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UNITED STATES COURT OF APPEALS 

DISTRICT OF COLUMBIA CIRCUIT 

Abdul Karim Hassan, 

 

 Plaintiff, 

 -vFederal Election Commission, 

 

 Defendant. 

Case #: 12-cv-5335 

PLAINTIFF’S REPLY - 

MOTION AND CROSS 

MOTION FOR SUMMARY 

DISPOSITION 

 I. PRELIMINARY STATEMENT

Plaintiff Abdul K. Hassan, Esq., respectfully submits the instant reply in 

further support of his cross-motion for summary reversal and in further oppositon 

to defendant’s motion for summary affirmance. 

 II. ARGUMENT 

1. DEFENDANT’S MOTION SHOULD BE DENIED BECAUSE 

DEFENDANT DID NOT EVEN ADDRESS OR ATTEMPT 

TO SATISFY THE STANDARD ON A MOTION FOR 

SUMMARY AFFIRMANCE 

 

The first step an attorney, judge, or law clerk takes on a motion is to set forth 

the legal standard that applies and then examines the motion papers to see if that 

standard has been met. Here, there is a heavy burden on a motion for summary 

affirmance that is a lot higher than would apply if the appeal is fully briefed. See 

Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294, 297-298, (D.C. Cir., 1987). 

Defendant does not dispute it does not meet and does not even attempt to address 

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or meet the standard for summary affirmance – defendant is arguing a standard that 

would apply on full briefing or before a three-judge district court. As such, 

defendant’s motion for summary affirmance must be swiftly denied. Such a denial 

is especially warranted in light of the D.C. Circuit’s warning that, “Parties should 

avoid requesting summary disposition of issues of first impression for the Court.” 

See, e.g., D.C. Circuit Handbook at 36. 

2. 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 his opening papers, plaintiff invokes 

Wertheimer v. Federal Election Com'n, 268 F.3d 1070, 1074, 348 U.S. App. D.C. 

1, 5 (C.A.D.C., 2001), and argued that only a three-judge district court can dismiss 

a claim under the Fund Act for failure to state a claim on the merits. In its reply 

papers, the FEC states as follows: 

Hassan relies on a sentence in Wertheimer v. FEC, 268 F.3d 1070, 

1074 (D.C. Cir. 2001), which notes that, as a general matter, 

dismissals for failure to state a claim are considered by a three-judge 

court. However, Hassan ignores the well established exception to that 

general rule for insubstantial or frivolous claims. 

However, while stating that a three judge court need not be convened where 

the issue is insubstantial or frivolous, the FEC does not argue that the issues herein 

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are insubstantial or frivolous but instead, like the district court, argued only that 

plaintiff is wrong and fails to state a claim on the merits. Moreover, defendant and 

the district court could not show insubstantiality because the issues herein were 

never clearly settled or settled by the Supreme Court as explained below. 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. 

While the merits of the issues should be decided by a three-judge district 

court and are not even before this Court on appeal, it would be helpful in order to 

understand the context of the case to examine defendant’ response to Hassan’s 

arguments based on Dred Scott v. Sandford, 60 U.S. 393 (1856) and McDonald v. 

City of Chicago, 130 S. Ct. 3020, 3059-60 (2010). In addressing Dred Scott, 

defendant states in relevant part that (Def. Rep. pg 14, fn 9): 

Hassan relies heavily (Hassan Opp’n at 5-6, 9-10, 15, 16) on 

analogizing the decision below to Dred Scott v. Sandford, 60 U.S. 393 

(1856). Such a comparison is absurd on its face: Dred Scott was held 

to be a non-citizen without power even to sue in federal court; Hassan 

has presented his claims before ten such courts. 

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The FEC was right to hide its comments in a footnote. Is the FEC stating 

that if the natural born provision prohibited Hassan from suing in court the natural 

born provision would be invalid and that Hassan’s implicit repeal and absurdity 

doctrine arguments would prevail? This seems to be the argument of the FEC but if 

it is then Hassan must win this case because this position of the FEC is a 

concession that formal amendment is not required to remedy discrimination in the 

Constitution. To make the point clearer, the FEC seem to finally but reluctantly 

concede the obvious point that Dred Scott was wrongly decided even though the 

slavery and citizenship discrimination at issue in Dred Scott were in the 

Constitution itself – this is a concession by the FEC that formal amendment is not 

required to remedy discrimination in the Constitution. These reluctant concessions 

by the FEC confirms plaintiff’s explanation in his opening papers that slavery and 

invidious citizenship discrimination were irreconcilable with and therefore 

implicitly repealed by the liberty, due process and equality guarantees of the Fifth 

Amendment. Likewise, the invidious citizenship discrimination challenged in this 

case is irreconcilable with and therefore implicitly repealed by the equal protection 

clause of the Fourteenth Amendment. 

 Next, in responding to McDonald, the FEC stated in relevant part as follows: 

Hassan also relies (Hassan Opp’n at 15-16) on McDonald v. City of 

Chicago, 130 S. Ct. 3020, 3059-60 (2010), to argue that courts should 

find an implicit repeal of a portion of the Constitution when its 

provisions appear to be “irreconcilable” with each other. But Hassan 

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fails to note that he is citing Justice Thomas’s concurrence, which was 

joined by no other Justice ... 

 At the outset, it is well settled and even the district court stated that when 

two provisions are irreconcilable the later provision implicitly repeals the earlier 

provision. (Opinion, 16). Plaintiff cited Justice Thomas’ concurrence in McDonald

because he stated the obvious fact that constitutional slavery/citizenship 

discrimination are irreconcilable with constitutional equality - a condition that 

triggers implicit repeal. The FEC responded by arguing that that Justice Thomas 

“was joined by no other Justice.” Is the FEC arguing that the other Justices like the 

FEC in this case, believe that equality and slavery/citizenship discrimination are 

not in conflict and are not irreconcilable? The FEC refuses to acknowledge the 

obvious irreconcilability between equality and invidious citizenship discrimination 

because it knows that such an admission of obvious irreconcilability will trigger 

implicit repeal of the natural born clause – the very result plaintiff is seeking in this 

case. As far as I know, the Klu Klax Klan is the only organization that believes 

slavery/national origin discrimination are not irreconcilable with the equality 

guarantees in the Constitution. In vetting Justice Anthony Kennedy for the 

Supreme Court, the Reagan Administration and the FBI asked Justice Kennedy to 

answer the following question1

: 

 

1 http://www.businessinsider.com/justice-anthony-kennedys-background-check2012-7

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Have you ever been a member of any club or organization that 

excludes as members or restricts access to individuals on the basis of 

race or national origin (e.g., KKK) religion (e.g., certain country 

clubs), or sex (e.g., Masons, Cosmos Club, Metropolitan Club)? 

Ironically, the Regan Administration and the FBI associated “national 

origin” discrimination with organizations like the “KKK” - not with the 

governmental agencies, the courts or the Constitution. Additionally, Canon 2(C) of 

the federal Code of Judicial Conduct, stated in relevant part as follows: 

A judge should not hold membership in any organization that 

practices invidious discrimination on the basis of race, sex, religion, 

or national origin. 

Because national origin discrimination is generally associated with 

organizations like the “KKK” and is such a bad thing that it would likely disqualify 

a person from being nominated as a judge, the FEC’s vigorous support of the 

national origin discrimination in this case is very troubling. It seems the FEC is 

willing to become the merchant of hate simply to try to win a court case. This 

Court should immediately put an end to such hate and discrimination. 

3. 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 

In its reply papers, the FEC does not seem to oppose plaintiff’s argument 

that a finding of insubstantiality can only be made where the issue has been clearly 

settled by U.S. Supreme Court precedent and there is no room for disagreement. 

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See Giles v. Ashcroft, 193 F.Supp.2d 258, 262 (D.C. Cir., 2002). Wolf v. Boyd, 

287 F.2d 520, 522 (C.A.9 1961) 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.”’). Significantly, 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 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. Moreover, “Parties should avoid requesting 

summary disposition of issues of first impression for the Court.” See, e.g., D.C. 

Circuit Handbook at 36. 

4. THIS COURT SHOULD SUMMARILY REVERSE THE 

DISTRICT COURT’S RULING ON STANDING 

In his opening papers, plaintiff established that 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). In response 

to NCPAC, defendant argues that, “As a private party with no enforcement 

authority over the Fund Act, this holding cannot avail Hassan.” (Def. Rep. 7). The 

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FEC’s use of NCPAC is grossly misleading and deceptive because even the district 

court noted as follows in reference to NCPAC (Opinion, pg 8, fn 5): 

(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”). 

Contrary to the FEC’s deceptive and misleading use of NCPAC, even the 

district court noted that the Supreme Court in NCPAC specifically held that a 

private party like plaintiff has standing to sue the FEC especially where the FEC 

has issued an interpretation. This applies with even greater force here because the 

challenged interpretation was issued by the FEC and plaintiff himself is the subject 

of said interpretation. It is obvious that the FEC misrepresented NCPAC because it 

is the leading Supreme Court case about standing under the Fund Act and it clearly 

settles the standing question in plaintiff’s favor and thus, summary reversal for 

plaintiff is warranted. 

We now turn to defendant’s response to Adarand Constructors, Inc. v.Pena, 

515 U.S. 200 (1995). Significantly, the FEC does not deny that plaintiff is a 

presidential candidate as a matter of law who must comply with the laws governing 

contributions, spending, and campaigning, the same as any other presidential 

candidate. (Def. Rep. 8-9). However, defendant states that Hassan’s status as a 

presidential candidate ‘is simply irrelevant, as not all “candidates” qualify for 

grants under the Fund Act.’ (Def. Rep. 9). Like the district court, the FEC grossly 

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misapplies Adarand. As plaintiff explained, the injury is that plaintiff is competing 

for the presidency on an unequal footing – competing for the presidency without 

the signficiant right to recievie funds under the Fund Act, solely because of his 

national origin and where plaintiff will never be able to change his national origin. 

While leading off its reply brief with the merits ruling from the other cases 

involving Hassan, the FEC hid the standing ruling from these cases in a footnote 

and stated as follows (Def. Rep. pg 9, fn 6): 

Hassan notes that four of his prior lawsuits were dismissed for failure 

to state a claim, not on standing grounds. (Hassan Opp’n at 29; see 

also suprapp. 2-5.) Far from establishing a blanket injury sufficient to 

convey standing to sue here, those cases turned on a specific act — 

submitting a statement of candidacy — that Hassan was willing and 

able to complete in each case. Here, however, Hassan has made no 

showing that he is similarly able to become the nominee of a major or 

minor political party eligible for public funds under the Fund Act. See 

26 U.S.C. § 9003. 

Once again, the FEC is incorrect. In each of these cases, the defendants took 

the position that Hassan could not be placed on their presidential ballots because of 

his national origin in light of the natural born clause. In each of those cases, the 

courts explicitly or implicity found that, “because defendants’ inclusion of this 

allegedly discriminatory requirement in the Affidavit of Candidacy effectively 

places plaintiff on unequal footing with natural born candidates for the United 

States Presidency, the Court finds plaintiff has standing to bring the present 

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matter2.” Likewise, because defendant’s discriminatory requirement for funds 

under the Fund Act “effectively places plaintiff on unequal footing with natural 

born candidates for the United States Presidency ... plaintiff has standing to bring 

the present matter.” In Hassan v. Colorado, 870 F.Supp.2d 1192, 1198 

(D.Colo.,2012), the court stated as follows:

Plaintiff's claim is directed specifically at the natural born 

requirement; plaintiff is not challenging the other requirements found 

in the Colorado statute such as the electors requirement. While it is 

true that plaintiff failed to allege that he could meet the electors 

requirement, the merits of plaintiff's claim turn strictly on a legal issue 

(i.e., the implicit repeal of the natural born provision) and does not 

require the development of additional facts for its determination. 

Relatedly, the D.C. Circuit has reiterated that a plaintiff need not engage in 

futile conduct in order to have standing. See National Conservative Political 

Action Committee v. Federal Election Commission, 626 F.2d 953 (D.C. Cir. 

1980). Respondent made clear in its subject ruling that petitioner will be denied 

funds even if there is “formal compliance with the statutorily expressed criteria,” 

because petitioner is a naturalized citizen. Here, because it is impossible for 

petitioner to change his foreign-born status upon which the subject FEC ruling is 

based, it is futile and irrelevant whether plaintiff will eventually win nomination or 

satisfy any other requirement. As such, standing and ripeness clearly exist. 

 

 

2

 See Hassan v. Iowa, No. 4-11-CV-00574, slip op. (S.D. Iowa Apr. 26, 2012) (Docket No. 16) 

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III. CONCLUSION

Plaintiff respectfully requests that this Honorable Court deny defendant 

FEC’s motion for summary affirmance and grant plaintiff Hassan’s cross-motion 

for summary reversal. 

Dated: Queens Village, New York 

 January 13, 2013 

Respectfully submitted, 

 

_/s/ Abdul Hassan____________ 

Abdul Karim Hassan, Esq. (AH6510) 

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 within reply, was served on January 13, 2013 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 

 January 13, 2013

_/s/ Abdul Hassan____________ 

Abdul K. Hassan, Esq. 

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