UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

________________________________ 

 ) 

ABDUL KARIM HASSAN, ) 

 ) 

Plaintiff, ) 

) Civil Action No. 11-2189 (EGS) 

v. ) 

 ) 

FEDERAL ELECTION COMMISSION, ) 

 ) 

Defendant. ) 

________________________________) 

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“trumped, abrogated and implicitly repealed” by, the Equal 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.” 

Case 1:11-cv-02189-EGS Document 16 Filed 09/28/12 Page 1 of 20
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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. Id. §§ 9002(6), 

9004(a). 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). Candidates 

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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). 

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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. 

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Hassan similarly is ineligible to receive funds under the Fund 

Act. See Compl. ¶ 25.4 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. 

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plaintiff bears the burden of establishing that the court has 

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

(1992). 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. Browning v. Clinton, 292 F.3d 235, 

242 (D.C. Cir. 2002). 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.” 

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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

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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. 

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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, 

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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.” Pl.’s 

Opp’n at 3. The key phrase here is “if nominated.” 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 

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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 

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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, 65-

66 (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 

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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. 

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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 

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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. The Court need 

 8

 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. 

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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. 12-

1190, 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. See U.S. 

Const., Art. V. 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 

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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. It is 

beyond this Court’s authority to do so. “[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).

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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. If the 

Case 1:11-cv-02189-EGS Document 16 Filed 09/28/12 Page 18 of 20
19 

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.” Gonzalez, 419 U.S. at 

96-97. 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 

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IV. CONCLUSION 

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

GRANTED, and Plaintiff’s Application for a Three-Judge Court is 

DENIED. A separate Order accompanies this Memorandum Opinion. 

SIGNED: 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. 

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