standing

As a threshold matter, Hassan argues that because the Fund
Act grants him a private right of action,5 the Court should infer
that Congress was “making an informed judgment that uncertainty
over the Fund Act creates ‘injury in fact’ and that such injury

5

The Fund Act provides, in relevant part: “The Commission,
the national committee of any political party, and individuals
eligible to vote for President are authorized to institute such
actions, including actions for declaratory judgment or
injunctive relief, as may be appropriate to implement or
construe any provision of this chapter.” 26 U.S.C. §
9011(b)(1); see also FEC v. Nat’l Conservative Political Action
Comm., 470 U.S. 480, 487 (1984) (holding that, although private
parties do not have standing to sue other private parties under
the Act, “an ‘appropriate’ role for private parties under §
9011(b)(1) [is] to bring suits against the FEC to challenge its
interpretations of various provisions of the Act”). Neither
party disputes that the statute provides Hassan with authority
to bring suit.
8

should be remedied by a declaratory judgment action like this
one[.]”

Pl.’s Opp’n at 4.

As Plaintiff himself recognizes,

however, Congress’ grant of a right to sue cannot abrogate the
requirements of Article III standing.

See id.

Article III

standing is “immutable” and cannot be “modified or abrogated by
Congress.”

Bennett v. Spear, 520 U.S. 154, 162 (1997); see also

Raines v. Byrd, 521 U.S. 811, 820 n.3 (1997) (“Congress cannot
erase Article III’s standing requirements by statutorily
granting the right to sue to a plaintiff who would not otherwise
have standing.”); Natural Res. Def. Council v. Pena, 147 F.3d
1012, 1020 (D.C. Cir. 1998).

Hassan still bears the burden of

demonstrating Article III standing.

Lujan, 504 U.S. at 561.

To establish Article III standing, a plaintiff must show
that: (1) he has suffered an “injury in fact” which is (a)
concrete and particularized, and (b) actual or imminent, not
conjectural or hypothetical; (2) there is a causal connection
between the alleged injury and the conduct complained of that is
fairly traceable to the defendant; and (3) it is likely, as
opposed to merely speculative, that the injury will be redressed
by a favorable decision.

Lujan, 504 U.S. at 560-61.

“[T]he

underlying purpose of the imminence requirement is to ensure
that the court in which suit is brought does not render an
advisory opinion in ‘a case in which no injury would have
occurred at all.’”

Animal Legal Def. Fund v. Espy, 23 F.3d 496,
9

500 (D.C. Cir. 1994) (quoting Lujan, 504 U.S. at 564 n.2).

A

claim is not sufficient if the injury is “speculative at best.”
Transmission Agency of N. Cal. v. FERC, 495 F.3d 663, 670 (D.C.
Cir. 2007).
Hassan alleges that the injury he has suffered “includes
his inability and the denial of the right to obtain tens of
millions [of dollars] in public funding, if nominated.”
Opp’n at 3.

The key phrase here is “if nominated.”

Pl.’s

Because

only the nominee of a major or minor political party qualifies
for funding, Hassan must demonstrate that he is a party’s
nominee or that his nomination is imminent.

Yet Hassan has not

alleged sufficient facts to show that he will actually or
imminently be the nominee of a major or minor political party
(let alone the Democratic Party, which he specifies is his
goal).

Rather, he has only announced his intention to run,

created an online presence, and filed a series of lawsuits.
These actions are inadequate to establish that Hassan will
imminently be nominated.
In addition, Hassan relies on Adarand Constructors, Inc. v.
Pena, 515 U.S. 200 (1995), for the proposition that to satisfy
the injury-in-fact element, he need not demonstrate that he has
been or imminently will be injured, but only that he is forced
to compete on unequal footing.

See Pl.’s Opp’n at 6.

In

Adarand, the plaintiff, a subcontractor that was not awarded a
10

federal highway project, challenged the constitutionality of a
federal program designed to provide contracts to disadvantaged
businesses.

The Supreme Court held that plaintiff did not need

to prove that it had been, or would be, the low bidder on a
government contract in order to demonstrate standing.

Rather,

“[t]he injury in cases of this kind is that a ‘discriminatory
classification prevent[s] the plaintiff from competing on an
equal footing.’”

Adarand, 515 U.S. at 211 (quoting Ne. Fla.

Chapter, Associated Gen. Contractors of Am. v. Jacksonville, 508
U.S. 656, 667 (1993)).

Although the plaintiff did not have to

show that it would have been awarded a contract but for the
preference for disadvantaged businesses, it still had to show
that its injury was indeed imminent.

Id. at 211.

The Court

found that the plaintiff had presented concrete evidence -- in
the form of the company’s bidding history and practices, as well
as the availability of future government contracts -- in order
to demonstrate that it would “very likely” continue to submit
relevant bids.

Id. at 211-12.

Therefore, the Court found that

the plaintiff’s injury was “certainly impending.”

Id. at 211

(quoting Lujan, 504 U.S. at 564 n.2).
Hassan has not met his burden of showing that the injury
here is “certainly impending,” as it was in Adarand.

As noted

above, Hassan cannot be injured unless he is actually or
imminently likely to be the Democratic nominee for the office of
11

President.6

Because he has not alleged or provided any

indication that such a nomination is imminent, Hassan has not

6

For this reason, the challenge presented here differs from
Hassan’s other lawsuits, which challenge a number of states and
state authorities for not permitting Hassan to be listed on the
election ballot. See Hassan v. Colorado, --- F. Supp. 2d ----,
No. 11-3116, 2012 WL 1560449 (D. Colo. May 3, 2012); Hassan v.
Montana, No. 11-cv-00072-DWM, slip op. (D. Mont. May 3, 2012)
(Docket No. 22); Hassan v. Iowa, No. 4-11-CV-00574, slip op.
(S.D. Iowa Apr. 26, 2012) (Docket No. 16); Hassan v. New
Hampshire, No. 11-cv-552-JD, 2012 WL 405620 (D.N.H. Feb. 8,
2012). At least one of those courts found that Hassan had
standing because he alleged that if he succeeded with his
litigation, he immediately would be “able and ready” to seek a
place on Iowa’s Presidential ballot. See Hassan v. Iowa, slip
op. at 5 (citing Gratz v. Bollinger, 539 U.S. 244, 262 (2003)
(finding standing to challenge application process even though
plaintiff had not yet submitted transfer application, based on
plaintiff’s demonstration that he was “able and ready” to
apply)). That is a far cry from the threshold here: even
assuming Hassan succeeds in this litigation, he cannot
demonstrate that he is able and ready to receive funding through
the Fund Act because he must first be the nominee of a major or
minor political party.
Likewise, although Plaintiff does not assert it as a basis
for standing, the Court also finds this case distinct from socalled “competitor standing” cases, in which already established
candidates have been found to have standing to challenge an
“assertedly illegal benefit” being conferred upon someone with
whom those candidates compete. Gottlieb v. FEC, 143 F.3d 618,
620-21 (D.C. Cir. 1998); cf. Becker v. FEC, 230 F.3d 381, 386-87
(1st Cir. 2000) (holding that Ralph Nader, as the Green Party
nominee for the 2000 presidential election, had standing to
challenge FEC regulations allowing corporate sponsorship of
presidential debates); Buchanan v. FEC, 112 F. Supp. 2d 58, 6566 (D.D.C. 2000) (finding that Pat Buchanan, the Reform Party’s
nominee for President, had standing to challenge alleged
impartial criteria used to determine participation in
presidential debates, in violation of FEC regulations); Natural
Law Party of the U.S. v. FEC, 111 F. Supp. 2d 33, 44-45 (D.D.C.
2000); see also Comm. for a Unified Indep. Party, Inc. v. FEC,
No. 00-3476, 2001 WL 1218395, *4-6 (S.D.N.Y. Oct. 11, 2001)
(finding that minor parties did not have competitor standing
12

demonstrated that his injury is “certainly impending.”7

In other

words, to be in an analogous position to the plaintiff in
Adarand, Hassan would have to show that at some imminent or
identifiable future time, he will be the nominee of a major or
minor political party, as defined in the Fund Act, but will be
denied funding, on unequal footing with natural born citizens.
Furthermore, in a suit alleging identical claims regarding
the natural born citizen requirement, the Second Circuit already
concluded that Hassan lacked Article III standing.

See Hassan

v. United States, 441 F. App’x 10, 11-12 (2d Cir. 2011), cert.
where they had not nominated a candidate for the election, nor
did a purported nominee have standing where she was “not now a
candidate, nor is there any indication she will be one in the
future”). In Gottleib, although the D.C. Circuit noted that a
candidate -- as opposed to individual voters and political
action groups -- would theoretically have standing based upon a
“competitive injury,” the court held that the plaintiff still
must “show that he personally competes in the same arena with
the same party to whom the government has bestowed the
assertedly illegal benefit.” 143 F.3d at 621 (citation
omitted). Here, Plaintiff cannot show that he personally
competes in the same arena with candidates who receive funding
under the Fund Act because he has not shown that he is or
imminently will be eligible for that funding.
7

Hassan also likens his injury to that at issue in FEC v.
Akins, 524 U.S. 11 (1998). See Pl.’s Opp’n at 3-4. In Akins,
the Supreme Court held that respondents were injured when they
could not obtain information which they alleged a public affairs
organization was required by law to disclose. See Akins, 524
U.S. at 21. Hassan’s purported injury is distinguishable from
the informational injury found in Akins. There, had the
information sought by respondents been made public, they would
have been able to access it. Here, by contrast, Hassan is not
yet eligible to receive public funding, and he has not shown
that he imminently will be. Hassan thus cannot rely on Akins to
demonstrate that he will suffer an injury in fact.
13

denied, 132 S. Ct. 1016 (2012).

There, the court stated,

“Hassan’s bare assertion that he ‘intends to seek the Presidency
of the United States in the year 2012, and thereafter if
necessary,’ is, by itself, insufficient to establish the sort of
‘actual or imminent, not conjectural or hypothetical’ injury
required to establish standing.”

Id. at 11.

“That he might

mount a run for the presidency which might result in some form
of future injury is simply insufficient to satisfy the injuryin-fact requirement.”

Id.

Further, the court noted:

[E]ven were we to credit Hassan’s proffered intention to
run, Hassan has nonetheless failed to allege with any
specificity how the natural born citizen requirement has
already injured him or is likely to injure him in the
immediate future. Hassan does not allege, for example,
that any potential voter or contributor has declined to
support him in light of his ineligibility for office if
elected, nor does he allege that he has been rebuffed in
any attempt to get on the ballot in any state or affiliate
with any party.
Id. at 12.
Here, the Complaint alleges that Hassan has established a
website, paid for online advertising, posted videos on
Youtube.com, and participated in interviews, Compl. ¶¶ 13–19,
many of the same steps he had taken before instituting his
action in the District Court for the Eastern District of New
York.

These minimal actions remain insufficient to demonstrate

the sort of imminent injury in fact required for Article III
standing.

Therefore, Hassan has failed to meet his burden of

14

establishing that he will actually and imminently be in a
position to be affected by the natural born citizen requirement,
or eligible for public funding under the Fund Act.8

However,

even assuming Plaintiff had standing to pursue his claims, the
Court would find that these claims fail as a matter of law for
the same reasons that have been asserted by all of the other
courts to consider Hassan’s claims.
B.

Failure to State a Claim

Hassan’s challenge to the Fund Act rests on his contention
that the natural born citizen requirement has been implicitly
repealed by the Fifth and Fourteenth Amendments.

8

The Court need

The Court would similarly find that Hassan has failed to
establish causation or redressability in order to demonstrate
standing. Hassan argues that “whether a candidate can receive
tens of millions in public funding is a significant factor that
would influence whether a voter would vote for plaintiff as the
candidate of the Democratic Party.” Pl.’s Opp’n at 5. However,
Hassan does not allege that any single voter -- let alone a
significant number of voters -- has actually been influenced by
his ineligibility for public funding. See Hassan, 441 F. App’x
at 12. Moreover, Hassan has not alleged any concrete facts
showing that the natural born citizen requirement, as applied
through the Fund Act, rather than some other factor, has caused
the alleged harm to his campaign (namely, his ineligibility to
receive funding). As this Circuit has recognized, “[t]he
endless number of diverse factors potentially contributing to
the outcome of . . . elections, caucuses, and conventions
forecloses any reliable conclusion that voter support of a
candidate is ‘fairly traceable’ to any particular event.”
Winpisinger v. Watson, 628 F.2d 133, 139 (D.C. Cir. 1980).
Further, striking down the alleged discrimination in the Fund
Act would not necessarily redress Hassan’s purported harm
because the Fund Act would not apply to Hassan unless he became
a party’s nominee. It is therefore speculative that a favorable
decision on the merits would redress Hassan’s alleged injury.
15

not repeat the thorough and persuasive opinions issued by its
colleagues in at least five other jurisdictions, all of whom
determined that the natural born citizen requirement has not
been implicitly repealed by the Fifth and Fourteenth Amendments.
See Hassan v. Colorado, 2012 WL 1560449, at *5-8, aff’d, No. 121190, 2012 WL 3798182, *1 (10th Cir. Sept. 4, 2012); Hassan v.
Montana, slip op. at 3-5; Hassan v. Iowa, slip op. at 7-11;
Hassan v. New Hampshire, 2012 WL 405620, at *2-4; Hassan v.
United States, No. 08-CV-938 (NG), slip op. at 3-6 (E.D.N.Y.
June 15, 2010) (Docket No. 28), aff’d on other grounds, 414 F.
App’x 10.
Briefly, the Court notes that Article 5 of the Constitution
provides an explicit method to amend the Constitution.
Const., Art. V.

See U.S.

Even if a constitutional provision could be

implicitly repealed in the same manner as a statute, the
implicit repeal of statutes is disfavored and will not be found
absent clearly expressed congressional intent.

See Nat’l Ass’n

of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 662
(2007); Posadas v. Nat’l City Bank, 296 U.S. 497, 503 (1936)
(holding that “[w]here there are two acts upon the same subject,
effect should be given to both if possible”).

Repeals by

implication are only found where provisions in two statutes are
in “irreconcilable conflict, or where the latter act covers the
whole subject of the earlier one and is clearly intended as a
16

substitute.”

Branch v. Smith, 538 U.S. 254, 273 (2003)

(internal quotation marks and citation omitted).

Plaintiff has

not pointed to any such manifest intent9 or irreconcilable
conflict, and therefore he has not carried the high burden
necessary to demonstrate that the natural born citizen
requirement has been implicitly repealed.

Moreover, the Supreme

Court has consistently held that the distinction between natural
born citizens and naturalized citizens in the context of
Presidential eligibility remains valid.

See Schneider v. Rusk,

377 U.S. 163, 165 (1964) (“The only difference drawn by the
Constitution is that only the ‘natural born’ citizen is eligible
to be President.”); see also Knauer v. United States, 328 U.S.
654, 658 (1946) (same); Baumgartner v. United States, 322 U.S.
665, 673-674 (1944) (same).
Plaintiff essentially asks this Court to declare that a
provision of the Constitution is itself unconstitutional.
beyond this Court’s authority to do so.

It is

“[T]his Court lacks the

power to grant the relief sought because the Court, as
interpreter and enforcer of the words of the Constitution, is
not empowered to strike the document’s text on the basis that it
is offensive to itself or is in some way internally
9

Indeed, in the few years following the ratification of the
Fourteenth Amendment, Congress considered and rejected numerous
proposals to amend or repeal the natural born citizen
requirement. See Hassan v. New Hampshire, 2012 WL 405620, at
*3-4 (citing secondary authorities).
17

inconsistent.”

New v. Pelosi, No. 08-Civ.-9055(AKH), 2008 WL

4755414, *2 (S.D.N.Y. Oct. 29, 2008) (internal quotation marks
and citation omitted), aff’d, 374 F. App’x 158 (2d Cir. 2010).
Because the natural born citizen requirement has not been
explicitly or implicitly repealed, Hassan’s challenge to that
provision, and the Fund Act’s incorporation thereof, must fail.
C.

Plaintiff’s Application for a Three-Judge Panel

Section 9011(b)(2) of the Fund Act provides:
The district courts of the United States shall have
jurisdiction of proceedings instituted pursuant to
this subsection . . . .
Such proceedings shall be
heard and determined by a court of three judges in
accordance with the provisions of [28 U.S.C. § 2284],
and any appeal shall lie to the Supreme Court.
26 U.S.C. § 9011(b)(2).
A three-judge court is not required, however, when the
Court lacks jurisdiction over a plaintiff’s claims.

As the

D.C. Circuit has stated, “an individual district court
judge may consider threshold jurisdictional challenges
prior to convening a three-judge panel.”

Wertheimer v.

FEC, 268 F.3d 1070, 1072 (D.C. Cir. 2001) (citing Gonzalez
v. Automatic Emps. Credit Union, 419 U.S. 90 (1974); Reuss
v. Balles, 584 F.2d 461, 464 n.8 (D.C. Cir. 1978), cert.
denied, 439 U.S. 997 (1978)).

The Supreme Court’s

“interpretation of the three-judge-court statutes has
frequently deviated from the path of literalism.

18

If the

opaque terms and prolix syntax of these statutes were given
their full play, three-judge courts would be convened . . .
in many circumstances where such extraordinary procedures
would serve no discernible purpose.”
96-97.

Gonzalez, 419 U.S. at

A three-judge court is not required “where the

district court itself lacks jurisdiction of the complaint
or the complaint is not justiciable in the federal courts.”
Id. at 100; see also Giles v. Ashcroft, 193 F. Supp. 2d
258, 262-63 (D.D.C. 2002) (finding that convening a threejudge court was unwarranted since plaintiff lacked standing
to bring his constitutional claims).

Because the Court

concludes that it does not have jurisdiction over this
suit, the Court will DENY Plaintiff’s Application for a
Three-Judge Court.10

10

Defendant also argues that Plaintiff’s Application for a
Three-Judge Court should be denied because this case fails to
present a substantial constitutional claim. Section 9011(b)
explicitly requires that it be construed in accordance with the
three-judge-court provision in 28 U.S.C. § 2284. Courts have
interpreted Section 2284 to require a three-judge court only if
the complaint states a “substantial” constitutional claim.
Giles, 193 F. Supp. 2d at 262. A three-judge court is not
necessary if the claim is “wholly insubstantial,” “frivolous,”
or “obviously without merit.” Goosby v. Osser, 409 U.S. 512,
518 (1973); see also Judd v. FCC, 723 F. Supp. 2d 221, 223
(D.D.C. 2010) (“In determining whether to request the Chief
Judge of the Circuit to convene a three-judge court, a single
judge has the authority to decide whether the complaint states a
‘substantial’ constitutional claim.” (citations omitted)). A
claim is insubstantial if it is obviously without merit or
clearly determined by previous case law. Judd, 723 F. Supp. 2d
at 223. In his Notice of Supplemental Authorities, Hassan
19

IV.

CONCLUSION
For the foregoing reasons, Defendant’s Motion to Dismiss is

GRANTED, and Plaintiff’s Application for a Three-Judge Court is
DENIED.
SIGNED:

A separate Order accompanies this Memorandum Opinion.
Emmet G. Sullivan
United States District Judge
September 28, 2012

argues that he presents a substantial question for purposes of
convening a three-judge court because the issues raised are
issues of first impression. In addition, he argues that because
none of the other five district courts which have dismissed his
case on the merits explicitly found the case to be insubstantial
or frivolous (though there is no indication such an argument was
presented), there is no legal basis for finding that the issues
here are insubstantial. To the contrary, that five other
district courts have reached the identical conclusion on the
merits of Hassan’s challenge, based on nearly identical
reasoning, persuades the Court that this case does not present
issues that are sufficiently substantial or appropriate to
occupy the judicial resources of three judges in this
jurisdiction. Moreover, that other courts acknowledged that
there was no precedent directly on point for Hassan’s novel
theories does not render this an issue of first impression
appropriate for a three-judge court.
20