Read Hassan(Hassan v. United States of America)111210-Brief Cover text version

10-2622

United States Court of Appeals For the Second Circuit

--------- -------ABDUL KARIM HASSAN, Petitioner-Appellant, v.

UNITED STATES OF AMERICA, Respondent-Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK

PETITION FOR REHEARING WITH SUGGESTION FOR REHEARING EN BANC ON BEHALF OF PLAINTIFF-APPELLANT ABDUL KARIM HASSAN

ABDUL KARIM HASSAN, ESQ. Plaintiff-Appellant, Pro Se 215-28 Hillside Avenue Queens Village, New York 11427 (718) 740-1000 [email protected]

TIANA A. DEMAS, ASSISTANT U.S. ATTORNEY, UNITED STATES ATTORNEY'S OFFICE, EASTERN DISTRICT OF NEW YORK Attorney for Defendant-Appellee 271 Cadman Plaza East, 7th Floor Brooklyn, New York 11201 (718) 254-6116 [email protected]

DICK BAILEY SERVICE

(212) 608-7666 (718) 522-4363 (516) 222-2470 (914) 682-0848 Fax: (718) 522-4024

1-800-531-2028

TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES -------------------------------------------------------- ii I. RULE 35 STATEMENT ---------------------------------------------------------- 1 II. ARGUMENTS -------------------------------------------------------------------- 4 1. ABSENCE OF NOTICE AND OPPORTUNITY TO BRIEF ------- 4 2. APPLICATION OF INCORRECT LEGAL STANDARDS --------- 7 3. SIGNIFICANCE OF DECLARING PRESIDENTIAL CANDIDACY --------------------------------------------------------------- 11 4. EXPENDITURES ON PRESIDENTIAL WEBSITE ----------------- 13 5. FECA COMPLIANCE AND COSTS ----------------------------------- 13 6. MISPLACED RELIANCE ON SUMMERS V. EARTH ISLAND - 14 III. CONCLUSION ------------------------------------------------------------------ 15

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TABLE OF AUTHORITIES CASES Acosta v. Artuz, 221 F.3d 117 (2d Cir.2000) -------------------------------------------------------- 2, 6 Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 217 (1995) ---------------------------------------------------------- 8, 9 Amnesty Intern. USA v. Clapper, 638 F.3d 118 (2d Cir. 2011) --------------------------------------------------------- 10 Arlinghaus v. Ritenour, 622 F.2d 629 (2d Cir. 1980) ---------------------------------------------------------- 5 Connecticut v. American Elec. Power Co., Inc. 582 F.3d 309 (2d. Cir. 2009) -------------------------------------------------------- 7 Dred Scott v. Sandford, 60 U.S. 393 (1857) ----------------------------------------------------------------- 2, 3 Jennifer Matthew Nursing v. U.S. Dept. of HHS, 607 F.3d 951, 955 (2d Cir. 2010) --------------------------------------------------- 6 La Mar v. H & B Novelty & Loan Co., 489 F.2d 461, 469 (9th Cir. 1973) -------------------------------------------------- 11 Muntaqim v. Coombe, 449 F.3d 371, 374 (2d Cir. 2006) --------------------------------------------------- 6 Perez v. Ortiz, 849 F.2d 793 (2d Cir. 1988) --------------------------------------------------------- 5 Ross v. Bank of America, N.A. (USA) 524 F.3d 217 (2d Cir. 2008) ---------------------------------------------------------- 11 Summers v. Earth Island Institute, 555 U.S. 488 (2009) --------------------------------------------------------------- 8, 14

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Signorelli v. Evans, 637 F.2d 853, 856 -858 (2d Cir., 1980) ------------------------------------- 3, 9, 10

CONSTITUTIONAL PROVISIONS U.S. Const. art. II, § 1, cl. 5 ---------------------------------------------------------- passim U.S. Const. amend. V ---------------------------------------------------------------- passim U.S. Const. amend. XIV ------------------------------------------------------------- passim STATUTES Federal Election Campaign Act ("FECA"), 2 USC § 431 et Seq. -------------- passim FRCP 8(a)(1) --------------------------------------------------------------------------------- 7 FRCP 9(b) ------------------------------------------------------------------------------------ 7 REGULATIONS 11 CFR § 100.72 ------------------------------------------------------------------------ passim 11 CFR § 100.131 ----------------------------------------------------------------------- passim

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I. RULE 35 STATEMENT Petitioner-Appellant Abdul K. Hassan, ("Petitioner" or "Hassan"), a pro se attorney, and member of the bar of this Court, respectfully seeks rehearing, with suggestion for rehearing en banc, following a unanimous decision of this Court (Judges Livingston, Newman and McLaughlin on the panel), dated June 21, 2011, (Exhibit "A," annexed), affirming on different grounds of standing (injury), raised sua sponte, without notice and opportunity for briefing, the decision of the district court (Gershon, J) which granted the government's motion to dismiss petitioner's complaint seeking a declaration that the invidious national origin discrimination in the natural born provision of the Constitution is trumped by the equal protection guarantee of the Fifth Amendment and the Citizenship Clause of the Fourteenth Amendment. While the importance of the constitutional issue of first impression is by itself sufficient to warrant en banc review, the need for rehearing en banc is even greater in light of the Federal Election Campaign Act ("FECA"), 2 USC § 437h, which provides for en banc review when constitutional questions are raised as to FECA. Even though this declaratory judgment action was brought under the more general Declaratory Judgment Act and not specifically under FECA, it seems clear that Congress intended en banc review for constitutional questions which affect the construction of FECA. Here, the answer to the constitutional question will directly affect whether a naturalized citizen like petitioner is a "person" running for

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President within the meaning of FECA? The answer to this question will also affect the standing analysis, as explained below. Second, a significant and compelling basis for granting this petition is the fact that the panel denied this appeal solely based on the issue of "injury in fact" which was not raised by any of the parties on appeal, and raised only by the appellate panel, and without giving petitioner notice and an opportunity to brief. This conduct not only conflicts with every known precedent of this Court as explained below but it also implicates the fairness of the process itself, and as such, some independent review is needed to avoid even the appearance of lack of impartiality and independence. The panel's failure is "by itself, grounds for reversal." Acosta v. Artuz, 221 F.3d 117, 124 (2d Cir.2000). Only an en banc sitting of this Court can realistically reverse the panel's decision. Third, en banc rehearing is also required because of the immense importance of the merit issues and the social and political consequences attached to their resolution ­ the issue of the natural born provision has been prominent in the national political debate. This case represents the first time since Dred Scott v. Sandford, 60 U.S. 393 (1857), that a federal appellate court was faced with invidious citizenship discrimination in the Constitution itself. The last time it happened, the Supreme Court in Dredd Scott devoted six days to oral arguments and issued a decision of over one hundred pages ­ facts that easily justify en banc

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review in this case. This case also involves the highest office in the land. Moreover, the national origin discrimination in this case together with race are the only two classifications subject to strict scrutiny and almost every law subjected to strict scrutiny review has been declared invalid. As in Dredd Scott, the panel in this case invoked jurisdiction, on grounds not even raised by the opposition, which had the effect of closing the courthouse and keeping invidious discrimination in place. The Supreme Court described Dredd Scott as a great "self-inflicted wound," and this Court should grant en banc review to avoid another self-inflicted wound. Fourth, while rehearing is warranted to give petitioner the chance to brief the "injury in fact" issue (raised sua sponte) in the first instance, rehearing is also warranted because the panel in its order as further outlined below, overlooked the leading relevant precedent in this Circuit (Signorelli v. Evans, 637 F.2d 853 (2d Cir., 1980)), applied the wrong legal standard at the pleading stage of the proceedings, applied the wrong legal standard for measuring injury in a discriminatory classification case, did not apply the rule of reasonableness and other relevant principles of standing jurisprudence, did not address the significance of a declaration of presidential candidacy under FECA1, did not address the ongoing financial expense and effort of publishing the presidential website and did

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See 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. 3

not address the expense and effort of complying with the mandatory and complex requirements of FECA. II. ARGUMENT 1. ABSENCE OF NOTICE AND OPPORTUNITY TO BRIEF After extensive briefing below, the district court found that petitioner had constitutional standing to bring his claims. Because petitioner prevailed on the standing issue, he could not and did not appeal it, and as such, did not address it in his brief. In its appellate brief (pg 26), the government, after stating the three prongs of the standing formula, stated in relevant part that: In finding that Hassan had standing to challenge the constitutionality of the natural born citizen requirement, the district court focused solely on the first prong of standing, i.e., whether Hassan had suffered an actual or imminent invasion of a legally-protected interest. The government then took the approach of not challenging the lower court's finding as to the requisite injury and instead argued, though incorrectly, that the second and third prongs of standing were not met ­ these prong obviously exist and the panel in decision seemed to have recognized this as well. In his reply brief (pg 16), petitioner addressed the government's approach and stated that: Importantly, the government has not challenged the district court's finding that Plaintiff suffered an injury in fact that is particularized and imminent etc., so we need not address these issues.

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Without giving petitioner notice and an opportunity for briefing on the issue of "injury in fact" the panel in its June 21, 2011 summary order ("SO"2), rejected the lower court's ruling on standing and denied the appeal solely on the basis that injury in fact did not exist ­ the one issue that neither party raised or briefed. The panel stated in relevant part as follows (SO-4): Moreover, even were we to credit Hassan's proffered intention to run, Hassan has nonetheless failed to allege with any specificity how the natural born citizen requirement has already injured him or is likely to injure him in the immediate future In Arlinghaus v. Ritenour, 622 F.2d 629 (2d Cir. 1980), the Second Circuit stated in relevant part as follows: To be sure, appellate courts must tread cautiously over terrain that the parties have failed to explore on appeal. Any issue injected into the appeal by the court itself must have been adequately presented below, and the parties must have had a full opportunity to develop the relevant facts. In addition, the appellate court should have the benefit of thorough briefing before considering a decisive issue or rationale. Even though there should have been "thorough briefing before considering a decisive issue or rationale" such as the "injury in fact" issue the panel raised sua sponte, there was no briefing at all on this issue. In Perez v. Ortiz, 849 F.2d 793 (2d Cir. 1988), the Second Circuit stated in relevant part that: As we have noted before, "adequate notice helps the court secure a just determination", Schlesinger Investment, 671 F.2d at 742, by giving parties moved against the opportunity to present their best arguments in opposition. Sua sponte dismissals, especially those

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"SO-1" for example means page 1 of panel's summary order as attached hereto. 5

entered without notice, also deviate from the traditions of the adversarial system by making the judge "`a proponent rather than an independent entity' ". Id. (citation omitted); accord Lewis, 547 F.2d at 5 ("[i]t is prudent for judges to avoid an inquisitorial role"). Finally, such dismissals may tend to produce the very effect they seek to avoid-a waste of judicial resources-by leading to appeals and remands. Because fundamental concerns of fairness and due process are implicated, it is common practice in this Court to provide notice and allow supplemental briefing when standing issues are raised sua sponte as the "injury in fact" issue was raised here. See Jennifer Matthew Nursing and Rehabilitation Center v. U.S. Dept. of Health and Human Services, 607 F.3d 951, 955 (2d Cir. 2010) ("We ordered supplemental briefing from the parties on the issue of standing."). Muntaqim v. Coombe, 449 F.3d 371, 374 (2d Cir. 2006) ("this Court sua sponte requested supplemental briefing on Muntaqim's standing."). The denial of the right to have notice and an opportunity to brief the "injury in fact" issue is even more prejudicial and unjust because the briefing that petitioner did not have the chance to submit here was good enough to convince the district court to rule in his favor on standing and for the government to change course and not challenge "injury in fact" on this appeal. The panel's failure is "by itself, grounds for reversal." Acosta v. Artuz, 221 F.3d 117, 124 (2d Cir.2000). If this petition is granted, the Court should consider the points included below on the "injury in fact" issue and find in petitioner's favor on the issue of standing/jurisdiction as well as on the merits. If this Court decides to raise any

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other issue not raised and addressed in the briefs of the parties, petitioner respectfully requests notice and an opportunity for briefing. 2. APPLICATION OF INCORRECT LEGAL STANDARDS In Connecticut v. American Elec. Power Co., Inc. 582 F.3d 309 (2d. Cir. 2009), the Second Circuit stated in relevant part as follows: The procedural posture of a case is important when assessing standing. The standard against which a court measures allegations of standing on the pleadings is well known: [W]e presume the general factual allegations embrace those facts necessary to support the claim, see Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), and are constrained not only to accept the truth of the plaintiffs' jurisdictional allegations, but also to construe all reasonable inferences to be drawn from those allegations in plaintiffs' favor. See Warth [v. Seldin], 422 U.S. [490,] 501-02, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) In its decision the panel held that petitioner "failed to allege with any specificity" (SO-4) how he was injured. However, even though the complaint (A611), the accompanying declarations (A. 26-41) and undisputed facts in the Rule 56 Statement (A. 43-50) are very specific - as laid out above, a plaintiff need not plead standing allegations with specificity - FRCP 9(b) requires fraud to be plead with specificity for example, but FRCP 8(a)(1) requires only "a short and plain statement of the grounds for the court's jurisdiction." In addition, the panel in its decision used the phrase, "were we to credit Hassan's proffered intention to run." (SO-4). However, as laid out above, the panel was required to accept the allegations as true and was not allowed to decide whether or not to "credit" the

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allegations in the complaint. These were fundamental and material errors of law that require a reversal of the panel's summary order. Not only is procedural posture important, factual context is extremely important as well. In its decision, the panel relied primarily on Summers v. Earth Island Institute, 555 U.S. 488 (2009). However, Summers dealt with visiting a national park and did not involve any equal protection claim based on a discriminatory classification like we have here and 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): Adarand's claim that the Government's use of subcontractor compensation clauses denies it equal protection of the laws of course alleges an invasion of a legally protected interest, and it does so in a manner that is "particularized as to Adarand. We note that, contrary to respondents' suggestion, Adarand need not demonstrate that it has been, or will be, the low bidder on a Government contract. 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." Because the instant case is one of first impression, the facts here are not identical to Adarand but the difference between competing for the federal presidency in these circumstances and competing for federal construction work actually favors petitioner. In Adarand, the plaintiff was disadvantaged in getting the job, but here, petitioner is totally prevented from winning the presidency because of the discriminatory natural born provision. As explained further below,

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when petitioner declared his decision and intent to seek the presidency, compliance obligations were triggered under FECA (se fn 1) and in addition, plaintiff has been paying and will continue to pay monthly fees to support his presidential website (A8:17; A21:32; A22:33-37; A23:38-41) and petitioner was and is doing all of this on an unequal footing because of the discriminatory natural born provision and injury for standing purposes is obviously present. While Adarand is like this case from the equal protection angle, Signorelli is like this case from the political angle but was overlooked by the panel even though the lower court relied primarily on Signorelli in finding the existence of standing. (A. 51-57). In Signorelli, the Second Circuit found that petitioner had standing to challenge a NY constitutional provision which required him to resign his job upon winning the nomination of his party, even though the Court acknowledged he had not engaged in any political activity. The Second Circuit concluded that, "under the circumstances of this case he [Plaintiff] is entitled to know whether forfeiture may validly occur before he embarks on a substantial undertaking to secure the nomination." Signorelli, 637 F.2d at 858. The undertaking petitioner here must embark on in seeking the Presidency is much more substantial than the undertaking a candidate for congressional office must endure, especially where the job that will be forfeited here is the very one petitioner is seeking. Summers and Signorelli

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involved materially different factual contexts and the panel was wrong not to use the standing standard in Signorelli and the lower court was legally right to do so. In Signorelli, Judge Jon Newman, centered that decision on the rule of reasonableness which continues to be the cornerstone of standing jurisprudence. 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."). Petitioner's decision and effort in seeking a declaratory judgment at this point in his presidential run after he has already taken legally significant steps (more than Signorelli took) is also the kind of reasonable approach contemplated by the FECA. (See fn 1). In enacting FECA 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" phase (see fn 1) because they recognized that it would be unreasonable for persons to undertake the financial and other costs of a presidential run without identifying and trying to overcome obstacles an early stage, especially significant obstacles like the natural born provision that prevents petitioner from ever becoming President. Moreover, the broad standing and expedited review provided by FECA (2 USC § 437h) is further indication that issues like those raised here should be decided by the courts sooner rather than later in the political process. The panel's focus on getting on the

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ballot, getting voter support and contributions (SO-4) is unreasonable because even if petitioner gets on every ballot, wins every vote and raises all the money in the world, he still cannot win the Presidency. Moreover, soliciting contributions and trying to get on the ballot etc., in light of the natural born provision may constitute fraud. See also 2 USC § 441h. This Court should be guided by certain additional principles such as that "Injury in fact is a low threshold." Ross v. Bank of America, 524 F.3d 217, 222 (2d Cir. 2008). Also, 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). 3. SIGNIFICANCE OF DECLARING PRESIDENTIAL CANDIDACY In its decision, the panel discounted Hassan's "assertion that he "intends to seek the Presidency of the United States in the year 2012, and thereafter if necessary,"' (SO-3) and by reference to Summers, hinged its decision on its belief that Hassan has taken, "no specific steps toward, or concrete plans in furtherance of, a run for the presidency." (SO-3). The fact is that Hassan's declared decision and intention to seek the Presidency in 2012 as noted by the panel is probably the most significant legal step under the Federal Election Campaign Act ("FECA"). See 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),

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summarizing the relevant FECA provisions. Even if petitioner never declared his decision or intention to run for president in 2012 as he did, the FEC would nonetheless classify petitioner as a person running for President in 2012 and penalize him in the event of non-compliance with the complex FECA obligations that come with that status. (See fn 1). This is because petitioner would qualify under 11 CFR § 100.72(b)(1) or (3) or (4) as a person running for president, especially given his declaration of candidacy and his ongoing presidential website activity over the extended period spanning the last several years. Even during the "testing the waters" phase, a person must still endure the expense and effort of complying with the record-keeping, expenditure and contribution requirements of FECA. (See fn 1). In fact, because President Barack Obama (April 4, 2011)3 and Republican front-runner Mitt Romney (June 2, 2011)4 only declared their candidacy in recent months, Hassan was considered a person running for President in 2012 as a matter of law under the FECA (see fn 1) long before President Obama and Mitt Romney were - given the obligations that are triggered many politicians try to avoid saying the magic words that they decide or intend to seek the presidency for as long as possible ­ petitioner took these critical steps several years ago before the instant action was filed and he has done a lot more since then such

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http://articles.nydailynews.com/2011-04-04/news/29401925_1_tv-ads-or-extravaganzaspresident-obama-campaign 4 http://www.guardian.co.uk/world/richard-adams-blog/2011/jun/02/mitt-romney-presidentialannouncement-live 12

as refining his position on issues such as the national debt and deficit as further addressed on his presidential website at www.abdulhassanforpresident.com. 4. EXPENDITURES ON PRESIDENTIAL WEBSITE In addition to the significant legal step under FECA of declaring his candidacy for the Presidency in 2012, petitioner has taken additional significant steps by registering and hosting his presidential website as well ­ not just "registering a domain name" as the panel stated. (SO-3). Petitioner has spent over $1000 on his presidential website and continues to pay monthly rental (A8:17; A21:32; A22:33-37; A23:38-41) ­ all the time while being on an unequal footing because of the discriminatory natural born provision. Expenditures of $1000 and counting is very significant given the $5,000 threshold ­ if petitioner hits this $5,000 threshold he would have to spend tens of thousand of dollars to comply with the registration and reporting requirements that are triggered. (See fn 1). This is also why it is very important for petitioner to seek and obtain a declaration now. When these obvious financial injuries are accounted for upon rehearing, this Court should have little difficulty finding standing. 5. FECA COMPLIANCE AND COSTS In addition to the official legal step of declaring his candidacy and the ongoing financial website expenditures and because of these as well, petitioner became subject to the record-keeping, expenditure, contribution and reporting

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threshold ($5,000) requirements of FECA (See fn 1) - even a person in the "testing the waters" phase must comply with many of requirements. (See fn 1). As such, before and during this litigation, petitioner has incurred the expense and effort of complying with the very complex legal requirements of FECA as to all of his conduct and expenditures and he has done so and will continue to do so while on an unequal footing because of the natural born provision ­ yet another obvious form of injury for standing purposes, especially at the motion to dismiss stage of the proceedings where all reasonable inferences must be drawn and any doubts as to standing must resolved in petitioner's favor. 6. MISPLACED RELIANCE ON SUMMERS V. EARTH ISLAND The panel erred greatly by equating a visit to a national park with a run for the presidency through its reliance on Summers. Unlike a visit to a national park which can be accomplished in a matter of minutes or hours on a given day, a run for the presidency is a multi-year process that begins with at least the "testing the waters" phase, then proceeds to a declaration of candidacy under the FECA and which culminates with the presidential elections in November 2012. In fact, where there is a gigantic obstacle like the natural born provision, the process of running for President must logically begin sooner. Unlike the plaintiffs in Summers and unlike the millions of other naturalized citizens - as outlined above, petitioner here has actually begun his run for President in 2012, by taking the legally recognized

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steps under FECA (see fn 1) and has paid and continues to pay money in support of his run (A8:17; A21:32; A22:33-37; A23:38-41) and all of this happened while petitioner has been on an unequal footing because of the natural born provision. Not surprisingly, no one has identified even five out of more than 10 million naturalized citizens who have taken the steps, have spent the money in support of a presidential run and that must comply with FECA requirement as petitioner has done and is obligated to do. It is also not surprising that this is the first and only case to challenge the invidious discrimination in the natural born provision. III. CONCLUSION Based on the foregoing, petitioner kindly requests that this Honorable Court rehear this appeal en banc, or in the alternative, by a three-judge panel, and rule and decide this appeal in its entirety, in petitioner's favor on jurisdiction as well as on the merits, together with such other, further and different relief as the Court deems just and proper.

Dated: Queens Village, New York June 30, 2011 Respectfully submitted, _/s/ Abdul Hassan____________ Abdul Karim Hassan, Esq., Petitioner, Pro Se 215-28 Hillside Avenue, Queens Village, New York 11427

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1O-2622-cv Hassan v. United States

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT CORRECTED SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COpy OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 21 st day of June two thousand eleven. PRESENT: JON O. NEWMAN, JOSEPH M. McLAUGHLIN, DEBRA ANN LIVINGSTON, Circuit Judges.

ABDUL KARIM HASSAN, Plaintiff-Appellant,

-v.UNlTED STATES OF AMERICA Defendants-Appellee,

No. 10-2622-cv

ABDUL KARIM HASSAN, Queens Village, New Yorkpro se. TIANA A. DEMAS, Assistant United States Attorney (Varuni Nelson on the brief)for Loretta E. Lynch, United States Attorney for the Eastern District of New York, Brooklyn, New York. UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court be AFFIRMED.

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Plaintiff-appellant Abdul Karim Hassan appeals from the district court's dismissal of his complaint pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim. That complaint alleges principally that the "natural born citizen" requirement contained in Article II, Section 1 ofthe U.S. Constitution is "trumped" by the Fifth and Fourteenth Amendments. Specifically, Hassan contends that the constitutional provision-which in relevant part provides that "[n]o Person except a natural born Citizen ... shall be eligible to the Office of President"-is in conflict with the Fourteenth Amendment's prohibition on "any law which shall abridge the privileges or immunities of citizens ofthe United States" and the Supreme Court's interpretation ofthe Fifth Amendment as prohibiting discrimination on the basis of national origin. He further alleges that he has been injured by this provision insofar as he intends to seek the presidency in 2012, as evinced by his registration ofthe domain name abdulhassanforpresident.com. The district court determined that the complaint failed to state a plausible claim to relief and therefore dismissed the complaint, a finding defendantappellee the United States of America urges us to adopt on appeal. Alternatively, the government contends before this Court, as it did below, that plaintiff lacks standing to pursue this claim. We presume the parties' familiarity with the underlying facts, the procedural history, and the issues on appeal and revisit those issues only as necessary to facilitate this discussion. We begin, as the district court did, with the question of standing. l Our standing

jurisprudence, which derives from the "case or controversy" requirement ofArticle III, see Sullivan v. Syracuse Hous. Auth., 962 F.2d 110 I, 1106 (2d Cir. 1992), imposes on any party invoking federal

1 In so doing, we assume without deciding that the United States-as opposed to any individual or specific office or agency ofthe United States or any state or locality-is properly named as the defendant in this action.

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jurisdiction a burden to establish: (I) that it has suffered an injury in fact, (2) that is causally connected to the defendant, and (3) that is likely to be redressed by the court. Lujan v. Defenders

ofWildlije, 504 U.S. 555, 560-61 (1992); Port Wash. Teachers' Ass 'n v. Ed. ofEd., 478 F.3d 494,

498 (2d Cir. 2007). The first requirement-an injury in fact-has been repeatedly described as the "hard floor of Article III jurisdiction," Summers v. Earth Island Inst., -- U.S.--, 129 S.Ct. 1142, 1152, 173 L. Ed. 2d 1 (2009), and requires a litigant to show "an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical," Defenders of Wildlife, 504 U.S. at 560. The district court concluded that Hassan satisfied this requirement because he had alleged a present injury in the form ofa "denial ofhis right to run for election with his own knowledge and that of the voters that he is eligible to serve as President of the United States." We disagree. Hassan's bare assertion that he "intends to seek the Presidency of the United States in the year 2012, and thereafter if necessary," is, by itself, insufficient to establish the sort of "actual or imminent, not conjectural or hypothetical" injury required to establish standing. As a preliminary matter, Hassan alleges virtually nothing in support ofthis ostensible intention to run for office and thus the likelihood that he might ever actually be impacted by the constitutional provision in question. Indeed, aside from registering a domain name-itself an act that takes just moments to complete-the complaint alleges no specific steps toward, or concrete plans in furtherance of, a run for the presidency. That he might mount a run for the presidency which might result in some form offuture injury is simply insufficient to satisfy the injury-in-fact-requirement. See Summers, 129 S.Ct. at 1151 ("Such 'some day' intentions-without any description of concrete plans, or indeed

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any specification ofwhen the some day will be--do not support a finding ofthe 'actual or imminent' injury that our cases require.") (quoting Defenders of Wildlife, 504 U.S. at 564). Moreover, even were we to credit Hassan's proffered intention to run, Hassan has nonetheless failed to allege with any specificity how the natural born citizen requirement has already injured him or is likely to injure him in the immediate future. Hassan does not allege, for example, that any potential voter or contributor has declined to support him in light of his ineligibility for office if elected, nor does he allege that he has been rebuffed in any attempt to get on the ballot in any state or affiliate with any party. Indeed, Hassan's complaint does virtually

no~hing

to

distinguish him from the millions of other naturalized citizens all of whom are similarly impacted by the natural born citizen requirement. Cf Summers, 129 S.Ct. at 1149 (noting that the pertinent question is whether "the plaintiffhas alleged such a personal stake in the outcome ofthe controversy as to warrant his invocation offederal-courtjurisdiction"); see also DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 344 (2006) ("Standing has been rejected [where] ... the alleged injury is ... a grievance the [plaintiff) suffers in some indefinite way in common with people generally.") We therefore conclude that Hassan lacks standing to pursue these claims. Accordingly, the judgment ofthe district court is hereby AFFIRMED.

FOR THE COURT: Catherine O'Hagan Wolfe, Clerk

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