Defendant District of Columbia Financial Responsibility and Management Assistance Authority (the "Authority") moves to dismiss the Complaint as to it, pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, for lack of jurisdiction over the subject matter and failure to state a claim~against the Authority upon which relief can be granted. The grounds of the motion are supported with particularity in the accompanying Memorandum of Points and Authorities. A proposed Order is attached.

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION OF DEFENDANT DISTRICT OF COLUMBIA FINANCIAL RESPONSIBILITY AND MANAGEMENT ASSISTANCE AUTHORITY TO DISMISS THE COMPLAINT AS TO IT

INTRODUCTION

Defendant District of Columbia Financial Responsibility and Management Assistance Authority (hereinafter, the "Authority") submits this Memorandum of Points and Authorities in support of its Motion to Dismiss the Complaint as to it, pursuant to Rules 12(b)(l) and 12(b)(6) of the Federal Rules of Civil Procedure, for lack of subject matter jurisdiction and failure to state a claim against the Authority upon which relief can be granted. Plaintiffs, 20 residents of the District of Columbia, filed their complaint against the President of the United States, the Clerk of the U.S. House of Representatives, the Sergeant At Arms of the U.S. House of Representatives, and the Authority. In their Complaint, Plaintiffs allege that the Defendants have violated their Constitutional right to equal protection under the Due Process Clause of the Fifth Amendment and have failed in their obligation to guarantee to [page 2] all citizens of the District of Columbia a republican form of government as required by Article IV, Section 4, of the U.S. Constitution.

Plaintiffs' prayer for relief seeks declaratory and injunctive remedies that would: abolish the Authority (Prayer for Relief  C4); effectively shut down the United States Congress by limiting each State to only one member in the House of Representatives (Id.  C2a, C2b, C3); and prevent the President from enforcing any law that solely affects the District of Columbia (Id.  C1a, Clb). Plaintiffs would have this Court impose these draconian remedies until such time as the District of Columbia is admitted as a State or is unified with a previously-existing State. (Id.  C1-C4.)

A. Plaintiffs Lack Standing to Bring Their Claims Against the Authority

In order to proceed with their suit against the Authority, Plaintiffs' must demonstrate the familiar three requirements of standing under Article III of the U.S. Constitution. Judge Richey summarized the requirements as follows:

First, the plaintiff must have suffered an injury in fact - an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conflict complained of- the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court. Third, it must be likely as opposed to merely speculative, that the injury will be redressed by a favorable decision. National Treasury Employees Union v. United States, 929 F. Supp. 484,487 (D.D.C. 1996), citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 559, 560-61 (Emphasis added).

As will be demonstrated below, Plaintiffs' lawsuit fails to satisfy any of these three requirements with respect to the Authority. Plaintiffs do not plead a "concrete and particularized" injury, which is "actual or imminent," not "conjectural or hypothetical," and [page 3] which is "fairly traceable" to some action of the Authority or redressable by the relief sought against the Authority.

Plaintiffs allege in their first count that the Authority "prevent[s] the Plaintiffs from electing representatives to Congress having full powers and rights under the Constitution, preventing them from enjoying the benefits of citizenship in a state ...," and "trench [es] on other fundamental constitutional rights," which are unspecified. (Complaint  71). In their second count, Plaintiffs allege that the Authority "is not a republican form of government", and, along with the other defendants, has failed in its obligation to provide a republican form of government and "actively prevent[s] institution of any republican form of government." (Complaint  93, 96, 97, 98).

None of these alleged injuries is pleaded in a "concrete and particularized" way as to the Authority. Plaintiffs share these asserted grievances against the Authority in common with everyone else residing in the District of Columbia. Cf. Raines v. Byrd, 117 S.Ct. 2312; 1997 U.S. LEXIS 4040, *32-33 (June 26, 1997) (Dismissing for lack of standing because "[ijn sum, appellees have alleged no injury to themselves as individuals [and] the institutional injury they allege is wholly abstract and widely dispersed ..."). Moreover, the asserted injury to these Plaintiffs from the conduct of the Authority is entirely "conjectural" and "hypothetical," not "actual or imminent." For example, Plaintiffs assert that Congress has delegated to the Authority "the responsibility of making recommendations to Congress about what form of government Congress might or should impose over the District of Columbia, which means over the Plaintiffs, in the future." (Complaint  29) (Emphasis added). Nor is any of these alleged injuries "fairly traceable" to the Authority. No action of the Authority prevents the Plaintiffs from electing representatives to Congress or prevents them from [page 4] enjoying the benefits of citizenship in a State. If Plaintiffs have a legitimate grievance on this score, it is with the branches of the United States government which have not accorded the District of Columbia the right to elect voting representatives to Congress or conferred statehood on the District. [footnote 1: Plaintiffs are simply wrong in their assertion that the Authority "is an agent or instrumentality of the federal government" and is therefore "obligated to guarantee to the Plaintiffs a republican form of government." (Complaint.  95, 96). Section 101(a) of the Authority's governing statute, Pub. L 104-8, provides that the Authority "is not established as a department, agency, establishment, or instrumentality of the United States government. It is settled that allegations and conclusions of law are not entitled to a presumption of correctness for purposes of a Rule 12(b) motion. See 2A James Wm. Moore Et Al., Moore's Federal Practice  12-07 at 12-84 through 12-86 (2d cd. 1996), and cases therein cited.]

Furthermore, no action of the Authority prevents the Plaintiffs from enjoying a republican" government (assuming, arguendo, that the current Home Rule Government is not such a government) or prevents the institution of such a government. The Authority has no statutory powers to either permit or prevent D.C. citizens from electing representatives to Congress. Furthermore, as a creation of Congress, the Authority certainly cannot order Congress to institute a government that meets the Plaintiffs' definition of "republican".

In short, because the Authority did not create or cause, and does not have the ability to change, the conditions of governance in the District of Columbia with which Plaintiffs take issue, it is impossible to trace Plaintiffs' asserted injuries to the Authority. See Anyanwutaku v. District of Columbia, Order and Memorandum Opinions in Civil Action Nos. 97-00176, 97-00177, 97-00178, 97-02051 and 97-02259) (D.D.C. 1998) (dismissing for lack of standing a series of lawsuits brought by a prisoner against the Authority because the Authority did not have the ability to change the conditions about which he complained). (A copy of Judge Kollar-Kotelly's opinion in No.97-00176 is attached hereto as Appendix 1).

A third failing in the Plaintiffs' suit is a lack of redressability as to the Authority. As [page 5] discussed in the preceding argument, the Authority does not have the power to grant the relief sought by the Plaintiffs. Nothing in the Authority's enabling statute would permit it to authorize the election of representatives to Congress from the District of Columbia, or to install a republican" form of government in Washington, D.C. that meets Plaintiffs' requirements. See Pub. L. 104-8; Shook v. District of Columbia Financial Responsibility and Management Assistance Authority, 964 F. Supp. 416, 420 (D.D.C. 1997), aff'd in part rev'd in part on other grounds, 132 F.3d 775 (D.C. Cir. 1998) (reviewing the powers of the Authority); Anyanwutaku, supra, Appendix I at 4.

The relief sought by Plaintiffs is available exclusively from the President of the United States and the United States Congress, who are the only proper defendants in this suit. See Anyanwutaku, supra, Appendix 1 at 3-4 ("the Court concludes that the Plaintiff has not shown that the Control Board has the authority to provide a remedy for the alleged injuries... Accordingly... the Plaintiff does not have standing to bring this action against the Control Board.").

Plaintiffs' implicitly acknowledge the lack of redressability against the Authority in their Complaint, when they state that "[i]t is within the power of Congress and Defendants Clinton, Carle and Lovinggood to treat the Plaintiffs in a manner identical to... the citizens of the federal enclaves and... [the former portion of the District of Columbia retroceded to Virginia]." (Complaint  65). The Authority is conspicuously absent from this formulation and for good reason: it is not within the Authority's power to give the Plaintiffs what they want.

If any of the three elements of Article III standing is lacking, the suit against the Authority must be dismissed, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. Since all [page 6] three requirements are lacking here, there is no jurisdictional basis on which this case can go forward against the Authority.

B. Plaintiffs Fail To State A Claim Against the Authority Upon Which Relief Can Be Granted.

Federal Rule of Civil Procedure 8(a) requires a plaintiff to set forth "a short and plain statement of the claim showing that the pleader is entitled to relief." If the plaintiff fails to meet this standard, Rule 12(b)(6) requires the Court to dismiss for "failure to state a claim upon which relief can be granted." Because Plaintiffs have failed to make any allegations against the Authority which meet the standards of these Rules, this Complaint should be dismissed as to the Authority.

The Court can search the Complaint in vain for a single word alleging that the Authority did anything to the Plaintiffs. In the first count of the Complaint, the only time the Authority is even mentioned is in paragraphs 70 and 71. In these paragraphs, Plaintiffs object to the President and Congress' actions in "irnpos[ing] Defendant District of Columbia Financial Responsibility and Management Assistance Authority" upon the District of Columbia and assert that the Authority is "directed solely at the citizens of the District of Columbia."

No action by the Authority against Plaintiffs is specified in these paragraphs. Indeed, the actions complained of are those of Congress and the President, not the Authority. Plaintiffs tacitly acknowledge this fact in paragraphs 74-87 of their Complaint, where they exhaustively detail their specific allegations against every Defendant in the suit -- except the Authority. Each of these paragraphs begins "Specifically," and there is no mention of the Authority in any of them.

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The second count of the Plaintiffs' Complaint is equally bare of specific allegations against the Authority. There is not a word showing how the Authority has violated the Plaintiffs' asserted right to a republican form of government in the District of Columbia. Thus, once again, Plaintiffs' are objecting to the actions of the President and Congress, not the Authority.

Further evidence of the Plaintiffs' failure to state a claim against the Authority is provided in the paragraphs of the second count in which they purport to state the "specific actions" of the Defendants which violate their rights. (See Complaint  112-118). As was true in the first count, the Authority is completely absent from these specific allegations, which are made against every other Defendant.

Under these circumstances, the Plaintiffs have failed to comply with the pleading requirements of the Federal Rules, and their suit against the Authority should be dismissed. Judge Robertson faced a similar situation and so held in Grimes v. Moore, Civ. Action No.97-2296 (D.D.C. 1998) ("This Court does not hesitate to dismiss the claim against defendant [Control Board Chairman] Brimmet for failure to provide a 'short and plain statement' [of the claim]." (citations omitted)).

See also, Stevens v. District of Columbia, No.90-598, 1994 U.S. Dist. LEXIS 9513 (D.D.C. 1994); Crawford v. District of Columbia, No.93-61, 1993 U.S. Dist. LEXIS 4085 (D.D.C. 1993); Francois v. University oftheDistnctofColumbia, 788 F. Supp. 31 (D.D.C. 1992); Williams v. United States Dep't of Educ., No.92-0033, 1992 U.S. Dist. LEXIS 196 (D.D.C. 1992).

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CONCLUSION

The Complaint should be dismissed as to the Defendant District of Columbia Financial Responsibility and Management Assistance Authority. [footnote 2: Because the Authority is so clearly entitled to dismissal from the suit for lack of subject matter jurisdiction under Rule 12(b)(l) and failure to plead a proper claim against it under Rules 8(a)(2) and 12(b)(6), we will not address at this time the legal sufficiency of the constitutional claims made against the Authority. We reserve the right to address the merits of the constitutional claims by appropriate motion or in our Answer, should the case against the Authority be permitted to go forward. Since the procedural grounds for dismissal of the case against the Authority are so strong, there is no need for the Court to reach the merits of the Constitutional claims at this time, although judges of this and other Courts have done so as to similar claims. See Darby v. United States, 681 A.2d 1156 (D.C. 1996); Hobson v. Tobriner, 255 F. Supp 295 (D.D.C. 1966).

Respectfully submitted,

Daniel A. Rezneck