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UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

Abdul Karim Hassan, 

 

 Plaintiff-Appellant, 

 -vFederal Election Commission, 

 

 Defendant-Appellee. 

Case #: 12-cv-5335 

APPELLANT’S 

OPPOSIITON TO MOTION 

FOR SUMMARY 

AFFIRMANCE AND CROSS 

MOTION FOR SUMMARY 

REVERSAL 

 

 I. PRELIMINARY STATEMENT AND FACTUAL BACKGROUND

Plaintiff Abdul K. Hassan, Esq., respectfully submits the instant opposition 

to defendant’s motion for summary affirmance and in support of his request for 

summary reversal. 

The facts as alleged in the complaint must be taken as true and are 

incorporated herein. In essence however, plaintiff is a civil rights and employment 

attorney by profession who was a candidate for the Presidency of the United States 

in 2012 and is now a candidate for presidential nomination of the Democratic Party 

and in the 2016 presidential general elections and who has continued his campaign 

from 2012 without interruption. The Presidential Election Campaign Fund Act 

(“Fund Act”), 26 U.S.C. §§ 9001-9013, provides tens of millions of dollars in 

public funding to the nominee of major parties, which typically consists of the 

Democratic and Republican parties. However, the Federal Election Commission 

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(“FEC”) ruled on September 2, 20111 that because plaintiff is a naturalized citizen 

and not a natural born citizen, he is not eligible to receive public funding. Because 

of the FEC’s reasoning and interpretation, plaintiff commenced the instant action 

to: 1) declare that the Fund Act’s discrimination against plaintiff because of his 

national origin and status as a natural born citizen, violates the equal protection 

guarantee of the Fifth Amendment and the Citizenship Clause of the Fourteenth 

Amendment; and 2) declare that the Fifth and Fourteenth Amendments trump, 

abrogate and implicitly repeal the invidious national origin discrimination in the 

natural born provision of the Constitution (See Article II, Section 1, Clause 5) – the 

discrimination in the Fund Act is purportedly premised on the natural born 

provision as per the FEC’s interpretation. The instant action was brought pursuant 

to 26 USC § 9011(b) which requires that claims like this one to construe or 

implement the Fund Act to be heard by a three-judge district court. Defendant 

opposed plaintiff’s motion for a three-judge district court on the grounds that the 

issues were insubstantial and that plaintiff lacked standing. The district court 

denied the motion for a three judge court. 

On appeal, defendant filed the instant motion for summary affirmance. The 

standard on a motion for summary affirmance is not whether plaintiff will loose the 

appeal but whether plaintiff should be denied his right to appeal and full briefing 

 

1

 http://saos.nictusa.com/saos/searchao?SUBMIT=continue&PAGE_NO=-1 

USCA Case #12-5335 Document #1412788 Filed: 12/28/2012 Page 2 of 30
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because the issues on appeal are insubstantial or frivolous. Defendant’s summary 

affirmance motion can be denied swiftly because defendant did not even bother to 

state or satisfy the summary affirmance standard and instead only argues based on 

the standard that would apply if full briefing were to ensure – whether plaintiff is 

wrong or right. 

While defendant’s summary affirmance motion must be denied, plaintiff’s 

request herein for summary reversal must be granted even with the higher standard 

that applies to summary disposition. First, the district court’s ruling on the merits 

must be reversed summarily because it is well settled that only a three-judge court 

can rule dismiss a case under the Fund Act for failure to state a claim. Second, in 

order for an issue to be insubstantial it must have been clearly settled by Supreme 

Court precedent. Summary reversal on the insubstantiality issue must be granted 

because neither the district court nor defendant has cited any Supreme Court case 

that even addressed, much less settled the issues herein – this is a case of first 

impression. Third, summary reversal is warranted on the standing issue which is 

settled by at least two Supreme Court cases. 

While the merits of the implicit repeal and absurdity doctrine arguments will 

be presented to a three-judge district court are not before this Court, appellant has 

included his opening 

(http://www.abdulhassanforpresident.com/tenth_circuit/appellate_brief.pdf) and 

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closing brief 

(http://www.abdulhassanforpresident.com/tenth_circuit/reply_brief.pdf) from the 

case of Hassan v. Colorado to provide a better context and understanding of the 

issues. 

Plaintiff, kindly and respectfully request, that this Honorable Court deny 

defendant’s request for summary affirmance and grant plaintiff’s request for 

summary reversal. 

II. AN OVERVIEW OF THE CHALLENGED DISCRIMINATION

There is a famous saying that those who forget the past are condemned to 

repeat it. This saying has greater significance in a case like this which involves a 

very bad form of invidious discrimination and in light of the unfortunate history of 

discrimination in our otherwise wonderful country. 

When the Founding Fathers gave us the Constitution, it contained three 

major forms of invidious discrimination. The first and most infamous was the 

provisions of the Constitution which allowed black people to be owned as slaves. 

The second was the denial of citizenship to people of African origin. The third was 

the denial of full citizenship to citizens like Mr. Hassan because of national origin 

– denying naturalized citizens the right to hold the presidency based on the 

invidious and erroneous belief and stigma that American citizens who were born 

outside the United States cannot be trusted. This was not unlike other invidious and 

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erroneous beliefs of the day such as that Blacks are inferior to Whites and that 

women are inferior to men. After many struggles in and out of the courts, our 

country today is a very different place that has rejected almost all of the invidious 

discrimination supported and practiced by our Founding Fathers in the eighteenth 

century when our Constitution was adopted. The only form of invidious 

discrimination that remains in our Constitution today is the invidious national 

origin discrimination that Mr. Hassan is challenging in this case – such 

discrimination is irreconcilable with the rest of the Constitution, including the Fifth 

Amendment’s equal protection guarantee. In light of this irreconcilability, the 

equality provisions of the Constitution should trump and prevail over the natural 

born provision which discriminates on the basis of national origin – a type of 

discrimination the Supreme Court condemned in Adarand v. Pena, 515 U.S. 200, 

213 (1995), when in reference to earlier national origin discrimination against 

Japanese Americans stated, "[d]istinctions between citizens solely because of their 

ancestry are by their very nature odious to a free people whose institutions are 

founded upon the doctrine of equality." 

Today, we scratch our heads in bewilderment and ask how can a man who 

challenged slavery lose his case as happened in Dred Scott v. Sandford, 60 U.S. 

393 (1857)? How can a court choose the evil of slavery and race discrimination 

over liberty and equality in the Constitution? The answer can be found in the 

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papers of the Federal Election Commission. Dred Scott lost his case because, 

Jutice Taney in Dred Scott, like the FEC in this case, took the position that the only 

way to remedy invidious discrimination in the Constitution is through formal 

amendment and that the implicit repeal and absurdity doctrines should not be used 

to remedy such invidious discrimination. Fortunately, unlike the FEC and the 

district court which have both been mysteriously silent on the Dred Scott

arguments made by plaintiff while supporting the logic in Dred Scott, the Supreme 

Court and the D.C. Circuit have stated that Dred Scott was wrongly decided. See 

Parker v. District of Columbia, 478 F.3d 370, 391 (D.C. Cir., 2007) (“Dred Scott is 

as infamous as it was erroneous in holding that African-Americans are not 

citizens.”). The FEC is now the first unit of the federal government, since the 

internment of Japanese Americans by the U.S. military because of their national 

origin in the 1940s, to engage in and vigorously defend invidious national origin 

discrimination - against Mr. Hassan and more than 15 million other foreign-born 

American citizens. 

There are two main reasons why I brought this challenge. The first is the 

Supreme Court’s interpretation that the equal protection guarantee of the Fifth 

Amendment and the citizenship clause of the Fourteenth Amendment prohibit the 

federal government from discriminating against American citizens because of their 

national origin – at the point of such interpretation which began in the last several 

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decades only, the Fifth and Fourteenth Amendments were placed in irreconcilable 

conflict with the national origin discrimination in the natural born clause – even the 

district court agreed that irreconcilability is a condition that triggers implicit repeal. 

The second is the Supreme Court’s current view and the D.C. Circuit’s current 

view that Dred Scott case was wrongly decided – that Justice Taney was wrong to 

hold that the only way to remedy invidious citizenship discrimination in the 

Constitution itself was through formal amendment. The third is the fact the 

Supreme Court has condemned, reverse and apologized for its rulings and 

reasoning in Dred Scott, Plessy v. Ferguson, 163 U.S. 537 (1896), and Hirabayashi 

v. United States – all cases in which the Supreme Court, like the FEC and district 

court in this case, chose invidious discrimination over equality, only to later regret 

that choice and the damage to our country that flowed therefrom. History has 

shown that whenever the courts and the government chose invidious discrimination 

over equality the government and the courts have ended up on the wrong side of 

history. If Mr. Hassan loses this case, future generations will no doubt ask in 

bewilderment why did a man who challenged invidious national origin 

discrimination lose his case? Why did the FEC oppose a man who challenged the 

evil of invidious national origin discrimination? Why didn’t the FEC follow the 

lead of the Justice Department and refuse to defend a law (DOMA) that invidiously 

discriminates especially where national origin discrimination here is subject to a 

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higher level of judicial scrutiny (strict scrutiny) than sexual orientation 

discrimination (rational basis or intermediate scrutiny). It is my hope that we will 

remember these mistakes of the past so that we are not condemned to repeating 

them in this case. 

 III. ARGUMENT

1. A THREE-JUDGE COURT IN THIS CASE WOULD NOT 

REQUIRE A LOT OF THE JUDICIAL RESOURCES 

In footnote 10, page 20 of its opinion, the district court stated that this case is 

not “appropriate to occupy the judicial resources of three judges in this 

jurisdiction.” After a careful review of the decision and proceedings in the district 

court, it seems that the major factor in the district court’s ruling was its concern 

over judicial resources. While this is not a proper legal basis under the Fund Act to 

refuse to convene a three-judge district court, from a practical standpoint, it did 

play a role and will be addressed at the outset. A three-judge district court will take 

very little judicial resources because the significant constitutional issues of first 

impression realistically belong in the Supreme Court and a three-judge court can 

do the minimum and send the case to the Supreme Court – under the Fund Act, 

appeals go directly to the Supreme Court. In addressing the merit issues in the 

context of the Supreme Court, the Chairperson of the FEC stated in relevant part as 

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follows during the FEC’s September 1, 2011 deliberations as to plaintiff’ 

arguments2

: 

 Whether the Fourteenth Amendment 

 trumps the -- that [natural born] provision in the Constitution, is 

 something that I guess if I -- I envision that if it were 

 to be decided by a court, it might be decided by the 

 Supreme Court and ultimately not by lower courts. 

The FEC Chairperson was correct to state that the merit issues herein are 

Supreme Court material. Defendant’s own Chairperson, after studying the issue 

and deliberating it intensely with her fellow commissioners for half-hour on 

September 1, 2011, echoed the sentiments of her fellow commissioners and 

concluded that the abrogation/implicit repeal issues herein are not just substantial, 

they are so substantial they should be heard by the highest court in the land. 

Realistically, every judge is understandably fearful of being condemned by the 

judgment of history the way Justice Taney was for his writings in Dred Scott – this 

is why all the judges and all the defendants in the several cases brought by Mr. 

Hassan thus far, have all ran away from Mr. Hassan’s arguments based on the 

rulings and reasoning in Dred Scott even though those arguments were central and 

material to the cases – despite being more than 150 years old, Dred Scott is still the 

most recent Supreme Court precedent on the issue of invidious citizenship 

discrimination in the Constitution itself – the same issue in this case. A three-judge 

 

2

 http://www.fec.gov/audio/2011/2011090102.mp3 

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court can simply grant or deny the FEC’s motion without much time spent on 

research or explanation if it chooses to and that would pave the way for the case to 

go to the Supreme Court where it really belongs. 

2. DEFENDANT’S MOTION SHOULD BE DENIED BECAUSE 

DEFENDANT DID NOT EVEN ADDRESS OR ATTEMPT 

TO SATISFY THE STANDARD ON A MOTION FOR 

SUMMARY AFFIRMANCE 

On a motion for summary disposition, the standard is not whether appellant 

is wrong or right on the issues, it is whether plaintiff’s arguments are insubstantial 

or frivolous so that plaintiff should be denied his due process right to appeal and to 

brief the merits of his arguments and have them heard and decided by a merits 

panel. In Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294, 297-298, (D.C. Cir., 

1987), the D.C. Circuit addressed the standard for summary disposition and stated 

in relevant part as follows: 

A party seeking summary disposition bears the heavy burden of 

establishing that the merits of his case are so clear that expedited 

action is justified. See Walker v. Washington, 627 F.2d 541, 545 

(D.C.Cir.), cert. denied, 449 U.S. 994, 101 S.Ct. 532, 66 L.Ed.2d 292 

(1980). To summarily affirm *298 an order of the district court, this 

court must conclude that no benefit will be gained from further 

briefing and argument of the issues presented. Sills v. Bureau of 

Prisons, 761 F.2d 792, 793-94 (D.C.Cir.1985). In addition, this court 

is now obligated to view the record and the inferences to be drawn 

therefrom “in the light most favorable to [taxpayers].” United States v. 

Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 

(1962). 

In re Thomas 508 F.3d 1225, 1226 -1227 (9

th

 Cir., 2007), the Ninth Circuit 

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explained the standard governing summary affirmance and stated in relevant part 

as follows: 

Because our decisions pursuant to a pre-filing review order are rarely 

published, we have not yet clarified the standard for determining 

whether an appeal or petition has sufficient merit to proceed. We take 

the opportunity to do so now. In addressing this issue, we are guided 

by prior decisions setting standards for disposing of cases on a 

summary basis. 

In United States v. Hooton, we permitted summary affirmance of a 

final judgment*1227 in a nonemergency situation only where “it is 

manifest that the questions on which the decision of the cause depends 

are so unsubstantial as not to need further argument.” 693 F.2d 857, 

858 (9th Cir.1982) (citations omitted). Such summary affirmances 

“should be confined to appeals obviously controlled by precedent and 

cases in which the insubstantiality [of the appeal] is manifest from the 

face of appellant's brief.” Id. 

Notably, defendant does not even attempt to meet this standard and 

defendant does not even attempt to argue that plaintiff’s arguments or issues 

are insubstantial or frivolous. On pages 8-11 of its motion papers, defendant 

argues that plaintiff is wrong on the issue of standing and does not even 

attempt to argue that plaintiff’s standing arguments are frivolous or 

insubstantial. On pages 12-17 of its motion papers, defendant argues that the 

natural born provision has not been trumped and implicitly repealed by the 

equal protection guarantee of the Fifth Amendment and defendant does not 

even attempt to argue that plaintiff’s implicit repeal and absurdity doctrine 

arguments are insubstantial or frivolous – the proper standard. 

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3. THIS COURT SHOULD SUMMARILY REVERSE ANY 

RULING ON THE MERITS BECAUSE ONLY A 

THREE-JUDGE DISTRICT COURT CAN DISMISS 

FOR FAILURE TO STATE A CLAIM 

On pages 13-16 of its motion papers, defendant argues that the lower court’s 

finding on the merits and its dismissal for failure to state a cause of action 

(Opinion, 15-18) should be affirmed. In Wertheimer v. Federal Election 

Com'n, 268 F.3d 1070, 1074, 348 U.S. App. D.C. 1, 5 (C.A.D.C., 2001), the D.C. 

Circuit stated in relevant part as follows: 

the court's reasoning seems to us to sound more applicable to cause of 

action considerations than to subject matter jurisdiction. The district 

judge, however, lacked authority, by herself, to dismiss on cause of 

action grounds. 

It is therefore settled by the case law in this Circuit as well the text of 26 

USC § 9011(b) that only a three-judge district court can dismiss a case brought 

under 26 USC § 9011(b) for failure to state a claim. As such, this Court should 

summarily reverse that part of the district court’s ruling (Opinion, 15-18) which 

dismissed on cause of action grounds and this Court should dismiss that part of 

defendant’s instant motion (Def. Mot. 12-17) which seeks to affirm this ruling of 

the district court. This is just one of many examples, as detailed further below, 

where the defendant and the district court simply did not follow established law. 

4. THIS COURT SHOULD SUMMARILY REVERSE ANY 

RULINGS AS TO INSUBSTATIALITY BECAUSE THERE IS 

NO SUPREME COURT CASE THAT HAS SETTLED THE 

ISSUES OF FIRST IMPRESSION IN THIS CASE 

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 It should be noted that while the district court dabbled in the discussion 

about insubstantiality in footnote 10, page 19-20 of its opinion, it made no explicit 

finding as to insubstantiality and could not do so – summary disposition in 

plaintiff’s favor is warranted on this issue. Notably, in Ninth Circuit Court of 

Appeals case of Hassan v. Montana, Case No. 12-35402, (See 

http://www.abdulhassanforpresident.com/ninth_circuit/discharge_OSC.pdf), the 

Ninth Circuit was faced with the same implicit repeal issues as in this case and the 

same arguments made by defendant and discharged its order to show cause for 

summary affirmance - necessarily finding that the issues were not insubstantial. 

In Giles v. Ashcroft, 193 F.Supp.2d 258, 262 (D.C. Cir., 2002), the D.C. 

Circuit pointed out that a three-judge court need not be convened where the claims 

are “wholly insubstantial.” In Giles, 193 F.Supp.2d at 262 -263, the D.C. Circuit 

also explained the meaning of “insubstantial’ and stated in relevant part as follows: 

The Supreme Court explained in Goosby that “[a] claim is 

insubstantial only if its unsoundness so clearly results from the 

previous decisions of this Court as to foreclose the subject and leave 

no room for the inference that the questions sought to be raised can be 

the subject of controversy.” 409 U.S. at 518, 93 S.Ct. 854. 

 In Wolf v. Boyd, 287 F.2d 520, 522 (C.A.9 1961), the Ninth Circuit, also 

explained the meaning of “insubstantial” and stated in relevant part as follows: 

The issue upon this appeal is not whether appellant is correct in 

her construction of her constitutional rights, but whether her 

contentions raise a substantial constitutional question. In the 

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words of the Supreme Court, a question is to be regarded as 

insubstantial if ‘its unsoundness so clearly results from the 

previous decisions of this court as to foreclose the subject and 

leave no room for the inference that the questions sought to be 

raised can be the subject of controversy.’ Hannis Distilling 

Company v. Mayor and City Council of Baltimore, 216 U.S. 

285, 288, 30 S.Ct. 326, 327, 54 L.Ed. 482. 

... The issues presented by these circumstances have not clearly 

been settled by existing precedent and the constitutional 

question which they present is not, in our view, an insubstantial 

one. 

Significantly, as the D.C. Circuit pointed out above in Giles, the 

determination as to whether or not to convene a three-judge court must be made on 

the basis of the Supreme Court’s previous decisions. See also, Lopez v. Butz, 535 

F.2d 1170, 1172, fn 1 (9

th

 Cir. 1976) (‘A determination to convene or not to 

convene a three-judge court must be made on the basis of the Supreme Court's 

“previous decisions.”’). The decisions must be from the Supreme Court because in 

denying a plaintiff a three-judge panel and his day in court, it must be clear that the 

three-judge court cannot possibly rule in plaintiff’s favor and such possibility will 

always exist as long as the highest court in the land has not clearly settled the issue 

– especially where as here, any appeal from the three-judge court goes directly to 

the Supreme Court. 

In the instant case, both the defendant and the district court have failed to 

identify any Supreme Court decision which has clearly settled the issues in this 

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case based on the implicit repeal and absurdity doctrines. Such a Supreme Court 

decision does not exist because plaintiff’s challenge is the first time in history that 

these issues have been presented in the courts and have never “clearly been settled 

by existing precedent,” from the Supreme Court. 

Not only are there no precedents clearly resolving the issues presented, there 

are Supreme Court precedents strongly supporting the position of plaintiff. See 

Dred Scott v. Sandford, 60 U.S. 393 (1857) (supportive and material because the 

modern judiciary and society have rejected as erroneous, the holding in Dred Scott 

which affirmed citizenship discrimination in the Constitution and rejected as 

erroneous the reasoning of Justice Taney that a constitutional amendment was 

needed to avoid the result in Dred Scott.). Afroyim v. Rusk, 387 U.S. 253, 262 

(1967) (holding that, “(The naturalized citizen) becomes a member of the society, 

possessing all the rights of a native citizen, and standing, in view of the 

constitution, on the footing of a native.”). Fitzpatrick v. Bitzer, 427 U.S. 445 

(1976) (finding that the 14

th

 Amendment impliedly abrogated the 11

th

 Amendment 

where the subject, like here, was discrimination). McDonald v. City of Chicago, 

Ill. 130 S.Ct. 3020, 3059 -3060 (U.S., 2010), (explaining that Constitutional 

slavery/citizenship discrimination and Constitutional equality are “irreconcilable” -

a condition that triggers implicit repeal.). Afroyim v. Rusk, 387 U.S. 253 (1967) 

(invalidating statute which discriminated against plaintiff because he was a 

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naturalized citizen and not a natural born citizen.). United States v. Virginia, 518 

U.S. 515, 532 n. 6, (1996) (noting that “[t]he Court has thus far reserved most 

stringent judicial scrutiny for classifications based on race or national origin.”). 

In footnote 10, page 19-20 of its decision, the district court suggests that 

because several other courts have ruled against plaintiff on the merits of the issues 

that would confront a three-judge panel, such a three-judge court should not be 

convened. The district court was very wrong. First, because the finding of 

insubstantiality can only be made based on Supreme Court precedent, these other 

cases which were not decided by the Supreme Court cannot be the basis for a 

finding of insubstantiality. Very significantly, these cases clearly favor plaintiff 

because none of these other cases found the questions presented by plaintiff to be 

insubstantial or frivolous. While all these other cases were decided against plaintiff 

on motions to dismiss - such dismissals were not because the issues presented were 

addressed by existing precedent or because they were easy. To the contrary, all of 

these decisions were based on the absence of precedent directly addressing the 

issues and an unexplained and mysterious avoidance of some very sensitive issues 

such as those arguments based on the citizenship ruling in Dred Scott and the 

judiciary’s current view that such a ruling was erroneous – this was Mr. Hassan’s 

central argument but amazingly, it was never addressed by any of the courts or any 

of the defendants. By contrast, the D.C. Circuit has ruled that the citizenship ruling 

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in Dred Scott was wrong. See Parker v. District of Columbia, 478 F.3d 370, 391 

(D.C. Cir., 2007) (“Dred Scott is as infamous as it was erroneous in holding that 

African-Americans are not citizens.”). Each of these courts struggled to discern the 

correct law and outcome. The absence of direct precedent which was the bases for 

the decisions in the several district courts is exactly why this court should convene 

a three-judge court. 

In addition, the district court in Hassan v. Colorado, 2012 WL 1560449 

(DCO, May 3, 2012) felt that the issues were so substantial that it designated its 

decision for publication. Ironically, the district court in this case felt the issues 

were so substantial that it also designated its decision for publication. As this Court 

is aware, the vast majority of judicial opinions are unpublished and courts only 

designate for publication, decisions on the most substantial legal issues. 

Also, the district court in Hassan v. Iowa, in response to Fitzpatrick v. 

Bitzer, 427 U.S. 445 456 (1976), as an example of implicit repeal in the 

constitutional context stated that3

, “a majority of federal courts have declined to 

view Fitzpatrick as holding that the Fourteenth Amendment effected an implicit 

repeal of the Eleventh Amendment.” The Supreme Court’s abrogation ruling in 

Fitzpatick can be the basis for a ruling in plaintiff’s favor in this case. An issue 

cannot be insubstantial where its resolution hinges on resolving a split in authority 

 

3

 See District Court Docket - SDIA - Case #: 11-cv-574 (REL)(RAW) - Document 16, page 8, fn 6 

USCA Case #12-5335 Document #1412788 Filed: 12/28/2012 Page 17 of 30
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among the courts of appeals – the split shows that the issue is not clearly settled by 

existing precedent – a split in the courts of appeals is also one of the grounds for 

Supreme Court review – hardly an insubstantial matter. In fact, the Iowa court even 

relied on the proposition that4

 it is, “unlikely that a majority of the present Supreme 

Court would sustain a holding that the fourteenth amendment, of its own force, 

represents a pro tanto repeal of the eleventh amendment.” Once again, an issue 

cannot be insubstantial where in order for the Court to resolve the issue against 

plaintiff, it has to engage in a projection of how the Supreme Court would rule 

today or make a finding that the Supreme Court would change an existing ruling. 

Such projections require careful analysis and full and complete consideration of the 

issues by a three-judge court as required by statute. 

On pages 12-14 of its motion, defendant cites Schneider v. Rusk, 377 U.S. 

163 (1964) and several prior cases in which the Supreme Court observed that the 

natural born clause discriminates against citizens but that the rest of the 

constitutional such as the Fifth and Fourteenth Amendments prohibits such 

discrimination. When placed in proper context, these cases actually provide 

powerful support for plaintiff’s position herein. First and foremost, in all of these 

cases, the Supreme emphatically held that discrimination against citizens because 

of their national origin violates the equal protection guarantee of the Fifth 

 

4

 See District Court Docket - SDIA - Case #: 11-cv-574 (REL)(RAW) - Document 16, page 8, fn 6 

USCA Case #12-5335 Document #1412788 Filed: 12/28/2012 Page 18 of 30
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Amendment and the Citizenship clause of the Fourteenth Amendment – this 

consistent holding in these cases answers the first question in this case in plaintiff’s 

favor as to whether the national origin discrimination in the Fund Act against 

naturalized citizens like Mr. Hassan violates the equal protection guarantee of the 

Fifth Amendment and the Citizenship Clause of the Fourteenth Amendment. 

Second, in these cases, the Supreme Court was never presented with and never 

answered the implicit repeal and absurdity doctrine arguments presented in this 

case – none of those cases involved the issue of presidential eligibility. In those 

cases, the Supreme Court merely highlighted the difference or the conflict between 

the natural born clause and the Fifth/Fourteenth Amendments in terms of national 

origin discrimination – a point that is central to plaintiff’s case. Unlike those cases, 

plaintiff here not only identifies this conflict, he is asking this Court to resolve that 

conflict between discrimination and equality in favor of equality – something the 

Supreme Court has never been asked to do in any case before this one. Third, 

defendant mysteriously fails to mention or even address Afroyim v. Rusk 387 U.S. 

253, 262 (1967) even though it is the seminal and most recent case in the 

Schneider line of cases. Defendant and the district court stayed away from Afroyim

because in Afroyim, 387 U.S. at 262 the Supreme Court stated without exception 

as to presidential eligibility that, “(The naturalized citizen) becomes a member of 

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the society, possessing all the rights of a native citizen, and standing, in view of the 

constitution, on the footing of a native.” 

Finally, even though the Supreme Court has never addressed or settled the 

merits issues in this case - even if it had done so, plaintiff’s issues would still not 

be insubstantial because history has shown that the Supreme Court has always 

overruled its decisions such Dred Scott, Plessy v. Ferguson, 163 U.S. 537 (1896), 

and Hirabayashi v. United States, 320 U. S. 81, 100 (1943) in which it chose 

invidious discrimination over equality. 

5. THIS COURT SHOULD SUMMARILY REVERSE THE 

DISTRICT COURT’S RULING ON STANDING BECAUSE 

PLAINTIFF CLEARLY HAS STANDING UNDER AT LEAST 

TWO U.S. SUPREME COURT PRECEDENTS 

The standing question can be decided in plaintiff’s favor at the summary 

affirmance stage because the standing question has been clearly settled in 

plaintiff’s favor by the Supreme Court’s decision in FEC v. Nat’l Conservative 

Political Action Comm., 470 U.S. 480, 487 (1984). No surprisingly, despite the 

fact that NCPAC is the leading Supreme Court case on standing under the Fund 

Act, the defendant and the district court only address NCPAC brief and only in 

footnotes - in reference to NCPAC the district court stated in relevant part as 

follows (Opinion, fn 5, pg 8): 

(holding that, although private parties do not have standing to sue 

other private parties under the Act, “an ‘appropriate’ role for private 

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parties under § 9011(b)(1) [is] to bring suits against the FEC to 

challenge its interpretations of various provisions of the Act”). 

The district court’s own description of NCPAC is a description of the instant 

case. Not surprisingly, tucked away in footnote 5, page 8 of the district court’s 

decision is probably the most remarkable and significant finding by the district 

court which is as follows (Opinion, fn 5, pg 8): 

Neither party disputes that the statute provides Hassan with authority 

to bring suit. 

 As per the above excerpt, plaintiff is a private party who has brought “suit 

against the FEC to challenge its interpretation of various provisions of the Act.” 

Here, there is no dispute that the FEC interprets the Fund Act as prohibiting 

petitioner from obtaining funds solely because of his national origin – an 

interpretation that flows from the FEC’s September 2, 2011 ruling that was 

directed specifically at plaintiff. 

We have a situation where the Supreme Court has ruled that voters would 

have standing to sue the FEC to challenge its interpretations of the Fund Act. By 

contrast, the district court in total disregard of the Supreme Court reaches the 

opposition conclusion and rules in effect that no voter can sue under the Fund Act 

– that only those whose nomination as presidential candidates of major or minor 

parties is imminent can bring suit. Of course, the district court cannot overrule the 

Supreme Court and its standing ruling must be summarily reversed. 

USCA Case #12-5335 Document #1412788 Filed: 12/28/2012 Page 21 of 30
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Realizing that its analysis was in direct conflict with the Fund Act and the 

Supreme Court’s interpretation of standing under the Fund Act, the district court 

concluded that Hassan still does not have standing under the Constitution because, 

“Congress’ grant of a right to sue cannot abrogate the requirements of Article III 

standing.” However, while it is true that Congress cannot abrogate the 

Constitution, it is also true that Congress is free to create rights, the exercise or 

violation of which gives rise to Article III standing. This fact was prominent in 

FEC v. Nat’l Conservative Political Action Comm., 470 U.S. 480, 487 (1984). Like 

plaintiff in this case, the FEC in NCPAC had to demonstrate that it met the 

requirements of Article III standing. What was the injury that the FEC suffered in 

NPAC? The injury was the lack of clarity as to the constitutionality of the statute – 

because of the inherent harm uncertainty in the Fund Act causes in the context of 

presidential campaigns, Congress made an informed judgment in 26 USC 9011(b) 

to give the FEC and voters like plaintiff the right to clarity and certainty in the 

statute and gave them the right to bring an action to construe the Act to achieve 

such clarity and remove the uncertainty. If plaintiff wins this case, it will materially 

help the FEC implement the Fund Act as to plaintiff and the FEC as it must, will 

change its ruling and no longer deny plaintiff the right to funds because of his 

national origin. In fact, during its September 2, 2011 deliberations5

 that led to the 

 

5

 http://www.fec.gov/audio/2011/2011090102.mp3 

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23

matching fund ruling against plaintiff, the FEC commissioners struggled 

immensely with the issue and indicated that they will follow a court ruling in 

plaintiff’s favor on the issue. Moreover, plaintiff’s standing arguments under 

NCPAC are even stronger because he is not only a voter, he is also a presidential 

candidate who has been forced to compete on an unequal footing because of the 

FEC’s discriminatory interpretation that plaintiff cannot receive funds solely 

because of his national origin. The standing ruling of the district court is in direct 

conflict with Supreme Court precedent in NCPAC and said ruling must be 

summarily reversed by this court. 

In addition to having constitutional standing as a voter through the operation 

of the Fund Act as explained above, plaintiff also has standing as a person and/or 

candidate running for President in the 2012 and 2016 election cycles, under the 

Supreme Court decision in Adarand Constructors, Inc. v.Pena, 515 U.S. 200 

(1995). The fact that defendant does not even mention Adarand in its motion is a 

concession that plaintiff has standing under Adarand and that summary reversal of 

the standing ruling is warranted. The district court stated in relevant part as follows 

(Opinion, 10): 

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. 

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The district court badly confuses the logic and holding in Adarand and 

plaintiff’s argument based thereon. Contrary to the district court, plaintiff is not 

arguing that he need not show injury because he is competing on an unequal 

footing – plaintiff is arguing that under Adarand, competing for President on an 

unequal footing is the injury. The district court’s error is made even more glaring 

by the following statement by the Supreme Court in Adarand, 515 U.S. at 211: 

[t]he injury in cases of this kind is that a ‘discriminatory 

classification prevent[s] the plaintiff from competing on an equal 

footing.’” 

 The district court failed to understand that in Adarand, the injury was 

competing on an unequal footing, and that the discussion about imminent injury in 

Adarand was about whether it was imminent that Adarand would be competing for 

contracts in the future. The instant case is a lot stronger than Adarand because 

here, the competing, and hence the injury, is not only imminent – it is actual. Here, 

under law, plaintiff began competing for the presidency when he declared his 

presidential candidacy and has been competing on an unequal footing ever since 

because he has been forced to compete for the presidency without the right to 

obtain significant funding under the Fund Act solely because of his national origin 

– this injury is obviously as a result of the discrimination in the Fund Act as per the 

FEC’s interpretation, and obviously, this injury can be remedied by a favorable 

ruling that declares the national origin discrimination against plaintiff to be in 

USCA Case #12-5335 Document #1412788 Filed: 12/28/2012 Page 24 of 30
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violation of the Fourteenth and Fifth Amendments and trumped and implicitly 

repealed by these amendments. 

 It seems that the district court’s misapplication of Adarand was compounded 

by a lack of knowledge as to when Hassan began competing for the presidency. 

How do we know when a person is considered a person or candidate running for 

President under the law? Is the determination made based on polls? Is it made 

based on gut feeling as to who is presidential material? Is it based on our personal 

view of what a presidential campaign should look like? Is it made based on the 

opinion of talking heads on television? 

 The determination as to whether someone is a person or candidate running 

for President is governed by the Federal Elections Campaign Act (“FECA”) and 

the regulations thereunder such as 11 CFR 100.72(b) and 100.131(b). The Federal 

Elections Commission summarized the relevant legal standards in its Presidential 

brochure and stated in relevant part as follows6

: 

An individual may conduct a variety of activities to test the waters. 

Examples of permissible testing-the-waters activities include polling, 

travel and telephone calls to determine whether the individual should 

become a candidate. 11 CFR 100.72(a) and 100.131(a). 

Certain activities, however, indicate that the individual has decided to 

become a candidate and is no longer testing the waters. In that case, 

once the individual has raised or spent more than $5,000, he or she 

must register as a candidate. Intent to become a candidate, for 

example, is apparent when individuals: 

 

6

 See http://www.fec.gov/pages/brochures/testing_waters.pdf

USCA Case #12-5335 Document #1412788 Filed: 12/28/2012 Page 25 of 30
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- Make or authorize statements that refer to themselves as candidates 

(“Smith in 2012” or “Smith for Senate”); 

- Use general public political advertising to publicize their intention to 

campaign; 

- Raise more money than what is reasonably needed to test the waters 

or amass funds (seed money) to be used after candidacy is established; 

- Conduct activities over a protracted period of time or shortly before 

the election; or 

- Take action to qualify for the ballot. 11 CFR 100.72(b) and 

100.131(b). 

As laid out in the complaint, appellant qualifies a person or candidate 

running for President under law based on either of four of the five grounds listed 

above and in 11 CFR 100.72(b) and 100.131(b). First, plaintiff is considered to be 

a person/candidate for president because he has announced in writing and orally 

that he is a candidate for President in 2012 and 2016. See also 

http://www.abdulhassanforpresident.com. Notably, Hassan’s video on youtube7

 in 

which he discusses his issue positions and campaign has received over 350,000 

views and numerous supportive comments in just the last year – typically only 

nationally known presidential candidates with a solid support and following get so 

many video views. When a person does not announce his or her candidacy, the 

FEC looks to the other four factors, either of which would indicate or qualify the 

person as running – with the exception of raising money factor, the other three 

factors are satisfied and any of them would qualify plaintiff as running for 

President. As confirmed by the FEC’s September 2011 ruling, when plaintiff 

 

7

 http://www.youtube.com/watch?v=7Cd18lsx1ls 

USCA Case #12-5335 Document #1412788 Filed: 12/28/2012 Page 26 of 30
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declared his presidential candidacy be became subject to numerous obligations 

under law including those governing record-keeping, contributions, expenditures 

and campaigning. The FEC made it clear that plaintiff is subject to the 

requirements of law the same as other candidates. However, plaintiff is complying 

with his legal obligations and campaigning like the other candidates but is doing so 

on an unequal footing because he has been denied the right to receive funds under 

the Fund Act and must contend with all the negative consequences that flow from 

such a denial. 

There is a popular misconception that a person cannot be a presidential 

candidate without registering with the FEC. When a person announces his 

candidacy for president, he exits the testing the waters phase and he becomes a 

candidate for president under law. However, that candidate does not become a 

candidate for registration and reporting purposes under FECA until he has $5,000 

in qualified expenses or contributions. As such, it is possible for a presidential 

candidate to run for president and win the presidency without registering with the 

FEC if that person does not cross the $5,000 threshhold. In fact, it is my 

understanding that in one of the previous presidential election cycles, Ralph Nader, 

the most well-known third party candidate in years, became the presidential 

nominee of a third party without crossing the $5,000 threshold and without having 

to register with the FEC as a result. 

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 The district court and defendant rely on the unpublished Second Circuit 

opinion in Hassan v. USA for the proposition that plaintiff has not done enough to 

qualify as a person or candidate running for President. (Opinion, 13-14). However, 

this reliance is seriously misplaced. We begin with the following exchange 

between Judge Newman and counsel for the government during oral arguments 

before the Second Circuit: 

 JUDGE NEWMAN: Is there any electoral step and 

3 some sort official step that a New York resident or 

4 citizen must take to become a presidential candidate? 

JUDGE NEWMAN: So what I am wondering is there 

16 an official step one takes to go to some election 

17 official and obtain a form or do you register? What do 

18 you do? 

19 MS. DEMAS: Well, I believe that -- 

20 JUDGE NEWMAN: Not having wanted to run for 

21 president, I'm rather ignorant about these mattes. 

22 MS. DEMAS: I will try to enlighten the Court 

23 as best as I can, however having never tried to run for 

24 president, I am not as facile with these requirements 

25 either ... 

 Remarkably, both the Second Circuit and the government admitted that they 

did not know at what point someone becomes a candidate or person running for 

president – a critical determination in determining injury for standing purposes. In 

essence, the Second Circuit’s erroneous standing decision was because it was by its 

own admission, “rather ignorant about these mattes.” That ignorance was made 

worse because neither side briefed the “injury” issue before the Second Circuit. 

USCA Case #12-5335 Document #1412788 Filed: 12/28/2012 Page 28 of 30
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Significantly, the district court in the Second Circuit case ruling against the 

government and found that Hassan had standing to bring suit. On appeal, the 

government did not challenge the lower courts finding of injury in fact. 

 Unlike the Second Circuit, the lower court and this Court have the benefit of 

briefing on the issue of standing and on the presidential campaign process. As 

such, the courts in this case cannot claim to be “rather ignorant about these 

mattes,” and cannot make the error on standing that the Second Circuit made. 

Very significantly, the four cases against state election authorities referenced 

by defendant as well as the district court (Opinion, fn 6, pg 12) compellingly 

demonstrate that plaintiff has standing to challenge the natural born clause. It is so 

obvious that plaintiff has standing, the defendants in Hassan v. New Hampshire

and Hassan v. Montana, did not even bother to challenge Hassan on standing and 

ripeness grounds. While the defendants in Hassan v. Iowa and Hassan v. Colorado

did raise standing and ripeness, those arguments were rejected by the district courts 

in both cases which found that plaintiff had standing and that his claims were ripe 

for review. Here, standing and ripeness are even more present because in addition 

to the usual standing and ripeness factors which are satisfied, the statute in this 

case allows any “individuals eligible to vote for President” to bring a declaratory 

judgment case like this one. See 26 USC § 9011(b)(1). 

 IV. CONCLUSION

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Based on the foregoing, plaintiff respectfully requests that this Honorable 

Court deny defendant’s request for summary affirmance and grant plaintiff’s 

request for summary reversal and convene a three-judge district court in this 

matter. 

Dated: Queens Village, New York 

 December 28, 2012 

Respectfully submitted, 

 

_/s/ Abdul Hassan____________ 

Abdul Karim Hassan, Esq., Plaintiff-Appellant, Pro Se 

215-28 Hillside Avenue 

Queens Village, New York 11427 

Tel: 718-740-1000 - Fax: 718-468-3894 

Email: abdul@abdulhassan.com 

 

 CERTIFICATE OF SERVICE

 

I, Abdul K. Hassan, plaintiff pro se in the above-entitled action, hereby 

certify that a copy of plaintiff’s opposition to defendant’s motion for summary 

affirmance and plaintiff’s request for summary reversal, was served on December 

28, 2012 on counsel of record for defendant, Mr. Greg J. Mueller, (FEC’s General 

Counsel’s Office), via this court’s ECF system. 

Dated: Queens Village, New York 

 December 28, 2012

_/s/ Abdul Hassan____________ 

Abdul K. Hassan, Esq. 

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