UNITED STATES COURT OF APPEALS 

DISTRICT OF COLUMBIA CIRCUIT 

Abdul Karim Hassan, 

 

 Petitioner, 

 -vFederal Election Commission, 

 Respondent. 

FEC Index #: 11-1354 

Reply and Response

PETITIONER’S REPLY TO RESPONDENT’S 

RESPONSE/OPPOSITION TO PETITIONER’S MOTION TO 

CERTIFY AND/OR EXPEDITE AND IN RESPONSE/OPPOSITION 

TO RESPONDENT’S MOTION TO DISMISS FOR LACK OF 

JURISDICTION 

 Abdul K. Hassan, Esq. 

 Petitioner, Pro Se 

215-28 Hillside Avenue, 

 Queens Village, NY 11427 

 Tel: 718-740-1000 

 

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TABLE OF CONTENTS

 PAGE 

TABLE OF AUTHORITIES ------------------------------------------------- ii 

I. PRELIMINARY STATEMENT ------------------------------------------ 1 

II. ARGUMENT -------------------------------------------------------------- 1

1. THIS COURT HAS JURISDICTION OVER THIS ACTION 

 PURSUANT TO 26 USC § 9041(a) ------------------------------ 2

 

2. THIS IS THAT RARE AND EXTRAORDINARY CASE 

 IN WHICH CERTIFICATION IS APPROPRIATE ----------- 5 

3. EXPEDITED HANDLING IS WARRANTED IN 

 THIS CASE --------------------------------------------------------- 18 

VI. CONCLUSION ------------------------------------------------------------ 19 

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 I. PRELIMINARY STATEMENT

 Petitioner Abdul Karim Hassan makes the instant submission in reply to 

respondent’s response/opposition to petitioner’s motion to certify and/or expedite and 

in response/opposition to respondent’s motion to dismissal for lack of jurisdiction. 

 II. ARGUMENT

 

1. THIS COURT HAS JURISDICTION OVER THIS ACTION 

PURSUANT TO 26 USC § 9041 

Defendant argues that this Court lacks jurisdiction because the subject FEC 

advisory opinion was not an action under the Presidential Primary Matching Payment 

Account Act ("Matching Payment Act" or “MPA”) as required by 26 USC § 9041(a), 

but instead, was an action under 2 USC § 437f. (Resp. Mot., 5-8). This argument 

quickly fails on each of several grounds. 

First, 2 USC § 437f is merely an authorizing provision which authorizes or 

empowers the FEC to act under the MPA in the form of issuing advisory opinions. As 

such, when the FEC denied petitioner the opportunity or right to receive matching 

funds because of his national origin, it clearly explained that it was doing so under 

provisions of the MPA and it specifically noted that “These [MPA] provisions 

collectively reflect Congressional intent” to prohibit foreign-born candidates from 

receiving matching funds. Simply put, 2 USC § 437f authorizes the FEC to act under 

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the MPA and when those actions are taken, 26 USC § 9041(a) then authorizes this 

Court of Appeals to review them. The whole purpose of 26 USC § 9041(a) was to 

have the Court of Appeals review actions concerning the subject matter of the MPA. 

Not surprisingly, respondent has cited no case which holds that an action to review an 

FEC action in applying the MPA but which is authorized by 2 USC § 437f , should be 

brought in the district court and not in the Court of Appeals pursuant to 26 USC § 

9041(a). We can rest assured that if petitioner had sought review in the district court, 

defendant would swiftly seek dismissal by arguing that 26 USC § 9041(a) required 

the petition for review to be filed in this Court of Appeals and not in the district court. 

Second, the relevant portions of 2 USC § 437f dealing with the MPA are very 

much part of the MPA. Using the respondent’s logic, a party facing enforcement 

action under MPA would not be able to invoke the defense in 2 USC § 437f because 

as the respondent argues, the parts of 2 USC § 437f dealing with the MPA are not 

part of the MPA. It is not illogical for Congress to modify or amend several statutes 

through a single provision in one statute. This is especially true where the statutes in 

question are all related and are administered by the same agency. 

Third, the FEC has the implied power to issue opinions and rulings under the 

MPA with or without 2 U.S.C. § 437f. In this regard, we should note respondent’s 

statement that, “In the absence of 2 U.S.C. § 437f, the Commission would have no 

express authority to render advisory opinions concerning the application of the 

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Matching Payment Act.” (Resp. Mot., pg 6). Respondent was careful to say “no 

express authority” instead of “no authority,” because even the FEC would agree that 

it has the implied power to act under the MPA in the form of issuing opinions like the 

one in this case with or without the express authority in 2 U.S.C. § 437f. 

Fourth, because the main purpose of review is to correct actions that are 

unauthorized or contrary to law, it has to be that review in this Court of Appeals 

pursuant to 26 USC § 9041(a) is permitted even if the FEC did not have authority for 

the action under review - so it is immaterial whether authorization for the opinion 

also came from 2 U.S.C. § 437f. 

 Next, respondent focuses on “fact development” and states in relevant parts as 

follows (Resp. Mot., pg 8): 

In [eligibility and repayment matters under MPA] matters, the 

Commission acts in a quasi-judicial role to find facts and apply the law; 

those determinations can be efficiently reviewed by this Circuit for 

possible legal error without any additional fact development. 

 This argument about the need for additional fact development can be quickly 

set aside. At the outset, respondent does not identify any alleged facts which need 

further development. The reason for this is simple – there is no need for additional 

fact development in this case - the FEC unanimously concluded that it had all the 

facts needed to make its matching fund ruling. The only material fact in this action is 

that petitioner is a naturalized citizen and it is impossible for petitioner’s foreign born 

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status to change. The issues in this action are purely legal in nature and there is no 

need for additional fact development. Respondent also argues on policy grounds and 

states as follows (Resp. Mot., pg 9): 

If advisory opinions applying FECA were reviewed in the first instance 

by the district courts but opinions applying the Matching Payment Act 

were reviewed in the first instance by this Court, a single advisory 

opinion could become subject to piecemeal and simultaneous judicial 

review at both the district and appellate levels. In the interest of judicial 

economy and efficiency, this Court should reject any interpretation of 

FECA and the Matching Payment Act that would create such an illogical 

and senseless result. 

 What this Court should really “reject,” is respondent’s interpretation of the 

Constitution which produces invidious discrimination against more than fifteen (15) 

million naturalized American citizens because that would really indeed create, “an 

illogical and senseless result.” However, Defendant is its own worst enemy when it 

comes to this “piecemeal” argument because Defendant has pursued this very 

“illogical and senseless result” in other cases. In Bluman v. FEC, Docket #: 2010-cv01766 (D.C. District Court), for example, Defendant, contrary to the principles of 

“judicial economy and efficiency,” argued that instead of all of the issues being heard 

by the district court, the case should be split in two with some issues sent to this 

Court sitting en banc with the remaining issues to be heard by a three-judge district 

court. Defendant explained that its opposition to “judicial economy and efficiency” in 

Bluman was dictated by law which required BCRA issues to go to the district court 

and FECA issues to go to the Court of Appeals. Likewise, in the instant case, the law 

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in the form of 26 USC § 9041(a) requires plaintiff to file his challenge of the 

matching fund ruling in this Court. Moreover, Defendant’s concern about multiple 

proceedings is an illusion because there is no other proceeding challenging the 

answers in the advisory opinion concerning FECA. In addition, if Defendant is truly 

concerned about multiple proceedings it should support bringing the challenge in this 

court as required by law because if this action was commenced in the district court, 

and then appealed to this court we would have two proceedings instead of the one we 

now have. Defendant’s argument here fails from every conceivable angle. 

Importantly however, the analysis can begin and end with the statute at 26 USC § 

9041(a) which clearly requires that the petition for review be filed in this Court. 

2. THIS IS THAT RARE AND EXTRAORDINARY CASE IN 

WHICH CERTIFICATION IS APPROPRIATE 

 On the issue of certification, Defendant argues in essence that the statute at 28 

USC § 1254 is dead and that its official repeal would be an “obituary” and a mere 

formality. (Resp. Mot., 10-11). Ironically, this is sort of what petitioner is saying 

about the natural born provision. Respondent argues that only a rare and 

extraordinary case would satisfy the requirements of 28 USC § 1254. Respondent 

also cites the dissent in U.S. v. Seale, 130 S.Ct. 12, 13 (2009), for the proposition that 

the mere certification of a question is a newsworthy event. In that same dissent 

however, Justices Stevens and Scalia stated that, "Section 1254(2) and this Court's 

Rule 19 remain part of our law because the certification process serves a valuable, if 

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limited, function. We ought to avail ourselves of it in an appropriate case." This case 

by petitioner Hassan is that rare, extraordinary and appropriate case. 

 Respondent also cites NLRB v. White Swan Co., 313 U.S. 23, 27 (1941), and 

argues that the questions should not be certified because they have “have an 

‘objectionable generality.’” (Resp. Mot., 11-12). Respondent’s argument is without 

merit. In White Swan, the Supreme Court dismissed the certification because it was 

accompanied by a large set of complicated and confusing facts that had to be sorted 

through. Here, by contrast, the questions of whether the natural born provision is 

trumped by the Fifth and Fourteenth Amendments are simple, precise and purely 

legal in nature and are ideally suited for certification. Respondent next focuses on the 

agency origins of the case and states in relevant part as follows: 

 

Most relevant here, in Civil Aeronautics Bd. v. Am. Air Transp., Inc., 

344 U.S. 45 (1952), the Supreme Court emphasized that it “does not 

normally review orders of administrative agencies in the first instance; 

and the Court does not desire to take any action at this time which might 

foreclose the possibility of such review in the Court of Appeals.” Indeed, 

as a leading treatise has suggested, “[t]here is room for doubt as to 

whether original cases in the courts of appeals (such as applications for 

mandamus, or cases coming directly from administrative agencies) can 

be transferred to the Supreme Court.” Gressman, Supreme Court 

Practice § 9.3 at 602 (9th ed. 2007). 

It should be noted that the Supreme Court did not say that it never reviews 

actions with agency origins through the certification procedure – it merely says that it 

does not “normally” do so – confirming that a rare and extraordinary case like this 

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one would be appropriate for review through the certification procedure. There are 

two other important differences to note. First, in Civil Aeronautics, certification was 

sought because of a split in the Court of Appeals and not because the merit issue itself 

was rare and extraordinary. Here, by contrast, petitioner argues that this case itself is 

rare and extraordinary. Second, in Civil Aeronautics, the certification was sought by a 

party to the case directly to the Supreme Court and as the Supreme Court said in the 

above excerpt, it did not want to deprive the Court of Appeals of the opportunity to 

rule on the matter en banc to break the tie. Here, by contrast, any certification to the 

Supreme Court will be made by the Court of Appeals itself. 

Significantly, and remarkably, respondent has not opposed or even addressed 

any of the seven arguments in favor of certification put forth in petitioner’s original 

moving papers. (See Pet. Mot., 8-17). This is because these arguments are extremely 

meritorious. For example, respondent cannot credibly oppose the view of its own 

Chairperson that the issues herein are so extraordinary that they should be heard by 

the “Supreme Court and ultimately not by lower courts,” repeat, “not by lower 

courts” – a view echoed by both Republican and Democrat members of the FEC 

during their deliberations. 

A review of the literature suggests that the main reason for any reluctance by 

the Court of Appeals in certifying questions and in the Supreme Court accepting such 

certifications, is that neither Court likes the appearance of the Court of Appeals 

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dictating matters for the Supreme Court. However, this logic actually justifies 

certification in this case. Here, one of the main bases for this action is the Supreme 

Court’s view that Dredd Scott was wrongly decided. However, despite its strong 

views about Dredd Scott, the Supreme Court has never issued an official opinion 

explaining why it believes Dredd Scott was wrongly decided because since Dredd 

Scott and until this case, the Supreme Court did not have the opportunity to address 

invidious citizenship discrimination in the Constitution itself and whether the 

Constitution’s equal protection guarantee trumps such discrimination. It is rare and 

extraordinary when the Supreme Court describes one of his decisions as a great “selfinflicted wound.” South Carolina v. Regan, 465 U.S. 367, 412 (1984). Because only 

the Supreme Court can correct its mistakes and because such a correction can dispose 

of this case by explaining the role of discrimination in abrogation analysis, this is that 

rare and extraordinary case where certification is appropriate. 

Respondent also argues against certification by claiming that petitioner’s 

constitutional claims are weak. However, while the extraordinary nature of the issue, 

and not merit, is the central factor in the certification analysis, the instant case is 

extremely and compellingly meritorious. At the outset, it may be helpful to clarify the 

issues and provide a brief summary of equal protection jurisprudence because there 

seems to be some confusion. First, the equal protection clause of the Fourteenth 

Amendment applies to the states and the equal protection guarantee of the Fifth 

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Amendment applies to the federal government – it prohibits the federal government 

from discriminating. Realizing that discrimination is incompatible and irreconcilable 

with Constitutional equal protection, beginning in the 1940s, the Supreme Court 

began to develop a framework for reviewing and determining the validity of 

discrimination laws. Under this framework, the Supreme Court laid out three levels of 

review: 1) strict scrutiny which applies to classifications involving race and national 

origin; 2) intermediate scrutiny which applies to classifications such as gender; and 3) 

rational basis which applies to classifications such as age. Over the last sixty years, 

the Supreme Court has applied strict scrutiny to only two discriminatory 

classifications – race and national origin – national origin discrimination is at issue in 

this case. As such, race discrimination cases can and also used to analyze national 

origin discrimination cases. Notably, national origin is subjected to a higher level of 

review than even gender. Under strict scrutiny review, a law that discriminates on the 

basis of race or national origin will be upheld only if the government can show that 

the law is necessary to achieve a compelling governmental interest and that the law is 

narrowly tailored to achieve that interest. This standard is so tough, no law subject to 

strict scrutiny review has survived in the Supreme Court in the last sixty years – over 

this period the Supreme Court has systematically used strict scrutiny review to 

dismantle and invalidate laws which discriminate on the basis of race or national 

origin. Federal statute also prohibits the federal government from discriminating on 

the basis of national origin and arms of the federal government such as the FEC and 

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the DC Circuit Court of Appeals have all adopted and are enforcing policies which 

prohibit national origin discrimination. 

The last time the federal government supported a law that discriminated on the 

basis of national origin was during World War II, when Japanese-Americans were 

sent to internment camps because of their national origin. During the Reagan 

Administration, Congress passed a law apologizing for that national origin 

discrimination and paying out millions of compensation to its victims. In light of the 

preceding history and law, it is therefore extraordinary that the federal government in 

this case is defending invidious national origin discrimination. 

In terms of the issues herein, the Fifth Amendment argument is based on the 

equal protection guarantee of the Fifth Amendment and the Fourteenth Amendment 

argument is based on the Citizenship Clause of the Fourteenth Amendment. On the 

merits, it is readily apparent that respondent here copied in significant part, the merit 

arguments by Defendant in Hassan v. United States, No. 10-2622, 2011 WL 

2490948, at *2 (2nd Cir. June 21, 2011). However, Defendant here does not seem to 

realize that Defendant in Hassan v. USA has retreated considerably as that case went 

forth and as the understanding of these issues of first impression got better and better. 

For example, after plaintiff filed his opposition to the motion to dismiss, Defendant in 

its reply papers did not put forth any arguments or analysis to rebut Plaintiff’s Fifth 

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Amendment equal protection argument. When Defendant was forced to address the 

equal protection argument and the Dredd Scott case on appeal, it included the 

following remarkable disclaimer (See Def. Br. at 21, fn 10): 

In discussing Dred Scott, the United States by no means implies that this 

case was correctly decided. Nor should defendant’s discussion of Dred 

Scott be construed as tacit agreement with Chief Justice Taney’s 

reasoning therein. 

 Why does the Defendant in Hassan v. USA, think that its discussion of Dredd 

Scott may “impl[y] that this case was correctly decided” or may be “construed as tacit 

agreement with Chief Justice Taney’s reasoning therein?” The answer is simple – 

under the arguments of Defendant in Hassan v. USA and the arguments of respondent 

in this case, the decision in Dredd Scott would be correct even though the Supreme 

Court has described that decision as a great self-inflicted wound1

. South Carolina v. 

Regan, 465 U.S. 367, 412 (1984). In its opposing brief before the Second Circuit, (pg 

21), the Defendant stated in relevant part that: 

Hassan acknowledges that the portions of the Constitution that permitted 

slavery (upon which the Court relied in Dred Scott)10 were expressly 

repealed by the Thirteenth, Fourteenth and Fifteenth Amendments to the 

Constitution. Pl. Br. at 19. To the extent Hassan believes that the natural 

born citizen requirement should be repealed, the proper course would be 

to petition Congress to amend it and to vote for Senators and 

Representatives who support amending this provision. 

 

1

 See also http://www.supremecourt.gov/publicinfo/speeches/sp_03-21-03.html - In reference to the 

Dredd Scott decision, then Chief Justice Rehnquist said in a 2003 that 'It was rightly referred to by a 

later Chief Justice as a "self-inflicted wound" from which it took the Court at least a generation to 

recover.' 

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 Defendant in Hassan v. USA and the respondent in this case believe that only a 

constitutional amendment could have produced a different result in Dredd Scott while 

the Supreme Court and petitioner herein strongly believe that the result should have 

been different even before the Thirteenth, Fourteenth and Fifteenth Amendments 

were adopted. This fundamental disagreement between respondent and the Supreme 

Court further demonstrates that respondent’s decision in this case to choose invidious 

discrimination over constitutional equal protection is without merit. 

While the Supreme Court has never officially explained why it believes Dredd 

Scott was wrongly decided, it dropped a big hint in the very recent case of McDonald 

v. City of Chicago, Ill. 130 S.Ct. 3020, 3059 -3060 (U.S., 2010). In discussing the 

Dredd Scott case, the Supreme Court in McDonald stated that, “slavery, and the 

measures designed to protect it, were irreconcilable with the principles of equality,” 

in the Constitution even though the slavery provisions in the Constitution were very 

specific and the equality principles were very general and even though constitutional 

“equality” was adopted around the same time as the slavery provisions. The 

“irreconcilable” finding in McDonald is significant because even the government in 

Hassan v. USA agreed that implicit repeal occurs when two provisions of the 

constitution are irreconcilable. It seems obvious therefore, that in strongly stating that 

Dredd Scott was wrongly decided, the Supreme Court is saying that the equality 

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guarantee of the Fifth Amendment trumped, abrogated and implicitly repealed the 

slavery provisions and the invidious citizenship discrimination in the Constitution at 

the time of Dredd Scott. Here, the invidious national origin discrimination in the 

natural born provision is irreconcilable with the equality guarantee of the Fifth 

Amendment and is therefore trumped, abrogated and implicitly repealed by it. There 

is a very easy technique that can be used to determine irreconcilability – assume the 

natural born provision was a statute and then decide whether it would violate the Fifth 

Amendment? It obviously would violate the Fifth Amendment under strict scrutiny 

analysis especially where the Supreme Court has declared that the rationale behind 

the natural born provision – that foreign born citizens cannot be trusted, is 

“impermissible” and “impossible for us to make.” See Schneider v. Rusk, 377 U.S. 

163, 168 (1964). Significantly, parts of the Constitution that were not viewed as 

irreconcilable over 200 years ago, may be viewed as irreconcilable today because of 

changes in Constitutional interpretation over this long period – it is only in the last 

sixty years that the Supreme Court has interpreted the Fifth Amendment as containing 

an equal protection guarantee and that such guarantee prohibits national origin 

discrimination. 

Contrary to Respondent’s assertion, Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) 

powerfully supports petitioner’s position. First, there is nothing “express” in the 

Fourteenth Amendment that abrogates the Eleventh – the Fourteenth Amendment is 

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silent as to the Eleventh. As such, the Fourteenth Amendment’s abrogation of the 

Eleventh Amendment is implied and not express. On the point that the Fourteenth 

Amendment was intended to limit the power of the states, it should be noted that the 

Fifth Amendment’s equal protection guarantee limits the federal government’s power 

to discriminate in exactly the same way the Fourteenth Amendment limits the power 

of the states to discriminate. Moreover, like the Fourteenth and Fifth Amendments, 

the Commerce Clause limits the power of the states and Congress has power to 

enforce it as well. Yet, the commerce clause does not abrogate the Eleventh 

Amendment but the Fourteenth Amendment does. The reason is obvious – it is no 

accident that in every Fourteenth Amendment case in which abrogation of the 

Eleventh Amendment was found, the subject matter was discrimination – there is a 

presumption in favor of abrogation/implicit repeal when we are dealing with 

discrimination, especially strict scrutiny discrimination like race or national origin. 

Respondent cites to Schneider v. Rusk, 377 U.S. 163 (1964), and several prior 

cases which noted the different treatment of naturalized citizens in the natural born 

provision. These cases merely highlight the difference that petitioner also highlights 

in this action. Unlike here however, the courts in those cases were never asked to 

resolve or reconcile this difference because presidential eligibility was never at issue 

in those cases and the Courts in those cases never had the benefit of the arguments 

made herein and the developments in civil rights jurisprudence since the 1960s – 

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especially the recent ruling in McDonald that constitutional discrimination is 

irreconcilable with constitutional equality. Very strangely however, while citing 

Schneider and prior cases, respondent does not address or even mention Afroyim v. 

Rusk, 387 U.S. 253 (1967), which is the seminal and most recent in the Schneider

line of cases and in which the Supreme Court stated, without exception as to 

presidential eligibility 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”). Afroyim, 387 U.S. at 260. In Afroyim, the 

Supreme Court deliberately removed that part of the quotation about the natural born 

provision because it was necessary to do so in order for the Court to hold that the 

Fourteenth Amendment created a single citizenship that cannot be diluted, shifted or 

destroyed. In so holding, the Afroyim Court specifically addressed the legislative 

history of the Fourteenth Amendment and found it to be ambiguous so any attempt by 

Respondent to overrule the Supreme Court on the significance of legislative history 

must obviously fail. Significantly however, the fact that Respondent cannot address 

the seminal and leading case on the Citizenship Clause of the Fourteenth Amendment 

upon which petitioner relies is compelling proof that petitioner’s case is extremely 

strong. 

 As a fallback position, Respondent asserts that, “Even if Hassan’s questions 

met the requirements of section 1254(2)”, the questions should not be certified 

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because Hassan has not, “received matching contributions which in the aggregate, 

exceed $5,000 in contributions from residents of each of at least 20 states.” 26 U.S.C. 

§ 9033(b)(3), and as such, standing and ripeness do not exist. (Resp. Mot., 13, fn 4). 

Respondent was right to hide this argument in a footnote because it is without merit. 

As part of his docketing statement, petitioner included a lengthy standing/ripeness 

statement (Ex 1) along with a supporting declaration (Ex. 2) (See Docket #: 1337804) 

and these are incorporated here. As laid out therein, the Supreme Court in Adarand, 

stated in relevant part as follows (internal cites omitted): 

The injury in cases of this kind is that a “discriminatory classification 

prevent[s] the plaintiff from competing on an equal footing.” The 

aggrieved party “need not allege that he would have obtained the benefit 

but for the barrier in order to establish standing.” 

 Moreover, this Circuit has reiterated well established standing/ripeness 

jurisprudence in holding that a petitioner need not engage in futile conduct in order to 

challenge an FEC advisory opinion. See National Conservative Political Action 

Committee v. Federal Election Commission, 626 F.2d 953 (D.C. Cir. 1980). 

Respondent made clear in its subject opinion that petitioner will be denied matching 

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, any 

additional efforts or conduct by petitioner to raise money and in trying to get 

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matching funds would be an elaborate exercise in futility. As such, standing and 

ripeness clearly exist. 

 Respondent also mentions the case of Hassan v. USA, on the issue of standing. 

In Hassan v. USA, the district court correctly applied binding precedent in finding 

that petitioner had standing to challenge the natural born provision and that the claims 

were ripe for review. It was so obvious that the petitioner suffered the requisite 

“injury in fact,” the government on appeal did not challenge the district court’s ruling 

that petitioner suffered the “injury in fact.” As such, neither party before the Second 

Circuit addressed “injury in fact” in their briefs and the Second Circuit disagreed 

with the district court on standing solely based on the alleged absence of “injury in 

fact.” The numerous errors in the Second Circuit’s standing decision were due to the 

fact that unlike the district court, the Second Circuit did not have the benefit of 

briefing. Instead of denying the unopposed petition for rehearing with a one-word 

denial as it usual does, likely realizing the merit of the standing/ripeness arguments 

the Second Circuit felt the need to explain that, “Appellant had ample opportunity to 

brief all relevant issues, including the issue of standing, before the district court and 

this Court and an opportunity to further advance his positions at oral argument.” 

Notably, the Second Circuit did not take issue with the compelling merits of the 

standing arguments - instead, it said the arguments should have been raised earlier. 

Unlike the Second Circuit, this Court is being presented with the relevant arguments. 

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Moreover, petitioner has been injured even more since the Second Circuit ruling - 

when the FEC issued its ruling that petitioner cannot obtain matching funds because 

of his naturalized citizen status. (See Ex. 1 and 2). 

 A more detailed treatment of the merit arguments can be found in the Second 

Circuit briefs at www.abdulhassanforpresident.com/second_circuit. 

3. EXPEDITED HANDLING IS WARRANTED IN THIS CASE 

As laid out above, plaintiff has a compelling case on the merits and he will 

suffer irreparable harm because the presidential primary season is due to begin in 

Iowa in less than two months and will run for only several months after that. As laid 

out in petitioner’s declaration (Ex. 2) he is already suffering harm because in light of 

the FEC’s ruling he has been injured in several different ways and because of the 

passage of time and the nearness of the Presidential elections, this harm will be 

irreparable. It is very common for Courts to expedite election cases especially those 

dealing with constitutional questions – Bush v. Gore, 531 U.S. 98 (2000), is probably 

the most famous example. 

In addition, the fact that Congress in enacting 26 USC § 9041(a) provided for 

review directly in the Court of Appeals is an indication that Congress intended 

campaign finance matters like this one, especially those involving constitutional 

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issues like this one, to be handled on an expedited basis. Relatedly, the FECA at 2 

USC § 437h, requires constitutional challenges to FECA to be immediately certified 

to the Court of Appeals sitting en banc and the Bipartisan Campaign Reform Act 

(“BCRA”) § 403 which amended FECA, provides for direct appeal to the Supreme 

Court, bypassing the Court of appeals and instructs the Supreme Court “to advance 

on the docket and to expedite to the greatest possible extent the disposition of the 

action and appeal.” 

This Court’s rules also provide for expedited handling in cases, “in which the 

public generally, or in which persons not before the Court, have an unusual interest in 

prompt disposition.” (See pg 33 of Handbook). This public interest exception applies 

here as well - the election authorities in all fifty states have an unusual interest in the 

prompt resolution on the merits. In July 2011, plaintiff requested ballot access rulings 

from the election authorities in all fifty states in light of the natural born provision 

and many have already responded2

. What is clear from the responses is that these 

authorities are looking for guidance from the courts as to whether the natural born 

provision has been trumped and some have specifically promised to reconsider their 

responses if there is a judicial ruling to the contrary and given the nearness of the 

Presidential elections and the ballot petitioning period, the state authorities who have 

responded as well as those who are yet o respond, will benefit tremendously from an 

 

2

 See http://www.abdulhassanforpresident.com/ballot_access/rulings.pdf 

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expedited ruling on the merits. Also, this issue of the natural born provision has 

dominated the media in recent years and the FEC’s ruling at issue in this case has also 

garnered a lot of public attention and interest and a large part of the American public 

including people on both sides of the issue, would very much like to see a ruling on 

the merits – a quick internet search will support this view. 

III. CONCLUSION 

Based on the foregoing, Petitioner kindly request that this Honorable Court 

deny respondent’s motion to dismiss in its entirety, grant certification to the U.S. 

Supreme Court, or in the alternative, expedite this appeal, together with such other 

relief as the Court deems just and proper.

Dated: Queens Village, New York 

 November 17, 2011 

Respectfully submitted, 

__/s/ Abdul Hassan____________ 

Abdul Karim Hassan, Esq. 

215-28 Hillside Avenue 

Queens Village, New York 11427 

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

USCA Case #11-1354 Document #1342600 Filed: 11/17/2011 Page 22 of 57
EXHIBIT 1 

USCA Case #11-1354 Document #1342600 Filed: 11/17/2011 Page 23 of 57
1

UNITED STATES COURT OF APPEALS 

DISTRICT OF COLUMBIA CIRCUIT 

Abdul Karim Hassan, 

 Petitioner, 

 -vFederal Election Commission, 

 Respondent. 

Docket #: 11-CV-1354 

Standing and Jurisdictional 

Statement

I. PRELIMINARY STATEMENT 

Petitioner Abdul Karim Hassan (“Hassan” or “petitioner”) is a naturalized 

American citizen and presidential candidate. He submits the instant statement in 

support of his standing in and this Court’s jurisdiction over this action. This 

submission on standing is somewhat detailed at this early stage in part because 

there is a pending motion to certify the merit questions herein to the U.S. Supreme 

Court or in the alternative, to expedite the case. It also seems from the cases and 

procedures that this Court would like standing to be addressed sooner rather than 

later in these types of cases. 

The relevant facts are laid out in the accompanying declaration of petitioner 

and the exhibits referenced in this statement are attached to that declaration. 

USCA Case #11-1354 Document #1342600 Filed: 11/17/2011 Page 24 of 57
2

 II. LEGAL POINTS 

1. Discriminatory Classification and Unequal Footing

On July 5, 2011, petitioner asked the FEC for a ruling, in relevant part, as to 

whether he would be eligible for matching funds given that he is a naturalized 

citizen. (Petitioner Declaration, Ex. 2, 3). As recited in the FEC’s ruling (Ex. 1, pg 

1-2), and transcript (Petitioner’s Declaration, Ex. 4) petitioner satisfies all the 

constitutional requirements for being President except the requirement of natural 

born status. (Pet. Decl. ¶ 9-12). Solely because of petitioner’s naturalized status, 

the FEC ruled in relevant part that (Ex. 1, pg 4): 

Because Mr. Hassan has clearly stated that he is a naturalized citizen 

of the United States, and not a natural born citizen under the 

constitutional requirement in Article II, Section 1, Clause 5, the 

Commission concludes that Mr. Hassan is not eligible to receive 

matching funds. 

At the outset, the FEC’s ruling on matching funds is the type of agency 

action that petitioner has standing to challenge and which is ripe for review under 

this Court’s established precedent. See for example, Unity 08 v. FEC, 596 F.3d 

861 (D.C. Cir. 2010) (examining, affirming and reiterating petitioner’s right to 

challenge FEC advisory opinion and setting aside said opinion). The existence of 

standing and ripeness here is even more obvious and compelling than in Unity 08

in light of the arguments and points below. 

USCA Case #11-1354 Document #1342600 Filed: 11/17/2011 Page 25 of 57
3

Given that the FEC ruled against petitioner in the instant case based on a 

discriminatory classification – national origin, the relevant standing standard is the 

one reiterated by the Supreme Court in Adarand Constructors, Inc. v. Pena, 515 

U.S. 200, 211-212 (1995). In Adarand, the U.S. Supreme Court stated in relevant 

part as follows (internal cites omitted): 

The injury in cases of this kind is that a “discriminatory classification 

prevent[s] the plaintiff from competing on an equal footing.” The 

aggrieved party “need not allege that he would have obtained the 

benefit but for the barrier in order to establish standing.” 

In Adarand, the plaintiff was disadvantaged in getting the job, but here, 

petitioner is totally prevented from getting matching funds because of the national 

origin discrimination in the natural born provision which was the basis of the 

FEC’s ruling. Because of this invidious strict scrutiny discrimination against 

petition and more than fifteen (15) million other naturalized citizens, petitioner is 

not only forced to compete for matching funds on an unequal footing with natural 

born candidates, he is also forced to compete on an unequal footing for the 

Presidency as well – competing for the Presidency without the availability of 

matching funds. 

2. Futility 

USCA Case #11-1354 Document #1342600 Filed: 11/17/2011 Page 26 of 57
4

This Circuit has reiterated well established standing/ripeness jurisprudence 

in holding that a petitioner need not engage in futile conduct in order to challenge 

an FEC advisory opinion. See National Conservative Political Action Committee 

v. Federal Election Commission, 626 F.2d 953 (D.C. Cir. 1980). Here, because it is 

impossible for petitioner to change his foreign-born status upon which the subject 

FEC ruling is based, any additional efforts or conduct by petitioner in trying to get 

matching funds would be an elaborate exercise in futility. In order words, even if 

petitioner satisfies the other requirements for matching funds many times over, he 

still will be denied because he will always be foreign-born. In addition, the FEC 

had the benefit of the constitutional objections raised herein before it issued the 

challenged ruling. (Ex. 2, 3). However, that the FEC took the position that it lacked 

the power to decide the Constitutional question of whether the natural born 

provision was trumped by the Fifth and Fourteenth Amendment. (See FEC’s email 

in Ex. 3). (Ex 4 – Tr. 23:3-6; 5:21-25; 25:5-9; 6:18-21; 21:5-10). 

3. Illegality and Impropriety

As the term “Matching Funds” suggests, the matching funds program 

requires the raising of funds which are then matched by the government under 

certain conditions. However, the FEC has expressed the strong view that it is a 

very bad idea and may be illegal for petitioner to solicit and receive contributions 

USCA Case #11-1354 Document #1342600 Filed: 11/17/2011 Page 27 of 57
5

unless petitioner first obtains a favorable judicial ruling on the merits of his 

arguments that the natural born provision has been trumped. (See Ex 4 – Tr. 12:10-

13; 12:19-25; 13:1-9; 7:1-9; 16:10-13; 19:5-9). The FEC commissioners have also 

opined that soliciting campaign contributions before a favorable ruling that the 

natural born provision has been trumped may constitute fraud or deceptive practice 

under state or other federal laws even though FECA itself does not prohibit a 

naturalized citizen like petitioner from doing so. (Ex. 1, pg 5). (Ex. 4 – Tr. 12:22-

25; 13:1-9). It is well established that a petitioner need not risk enforcement or 

criminal action in order to have standing to challenge an FEC advisory opinion and 

this Court has noted that this is most true when constitution rights are at stake as is 

the case here where petitioner’s equal protection rights under the Constitution are 

at stake. See Unity 08 v. FEC, 596 F.3d 861, 865 (D.C. Cir. 2010). Alaska Dep't of 

Environmental Conservation v. EPA, 540 U.S. 461, 483 (2004). 

4. Reasonableness

The rule of reasonableness is one of the cornerstones of standing 

jurisprudent. See Amnesty Intern. USA v. Clapper, 638 F.3d 118 (2d Cir. 2011) (a 

plaintiff may establish a cognizable injury in fact by showing that he has altered or 

ceased conduct as a reasonable response to the challenged statute.”). Similarly, as 

one of the FEC commissioners noted, in enacting FECA and related laws Congress 

USCA Case #11-1354 Document #1342600 Filed: 11/17/2011 Page 28 of 57
6

assumed that it would not be logical for a naturalized citizen to “go through the 

bother” to get matching funds and run for President in light of the natural born 

provision (see Ex. 4 – Tr. 16:1-4) – further powerful support for the argument that 

a petitioner should logically have standing to challenge the natural born provision 

before he has to “go through the bother” to get matching funds and run for 

President. In fact, in enacting FECA, related laws and the regulations thereunder, 

Congress and the FEC adopted the “testing the waters” provisions and the $5,000 

threshold for persons who have moved beyond “testing the waters” phase1

 because 

they recognized that it would be unreasonable and illogical for presidential 

hopefuls like petitioner to undertake the financial and other costs of a presidential 

run or seeking matching funds without identifying and trying to overcome 

obstacles at an early stage, especially significant obstacles like the natural born 

provision at issue herein. 

Simply put, the Supreme Court has never required a plaintiff to engage in 

disruptive, illegal, impossible, futile, unreasonable, or illogical conduct in order to 

achieve standing. Petitioner herein has done a lot more than he is logically and 

legally expected to do and has exceeded the standing requirements as a result. 

 

1

 See for example 11 CFR § 100.72 and 11 CFR § 100.131. See also the Federal Election 

Commission bulletin (http://www.fec.gov/pages/brochures/testing_waters.pdf), summarizing the 

relevant FECA provisions. See also Federal Election Campaign Act (“FECA”), 2 USC § 431 et 

Seq. also contained at http://www.fec.gov/law/feca/feca.pdf. 

USCA Case #11-1354 Document #1342600 Filed: 11/17/2011 Page 29 of 57
7

5. Broad Standing in Civil Rights Cases

The already strong standing argument is made even stronger by the fact that 

courts have traditionally applied a “broad and accommodating concept of standing 

in civil rights cases.” La Mar v. H & B Novelty & Loan Co., 489 F.2d 461, 469 

(9th Cir. 1973). One of the reasons for this relaxed standard is the fact that 

invidious discrimination not only injures the petitioner but the whole society as 

well. As Justice O'Connor reiterated in Adarand v. Pena, 515 U.S. 200, 213 (1995), 

"[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." Where as here, our government discriminates against petitioner and 

more than fifteen (15) million of its other naturalized citizens because of their 

national origin/ancestry – a strict scrutiny characteristic, this Court has no higher 

duty than to inform petitioner and the millions of other victims of such invidious 

discrimination across the nation whether they are required to endure such 

discrimination and why. 

No law discriminating on the basis of a strict scrutiny characteristic such as 

national origin that is at issue herein has survived in the Supreme Court in the last 

60 years. Discrimination based on race and national origin are both subject to strict 

USCA Case #11-1354 Document #1342600 Filed: 11/17/2011 Page 30 of 57
8

scrutiny so race and national origin cases can be used interchangeably. See 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”). See also Jana-Rock Const., Inc. v. New York State Dept. of 

Economic Development, 438 F.3d 195, 200 (2d Cir. 2006) (“The classifications 

that are the subject of this appeal are based on national origin rather than race. It is 

undisputed, however, that principles of analysis applicable to race-based 

affirmative action programs are the same as those applicable to national-originbased affirmative action programs. We therefore use the terms interchangeably.” 

The last time the Supreme Court upheld strict scrutiny discrimination – it 

was national origin discrimination against Japanese Americans during World War 

II. See Hirabayashi v. United States, 320 U.S. 81 (1943) and Korematsu v. United 

States, 323 U.S. 214 (1944). The Congress later passed legislation apologizing for 

and compensating the victims of those unfortunate decisions. So strong is 

petitioner’s case on the merits that if this Court rules against petitioner on the 

merits, such a ruling would be the first time since Dred Scott v. Sandford, 60 U.S. 

393 (1857), that a federal appellate court upheld invidious citizenship 

discrimination contained in the Constitution itself. The Supreme Court, with much 

USCA Case #11-1354 Document #1342600 Filed: 11/17/2011 Page 31 of 57
9

regret, has described its decision in Dredd Scott as a great “self-inflicted wound.” 

South Carolina v. Regan, 465 U.S. 367, 412 (1984). 

 III. CONCLUSION 

Based on the foregoing, this Honorable Court should find that petitioner has 

established standing and that this Court has jurisdiction over this action. 

Dated: Queens Village, New York 

 October 26 2011 

Respectfully submitted, 

 

__/s/ Abdul Hassan____________ 

Abdul Karim Hassan, Esq. 

215-28 Hillside Avenue 

Queens Village, New York 11427 

Tel: 718-740-1000 

Fax: 718-468-3894 

USCA Case #11-1354 Document #1342600 Filed: 11/17/2011 Page 32 of 57
EXHIBIT 2 

USCA Case #11-1354 Document #1342600 Filed: 11/17/2011 Page 33 of 57
----------------------------------

---------

UNITED STATES COURT OF ApPEALS 


DISTRICT OF COLUMBIA CIRCUIT 


333 Constitution Avenue, NW 


Washington, DC 20001-2866 


Phone: 202-216-7000 I Facsimile: 202-219-8530 


AGENCY DOCKETING STATEMENT 

Administrative Agency Review Proceedings (To be completed by appellant/petitioner) 

1. 	 CASE NO. 11-1354 	 2. DATE DOCKETED: 09/29/2011 

3. 	 CASE NAME (lead parties only) ______________________ Abdul Karim Hassan 	 v. ____ Federal ______________________ Election Commission __

4. 	 TYPE OF CASE: rx: Review Appeal Enforcement j Complaint j Tax Court 

5. 	 IS THIS CASE REQUIRED BY STATUTE TO BE EXPEDITED? C Yes (i•. No 

If YES, cite statute 

6. 	 CASE.lNFORMATION: d . t b . d 

a. -rcfenllTy agency whose or er IS 0 e revlewe : Federal Election Commission 

b. 	 Give agency docket or order number(s): -----------F-E-C--A--O-2-0-11---1-5------­

c. 	 Give date(s) of order(s): 09/02/2011 

d. Has a request for rehearing or reconsideration been filed at the ag£ncy? (' Yes (i No 

If so, when was it filled? 	 By whom? 

Has the agency acted? eYes C No If so, when? 

e. 	 Identify the basis of appellant'e/petitioner's claim of standing. See D.C. Cir. Rule 15(c)(2): 


See attached standing statement and standing declaration with exhibits 


f. 	 Are any other cases involving the same underlying agency order pending in this Court or any other? 

eYes (i No If YES, identify case name(s), docket number(s), and court(s) 

g. 	 Are any other cases, to counsel's knowledge, pending before the agency, this Court, another Circuit 


Court, or the Supreme Court which involve substantially the same issues as the instant case presents? 


(i Yes C No If YES, give case name(s) and number(s) of these cases and identify court/agency: 

Abdul Karim Hassan v. United States, Supreme Court Docket #: 11-507, Cert petition pending 

h. 	 Have the parties attempted to resolve the issues in this case through arbitration, mediation, or any other 

alternative for dispute resolution? eYes (e' No If YES, provide program name and participation dates. 

Signature dflwf' L4:2:J... Date 10/26/2011 

Name of Counsel for Appellant/Petitioner Abdul K. Hassan, Esq., petitioner, pro se 

Address 215-28 Hillside Avenue, Queens Village, NY 11427 

E-Mail abdul@abdulhassan.com 	 Phone ( 718) 740-1000 Fax ( 718) 468-3894 

ATTACH A CERTIFICATE OF SERVICE 


Note: If counsel for any other party believes that the information submitted is inaccurate or incomplete, counsel may so 


advise the Clerk within 7 calendar days by letter, with copies to all other parties, specifically referring to the 


challenged statement. 


USCA Form 41 


August 2009 (REVISED) 


USCA Case #11-1354 Document #1342600 Filed: 11/17/2011 Page 34 of 57
Standing Statement 

USCA Case #11-1354 Document #1342600 Filed: 11/17/2011 Page 35 of 57
1

UNITED STATES COURT OF APPEALS 

DISTRICT OF COLUMBIA CIRCUIT 

Abdul Karim Hassan, 

 Petitioner, 

 -vFederal Election Commission, 

 Respondent. 

Docket #: 11-CV-1354 

Standing and Jurisdictional 

Statement

I. PRELIMINARY STATEMENT 

Petitioner Abdul Karim Hassan (“Hassan” or “petitioner”) is a naturalized 

American citizen and presidential candidate. He submits the instant statement in 

support of his standing in and this Court’s jurisdiction over this action. This 

submission on standing is somewhat detailed at this early stage in part because 

there is a pending motion to certify the merit questions herein to the U.S. Supreme 

Court or in the alternative, to expedite the case. It also seems from the cases and 

procedures that this Court would like standing to be addressed sooner rather than 

later in these types of cases. 

The relevant facts are laid out in the accompanying declaration of petitioner 

and the exhibits referenced in this statement are attached to that declaration. 

USCA Case #11-1354 Document #1342600 Filed: 11/17/2011 Page 36 of 57
2

 II. LEGAL POINTS 

1. Discriminatory Classification and Unequal Footing

On July 5, 2011, petitioner asked the FEC for a ruling, in relevant part, as to 

whether he would be eligible for matching funds given that he is a naturalized 

citizen. (Petitioner Declaration, Ex. 2, 3). As recited in the FEC’s ruling (Ex. 1, pg 

1-2), and transcript (Petitioner’s Declaration, Ex. 4) petitioner satisfies all the 

constitutional requirements for being President except the requirement of natural 

born status. (Pet. Decl. ¶ 9-12). Solely because of petitioner’s naturalized status, 

the FEC ruled in relevant part that (Ex. 1, pg 4): 

Because Mr. Hassan has clearly stated that he is a naturalized citizen 

of the United States, and not a natural born citizen under the 

constitutional requirement in Article II, Section 1, Clause 5, the 

Commission concludes that Mr. Hassan is not eligible to receive 

matching funds. 

At the outset, the FEC’s ruling on matching funds is the type of agency 

action that petitioner has standing to challenge and which is ripe for review under 

this Court’s established precedent. See for example, Unity 08 v. FEC, 596 F.3d 

861 (D.C. Cir. 2010) (examining, affirming and reiterating petitioner’s right to 

challenge FEC advisory opinion and setting aside said opinion). The existence of 

standing and ripeness here is even more obvious and compelling than in Unity 08

in light of the arguments and points below. 

USCA Case #11-1354 Document #1342600 Filed: 11/17/2011 Page 37 of 57
3

Given that the FEC ruled against petitioner in the instant case based on a 

discriminatory classification – national origin, the relevant standing standard is the 

one reiterated by the Supreme Court in Adarand Constructors, Inc. v. Pena, 515 

U.S. 200, 211-212 (1995). In Adarand, the U.S. Supreme Court stated in relevant 

part as follows (internal cites omitted): 

The injury in cases of this kind is that a “discriminatory classification 

prevent[s] the plaintiff from competing on an equal footing.” The 

aggrieved party “need not allege that he would have obtained the 

benefit but for the barrier in order to establish standing.” 

In Adarand, the plaintiff was disadvantaged in getting the job, but here, 

petitioner is totally prevented from getting matching funds because of the national 

origin discrimination in the natural born provision which was the basis of the 

FEC’s ruling. Because of this invidious strict scrutiny discrimination against 

petition and more than fifteen (15) million other naturalized citizens, petitioner is 

not only forced to compete for matching funds on an unequal footing with natural 

born candidates, he is also forced to compete on an unequal footing for the 

Presidency as well – competing for the Presidency without the availability of 

matching funds. 

2. Futility 

USCA Case #11-1354 Document #1342600 Filed: 11/17/2011 Page 38 of 57
4

This Circuit has reiterated well established standing/ripeness jurisprudence 

in holding that a petitioner need not engage in futile conduct in order to challenge 

an FEC advisory opinion. See National Conservative Political Action Committee 

v. Federal Election Commission, 626 F.2d 953 (D.C. Cir. 1980). Here, because it is 

impossible for petitioner to change his foreign-born status upon which the subject 

FEC ruling is based, any additional efforts or conduct by petitioner in trying to get 

matching funds would be an elaborate exercise in futility. In order words, even if 

petitioner satisfies the other requirements for matching funds many times over, he 

still will be denied because he will always be foreign-born. In addition, the FEC 

had the benefit of the constitutional objections raised herein before it issued the 

challenged ruling. (Ex. 2, 3). However, that the FEC took the position that it lacked 

the power to decide the Constitutional question of whether the natural born 

provision was trumped by the Fifth and Fourteenth Amendment. (See FEC’s email 

in Ex. 3). (Ex 4 – Tr. 23:3-6; 5:21-25; 25:5-9; 6:18-21; 21:5-10). 

3. Illegality and Impropriety

As the term “Matching Funds” suggests, the matching funds program 

requires the raising of funds which are then matched by the government under 

certain conditions. However, the FEC has expressed the strong view that it is a 

very bad idea and may be illegal for petitioner to solicit and receive contributions 

USCA Case #11-1354 Document #1342600 Filed: 11/17/2011 Page 39 of 57
5

unless petitioner first obtains a favorable judicial ruling on the merits of his 

arguments that the natural born provision has been trumped. (See Ex 4 – Tr. 12:10-

13; 12:19-25; 13:1-9; 7:1-9; 16:10-13; 19:5-9). The FEC commissioners have also 

opined that soliciting campaign contributions before a favorable ruling that the 

natural born provision has been trumped may constitute fraud or deceptive practice 

under state or other federal laws even though FECA itself does not prohibit a 

naturalized citizen like petitioner from doing so. (Ex. 1, pg 5). (Ex. 4 – Tr. 12:22-

25; 13:1-9). It is well established that a petitioner need not risk enforcement or 

criminal action in order to have standing to challenge an FEC advisory opinion and 

this Court has noted that this is most true when constitution rights are at stake as is 

the case here where petitioner’s equal protection rights under the Constitution are 

at stake. See Unity 08 v. FEC, 596 F.3d 861, 865 (D.C. Cir. 2010). Alaska Dep't of 

Environmental Conservation v. EPA, 540 U.S. 461, 483 (2004). 

4. Reasonableness

The rule of reasonableness is one of the cornerstones of standing 

jurisprudent. See Amnesty Intern. USA v. Clapper, 638 F.3d 118 (2d Cir. 2011) (a 

plaintiff may establish a cognizable injury in fact by showing that he has altered or 

ceased conduct as a reasonable response to the challenged statute.”). Similarly, as 

one of the FEC commissioners noted, in enacting FECA and related laws Congress 

USCA Case #11-1354 Document #1342600 Filed: 11/17/2011 Page 40 of 57
6

assumed that it would not be logical for a naturalized citizen to “go through the 

bother” to get matching funds and run for President in light of the natural born 

provision (see Ex. 4 – Tr. 16:1-4) – further powerful support for the argument that 

a petitioner should logically have standing to challenge the natural born provision 

before he has to “go through the bother” to get matching funds and run for 

President. In fact, in enacting FECA, related laws and the regulations thereunder, 

Congress and the FEC adopted the “testing the waters” provisions and the $5,000 

threshold for persons who have moved beyond “testing the waters” phase1

 because 

they recognized that it would be unreasonable and illogical for presidential 

hopefuls like petitioner to undertake the financial and other costs of a presidential 

run or seeking matching funds without identifying and trying to overcome 

obstacles at an early stage, especially significant obstacles like the natural born 

provision at issue herein. 

Simply put, the Supreme Court has never required a plaintiff to engage in 

disruptive, illegal, impossible, futile, unreasonable, or illogical conduct in order to 

achieve standing. Petitioner herein has done a lot more than he is logically and 

legally expected to do and has exceeded the standing requirements as a result. 

 

1

 See for example 11 CFR § 100.72 and 11 CFR § 100.131. See also the Federal Election 

Commission bulletin (http://www.fec.gov/pages/brochures/testing_waters.pdf), summarizing the 

relevant FECA provisions. See also Federal Election Campaign Act (“FECA”), 2 USC § 431 et 

Seq. also contained at http://www.fec.gov/law/feca/feca.pdf. 

USCA Case #11-1354 Document #1342600 Filed: 11/17/2011 Page 41 of 57
7

5. Broad Standing in Civil Rights Cases

The already strong standing argument is made even stronger by the fact that 

courts have traditionally applied a “broad and accommodating concept of standing 

in civil rights cases.” La Mar v. H & B Novelty & Loan Co., 489 F.2d 461, 469 

(9th Cir. 1973). One of the reasons for this relaxed standard is the fact that 

invidious discrimination not only injures the petitioner but the whole society as 

well. As Justice O'Connor reiterated in Adarand v. Pena, 515 U.S. 200, 213 (1995), 

"[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." Where as here, our government discriminates against petitioner and 

more than fifteen (15) million of its other naturalized citizens because of their 

national origin/ancestry – a strict scrutiny characteristic, this Court has no higher 

duty than to inform petitioner and the millions of other victims of such invidious 

discrimination across the nation whether they are required to endure such 

discrimination and why. 

No law discriminating on the basis of a strict scrutiny characteristic such as 

national origin that is at issue herein has survived in the Supreme Court in the last 

60 years. Discrimination based on race and national origin are both subject to strict 

USCA Case #11-1354 Document #1342600 Filed: 11/17/2011 Page 42 of 57
8

scrutiny so race and national origin cases can be used interchangeably. See 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”). See also Jana-Rock Const., Inc. v. New York State Dept. of 

Economic Development, 438 F.3d 195, 200 (2d Cir. 2006) (“The classifications 

that are the subject of this appeal are based on national origin rather than race. It is 

undisputed, however, that principles of analysis applicable to race-based 

affirmative action programs are the same as those applicable to national-originbased affirmative action programs. We therefore use the terms interchangeably.” 

The last time the Supreme Court upheld strict scrutiny discrimination – it 

was national origin discrimination against Japanese Americans during World War 

II. See Hirabayashi v. United States, 320 U.S. 81 (1943) and Korematsu v. United 

States, 323 U.S. 214 (1944). The Congress later passed legislation apologizing for 

and compensating the victims of those unfortunate decisions. So strong is 

petitioner’s case on the merits that if this Court rules against petitioner on the 

merits, such a ruling would be the first time since Dred Scott v. Sandford, 60 U.S. 

393 (1857), that a federal appellate court upheld invidious citizenship 

discrimination contained in the Constitution itself. The Supreme Court, with much 

USCA Case #11-1354 Document #1342600 Filed: 11/17/2011 Page 43 of 57
9

regret, has described its decision in Dredd Scott as a great “self-inflicted wound.” 

South Carolina v. Regan, 465 U.S. 367, 412 (1984). 

 III. CONCLUSION 

Based on the foregoing, this Honorable Court should find that petitioner has 

established standing and that this Court has jurisdiction over this action. 

Dated: Queens Village, New York 

 October 26 2011 

Respectfully submitted, 

 

__/s/ Abdul Hassan____________ 

Abdul Karim Hassan, Esq. 

215-28 Hillside Avenue 

Queens Village, New York 11427 

Tel: 718-740-1000 

Fax: 718-468-3894 

USCA Case #11-1354 Document #1342600 Filed: 11/17/2011 Page 44 of 57
Standing Declaration 

USCA Case #11-1354 Document #1342600 Filed: 11/17/2011 Page 45 of 57
1

UNITED STATES COURT OF APPEALS 

DISTRICT OF COLUMBIA CIRCUIT 

Abdul Karim Hassan, 

 Petitioner, 

 -vFederal Election Commission, 

 Respondent. 

Docket #: 11-CV-1354 

Standing Declaration

ABDUL KARIM HASSAN (“petitioner”), an attorney and member of the 

bar of the State of New York, declares and states under penalty of perjury: 

1. I am the petitioner in the above-entitled action. 

2. I submit this Declaration in support of petitioner’s standing in and this 

Court’s jurisdiction over this action. 

3. This Declaration is made on the basis of my personal knowledge of the facts 

and circumstances of the case, the records, pleadings and submissions, my 

investigation into the matter and upon information and belief. 

EXHIBITS

USCA Case #11-1354 Document #1342600 Filed: 11/17/2011 Page 46 of 57
2

4. The FEC’s September 2, 2011 ruling which is the subject of this action is 

included herein as Exhibit 1. 

5. Plaintiff’s request for opinion to the FEC is included herein as Exhibit 2. 

6. Exhibit 3 is petitioner’s July 2011 supplemental submission to the FEC’s 

outlining in further detail the argument that the natural born provision has 

been trumped by the Fifth and Fourteenth Amendments. 

7. The transcript of the FEC’s September 1, 2011 deliberations is included 

herein as Exhibit 4. 

8. The exhibits herein and attached hereto are true and accurate copies of the 

originals. 

STATEMENT OF FACTS

9. Petitioner Abdul Karim Hassan (“petitioner” or “Hassan”) was born in 1974 

in the country of Guyana. 

10. Petitioner’s race is East Indian. 

USCA Case #11-1354 Document #1342600 Filed: 11/17/2011 Page 47 of 57
3

11. Petitioner is a naturalized American citizen. 

12. Petitioner satisfies all of the constitutional requirements for holding the 

Office of President of the United States except the requirement of natural 

born status. See U.S. Constitution, Article II, Section 1, Clause 5 (“Natural 

Born Provision”). 

13. In March 2008, petitioner announced his candidacy for the Presidency of the 

United States through his presidential website at 

www.abdulhassanforpresident.com. 

14. Petitioner is currently focused on the 2012 presidential elections but if he not 

successful in 2012, petitioner intends to continue his current campaign 

without interruption until the next presidential elections in 2016. 

15. Since the announcement of his candidacy in March 2008, petitioner has used 

and will continue to use without interruption, his presidential website in 

much the same way as the leading presidential candidates – to promote and 

USCA Case #11-1354 Document #1342600 Filed: 11/17/2011 Page 48 of 57
4

communicate his candidacy, issue positions and campaign to voters and the 

public. 

16. In order to compliment and improve the use of the website, petitioner has 

purchased and paid for a national presidential advertising campaign through 

Google. This advertisement has been running and will continue to run and it 

links to petitioner’s presidential website. 

17. In addition, petitioner has done interviews with and has been covered by 

both print and radio media. 

18. Petitioner’s presidential candidacy and campaign have also been covered 

widely on the internet as a quick online search will reveal. 

19. In July 2011, petitioner sought presidential ballot access rulings from 

election authorities in all fifty states in light of his status as a naturalized 

citizen and several states have already provided responses. See 

www.abdulhassanforpresident.com/ballot_access/rulings.pdf. 

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20. This growth in petitioner’s presidential campaign and candidacy has resulted 

in thousands of hits each month to petitioner’s presidential website from all 

across the country and the growth continues. 

21. Petitioner will continue to build on this initial success and continue to 

promote his candidacy and ideas to more and more voters across the country. 

22. Shortly after announcing his presidential candidacy, petitioner, on March 5, 

2008, commenced an action in the United States District Court for the 

Eastern District of New York, seeking a declaration that the invidious 

national origin discrimination in the natural born provision has been trumped 

by the equal protection guarantee of the Fifth Amendment and the 

citizenship clause of the Fourteenth Amendment. That case has worked its 

way to the U.S. Supreme Court where a petition for certiorari is pending. 

See Supreme Court Docket #: 11-507. 

23. As petitioner’s campaign has grown, he has received pledges of financial 

support from family, friends and supporters. However, because of obstacles 

created by the natural born provision, and before accepting campaign 

contributions, petitioner sought a ruling from the FEC as to whether he can 

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solicit and receive campaign contributions as a naturalized citizen, and 

relatedly, whether he can receive matching funds, before accepting 

campaign contributions. (See Ex. 2 and 3). 

24. In its subject September 2, 2011 ruling (Ex. 1, pg 3-4), the FEC ruled that 

petitioner is not eligible for matching funds and opined in its ruling (Ex. 1, 

pg 5) and deliberations (Ex. 4 - Tr. 12:22-25; 13:1-9) that even collecting 

presidential campaign contributions may constitute fraud and deceptive 

practices under state and other federal laws because of petitioner’s status as 

a naturalized citizen. See also (Ex. 4 - Tr. 12:10-13; 12:19-25; 13:1-9; 7:1-9; 

16:10-13; 19:5-9). 

25. The FEC’s ruling and opinion about matching funds and deceptive practices 

and fraud has also had a stigmatizing and delegitimatizing effect on 

petitioner’s campaign and a negative impact on voter support and hence, the 

building of a donor base and campaign contribution pledges. For example, 

an article on the National Journal1

 carried the headline, “FEC: No U.S. Birth 

Certificate; No Presidential Matching Funds” and the sub-heading, 

“Commissioners cite Constitution in case of naturalized citizen.” 

 

1

 http://www.nationaljournal.com/hotline/campaign-law-watch/fec-no-u-s-birth-certificate-nopresidential-matching-funds-20110903 

USCA Case #11-1354 Document #1342600 Filed: 11/17/2011 Page 51 of 57
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26. Even though the FEC’s ruling has prevented petitioner from collecting 

contributions including contributions pledged by supporters, so that the 

campaign momentum is not broken or lost, petitioner has had to continue to 

spend his time, effort and money to build his potential voter and donor base. 

In other words, while the denial of opportunity to receive matching funds is 

the main and obvious form of injury, petitioner has and is being injured 

further by the expenditure of time, effort and money in pursuit of 

contributions and matching funds while this case is ongoing. 

27. In the world of modern presidential campaigns, one of the major purposes of 

a presidential website is to raise campaign funds over the internet through 

the use of credit cards, computer databases and management etc. Given the 

nationwide wide reach of the internet, presidential websites are ideal for 

raising campaign funds across the several states especially for matching fund 

purposes. However, even though petitioner has been expending time and 

money to operate his presidential website the FEC’s ruling has effectively 

denied him the use of his website for fund raising purposes. 

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28. Because petitioner is very serious and committed to a presidential run, and 

on a long term basis if necessary, petitioner has purchased several versions 

of the internet domain name “abdulhassanforpresident.com” including the 

.net and .org versions, in order to keep these domain names out of the hands 

of competitors – upon information and belief, this is a common practice of 

many presidential candidates, including the leading ones. 

29. Since announcing his presidential candidacy in March 2008, petitioner has 

paid annual registration fees for his presidential domains, and in addition, 

petitioner has paid monthly fees to host and operate his presidential website. 

Petition has also been paying monthly fees for a nationwide advertising 

campaign that links to petitioner’s presidential website. Petitioner has also 

expended time and effort in developing the site’s infrastructure and content. 

These expenditures will continue into the future unless this Court and/or the 

Supreme Court rules that the natural born provision has not been trumped. 

30. While denying petitioner the opportunity to receive matching funds, the FEC 

in the same September 2, 2011 ruling, ruled that petitioner is required to 

comply with the record-keeping, expenditure and other requirements of the 

federal election laws and plaintiff has been and will continue to spend 

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money, time and effort to comply while being effectively barred by the 

FEC’s ruling from receiving contributions and matching funds to pay for 

these and the other costs outlined above. 

31. Invidious discrimination based on strict scrutiny characteristics like that 

engaged in by the FEC in its matching fund ruling, causes tremendous harm 

by stigmatizing those discriminated against. Here, the FEC’s ruling endorses 

the legally “impermissible” rationale behind the natural born provision that 

naturalized citizens cannot be trusted. Such stigmatization is especially 

harmful in the context of a presidential campaign where trust is critical to 

winning voter support and elections. In fact, shortly after the FEC’s 

September 2, 2011 ruling, petitioner did a radio interview in New York City 

in which the interviewer focused on the distrust of naturalized citizens based 

on the natural born provision as endorsed in the FEC ruling. 

32. If this Court and/or the U.S. Supreme Court rules that the natural born 

provision has been trumped, petitioner will promptly start collecting 

contributions, including through his presidential website, from those who 

have made pledges and others, and plaintiff will expand his donor base even 

more though additional advertising and campaigning. 

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33. Likewise, if petitioner obtains a favorable ruling that the natural born 

provision has been trumped, petitioner will not only begin collecting 

contributions but will seek to obtain matching funds as well. 

34. Denial of matching funds, has and will injure petitioner beyond the amount 

of matched funds petitioner would otherwise be entitled to because the 

availability of a match positively influences people to contribute or 

contribute more – motivated by the knowledge that a portion of what they 

contribute will be matched. Because of this dynamic it is quite common for 

organizations of all types, in and out of politics, to use “matching” to 

encourage and increase donations. The FEC’s ruling has and will deprive 

petitioner of this additional benefit. 

35. In light of the above, the FEC’s ruling that petitioner cannot receive 

matching funds because of his naturalized status, forces him to compete on 

an unequal footing with natural born candidates for matching funds and the 

Presidency. Petitioner has been seriously harmed as a result and has standing 

to challenge this invidious strict scrutiny national origin discrimination upon 

which the FEC’s ruling is based. 

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I declare pursuant to 28 U.S.C § 1746, under penalty of perjury that the 

foregoing is true and correct. 

 Executed on October 26, 2011 

 _/s/ Abdul Hassan_____________ 

 Abdul Karim Hassan 

 Petitioner, Pros Se 

USCA Case #11-1354 Document #1342600 Filed: 11/17/2011 Page 56 of 57
1

UNITED STATES COURT OF APPEALS 

DISTRICT OF COLUMBIA CIRCUIT 

Abdul Karim Hassan, 

 Petitioner, 

 -vFederal Election Commission, 

 Respondent. 

Docket #: 11-CV-1354 

CERTIFICATE OF 

SERVICE 

I hereby certify that on November 17, 2011, Petitioner's reply to 

respondent’s response/opposition to petitioner’s motion to certify and/or expedite 

and in response/opposition to respondent’s motion to dismiss for lack of 

jurisdiction, was field with t he Clerk of this Court using the CM/ECF system, 

which will send electronic notice of such filing to counsel of record for respondent 

and all parties. 

Dated: Queens Village, New York 

 November 17, 2011 

Respectfully submitted, 

 

__/s/ Abdul Hassan____________ 

Abdul Karim Hassan, Esq. (Petitioner, Pro Se) 

215-28 Hillside Avenue 

Queens Village, New York 11427 

Tel: 718-740-1000 

Fax: 718-468-3894 

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