MEMORANDUM OF POINTS AND AUTHORITIES OF DISTRICT OF COLUMBIA FINANCIAL RESPONSIBILITY AND MANAGEMENT ASSISTANCE AUTHORITY IN OPPOSITION TO THE ADAMS PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT

INTRODUCTION

The District of Columbia Financial Responsibility and Management Assistance Authority ("Authority") has a pending Motion To Dismiss The Complaint As To It, dated July 21, 1998. That motion has been fully briefed and has been awaiting decision since August 1998. The motion demonstrates that the Court lacks subject-matter jurisdiction [page 2] over the claims of the Adams plaintiffs against the Authority, and that the Adams plaintiffs have failed to state a claim against the Authority. [footnote 1: The Authority is not a party in the Alexander case.]

Grant of that motion will relieve the Court from having to plow through and parse the outsized Motion for Summary Judgment filed by the Adams plaintiffs. (Their supporting memorandum is 78 pages long, plus an appendix, and they claim that there is no genuine issue of material fact as to 118 assertions.) We therefore urge the Court to decide first the threshold issues presented by our Motion to Dismiss, especially since one of those issues goes to the subject-matter jurisdiction of the Court. [footnote 2: Rule 12(h)(3) of the Federal Rules of Civil Procedure is emphatic in stating: "Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action"] We will not repeat here the points made in our Motion to Dismiss; we incorporate and rely on our earlier memorandum as also supporting our opposition to the present motion for summary judgment.

Likewise, to avoid duplication, we will not repeat the arguments on the merits of the constitutional claims of the Adams plaintiffs that are made in the papers of our codefendants (the "federal defendants") on this summary judgment motion. We incorporate and rely on those arguments as our own. This Memorandum in Opposition will be brief and directed specifically to the allegations made as to the Authority.

We will deal first with the proper legal standard for decision of the plaintiffs' motion. Next we will point out some of the egregious errors and misstatements of fact and misapprehensions of law by the Adams plaintiffs. It is no exaggeration to say that [page 3] virtually every statement about the Authority in the Adams Plaintiffs' Statement of Material Facts As To Which There Is No Genuine Dispute (hereinafter "Plaintiffs' Statement") is wrong, either as a matter of fact, a matter of law, or both. The Motion for Summary Judgment must therefore be denied as to the Authority.

I. Legal Standard for Decision on The Adams Plaintiffs' Motion for Summary Judgment.

It is important to focus on both prongs of the legal standard for summary judgment. The Adams plaintiffs carry the double burden of demonstrating:

(1) that the pleadings, other materials on file, and affidavits show that "there is no genuine issue as to any material fact", and

(2) that the movant "is entitled to a judgment as a matter of law." Federal Rule of Civil Procedure 56(c).

The first prong focuses on the existence or nonexistence of "genuine issues" of "material fact." The second is equally important. It requires a determination, regardless of the existence or nonexistence of "genuine issues of "material fact," whether the movant has established that the legal propositions relied on are a correct statement of the law. The record may be entirely silent as to "genuine issues" of "material fact," and yet the movant, in this case the Adams Plaintiffs, is not entitled to summary judgment unless the applicable law upholds the right to recover. In the present case, the Adams plaintiffs fail to meet both burdens.

These principles have been carefully set forth by the Supreme Court and our Court of Appeals in numerous decisions. Thus, in the leading case of Adickes v. S.H. Kress & Co., 398 U.S. 144, 161(1970), the Supreme Court said: [page 4]

"'Yet the party moving for summary judgment has the ___ burden to show that he is entitled to judgment tinder established principles; and if he does not discharge that burden then he is not entitled to judgment. No defense to an insufficient showing is required."' (Emphasis supplied.)

To the same effect, see Bloomgarden V. Coyer, 479 F.2d 201, 207 (D.C. Cir. 1973) and cases therein cited ("to be upheld, the summary judgment under review must withstand scrutiny on both its factual and legal foundations.") (Emphasis supplied); Bvers V. Burleson, 713 F.2d 856, 859 (D.C. Cir. 1983) ("Our role in reviewing the grant of summary judgment is to determine whether there is any genuine issue of material fact underlying the adjudication and, if not, whether the substantive law was correctly applied.") (Emphasis supplied.)

This principle would govern even if the party opposing the motion, in this case the Authority, had not pointed to "affirmative evidence" showing disputed material facts. Jackson v. Finnegan. Henderson. Farabow. Garreff & Dunner, 101 F.3d 145, 150 (D.C. Cir. 1996). In this case the Authority has done so. See our Statement Of Material Facts As To Which There Exists A Genuine Issue and the Declaration of Daniel A. Rezneck and attached exhibits. But the Motion for Summary Judgment here would fail even without such a showing by the Authority, for failure of the Adams plaintiffs to meet the second prong of the summary judgment standard.

As our Court of Appeals recently pointed out and as Rule 56(e) provides, even in the absence of disputed material facts, the grant of summary judgment is not automatic but is to be entered only "if appropriate", i., justified as a matter of law. Jackson v. Finnegan. Henderson. Farabow. Garrett & Dunner, supra, 101 F.3d at 150. See also Glass v. Dachel, 2 F.3d 733, 739 (7th Cir. 1993) ("'If appropriate' means 'as a matter of the governing law."')

In the present case, neither the "factual" nor "legal foundations" for granting summary judgment to the Adams plaintiffs are present. Bloomgarden V. Coyer, supra. There are genuine issues of material fact in dispute between the Adams plaintiffs and the Authority, precluding summary judgment for the Adams plaintiffs. Moreover, they have not advanced valid legal claims entitling them to judgment against the Authority.

II. The Factual and Legal Errors in the Adams Plaintiffs' Submission Require Denial of the Motion for Summary Judgment.

As shown in the Statement Of Material Facts As To Which There Exists A Genuine Issue, the Declaration of Daniel A. Rezneck, and the exhibits attached to the Rezneck Declaration, the case pleaded by the Adams plaintiffs is replete with genuine issues of material fact that require denial of their motion. There are so many of these disputes and so many errors of both fact and law in their submission that we scarcely know where to begin. For the convenience of the Court, we have grouped these issues and errors into several different categories.

A. Issues and Errors as to the Status of the Authority.

The Adams plaintiffs want to have it both ways at one point they assert that the Authority is an entity of the District of Columbia government (Plaintiffs' Statement 12) and at another they assert that the Authority is an "agent or instrumentality of the federal government." (Ld. 95) Each formulation flies in the face of the Authority's enabling statute, which clearly states that the Authority is not part of the District government and [page 6] is not a department, agency, establishment or instrumentality of the United States «, government. Section 101(a) of Public Law 104-8, Exhibit C to the Rezneck Declaration; Rezneck Declaration 's 5, 10).

The Adams plaintiffs are wrong on both counts. Congress created an entity that is sui generis - a body having its own factual and legal independence. (See Exhibit B to the Rezneck Declaration.) The plaintiffs' effort to saddle the Authority with constitutional obligations that might attach to either the District government or the federal government must therefore fail.

For example, the "Guarantee" clause of the Constitution, which is the basis of Count II of the Adams complaint, places obligations on the federal government to guarantee the "States" a "Republican Form of Government." But labeling the Authority a "member" of the federal government, as the plaintiffs do in accusing the Authority of violating the "Guarantee" clause (see Plaintiffs' Statement 's 108, 111), will not do the trick. It is squarely contrary to the statute which created the Authority. [footnote 3: Thus, in dealing with the present motion as to the Authority, the Court need not reach the issue whether the District of Columbia is a 'State" within the meaning of the "Guarantee" clause. We leave to the federal defendants the articulation of the position that it is not, and adopt and rely on their arguments if the Court reaches the issue.]

B. Issues and Errors as to the Powers Of the Authority.

The Adams plaintiffs fundamentally misunderstand the scope of the Authority's powers. They make the most extravagant assertions - e.g., that Congress divested the local government "of almost all governmental functions" and "placed them under the Control Board" (Plaintiffs' Statement 28); that "every action" of the local government [page 7] is subject to absolute review and veto" by the Authority (14 91); that it is within the powers of the Authority "to take steps to guarantee republican forms of government to the Plaintiffs" (II 97); that the Authority, in concert with Congress, "could apportion to the citizens of the District of Columbia, including the Plaintiffs, representation in the Congress of the United States" (Id. 106) (Emphasis supplied.)

The fact is, as the Court of Appeals made clear recently, that the Authority's powers are "'studiously detailed"' in its governing statutes, "the Control Board's power is bounded by the parameters set forth in its enabling Act and subsequent legislation," and "Congress specifically enumerated the Control Board's powers" in these statutes. University of the District of Columbia v. District of Columbia Financial Responsibility and Management Assistance Authority, No.98-7024, decided December 22, 1998. (Emphasis in original).

None of the plaintiffs' extravagant assertions of Authority powers finds any support in the language of the Authority's governing statutes. (See Exhibits C and D to the Rezneck Declaration.) In particular, the notion that the Authority has any powers or role with respect to voting rights for D.C. citizens, or to apportion representation for the District of Columbia in Congress, is so outlandish as to pass the boundary of reasonable argument. Equally bizarre is the allegation that it is the Authority which is "preventing the plaintiffs from electing representatives to Congress having full powers and rights under the Constitution" and "preventing them from enjoying the benefits of citizenship in a state." (Plaintiffs' Statement 71) Since the Authority has no power to grant the plaintiffs the right to elect voting representatives to Congress or citizenship in a state, it is [page 8] remarkable to claim that the Authority is denying them these rights. So much for the Adams plaintiffs' claim of a violation by the Authority of "the plaintiffs' rights to the equal protection of the laws under the Due Process Clause of the Fifth Amendment to the Constitution of the United States of America." (LL) This is the basis of Count I of the Adams plaintiffs' Complaint, and it cannot support a claim against the Authority. [footnote 4: Thus, as to the Authority, it is unnecessary for the Court to reach the question whether these plaintiffs have or can state a valid claim of denial of equal protection stemming from the withholding of Congressional voting representation from District citizens. We leave to the federal defendants the articulation of the position that the Adams Plaintiffs cannot do so, and adopt and rely on the arguments of the federal defendants if the Court reaches the issue.]

C. Issues and Errors as to the Actions Of the Authority

A third category of the Adams plaintiffs' factual and legal errors consists of their assertions of unspecified actions by the Authority that have violated their constitutional rights. Thus, they assert that "All Defendants... actively prevent institution of any republican form of government specifically for or over the District of Columbia" (Plaintiffs' Statement 98); "All Defendants... actively prevent participation of the citizens of the District of Columbia, including the plaintiffs, in the Congress of the United States by elected representatives. . . ." (Id. 100); the "actions of the Defendants" violate "the Plaintiffs' privilege of relying upon the obligation of all members of the federal government to guarantee to them republican forms of government...." (I 108); "the Congress of the United States, with the assistance and efforts of the Defendants, has prevented the Plaintiffs from enjoying the benefits of a state government, insulated from Congressional interference in matters of local concern...." (Id. 109); [page 9] "The "actions of Congress and the Defendants" violate Plaintiffs' rights to a republican form of government. (I 's 110, 111)

Every one of these blunderbuss allegations, insofar as it is intended to put the Authority's actions in issue, is flatly denied by the Authority. (See Rezneck Declaration 's 12-18). Many of them allege impossibilities as to the Authority because of its lack of powers in the particular areas covered by these allegations. But if the plaintiffs rely on them against the Authority, they cannot form the basis of a summary judgment in view of the Authority's unequivocal denials. [footnote 5: As we pointed out in the section of our Motion to Dismiss devoted to the Adams plaintiffs' failure to state a claim under Rules 8(a) and 12(b)(6) of the Federal Rules of Civil Procedure, the Court can search the entire Complaint in vain for a single word alleging that the Authority did anything to the plaintiffs. See our Memorandum of Points and Authorities in support of our Motion to Dismiss the Complaint as to the Authority, at pp.6-7. Nor do the papers supporting the summary judgment motion put any meat on the bare bones of the Complaint as to the Authority. Here again, if the Court proceeds first to decide our Motion to Dismiss, as it logically should, it will find the case for dismissal so clear and compelling that it will have no need to assess the case against the Authority under the rubric of a summary judgment motion.]

CONCLUSION

The Adams plaintiffs' Motion for Summary Judgment should be denied as to the Authority.

Respectfully submitted,

Daniel A. Rezneck, General Counsel