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Abdul Karim Hassan v. Federal Election Commission

September 28, 2012



Plaintiff Abdul Karim Hassan brings this action against the Federal Election Commission ("FEC"), seeking a declaratory judgment that (1) the Presidential Election Campaign Fund Act,

26 U.S.C. §§ 9001-9013, which provides public funding to Presidential nominees of major or minor political parties, is unconstitutional and invalid, and (2) the natural born citizen clause of the Constitution*fn1 is irreconcilable with, and has been "trumped, abrogated and implicitly repealed" by, the Equal Protection guarantee of the Fifth Amendment and the Citizenship Clause of the Fourteenth Amendment. Compl. ¶¶ 1, 31-32. Pending before the Court is Defendant's Motion to Dismiss for lack of jurisdiction under Rule 12(b)(1), or in the alternative, for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Also pending before the Court is Plaintiff's Application for a Three-Judge Court. Upon consideration of the motions, the responses and replies thereto, the applicable law, the entire record in this case, and for the reasons set forth below, the Court will GRANT Defendant's Motion to Dismiss and will DENY Plaintiff's Application for a Three-Judge Court.


A.Statutory Background

The Presidential Election Campaign Fund Act (the "Fund Act") offers the Presidential candidates of major and minor political parties the option of public financing for their general election campaigns. See 26 U.S.C. §§ 9001-9013. The amount of funding that a candidate is eligible to receive is based upon the percentage of the popular vote the candidate's party received in the prior election. A "major" party is one that receives 25 percent or more of the popular vote; major party candidates receive the largest subsidy. Id. §§ 9002(6), 9004(a). A "minor" party is one whose candidate received between 5 and 25 percent of the total popular vote in the preceding presidential election; minor party candidates receive a lesser subsidy, proportionate to the number of votes received in the preceding election. Id. §§ 9002(7), 9004(a). Candidates of parties receiving less than five percent of the vote receive nothing. Id. § 9004(a). Only "candidates" of a political party are eligible for payments, pursuant to 26 U.S.C. § 9003(a).*fn2 The Fund Act provides for actions to construe it to be heard by a three-judge panel, in accordance with the provisions of 28 U.S.C. § 2284, with direct appeal to the Supreme Court. Id. § 9011(b).

B.Factual and Procedural Background

Plaintiff Hassan is a Guyana native and a naturalized American citizen. See Compl. ¶¶ 1, 8, 10. In March of 2008, Hassan announced his candidacy for President of the United States through his website, Compl. ¶ 13. Hassan alleges that he is running in the 2012 election and intends to continue his campaign uninterrupted until the 2016 election if he is not successful this year. Compl. ¶ 14. In his Opposition, Hassan makes clear that he is seeking the nomination of the Democratic Party in 2012 and in 2016. Pl.'s Opp'n at 1; see also Pl.'s Reply in Supp. of Appl. for Three-Judge Ct. at 1. Hassan satisfies all constitutional requirements for holding the Office of the President except the requirement established in Article II, section 1, clause 5 that the President be a natural born citizen (the "natural born citizen requirement"). Compl. ¶ 12. In support of his campaign, Hassan alleges that he has created and maintained a campaign website, implemented a paid advertising campaign through the Google search engine to promote his candidacy, run videos on, and participated in interviews. Compl. ¶¶ 13, 15-22.

In July 2011, Hassan requested an advisory opinion from the FEC concerning the application of the Presidential Primary Matching Payment Account Act, 26 U.S.C. §§ 9031-9042 ("Matching Payment Act"),*fn3 to Hassan's presidential campaign. On September 2, 2011, the FEC issued its response, in which it stated that Hassan is not eligible to receive matching funds under the Matching Payment Act because he is not a natural born citizen. See Compl. ¶ 24; see also FEC Advisory Opinion 2011-15 at 3-4 (Sept. 2, 2011), available at (accessed by searching "2011-15" in "Go to AO number" field). This ruling did not address the Fund Act, but according to Plaintiff, the logic and reasoning of the FEC's opinion would lead to the conclusion that Hassan similarly is ineligible to receive funds under the Fund Act. See Compl. ¶ 25.*fn4 Plaintiff alleges that because he cannot obtain funds under the Fund Act, his chances of becoming the nominee of a major political party -- and thus winning the Presidency -- are destroyed. Compl. ¶ 26.

Plaintiff filed his Complaint in this Court on December 8, 2011. Simultaneously therewith, Plaintiff filed an Application for a Three-Judge Court pursuant to 26 U.S.C. § 9011. In response, Defendant argued that this Court should deny Plaintiff's Application because the Complaint fails to present an Article III case or controversy, and alternatively, because it does not present a substantial constitutional question. On February 27, 2012, Defendant filed a Motion to Dismiss the Complaint pursuant to Rules 12(b)(1) and 12(b)(6). The motions are ripe for determination by the Court.


A.Rule 12(b)(1)

Federal district courts are courts of limited jurisdiction, Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994), and a Rule 12(b)(1) motion for dismissal presents a threshold challenge to a court's jurisdiction, Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987). On a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1), the plaintiff bears the burden of establishing that the court has jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). In evaluating such a motion, the court must accept as true all of the factual allegations contained in the complaint, and should review the complaint liberally while accepting all inferences favorable to the plaintiff. See Barr v. Clinton, 370 F.3d 1196, 1199 (D.C. Cir. 2004); Wilson v. Dist. of Columbia, 269 F.R.D. 8, 11 (D.D.C. 2010). Because subject matter jurisdiction focuses on the court's power to hear the claim, however, the court must give the plaintiff's factual allegations closer scrutiny when resolving a Rule 12(b)(1) motion than would be required for a Rule 12(b)(6) motion. Macharia v. United States, 334 F.3d 61, 67-68 (D.C. Cir. 2003). Thus, to determine whether it has jurisdiction over a claim, the court may consider materials outside the pleadings where necessary to resolve disputed jurisdictional facts. Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992).

B.Rule 12(b)(6)

A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of a complaint. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant ...

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