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LOIS E. ADAMS, et al, Plaintiffs
v. Civil Action No. 98-1665-LFO
WILLIAM JEFFERSON CLINTON, et al, Defendants
____________________________________________
CLIFFORD ALEXANDER, et al, Plaintiffs
v. Civil Action No. 98-2187-LFO
WILLIAM M. DALEY, Secretary of Commerce, et al, Defendants
TWENTY CITIZENS' AMENDED SUR-REPLY
TO DEFENDANT CLINTON'S REPLY
PURSUING DEFENDANT CLINTON'S MOTION TO DISMISS
On November 20, 1998, Defendant Clinton filed a Reply Memorandum in Support of His
Motion to Dismiss the Claims Brought by Plaintiffs ("Reply"). This memorandum
responds to
one novel issue germane to the Defendant's original arguments to dismiss for lack of
jurisdiction.
In the course of the Defendant's Reply, the Defendant complains for the first time about
information which is absent from the Complaint in this case, such as literal specification
of
particular statutes which might be at issue in this case, seeming to suggest that such
absence is
fatal to the case (see Reply at 3, 4 & n.2, 7-8). The Defendant's suggestions are
irrelevant to the
questions presently before the Court and are insubstantial on their face.
If the Defendant had been genuinely unaware what statute or statutes might be at issue in
this case, the Defendant could have filed a motion for a more definite statement. Fed. R.
Civ. P.
12(e). But the Defendant has certainly been aware of at least one statute directly at
issue in this
case, 2 U.S.C. 2a, since the case was filed (see Memorandum in Support of
Plaintiffs'
Application for a Three-judge District Court (filed June 30, 1998 and served on the
Defendant
with the Complaint and Summons)). Therefore, the Defendant's reference to what the
Defendant
calls the Plaintiffs' "belated constitutional attack" on 2 U.S.C. 2a
(Reply at 4-5 (emphasis
added)) is a clear mischaracterization of the Plaintiffs' case. The attack is in no way
"belated"
(unless the Defendant means to say that the violation of the Plaintiffs' rights has been
suffered for
far too many years).
Likewise, it is incomprehensible why the Defendant suggests it is somehow fatal to the
Plaintiffs' case that the Plaintiffs to not challenge the facial terms of the statutes at
issue. The
statute, 2 U.S.C. 2a, of which the Defendant has been on notice was at issue in this
case since
the filing of this case, was centrally at issue in two recent, significant apportionment
cases
concerning apportionment: Franklin v. Massachusetts, 505 U.S. 788 (1992), U.S. Dept. of
Commerce v. Montana, 503 U.S. 442 (1992). Neither of those cases involved challenges that
the
facial terms of 2 U.S.C. 2a violated the constitution; rather, the challenges were
to the
application or enforcement of the statute, see 505 U.S. at 790-91; 503 U.S. at 446, which
is the
same form of the claim in the instant case. If attacks on the application or enforcement
of 2
U.S.C. 2a were justiciable in Franklin and Montana, absent attacks on the facial
terms of the
statute, the claims in this case should also be justiciable.
The Defendant's suggestions amount to a demand that, at the door of the Court, the
Plaintiffs' case be tested on its ultimate merits, instead of under the appropriate
standards for
dismissal under Federal Rule of Civil Procedure 12(b). See Scheuer v. Rhodes, 416 U.S.
232, 236
(1974); Conley v. Gibson, 355 U.S. 41, 45-46 (1957); In re Swine Flu Immunization Prod.
Liability Lit., 880 F.2d 1439, 1442 (D.C. Cir. 1989). Further, the Defendant's suggestions
amount to an attempt to repeal the rule of "notice pleading." See Fed. R. Civ.
P. 8(a);
Albuquerque Indian Rights v. Lujan, 930 F.2d 49-55 (D.C. Cir. 1991) (citing Warth v.
Seldin,
422 U.S. 490, 501 (1975)); Conley v. Gibson, 355 U.S. 41, 47 (1957).
Respectfully submitted,
George S. LaRoche
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