IN THE
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

Twenty Citizens of the District of Columbia,
Plaintiffs

versus | Civil Action No: 98-1665 LFO

William Jefferson Clinton, et al,
Defendants

PLAINTIFFS' OPPOSITION TO THE
MOTION OF DEFENDANT DISTRICT OF COLUMBIA FINANCIAL
RESPONSIBILITY AND MANAGEMENT ASSISTANCE AUTHORITY
TO DISMISS THE COMPLAINT AS TO IT
Index
Preliminary Considerations
WHETHER THE PLAINTIFFS HAVE "STANDING"
1(a): Are These Twenty Plaintiffs Injured?
Discussion & Answer: Yes
1(b): Are There Twenty Plaintiffs Injured?
Discussion & Answer: Yes
2: Did the Control Board Cause the Injuries?
Discussion & Answer: Yes
3: Can the Court Redress the Injuries?
Discussion & Answer: Yes
[4:] Are there any "Prudential Limitations" on Standing?
Discussion & Answer: No
Conclusion: These Twenty Citizens have "Standing"
WHETHER THE PLAINTIFFS "STATE A CLAIM" AGAINST THE CONTROL BOARD
Discussion:
Conclusion: The Plaintiffs State Claims
OVERALL CONCLUSION

On July 21, 1998, Defendant District of Columbia Financial Responsibility and Management Assistance Authority ("Control Board") filed a Motion to Dismiss the Complaint as to It ("Motion") and Memorandum of Points and Authorities in Support of [the Motion] ("Memorandum"). The Control Board asserts that the Plaintiffs' claims against the Control Board should be dismissed because of "lack of jurisdiction over the subject matter" and because of "failure to state a claim upon which relief can be granted" against the Control Board (Memorandum, citing generally Fed. R. Civ. P. 12(b)(1) & (6)). The assertion of lack of jurisdiction actually goes to the "standing" of these twenty Plaintiffs, which the Control Board challenges under every aspect of the governing test for standing. The assertion of failure to state a claim questions whether the Plaintiffs have presented any claims against the Control Board, as opposed to claims against other Defendants.
As set forth in this, the Plaintiffs' Opposition to the Control Board's Motion, however, the facts support standing and the Control Board presents no facts or legal authority supporting its motion to dismiss for failure to state a claim. When the Motion is weighed on its merits, therefore, the Control Board's Motion to Dismiss the Complaint as to It must be denied.
Preliminary Considerations
Before proceeding to the merits of the Motion, it should be noted that it must be addressed by the three-judge District Court, for which the Plaintiffs' have previously applied. If, as Plaintiffs contend (see Memorandum of Points and Authorities in Support of Plaintiffs' Application for a Three-judge District Court), this case is properly under the jurisdiction of a three-judge district court for any purpose, it is under the jurisdiction of a three-judge district court for all purposes, Zemel v. Rusk, 381 U.S. 1, 5-6, 85 S.Ct. 1271, 1275, 14 L.Ed.2d 179 (1965); U.S. v. Georgia Public Service Comm'n, 371 U.S. 285, 287-88, 83 S.Ct. 397, 399, 9 L.Ed.2d 317 (1963), including consideration of the motions to dismiss under Rule(s) 12(b)(1) and (6). See, e.g., Flast v. Cohen, 392 U.S. 83, 88, 88 S.Ct. 1942, 1946, 20 L.Ed.2d 947 (1968) (plaintiffs in Flast requested a three-judge district court, defendants moved to dismiss on the ground plaintiffs lacked standing, the court then determined the case was under the jurisdiction of a three-judge district court, so motion to dismiss for lack of standing was taken up by the three-judge district court); but cf. United States v. SCRAP, 412 U.S. 679, 680-81, 93 S.Ct. 2405, 2412, 37 L.Ed.2d 254 (1973) (noting without comment that a single district judge dismissed a motion to dismiss and motion for temporary restraining order before statutory three-judge district court was convened).
WHETHER THE PLAINTIFFS HAVE "STANDING"
"Standing" is, "perhaps[,] the most important [jurisdictional] doctrine[]," FW/PBS, Inc. v. Dallas, 493 U.S. 215, 230-31, 110 S.Ct. 596, 607-08, 107 L.Ed.2d 603 (1990), based on the requirement of "case or controversy" of Article III of the Constitution. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 2136 (1992); Flast, supra, 392 U.S. at 98, 88 S.Ct. at 1952; National Treasury Employees Union v. United States, 101 F.3d 1423, 1427 (D.C. Cir. 1996). Since standing is a jurisdictional consideration, see Cook v. Reno, 74 F.3d 97, 99 (5th Cir. 1996) ("Before ruling on the merits of the case, it is imperative that the court first determine whether it has jurisdiction to hear the suit; if jurisdiction is lacking, then the court has no authority to consider the merits."), it "in no way depends on the merits of the plaintiff's contention that particular conduct is illegal," Warth v. Seldin, 422 U.S. 490, 500, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975).
The "gist of the question of standing" is whether the party seeking relief has "alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions." In other words, when standing is placed in issue in a case, the question is whether the person whose standing is challenged is a proper party to request an adjudication of a particular issue and not whether the issue itself is justiciable.
Flast, supra, 392 U.S. at 99-100, 88 S.Ct. at 1952 (quoting Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962); footnote omitted). Thus, standing "focuses on the party seeking to get his [or her] complaint before a federal court and not on the issues he [or she] wishes to have adjudicated." Id (emphasis added).
The party seeking the jurisdiction of the federal courts bears the burden of demonstrating standing, once the question is raised by any party or by the court. United States v. Hays, 515 U.S. 737, ___, 115 S.Ct. 2431, 2435, 132 L.Ed.2d 635 (1995); Lujan, supra, 504 U.S. at 561, 112 S.Ct. at 2136; Warth, supra, 422 U.S. at 513, 95 S.Ct. at 2215; Natural Resources Defense Council, Inc. v. Jamison, 787 F.Supp. 231, 235 n.1 (D.D.C. 1990). But a showing of "general factual allegations of injury resulting from the defendant's conduct" will suffice to defeat a motion to dismiss for lack of standing. [FOOTNOTE 1: In other words, a demand to demonstrate standing cannot be treated as covert repeal of the rule allowing "notice pleading," as codified in Federal Rule of Civil Procedure 8(a). See Albuquerque Indian Rights v. Lujan, 930 F.2d 49, 55 (D.C. Cir. 1991), citing Worth v. Seldin, 422 U.S. 490, 501 (1975); see also Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 102, 2 L.Ed. 80 (1957) (ensconcing the practice of "notice pleading")] Lujan, 504 U.S. at 561, 112 S.Ct. at 2137. The difference between the burden to be bourn to defeat a motion to dismiss for lack of standing and the burden to be bourn at trial on prevail on the merits is the difference between "averment" and "proof." See Lujan, 504 U.S. at 561, 112 S.Ct. at 2137; NRDC, supra, 787 F.Supp. at 236-37. In evaluating the plaintiffs' averment of standing, moreover, the court "must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining part[ies.]" Warth, supra, 422 U.S. at 501, 95 S.Ct. at 2206; NRDC, supra, 787 F.Supp. at 237.
All this said, it is the duty of these twenty Plaintiffs to show several, closely interrelated conditions or circumstances, in order to show they have "standing."
First, the plaintiff[s] 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 conduct complained of--the injury has to be "fairly . . . trace[able] to the challenged action of the defendant, and not . . .th[e] 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."
Lujan, supra, 504 U.S. at 559-60, 112 S.Ct. at 2136 (although there is no indication in Lujan or since that the "test" outlined in Lujan was intended to serve as an all-purpose treatise on the law of standing); National Treasury Employees Union v. United States, 929 F.Supp. 484, 487 (D.D.C.) (quoting Lujan), aff'd, 101 F.3d 1423 (D.C. Cir. 1996). Unfortunately, these "elements" tend to blend into one another, Ash Creek Mining Co. v. Lujan, 969 F.2d 868, 875 (10th Cir. 1992); Cone Corp. v. Fla. Dept. of Transp., 921 F.2d 1190, 1204 & n.44 (11th Cir. 1991), which makes it more difficult to conduct coherent analysis, and "[g]eneralizations about standing to sue are largely worthless as such," Association of Data Processing Service Orgs v. Camp, 397 U.S. 150, 151, 90 S.Ct. 827, 829, 25 L.Ed.2d 184 (1970).
1(a): Are These Twenty Plaintiffs Injured?
The foundation "element" of standing is that, if anyone was injured by anyone else, these twenty Plaintiffs must be among those injured. The injury, in other words, must be "particularized" to these twenty plaintiffs, which means that the injury must "affect the plaintiff[s each] in a personal and individual way." Lujan, supra, 504 U.S. at 560 n.1, 112 S.Ct. at 2136 n.1; Raines v. Byrd, ___ U.S. ___, 117 S.Ct. 2312, 2317, ___ L.Ed.2d ___ (1997); NRDC, supra, 787 F.Supp. at 233. Although the federal courts must not "shrink from a confrontation" with another branch of the federal government in order to vindicate individual rights, the courts should not "hospitably accept for adjudication claims of constitutional violation . . . where the claimant has not suffered cognizable injury[,]" Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 474, 102 S.Ct. 752, 759, 70 L.Ed.2d 700 (1982), no matter how important the rights to be vindicated.
This requirement is not complex; if a plaintiff himself or herself is "an object of the action (or foregone action) at issue [in the case,] . . . there is ordinarily little question that the action . . . has caused him [or her] injury[.]" Lujan, supra, 504 U.S. at 561-62, 112 S.Ct. at 2137. Thus, in effect, the question is whether the plaintiff "took a hit" or merely "witnessed" the hit.
For example, while the court recognize that a plaintiff might have a "cognizable interest" in observing wildlife, say, this "cognizable interest" is not enough, without more, to confer standing. Lujan, supra, 504 U.S. at 562-63, 112 S.Ct. at 2137-38. The fact that the wildlife might be "the object of" (threatened directly by) certain action of a defendant does not mean that a person who wants to watch the wildlife is also "an object of" the challenged action. Id. Likewise, when apportionment is being challenged on equal protection grounds, the plaintiff(s) must be among those whose votes are actually discounted or blocked; the plaintiff(s), in short, must live in the adversely affected district or apportionment. In other words, the only potential plaintiffs with standing to challenge a denial of equal protection of the laws are "those persons who are personally denied equal treatment." Allen v. Wright, 468 U.S. 737, 755, 104 S.Ct. 3315, 3326, 82 L.Ed.2d 556 (1984).
Discussion & Answer: Yes
As pled in the Complaint, each of these twenty plaintiffs is a citizen of the District of Columbia ( 5) [FOOTNOTE 2: All paragraph symbols () used in this Opposition refer to paragraphs in the Complaint] and each is qualified to participate in the political life of the District of Columbia ( 6). In Count One, these twenty Plaintiffs assert that the defendants have discriminated against them, invidiously, as compared to all the residents of what was once a portion of the District of Columbia south-west of the Potomac River and as compared to all the residents of the federal enclaves ( 37-87), denying a wide assortment of the Plaintiffs' fundamental rights ( 37, 66-87). In Count Two, the Plaintiffs assert that the defendants have failed to guarantee to the Plaintiffs republican forms of government and have failed to denied to the plaintiffs the privilege of relying upon all members of the federal government to guarantee to them republican forms of government ( 88-118).
The District of Columbia and the citizens of the District of Columbia are the object of the actions at issue in both Counts of the Complaint ( 18-32, 66-87, 91-118). Since each of these twenty plaintiffs lives in the District of Columbia ( 5), each is a resident of the district (speaking generically) which has been excluded from any apportionment for representation in Congress ( 30, 68, 74-87) and excluded from enjoyment of other rights and privileges under the Constitution ( 37, 88-89), although other people over whom Congress has held identical power are now included in apportionments, for no reason whatsoever ( 47-49, 57-64, 66-68).
As concerns the Defendant Control Board more specifically, the Control Board exercises significant powers of governance over the District of Columbia ( 27-29). See Shook v. D.C. Fin. Responsibility and Management Assistance Auth., 132 F.3d 775, 784 (D.C. Cir. 1998). Thus, the Plaintiffs are governed, at least in significant part, by the Control Board. The Control Board makes decisions on a daily basis about what shall be done to the neighborhoods where these twenty plaintiffs live, about what shall be done to their neighbors, and which decisions which will directly effect these twenty plaintiffs themselves. The Control Board's exercise of powers of governance over the District of Columbia, therefore, has a direct impact on each plaintiff. Each of these plaintiffs, therefore, is "an object of," Lujan, supra, 504 U.S. at 561-62, 112 S.Ct. at 2137, actions complained of in this case, so each meets element 1(a) of the Lujan test of standing to challenge the existence of the Control Board and its exercise of power over them.
Each of these twenty Plaintiffs, therefore, meets element 1(a) of the Lujan test of standing to challenge this scheme of apportionment, since each is "personally denied equal treatment." Allen, supra, 468 U.S. at 755, 104 S.Ct. at 3326 (emphasis added). Each of these twenty plaintiffs has been "affect[ed] . . . in a personal and individual way," Lujan, supra, 504 U.S. at 560 n.1, 112 S.Ct. at 2136 n.1, by the actions of the defendants under Count One of the Complaint. Thus, the injuries at issue in this case are "particularized" to these twenty plaintiffs.
All "governments" at issue in Court Two of the Complaint ( 88-118) are governments of the District of Columbia, whether the reference to "government" be to the current governments which are not republican in form (for instance, Congress, acting through the Defendant Control Board ( 92-93) or to the governments which are republican in form to which the Plaintiffs are entitled under the Constitution ( 99, 101-02, 106, 109). Therefore, in that the Defendants have shirked their obligation to guarantee to each Plaintiff republican forms of government for the District, each of these plaintiffs is also "an object of" action which has been "foregone," Lujan, supra, 504 U.S. at 561-62, 112 S.Ct. at 2137. Each of these twenty Plaintiffs, therefore, meets element 1(a) of the Lujan test for standing as regards Count Two of the Complaint.
In summary of discussion of element 1(a) of the Lujan test for standing, these twenty citizens do not come before this court seeking only "hospitab[e] . . . adjudication claims of constitutional violation[s]," Valley Forge Christian College, supra, 454 U.S. at 474, 102 S.Ct. at 759, just because certain principles are "important." They are here because Mr. Byrd (along with all his co-plaintiffs) cannot vote for any member of the Congress which governs the place where Mr. Byrd (and all his co-plaintiffs) lives. They are here because Mr. Higgs (along with all his co-plaintiffs) cannot run for a seat in Congress as a representative of his community. They are here because Ms. Killingham (along with all her co-plaintiffs) cannot vote for a local government which is a real government, not merely a transitory "indulgence," see Maryland & D.C. Rifle & Pistol Ass'n, Inc. v. Washington, 442 F.2d 123, 130 (D.C. Cir. 1971), on the part of Congress. They are here because significant powers of governance, concerning the place of residence and expenditure of the taxes of Ms. Murray (and all her co-plaintiffs) are under significant degrees--if not complete--control of the Defendant Control Board, and Ms. Murray (and all her co-plaintiffs) does not like it and comes to ask this court to find it unconstitutional.
1(b): Are There Twenty Plaintiffs Injured?
Inextricably tied to the foundation element is the requirement that the plaintiffs be injured, either by or during the time Complaint was filed or, if not then, that the plaintiffs anticipate injury in the future. The Lujan test denominates the injury as an "injury in fact," which only means (as a term of art) "an invasion of a legally protected interest." Lujan, supra, 504 U.S. at 560, 112 S.Ct. at 2136 (citing Allen, supra, 468 U.S. at 756, 104 S.Ct. at 3327; Warth, supra, 422 U.S. at 508, 95 S.Ct. at 2210; and Sierra Club v. Morton, 405 U.S. 727, 740-41 n.16, 92 S.Ct. 1361, 1368-69 n.16, 31 L.Ed.2d 636 (1972)). This injury must be "distinct and palpable," Warth, supra, 422 U.S. at 501, 95 S.Ct. at 2206, or "concrete and demonstrable," Havens Realty Corp. v. Coleman, 455 U.S. 363, 379, 102 S.Ct. 1114, 1124, 71 L.Ed.2d 214 (1982).
The degree or size of the injury, however, is not an issue; "an 'identifiable trifle' can meet the constitutional minimum" requirements for standing. National Wildlife Federation v. Burford, 878 F.2d 422, 430 (D.C. Cir. 1989), vac & rem'd on diff. grounds, 497 U.S. 871, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990) (quoting SCRAP, supra, 412 U.S. at 689 n.14, 93 S.Ct. at 2417 n.14 (quoting Davis, Standing: Taxpayers and Others, 35 U. Chi. L. Rev. 601, 613 (1968)). For instance, a plaintiff might have standing even if a defendant's action is only "at loggerheads" with the mission or purposes of the plaintiff, see, e.g., NTEU, supra, 101 F.3d at 1429-30 (quoting Judge Richey in NTEU, supra, 929 F.Supp. at 489, aff'd, 101 F.3d 1423 (D.C. Cir. 1996)), so severed limbs are not required.
The injury could be actual, having transpired at some time before the Complaint was filed, or the injury could be "imminent," i.e., in the future, but it must be "certainly impending." Whitmore v. Arkansas, 495 U.S. 149, 158, 110 S.Ct. 1717, 1725, 109 L.Ed.2d 135 (1990), quoted in (with emphasis added by) Lujan, supra, 504 U.S. at 564 n.2, 112 S.Ct. at 2138-38 n.2. "Imminence" of harm only becomes an issue, however, when there is no allegation of actual harm to the plaintiff himself or herself when or before the Complaint was filed. If the plaintiff complains of actual harm to the plaintiff's person or personal interests, "the existence of standing is clear, through the precise extent of [the] harm remains to be determined at trial; [conversely, only when] there is no actual harm . . . [must] imminence . . . be established" to overcome a motion to dismiss for lack of standing. Lujan, supra, 504 U.S. at 564 n.2, 112 S.Ct. at 2138-39 n.2.
In a suit raising equal protection and voting rights claims such as are presented in the instant case, plaintiffs might establish standing by being among those who are denied the right to vote or by being among those whose votes or whose participation in the political processes are impaired or burdened. Baker, supra, 369 U.S. 186, 82 S.Ct. 691. In Baker, the Supreme Court confirmed that the plaintiffs, a large group of citizens of the State of Tennessee who were challenging the apportionment of representation in the Tennessee state legislature, had standing to sue for violation of their rights to equal protection, saying:
[V]oters who allege facts showing disadvantage to themselves as individuals have standing to sue. . . . These [plaintiffs] seek relief in order to protect or vindicate an interest of their own, and of those similarly situated. Their constitutional claim is, in substance, that [Tennessee's apportionment of representation in the state legislature] constitutes arbitrary and capricious state action, offensive to the Fourteenth Amendment . . . or of any standard, effecting a gross disproportion of representation to voting population. The injury which appellants assert is that this classification disfavors the voters in the counties in which they reside, placing them in a position of constitutionally unjustifiable inequality vis-…-vie voters in irrationally favored counties. A citizens's right to a vote free of arbitrary impairment by state action has been judicially recognized as a right secured by the Constitution . . . . They are asserting "a plain, direct and adequate interest in maintaining the effectiveness of their votes," not merely "the right possessed by every citizen 'to require that the government be administered according to law . . .' ." They are entitled to a hearing and to the District Court's decision on their claims.
Baker, supra, 369 U.S. at 206-08, 82 S.Ct. at 704-05 (quoting Coleman v. Miller, 307 U.S. 433, 438, 59 S.Ct. 972, 975, 83 L.Ed. 1385 (1939) and Fairchild v. Hughes, 258 U.S. 126, 129, 42 S.Ct. 274, 275, 66 L.Ed. 499 (1922); footnotes and other citations omitted).
Discussion & Answer: Yes
Count One of the Complaint ( 1-36 & 37-87) asserts that these twenty Plaintiffs suffer serious violations of their rights to equal protection of the laws (equal treatment under the laws). Count Two of the Complaint ( 1-36 & 88-118) asserts that these twenty Plaintiffs suffer serious violations of their right to republican forms of government and violations of their privilege of relying on the obligation of the Defendants to insure to them republican forms of government. The latter Count, especially, embraces or references many fundamental rights and privileges, including to participate in the political process, to be represented in government, to vote, to run for office, to have full state and federal citizenship ( 89). These rights and privileges stand on their own and are also inferred under the right to enjoy republican forms of government and under the privilege of relying upon the obligation of all members of the federal government to guarantee republican forms of government.
There is no question that these rights and privileges exist; there is no question that these rights and privileges are valuable and important; and there is no question that denial or loss of these rights and privileges is a remarkable injury. See, e.g., Dunn v. Blumstein, 405 U.S. 330, 336-37, 92 S.Ct. 995, 999-1000, 31 L.Ed.2d 274 (1972); Kramer v. Union School District, 395 U.S. 621, 626-28, 89 S.Ct. 1886, 1889-90, 23 L.Ed.2d 583 (1969); United States v. Classic, 313 U.S. 299, 314-16, 61 S.Ct. 1031, 1037-38, 85 L.Ed. 1368, reh. denied (1941). These rights and privileges, in short, are "legally protected interests" and "invasion" of them is an "injury in fact." Lujan, supra, 504 U.S. at 560, 112 S.Ct. at 2136 (citing Allen, supra, 468 U.S. at 756, 104 S.Ct. at 3327; Warth, supra, 422 U.S. at 508, 95 S.Ct. at 2210; and Sierra Club, supra, 405 U.S. at 740-41 n.16, 92 S.Ct. at 1368-69 n.16). These injuries go far beyond placing the Plaintiffs "at loggerheads" with the Defendants, NTEU, 101 F.3d at 1429-30; they imprison the Plaintiffs politically, making the Plaintiffs political slaves to Congressional whims. And these injuries are also actual, having been imposed by the time the Complaint was filed.
It might also be noted, however, that the Defendant Control Board also presents an "imminent" threat to the interests implicated in Count Two of the Complaint (most directly, but also material to Count One), in that the Control Board has been directed and empowered by Congress to have a role in framing the future "government" of the District of Columbia. Shook v. D.C. Fin. Responsibility and Management Assistance Auth., 964 F.Supp. 416, 428 (D.C. 1997), rev'd on other grounds, 132 F.3d 775 (D.C. Cir. 1998) ("Section 207(a)(3) [of Act creating the Control Board] . . . direct[s] the Control Board to make recommendation that exempt no part of the District Government from potential restructuring."). This is not supposition or hypothesis; it is in the statutory instructions to the Control Board.
The Plaintiffs in this case are in a position similar, in many ways, to the position the plaintiffs in Baker, supra, 369 U.S. 186, 82 S.Ct. 691, were in, although the disparate treatment these twenty Plaintiffs suffer is absolute, while the treatment suffered by the plaintiffs in Baker was (merely) proportional. As in Baker, these twenty Plaintiffs are "voters" ( 6); they "allege facts showing disadvantage to themselves as individuals" ( 37-87); they "seek relief in order to protect or vindicate . . . interest[s] of their own[] and of those similarly situated" (id.); they argue that current Congressional apportionments "constitute[] arbitrary and capricious [governmental] action, offensive to the [equal protection provisions of the Constitution] or of any standard, effecting a gross disproportion of representation to voting population" (id., but especially  66-68); they compare themselves to voters elsewhere who are "irrationally favored" (60-64); and they assert various rights but also the "right to a vote free of arbitrary impairment by [governmental] action" ( 37), which right "has been judicially recognized as a right secured by the Constitution." quoting Baker, supra, 369 U.S. at 206-08, 82 S.Ct. at 704-05.
Therefore, as the Supreme Court affirmed for the plaintiffs in Baker v. Carr, these twenty citizens of the District of Columbia "are entitled to a hearing and to the District Court's decision on their claims." Id. Therefore, in other words, these twenty Plaintiffs meet element 1(b) of the Lujan test for standing.
2: Did the Control Board Cause the Injuries?
Even if the plaintiffs in the case suffered an injury, they must be able to show, prima facie, that the defendant might have caused the injury to these plaintiffs. The gist of this element (the "causation element") is "a causal connection" between the injury and the defendant's action; in other words, "the injury has to be fairly traceable to the challenged action of the defendant." Simon v. Eastern Ky. Welfare Rights Organization, 426 U.S. 26, 41-42, 96 S.Ct. 1917, 1926, 48 L.Ed.2d 450 (1976)), quoted in Lujan, supra, 504 U.S. at 559-60, 112 S.Ct. at 2136. The nexus must be such that, but for the action or inaction of the defendant, there would be a substantial probability that the plaintiffs would not have suffered the injury of which they complain. See Warth, supra, 422 U.S. at 504, 95 S.Ct. at 2208.
But indirect causation does not defeat standing. See Warth, supra, 422 U.S. at 504-05, 95 S.Ct. at 2208. Where, for instance, a defendant has "broad powers of supervision" over local governance and where the defendant administers the money funding local governance, the defendant's connection with any injuries alleged to arise from that situation cannot be "remote." Flast, supra, 392 U.S. at 90 n. 3, 88 S.Ct. at 1947. So long as the plaintiff can demonstrate a "chain of causation" from the injury to the defendant's action and so long as the "links that comprise the chain" are "plausible," it doesn't matter one way or another how long that chain is. Public Citizen v. Lockheed Aircraft Corp.. 565 F.2d 708, 717 n.31 (D.C. Cir. 1977).
Discussion & Answer: Yes
For this element of the Lujan test for standing, the focus shifts from these twenty plaintiffs to the defendant. Although the Control Board suggests that the Plaintiffs lack standing under all elements of the law (Memorandum at 2), the Control Board seems to focus its challenge to the Plaintiffs' standing on the elements of "causation" and "redressability," discussed below. Since the Motion now before the court was proffered by the Control Board and since the Control Board raises a few specific issues unique to the Control Board as affirmative rebuttals to the "causation" element, the Plaintiffs will only address how the Control Board causes or plays a role in causing the injuries suffered by these Plaintiffs. [FOOTNOTE 3: The Plaintiffs reserve the opportunity to make independent demonstrations of causation and, therefore, standing vis-…-vie the other Defendants, if the question arises]
Although many rights are implicated and at issue to some degree in this case ( 37, 88, 89), the focus of Count One of the Complaint ( 37-87) is the right to the equal protection of the law, also referred to as the right to equal treatment under the law. Likewise, the focus of Count Two of the Complaint ( 88-118) is the right to republican forms of government, including the privilege of relying upon the obligation of all members of the federal government to guarantee to them republican forms of government.
Looking first at Count Two of the Complaint, the Plaintiffs contend that the Control Board is obligated, as an instrument or agency of the federal government, to "guarantee" to the Plaintiffs republican forms of government under the first clause of the fourth section of Article IV of the Constitution (the "Guarantee Clause") and that the Control Board (along with the other Defendants) has failed to honor this obligation ( 88-89, 95-96, 98, 100, 103-04, 107-11).
The Control Board responds to this point, saying that it is not subject to the obligation of the Guarantee Clause, U.S. Const., Art. IV,  4, cl. 1, because it "is not established as a department, agency, establishment, or instrumentality of the United States government" (Memorandum at 4 n.1). The authority for the Control Board's proposition (and the source for the language quoted) is section 101(a) of Public Law 104-8.
Public Law 104-8, of course, is an Act of Congress. But for this Act of Congress, there would be no Control Board. Were Congress to repeal this Act, the Control Board would cease to exist. The Control Board exists only by virtue of this Act of Congress and all powers it has arise under and through delegations from Congress, purportedly under the Constitution. [FOOTNOTE 4: The plaintiffs do not question whether Congress has certain power; they do challenge the constitutionality of certain things Congress has done with this power. If Congress uses any power in such a way as to violate the Constitution, then the exercise of power is null, even though the grant of power might remain in the hands of Congress. See U.D.C. Faculty Assn./NEA, et al v. Board of Trustees, No. Civ. 97-01080, slip op. (Feb. 3, 1998). So, for the purposes of the present discussion, the Control Board is either a nullity because the power by which Congress created it violates the Constitution or, if not a constitutional nullity, the Control Board violates the Constitution by failing to heed its obligations under Article IV, Section 4 of the Constitution]
Although Congress might be able to define the Control Board in such a way as to exempt it from the Federal Tort Claims Act, 28 U.S.C.  2671, et seq., the Freedom of Information Act, 5 U.S.C.  552(e), or other provisions of federal law, [FOOTNOTE 5: For an example of how Congress might and does define persons or entities "in" or "out" of the scope of federal legislation, compare 22 U.S.C.  2504(a), which states that Peace Corps volunteers will "not be deemed officers or employees" of the federal government, with 22 U.S.C.  2504(h), which states that the same Peace Corps volunteers "shall be deemed" officers or employees of the federal government "for the purposes of the Federal Tort Claims Act."] Congress cannot "define" the Control Board to be unrestrained by the Constitution or independent of Congress itself, which created it. See U.D.C. Faculty Assn./NEA, et al v. Board of Trustees, No. Civ. 97-01080, slip op. at 21-22 (Feb. 3, 1998) ("It is accurate to say that the Control Board has been given wide ranging, even 'sweeping,' powers over the District government's operations. However, those powers are still limited. The Control Board does not have the authority to arrogate for itself power and authority not delegated to it by Congress."). Insofar as Congress had any power to create the Control Board, that power came from the Constitution and is, therefore, under the Constitution and the manifestations of that power are subject to the Constitution. See Downes v. Bidwell, 182 U.S. 244, 260-61, 21 S.Ct. 770, 777, 45 L.Ed. 1088 (1901) ("Congress [can] not do indirectly . . . what it could not do directly. The District . . . remain[s] a part of the United States, protected by the Constitution."); compare Shook, supra, 132 F.3d at 778-79. [FOOTNOTE 6: "The Control Board's counsel bravely asserted that no Control Board order, no matter how outrageous . . . c[an] be challenged in federal court, but we simply do not believe that such an awesome delegation of unchecked authority can be drawn from Congress' unclear statutory wording. If we had any doubt as to that conclusion--which we do not--we would have to consider that preclusion of judicial review is particularly disfavored when applied to prevent a plaintiff from asserting a constitutional claim."]
If Congress itself cannot enact any law "abridging the freedom of speech or of the press," U.S. Const., Amend. I, neither can Congress create a "Speech Board," immunize it from constitutional restrictions, and empower the "Speech Board" to abridge the right of free speech. Likewise, if all officers, agencies, and branches of the federal government are obligated to provide "due process of law" to any person threatened with loss of life, liberty, or property, Congress cannot create a "Takings Board," make it independent of the Constitution, and empower it to take any life, liberty, or property without due process of law. Just so, as Congress is obligated to guarantee to these twenty Plaintiffs republican forms of government, Congress cannot create a "Control Board," define it to be independent of the Constitution, and free it from its general obligation as a creature of the federal government to heed the directive of the Guarantee Clause.
The Control Board, in short, is bound by the terms of the Constitution, which means that the Control Board is obligated to guarantee to these twenty Plaintiffs republican forms of government. And there is no authority for the proposition that this duty to "guarantee" lies only on the shoulders of some single entity which might have the power or capacity to accomplish the entire ends of providing republican forms of government. Just as Congress, passing laws, cannot act, but must rely on the Executive Branch to enforce the laws and as the President is limited to the tools created by Congressional legislation and by the Constitution and as all inferior entities (agencies, etc.) of the federal government are likewise reliant on other entities, just so is the Control Board is obligated to shoulder only what it can do, not to shoulder the entire burden, which cannot be isolated to the responsibility of any single federal entity or actor.
The object of this responsibility to "guarantee" a "republican form of government" is self-government. "Unquestionably," if Congress or any agent, agency, or branch of the federal government becomes aware of a form of government which, unequivocally, is not republican in form, such as a dictatorship, then "it would be the duty of Congress to overthrow it." Luther v. Borden, 7 How. (48 U.S.) 1, 45, 12 L.Ed. 581, 600 (1849) (emphasis added); accord Coyle v. Smith, 221 U.S. 559, 568-69, 31 S.Ct. 688, 690, 55 L.Ed 853 (1910). "The preservation of a democratic form of government requires all concerned to protect the right of each citizen to influence the decisions made by his government." D.C. Federation of Civil Ass'ns, Inc. v. Volpe, 434 F.2d 436, 442 (D.C. Cir. 1970) (emphasis added).
[The] distinguishing feature [of a republican form of government] is the right of the people to choose their own offices for governmental administration, and pass their own laws in virtue of the legislative power reposed in representative bodies, whose legitimate acts may be said to be those of the people themselves[.]
Duncan v. McCall, 139 U.S. 449, 461, 11 S.Ct. 573, 577, 35 L.Ed. 219 (1891) (emphasis added). In light of the affirmative obligation to support republican forms of government, it would be a monumental violation of the Guarantee Clause for any branch of government of the United States to prevent creation of a "republican form of government" within the United States, or to perpetuate or participate in an anti-republican form of government.
The Control Board is a body of five people appointed by the President of the United States ( 12). Pub. L. 104-8, 101(b)(1), 109 Stat. 97 (1995) to be the effective government of the District of Columbia, see Shook, supra, 132 F.3d at 784 (". . . Congress wanted the Control Board itself to exercise the powers of governance over the District."). These twenty Plaintiffs and their neighbors have no role whatsoever in choosing the Control Board or in authorizing its actions concerning their lives or place of residence. In fact, the courts have determined that Congress intended to exclude the influence of the residents of the District of Columbia (including these twenty Plaintiffs) from the proceedings of the Control Board. See Shook, supra, 132 F.3d at 778 (". . . Congress meant the Control Board could not be challenged as to its basic authority to issue orders, rules, or regulations--it is an unpaid voluntary group that was to be recognized as exercising governmental powers--and that its internal decision making process was not reviewable, but the actual content of individual orders could not be challenged as exceeding its authority."); Shook, supra, 964 F.Supp. at 426. In short, by its very existence, the Control Board is instrumental in causing the injuries complained of in Count Two of the Complaint, because it is a government which is not in the least bit republican in form and because it is an entity of the federal government which not only ignores its obligations under the Guarantee Clause but militates against those obligations.
But the Control Board is also instrumental in causing the injuries complained of under Count One of the Complaint. For almost a century, Congress ran the District of Columbia through three commissioners ( 22-24). See 1 D.C. Code 104-117. In 1973, Congress replaced the Commissioners with the "home rule" government ( 25). Pub. L. 93-198, 87 Stat. 774 (1973). In the mean time, Congress had taken steps to incorporate the federal enclaves into the fabric of the states ( 46-49). Evans v. Cornman, 398 U.S. 419, 90 S.Ct. 1752, 29 L.Ed.2d 370 (1970).
When Congress created the "home rule" government for the District of Columbia, Congress imposed certain fiscal burdens on the home rule government, Pub. L. 93-198,  711-13, 87 Stat. 774, 818-19 (1973); simultaneously, Congress withheld from the home rule government the power to tax income realized in the District by nonresidents, id.,  602(a)(5) (26). One of the fiscal burdens imposed was the obligation to pay pensions for all governmental employees, a benefit created by the federal government during the Commissioner period and yet not funded by the federal government. Pub. L. 96-122, 93 Stat. 866 (1979). This "unfunded pension obligation" was one of the primary reasons for the District's fiscal disaster, see The District of Columbia's Pension Dilemma--An Immediate and Lasting Solution (D.C. Appleseed Center, 1996), along with the prohibition on taxing income realized in the district by nonresidents, see Carol O'Cleireacain, The Orphaned Capital; Adopting the Right Revenues for the District of Columbia, 89-111 (1997).

Congress nevertheless purported to impose the Control Board on the District because of the fiscal disaster, without reference to the role Congress played in setting up and bringing on the crisis. Pub. L. 104-8,  2(a), 109 Stat. 97, 98 (1995). In other words, Congress created and imposed the Control Board on the District of Columbia (which includes these twenty Plaintiffs) in order to "remedy" a fiscal problem which was, in no small part, precipitated--created and imposed on these twenty Plaintiffs--by Congress, see Pub. L. 105-33,  11002, 111 Stat. 712, 715-16 (1997), in the course of its discriminatory retention of exclusive jurisdiction over the lives of the citizens of the District.
Therefore, the Control Board was created as a tool of Congress to sustain the status quo of the District of Columbia, to cover over, to sustain, and to maintain the pattern of management and mismanagement of the District which Congress had conceived, imposed, and maintained for at least a century. [FOOTNOTE 7: While this discussion should not be taken to "exculpate" any component of the "home rule" government in the fiscal crisis of the District, discussion of fault or culpability for the fiscal crisis is not material to this case and discussion of simple, technical managerial responsibility, while material, should not distract from the issues in this case, which concern violations of the constitutional rights of these twenty Plaintiffs. As relevant to these questions, it is material that Congress always retained final authority and control of the District and it is material that Congress imposed certain fiscal burdens and withheld certain powers of government from the "home rule" government. Thus, Congress always played the initial, key role in the fiscal crisis, which role was specifically sustained and perpetuated by creation and imposition of the Control Board as the most recent institution created in a long history of institutions with certain tasks and roles.] This Congressional control of the District of Columbia differs completely from withdrawal of Congressional control of the federal enclaves, which difference is the core of the issue in Count One of the Complaint. Since the Control Board is a tool or instrument of this same Congressional control of the District which differs from Congressional control of the federal enclaves, the Control Board is a link in the chain of causation of the disparate treatment of these twenty Plaintiffs. Public Citizen, supra. 565 F.2d at 717 n.31.
As for the apportionment component of Counts One and Two, the Plaintiffs are certainly not arguing that the Defendant Control Board made the original decision to exclude these twenty Plaintiffs in any apportionment of representation in Congress, nor are they arguing that the Control Board, single-handedly, could include them in apportionments to Congress. But this case is not about assigning moral culpability for these decisions; this case is about vindicating the Plaintiffs' rights to equal protection of the laws, which is to say this case is about stopping the iniquitous treatment and obtaining equal treatment.
It matters little who, historically, made the decisions to apportion representation to the citizens of the former portion of the District of Columbia south-west of the Potomac River and to the federal enclaves but not to apportion representation to the citizens of the District of Columbia at issue under Count One of the Complaint (or Count Two, for that matter), so long as the present-day heirs to the original decisions perpetuate the violations of the Plaintiffs' rights. Congress perpetuates the status quo, not only by not changing the status quo, but also by taking affirmative steps to maintain it. One of those steps taken by Congress to sustain the status quo--which is to say one of the steps taken by Congress which is instrumental to the ongoing violation of the rights at issue in Counts One and Two of the Complaint--was creation and imposition of the Defendant Control Board. The Control Board is an instrument of Congress, assisting Congress in perpetuating the status quo, which is to say assisting Congress in perpetuating the ongoing violation of the Plaintiffs' rights.
If the unequal treatment complained of were a "taking" of money from the pockets of the Plaintiffs, then the agent who physically laid hands on the money would be as much involved in the "taking" as would the entity which ordered the "taking." Just so, as the unequal treatment complained of in Count One of the Complaint is exclusion from political rights, including exclusion from apportionment of representation in Congress; the agent who administers this disenfranchised colony is as much involved in the disenfranchisement as is the entity "ordering" it. And an injunction closing down the Control Board--barring use of this tool by Congress--would terminate perpetuation of the unconstitutionally unequal treatment of the Plaintiffs.
Thus, there is a direct "causal connection" between the injury and the Control Board's existence; but for the violation of the Plaintiffs' rights to equal treatment under the law, Warth, supra, 422 U.S. at 504, 95 S.Ct. at 2208, Congress would not and could not have imposed the Defendant Control Board on them. The Control Board is an incident of the disparate treatment at issue in Count One of the Complaint. Thus, their injury is directly "traceable," Simon, supra, 426 U.S. at 41-42, 96 S.Ct. at 1926, to the existence of the Control Board, even if the moral and legal responsibility for that existence can be traced beyond the Control Board, to Congress. Compare Flast, supra, 392 U.S. at 90 n. 3, 88 S.Ct. at 1947 (where a defendant has "broad powers of supervision" over local governance, for instance, and where the defendant administers the money funding local governance, the defendant's connection with any injuries alleged to arise from that situation cannot be "remote").
This is not a situation where the "chain of causation" from the injury to the party responsible is terribly long or complex, Public Citizen, supra. 565 F.2d at 717 n.31, because the Control Board is the very first link in the chain past the injury. The Control Board is but the stinging tip of the whip held by Congress. Since Congress violates the Constitution by wielding this whip, the Plaintiffs are within their rights--and have standing under element 2 of the Lujan test for standing--to demand an injunction that this whip be removed from the hand of Congress.
3: Can the Court Redress the Injuries?
And even if the plaintiffs are injured and even if the defendant caused the injury, then the plaintiff must still demonstrate that the court might redress the injury ("redressability element"). The question of redressability need not be answered with absolute finality, [FOOTNOTE 8: In this regard, it might be noted that, "a plaintiff is entitled to any relief appropriate to the facts alleged in the bill and supported by the evidence, even where [the plaintiff] has not prayed for such relief." Dann v. Studebaker-Packard Corp., 288 F.2d 201, 216 (6th Cir. 1961), quoted in Adams v. Bell, 711 F.2d 161, 203 (D.C. Cir. 1983), cert. denied, 465 U.S. 1021, 104 S.Ct. 1272, 79 L.Ed.2d 678 (1984) (other citations omitted); Fed. R. Civ. P. 54(c)] but the requirement can be fulfilled with a showing that a favorable decision "is likely to redress" the injury complained of, NRDC, supra, 787 F.Supp. at 234-35 (citing National Wildlife Federation v. Hodel, 839 F.2d 694, 705 (D.C. Cir. 1988) or that he or she "personally would benefit in a tangible way from the court's intervention," Warth, supra, 422 U.S. at 509, 95 S.Ct. at 2210.
Again, if "the plaintiff is himself [or herself] an object of the action (or foregone action) at issue [in the case,] . . . there is ordinarily little question . . . that a judgment preventing or requiring the action will redress it." Lujan, supra, 504 U.S. at 561-62, 112 S.Ct. at 2137. Thus, an order barring enforcement of an unconstitutional statute or action would be "of immense benefit" to anyone who would be subject to the unconstitutional statute or action, Bland v. Fessler, 88 F.3d 729, 738 (9th Cir. 1996), cert. denied, ___ U.S. ___, 117 S.Ct. 513, 136 L.Ed.2d 403 (1996), so declaratory relief can satisfy the "redressability" element of standing. In fact, "[p]ublic policy should encourage a person aggrieved by laws he considers unconstitutional to seek a declaratory judgment against the arm of the state entrusted with the state's enforcement power[.]" Mobil Oil Corp v. Attorney General of the Commonwealth of Virginia, 940 F.2d 73, 75 (4th Cir. 1991) (emphasis added); Bland, supra, 88 F.3d at 737.
Thus, it is not required that the remedy sought in the case constitute some positive quantum which might land in the plaintiff's pocket, such as monetary relief. It is enough, when a party is challenging some act or policy of the government which stands between her and the status or condition she would wish to achieve, that the relief she seeks would simply deactivate or nullify that act or policy. Such nullification might come from a declaration that the act or policy is unconstitutional. See Miller v. Christopher, 96 F.3d 1467, 1470 (D.C. Cir. 1996), (specific principle of standing) aff'd sub nom Miller v. Albright, ___ U.S. ___, 118 S.Ct. 1428, 1436, ___ L.Ed.2d ___ (1998). [FOOTNOTE 9: In Miller, the plaintiffs challenged a statute which defined eligibility for citizenship, arguing the act violated a person's right to equal protection under the laws; but for the act the person challenged, she would have been eligible for citizenship under another act. The court noted she was not seeking an order granting her citizenship, which the court could not grant, but only seeking a declaration of unconstitutionality, which the court could grant; since the declaration would benefit her, her claim could be redressed, so she had standing (other criteria for standing were not at issue).]
The "redressability" element of standing has arisen in many of the cases where plaintiffs have brought claims of denial of equal protection of the laws, such as these twenty Plaintiffs present in Count One of their Complaint. See, e.g., Heckler v. Mathews, 465 U.S. 728, 737-40, 104 S.Ct. 1387, 1394-96, 79 L.Ed.2d 646 (1984). In such a case, the courts have found no impediment to remedying the situation.
[W]e have frequently entertained attacks on discriminatory . . . practices even when the government could deprive a successful plaintiff of any . . . relief by withdrawing . . . benefits from both the favored and the excluded class. . . . Accordingly, as Justice Brandeis explained, when the "right invoked is that to equal treatment," the appropriate remedy is a mandate of equal treatment, a result that can be accomplished by withdrawal of benefits from the favored class as well as by extension of benefits to the excluded class. Consistent with Justice Brandeis' explanation of the appropriate relief for a denial of equal treatment, we have often recognized that the victims of a discriminatory government program may be remedied by an end to preferential treatment for others.
Mathews, supra, 465 U.S. at 740 & 740 n.8, 104 S.Ct. at 1395 & 1395 n.8 (quoting Iowa-Des Moines National Bank v. Bennett, 284 U.S. 239, 247, 52 S.Ct. 133, 136, 76 L.Ed. 265 (1931) (per Brandeis, J.); other citations omitted). In short, "the injury caused by the unequal treatment allegedly suffered by [a plaintiff] may "be redressed by a favorable decision" and [the plaintiff] therefore has standing to prosecute" the case. Mathews, supra, 465 U.S. at 740, 104 S.Ct. at 1396.
Discussion & Answer: Yes
As partial remedy for both Counts of the Complaint, the Plaintiffs seek declarations that the Defendants violate their rights (Complaint, pp. 22-24) and they seek injunctions to bar enforcement of Congressional acts which violate their rights and/or perpetuate the violations (Complaint, pp. 25-27). These acts of Congress which violate the Plaintiffs' rights, including creation and imposition of the Defendant Control Board, are acts which affect the Plaintiffs and the neighborhoods where the Plaintiffs live; the Plaintiffs and their public affairs are the "object of" the acts, so there should be "little question . . . that a judgment preventing [enforcement of] . . . the act[s] will redress [them]." Lujan, supra, 504 U.S. at 561-62, 112 S.Ct. at 2137.
Among the injunctions sought is one against the Control Board (Complaint, p. 28), to stop it from administering the District of Columbia as an agent of Congress ( 12, 28-29), to stop it from facilitating the maintenance of the District of Columbia as a disenfranchised colony ( 26, 30, 54), to remove it, having been imposed upon these twenty Plaintiffs (and their neighbors), uniquely, and not imposed on other places over which Congress exercises or exercised identical powers under the Constitution ( 70-71).
Were the Plaintiffs to prevail on the merits of their claims yet obtain only the declaratory judgments they seek, they would still have obtained relief "likely to redress" their injuries, NRDC, supra, 787 F.Supp. at 234-35, at least in part, because the constitutionally tenable existence of the Control Board would have been terminated and they would no longer be under its "control" as an instrument of Congress. Were they to obtain the injunction they seek actually dissolving the Control Board (Complaint at p. 28), they would be free of the Control Board directly and immediately. They would then be that much closer to enjoying self-government, which is to say enjoying governments which might be republican in form. See Duncan, supra, 139 U.S. at 461, 11 S.Ct. at 577. Thus, each Plaintiff, "personally[,] would benefit in a tangible way from the court's intervention[,]" Warth, supra, 422 U.S. at 509, 95 S.Ct. at 2210, and the relief sought would be "of immense benefit" to the Plaintiffs. Bland, supra, 88 F.3d at 738.
Likewise, in that the plaintiffs demand equal treatment under the law, "the appropriate remedy is a mandate of equal treatment," which "can be accomplished by withdrawal of benefits from the favored class as well as by extension of benefits to the excluded class." Mathews, supra, 465 U.S. at 740 & 740 n.8, 104 S.Ct. at 1395 & 1395 n.8. In short, "the injury caused by the unequal treatment allegedly suffered by [a plaintiff] may "be redressed by a favorable decision" and [the plaintiff] therefore has standing to prosecute" the case. Mathews, supra, 465 U.S. at 740, 104 S.Ct. at 1396.
In opposition to the proposition that the Control Board provide any remedy to--can be subject to any order or declaration which might redress the grievances of--the Plaintiffs, the Control Board cites the case Anyanwutaku v. District of Columbia, Nos. 97-00176, 97-00177, 97-00178, 97-02051, 97-02259, slip op in 97-00176 (D.D.C. Jan 12, 1998) for the proposition that the court should dismiss this action against the Control Board because the Control Board "[does] not have the ability to change the conditions about which" the plaintiff complains (Memorandum at 4) or because the Control Board has no "authority to provide a remedy for the alleged injuries[.]" (Memorandum at 5; copy of the Memorandum opinion provided to the Court and Plaintiffs' counsel as an Appendix to the Memorandum).
The plaintiff in Anyanwutaku was a prisoner who (apparently) sued the Control Board for failing to "(1) alter the execution of sentence of the Plaintiff; (2) [failing to] review the laws relating to the charges brought on the plaintiff by [the prison] administration; [and] (3) [failing to] alter the conditions of confinement of the Plaintiff" (Appendix 1 to Control Board's Memorandum, slip op. at 3). The court reviewed the acts of Congress creating the Control Board and found no reference to powers which Mr. Anyanwutaku alleged the Control Board failed to exercise (Appendix 1 to Control Board's Memorandum, slip op. at 5). Thus, the Court found that Mr. Anyanwutaku's injuries could not be "traceable to the Control Board's conduct" and the Court found that the plaintiff had failed to show that the Control Board had the authority to provide a remedy. (Id.) In the course of this very analysis, however, the court noted that:
[Congress] created the District of Columbia Financial Responsibility and Management Assistance Authority, commonly known as the Control Board. The Act authorizes the Control Board to review and approve the financial plan and budget [of the District] enacted by the City Council, to review the acts of [the City] Council ..., certain contracts and leases, to give prior approval to the District government to borrow money, to submit recommendations to the Mayor, the Council, the President, and the Congress on actions that the District government should take to ensure compliance with the financial plan and budget, and to issue bonds upon the request of the Mayor, and to lodge or grant a security interest to individuals or entities purchasing bonds, notes or other obligations.
This very action of Congress ( 12, 52, 54, 70-71) and these very powers are directly at issue in the instant case ( 26-30, 91, 93, 95). The powers at stake are "powers of governance over the District," Shook, supra, 132 F.3d at 784, so the Plaintiffs are governed, at least in significant part, by the Control Board, which is among the fundamental facts supporting the injury described in Court Two of their Complaint, where the Plaintiffs claim their rights to a "republican form of government."
A "republican form of government" is one in which they are represented by individuals elected by them and accountable to them. Needless to say, a "republican form of government" is also a real government, an actual government. The Defendant Control Board is not comprised of individuals elected by the Plaintiffs. The Defendant Control Board is not accountable to the Plaintiffs. But it is a significant component of the real, actual government of the District of Columbia. Of course, the Defendant Control Board is also an ever present reminder of their subservience to Congress; the Control Board is the government which they suffer instead of enjoying a republican form of government. Thus, by reference to Anyanwutaku, the Plaintiffs have "establish[ed] that the alleged injuries are traceable to the Control Board's conduct" (Appendix 1 to Memorandum, slip op. at 5).
Of course, this may not settle the entire question whether the Control Board has the authority to provide a remedy to all the Plaintiffs' injuries (see Appendix 1 to Control Board's Memorandum, slip op. at 5). Certainly, the Control Board, were it the sole defendant, could not provide all the relief demanded by the Plaintiffs, but that is not a criterion of standing; it is only required that the Control Board be able to provide some relief demanded (itself or under order or injunction from the court). Unless the Control Board can demonstrate that it is comprised of automata lacking any will or power of personal responsibility, the Control Board can, at any time, "take no further action or enter any further orders or directives concerning the District of Columbia," which the Plaintiffs seek in their Complaint (Complaint at p. 28). Thus, significant portions of the Plaintiffs' demands are certainly "redressable" against the Control Board.
[4:] Are there any "Prudential Limitations" on Standing?
Finally, even if the plaintiffs have satisfied all the elements of the Lujan test, there is an loosely defined group of considerations which the courts have addressed as "prudential limitations" on exercise of the court's jurisdiction, somehow involved with standing, but which are not strictly based on Article III of the Constitution. See, e.g., Warth, supra, 422 U.S. at 498, 95 S.Ct. at 2205, citing Barrows v. Jackson, 346 U.S. 249, 255-56, 73 S.Ct. 1031, 1034-35, 97 L.Ed. 1586 (1953) (inquiry into standing "involves both constitutional limitations on federal court jurisdiction and prudential limitations on its exercise."); NTEU, supra, 101 F.3d at 1427.
Essentially, the standing question . . . is whether the constitutional or statutory provision on which the claim rests properly can be understood as granting persons in the plaintiff's position a right to judicial relief. In some circumstances, countervailing considerations may outweigh the concerns underlying the usual reluctance to exert judicial power when the plaintiff's claim to relief rests on the legal rights of third parties.
Warth, supra, 422 U.S. at 500-01, 95 S.Ct. at 2206.
Even when a case falls with the[] constitutional boundaries [of standing], a plaintiff may still lack standing under the prudential principles by which the judiciary seeks to avoid deciding questions of broad social import where no individual rights would be vindicated and to limit access to the federal courts to those litigants best suited to assert a particular claim.
Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99-100, 99 S.Ct. 1601, 1608, 60 L.Ed.2d 66 (1979). Although the Control Board does not invoke any of these prudential principles, the obligation would seem to lie with the Plaintiffs to address them nevertheless, once the question of standing has been raised. Lujan, supra, 504 U.S. at 561, 112 S.Ct. at 2136. There are three, broad, disconnected "prudential principles" or considerations which, being equated with the elements of standing, might preclude the jurisdiction of the federal courts.
The first such principle is that a plaintiff must present claims "peculiar to" the plaintiff himself or herself, "or to a distinct group of which he [or she] is a part, rather than one 'shared in substantially equal measure by all or a large class of citizens.'" Gladstone, supra, 441 U.S. at 100, 99 S.Ct. at 1608, quoting Warth, supra, 422 U.S. at 499, 95 S.Ct. at 2205; Valley Forge Christian College, supra, 454 U.S. at 474, 102 S.Ct. at 760. This principle seems to collate most closely to the "personal" component of the "personal injury" elements of standing.
Thus, the injury must be to the plaintiff and not only to the class of which the plaintiff might be a member and which the plaintiff might represent. Warth, supra, 422 U.S. at 502, 509, 95 S.Ct. at 2207, 2210. On the other hand, the fact that many people share the injury does not mean that a plaintiff who sues to vindicate the injury lacks standing.
[T]he fact that particular . . . interests are shared by the many rather than the few does not make them less deserving of legal protection through the judicial process. . . . To deny standing to persons who are in fact injured simply because many others are also injured, would mean that the most injurious and widespread Government actions could be questions by nobody. We cannot accept that conclusion."
SCRAP, supra, 412 U.S. at 686-89, 93 S.Ct. at 2415-16. This consideration does not turn on the sheer numbers of people allegedly injured, but on whether the injury is pervasive throughout the territory under the jurisdiction of the government whose action is at issue, whether it be state or federal. Wright Miller & Cooper, Federal Practice and Procedure; Jurisdiction 2d  3531.4 at 430.
The second principle (which might simply be a restatement of the first) is that "generally available grievance[s] about government--claim[s] only [of] harm to [the plaintiff's] and every citizen's interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits [the plaintiff] than it does the public at large," Lujan, supra, 504 U.S. at 573-74, 112 S.Ct. at 2143, will not suffice for standing. [FOOTNOTE 10: But it remains possible that a plaintiff might establish standing as a mere "taxpayer," for instance, if the plaintiff can demonstrate a "personal stake" in the case, Flast, supra, 392 U.S. at 101, 88 S.Ct. at 1953, even though thousands of other people also pay the same taxes] Valley Forge Christian College, supra, 454 U.S. at 474-75, 102 S.Ct. at 760. This element seems to correlate with the "injury" component of the "personal injury" elements of standing.
It is not enough, for instance, just to allege that the Constitution is violated; a plaintiff must also show that the violation resulted in a personal injury, Valley Forge Christian College, supra, 454 U.S. at 483-85, 102 S.Ct. at 764-65, as required in the elements of standing noted above. Thus, a plaintiff "must show that he [or she] has sustained or in immediately in danger of sustaining a direct injury as the result of [governmental] action and it is not sufficient that [the plaintiff] has merely a general interest common to all members of the public." Ex parte L‚vitt, 302 U.S. 633, 634, 58 S.Ct. 1, 82 L.Ed. 493 (1937), quoted in Lujan, supra, 504 U.S. at 575, 112 S.Ct. at 2144.
The third principle is that the plaintiffs' claims must "fall within 'the zone of interest to be protected or regulated by the statute or constitutional guarantee in question.'" Valley Forge Christian College, supra, 454 U.S. at 475, 102 S.Ct. at 760 (quoting Association of Data Processing Service Orgs, supra, 397 U.S. at 153, 90 S.Ct. at 830; footnote with further citations omitted). "This is not a rigid requirement favoring exclusion, but rather, merely requires the court ask itself the question: is the applicable law interested in, concerned with the would-be plaintiff and the protection of her [or his] interests?" NRDC, supra, 787 F.Supp. at 243 (citation omitted). This consideration seems to correlate with the "redressability" element of standing.
It is not at all clear how evaluation of this last consideration, especially, differs from evaluation of the substance of a plaintiff's case on its merits, but all these "prudential" considerations are not without deeply troubling implications. Thirty years ago, the Supreme Court noted that "[s]tanding ha[d] been called one of 'the most amorphous [concepts] in the entire domain of public law[,]' . . . [tending to] 'serve[], on occasion, as a shorthand expression for all the various elements of justiciability.'" Flast, supra, 392 U.S. at 99, 88 S.Ct. at 1952, quoting Hearings on S. 2079, 89th Cong., 2d Sess., 498 (1966) (statement of Prof. Paul A. Freund) and Lewis, Constitutional Rights and the Misuse of "Standing," 14 Stan. L. Rev. 433, 453 (1962). While the Court's opinions have "resolved the ambiguity" by delineation of the factors stated in Lujan, supra, see Valley Forge Christian College, supra, 454 U.S. at 472, 102 S.Ct. at 758, the "prudential" considerations remain without firm roots in the Constitution.
[I]t has not always been clear in the opinions of th[e] Court whether particular features of the 'standing' requirement have been required by Art. III ex proprio vigore, or whether they are requirements that the Court itself has erected and which were not compelled by the language of the Constitution."
Valley Forge Christian College, supra, 454 U.S. at 471, 102 S.Ct. at 758.
The danger these "prudential considerations" present is that they are sufficiently vague to tempt the courts to give in to "the natural urge to proceed directly to the merits of [an] important dispute and to 'settle' it for the sake of convenience and efficiency," Raines, supra, 117 S.Ct. at 2318. [FOOTNOTE 11: It appears from the context of the passage cited that Justice Rehnquist was directing his warning to courts which might ignore a careful review of standing in their haste to hear (review) a questionable case on the merits, but there is no reason in logic or the law that the same warning does not cut equally closely in the other direction--that a court should not be too hasty to dismiss a case for lack of standing, without a careful review of the elements of standing and without a careful evaluation of the plaintiffs' showing. The warning of Wright, Miller & Cooper stands out in this regard, since there is a risk to the unpopular plaintiff that otherwise valid standing will be ignored under the guise of "prudential considerations" against hearing a complex case.] The foremost commentators have noted that this can result in reducing analysis of standing to "a convenient tool to avoid uncomfortable issues or to disguise a surreptitious ruling on the merits" of a dispute, rather than to allow a case which might satisfy standing on technical grounds to proceed to trial. Wright Miller & Cooper, Federal Practice and Procedure; Jurisdiction 2d  3531 at 348.
Discussion & Answer: No
These twenty Plaintiffs seek vindication of their individual rights under the Constitution. Warth, supra, 422 U.S. at 502, 509, 95 S.Ct. at 2207, 2210. At the same time, it may rightly be said that all the other residents of the District of Columbia (who are otherwise entitled to participate in government--to vote, run for office, and so forth) also suffer the same injuries. Thus, according to the most recent census enumerations (1990), the injuries these twenty Plaintiffs suffer may be shared by as many as 606,900 people, [FOOTNOTE 12: The accuracy of this count might be open to question, and more recent analysis indicates the population may have fallen to 528,964. Gabriel Escobar, D.C. Population Drops Again; [19]97 Figures show Count of 528,964, Lowest Since Depression, Wash. Post, Jan. 1, 1998, at A1] of which 489,808 persons are eligible voters. U.S. Dept. of the Census, General Characteristics of Persons: 1990. [FOOTNOTE 13: Source: http://www.census.gov/prod/1/90dec/cph4/tables/cph4tb10/table-01.pdf Compare http://www.census.gov/population/socdemo/voting/work/tab04.txt (figures from 1994 voting rolls and records, showing an eligible voting population for the District of 440,000) and http://www.census.gov/population/estimates/state/ST9097T1.txt (entire population of District in 1994 estimated to have been 565,911)]
But Count One of the Complaint presents an equal protection claim: that these twenty Plaintiffs are subjected to invidious discrimination as compared to the residents of the former portion of the District of Columbia located south-west of the Potomac River and now a part of the State of Virginia (now the 8th Congressional district of Virginia, which designation will be used for this area, infra) and as compared to the residents of the federal enclaves. The population of the 8th Congressional district of Virginia (again, according to the most recent count in 1990) is 562,484 people, of whom 453,533 are eligible voters. [FOOTNOTE 14: Source: http://www.census.gov/prod/1/90dec/cph4/tables/cph4tb48/table-01.pdf] Although exact figures are not available for a variety of reasons, [FOOTNOTE 15: The exact numbers are difficult to ascertain because Congress does not administer the federal enclaves in any consistent, intrusive manner, such as imposed in the District of Columbia.] the population of the federal enclaves certainly exceeds one million people. R.T. Altieri, Federal Enclaves: The Impact of Exclusive Legislative Jurisdiction Upon Civil Litigation, 72 Mil. L. Rev. 55 (1976) (citing a 1964 law review Note, which cited 1963 testimony before Congress). If we hypothesize one million persons and adjust that number by the same ratio of population to eligible voting population which we find for the District of Columbia and for the 8th Congressional district of Virginia (81%), we arrive at a hypothetical figure of (at least) 810,000 residents of the federal enclaves who are eligible to vote.
Therefore, at the threshold of Count One of the Complaint, where these twenty Plaintiffs as members of one "group" seek to vindicate their rights to be treated in a manner substantially similar to another "group," this case involves comparison of 489,808 voting residents of the District of Columbia with 1,263,533 voting residents of the 8th Congressional district of Virginia plus the federal enclaves. Thus, these twenty Plaintiffs are members of a group which comprises only 28 percent of the entire population at issue at the threshold of Count One of the Complaint.
But Count One of the Complaint necessarily passes beyond this threshold discussion, because the residents of the 8th Congressional district of Virginia and the federal enclaves are included in apportionments, generally, of representation in Congress for the entire country. Therefore, Count One of the Complaint also, necessarily, compares the treatment of the group in which these twenty Plaintiffs might be said to reside with the entire population of the United States, which is now 270,269,357 people, [FOOTNOTE 16: Source: http://www.census.gov/main/www/popclock.html Compare http://www.census.gov/population/estimates/state/ST9097T1.txt (entire population of United States in 1994 estimated to have been 260,292,437)] of whom 218,918,179 would be eligible to vote (again using the 81% adjustment figure for the sake of the instant argument). [FOOTNOTE 17: Compare http://www.census.gov/population/socdemo/voting/work/tab02.txt (reporting that eligible voting population for entire United States in 1994 was 190,267,000 persons)] Thus, these twenty Plaintiffs are members of a group which comprises, at most, 22-one-hundredths of one percent of the entire population ultimately at issue in Count One of the Complaint.
This same comparison is also inherent in Count Two of the Complaint, where the Plaintiffs demand vindication of their rights under the Guarantee Clause, which Congress and the federal Defendants respect as to the entirety of the population of the country other then the citizens of the District of Columbia.
Thus, although the claims brought by these twenty Plaintiffs are not strictly "peculiar to" each of them alone, but are shared by "a distinct group of which [each] is a part," Gladstone, supra, 441 U.S. at 100, 99 S.Ct. at 1608, i.e., are shared by all residents of the District of Columbia, it cannot be said that their injuries are "shared in substantially equal measure by all or a large class of citizens," Warth, supra, 422 U.S. at 499, 95 S.Ct. at 2205, quoted in Gladstone, supra, because the "large class of citizens" actually implicated and at issue in both Counts One and Two of the Complaint is the entire citizenry of the United States of America, of which the Plaintiffs' "group" comprises less than one-quarter of one percent. Thus, this is a situation where the Plaintiffs' particular interests are shared by many people, but still deserve legal protection through the judicial process in order to redress this "most injurious and widespread Government action," SCRAP, supra, 412 U.S. at 686-89, 93 S.Ct. at 2415-16, because this group, howsoever large, is but a tiny minority of the citizenry subject to the legislature which works the invidious discrimination. See Wright Miller & Cooper, Federal Practice and Procedure; Jurisdiction 2d  3531.4 at 430.
The second "prudential consideration" is closely related to the first, and is irrelevant for the same reasons as the first is irrelevant to the instant case. The claims of these twenty Plaintiffs, even if shared by close to a half million people, are unique among the more than two-hundred-seventy million citizens of the country subject to the same government ultimately responsible for trenching on these Plaintiffs' rights. Compare Lujan, supra, 504 U.S. at 575, 112 S.Ct. at 2144. Thus, while the grievances of these twenty Plaintiffs might be "generally available grievance[s] about government" in the District of Columbia, they are not, by definition, "general" to the United States at large, for the Plaintiffs' equal protection claims and Guarantee Clause claims are set in direct juxtaposition to the citizens of the country at large, which do not suffer the same violations of their rights. Thus, the relief these twenty Plaintiffs seek would "directly and tangibly benefit" them, by providing to them the same rights already enjoyed by the country at large. Compare Lujan, supra, 504 U.S. at 573-74, 112 S.Ct. at 2143.
The third "prudential" principle or consideration is that the plaintiffs' claims must "fall within 'the zone of interest to be protected or regulated by the statute or constitutional guarantee in question.'" Valley Forge Christian College, supra, 454 U.S. at 475, 102 S.Ct. at 760. In this case the Plaintiffs claims and "interests" arise from the Constitution of the United States. There is no authority for the suggestion--and the Plaintiffs do not perceive that the Defendant Control Board is suggesting--that the Plaintiffs might not be entitled to enjoy all the rights and privileges incorporated in the Constitution. Quite to the contrary, the courts have always recognized that the citizens of the District of Columbia are entitled to all the individual rights and privileges under the Constitution. O'Donoghue v. United States, 289 U.S. 516, 540, 53 S.Ct. 740, 746-47, 77 L.Ed. 1356 (1933); [FOOTNOTE 18: "[T]he District was made up of portions of two of the original states of the Union, and was not taken out of the Union by the cession. Prior thereto its inhabitants were entitled to all the rights, guaranties, and immunities of the Constitution . . . . We think it is not reasonable to assume that the cession stripped them of these rights[.]"] Downes, supra, 182 U.S. at 260-61, 21 S.Ct. at 777; [FOOTNOTE 19: "The mere cession of the District of Columbia to the Federal government . . . did not take it out of the United States or from under the aegis of the Constitution. . . . If, before the District was set off, Congress had passed an unconstitutional act affecting its inhabitants, it would have been void. If done after the District was created, it would have been equally void; in other words, Congress could not do indirectly, by carving out the District, what it could not do directly. The District still remained a part of the United States, protected by the Constitution. Indeed, it would have been a fanciful construction to hold that territory which had been once a part of the United States ceased to be such by being ceded directly to the Federal government."] Callan v. Wilson, 127 U.S. 540, 550, 8 S.Ct. 1301, 1304 (1888); [FOOTNOTE 20: "We cannot think that the people of this District have . . . less rights than those accorded to the people of the territories of the United States."] Terrett v. Taylor, 13 U.S. (9 Cranch) 43, 50, 3 L.Ed. 650, 653 (1815); [FOOTNOTE 21: Assumption of federal jurisdiction did not "dissol[ve] . . . civil rights" in the District.] United States v. Thompson, 452 F.2d 1333, 1338 (D.C. Cir. 1971), cert. denied, 92 S.Ct. 1251 (1972). [FOOTNOTE 22: "One of the rights which the Constitution guarantees District residents, in common with all residents of the United States, is the right not to be arbitrarily singled out for special treatment not accorded to others similarly situated." (citations omitted).] Thus, if "the court ask[s] itself the question: is the applicable law interested in, concerned with the would-be plaintiff and the protection of her [or his] interests?" NRDC, supra, 787 F.Supp. at 243, the answer must be in the affirmative, meaning that the third "prudential consideration" presents no impediment to standing.
Conclusion: These Twenty Citizens have "Standing"
Because these twenty plaintiffs can demonstrate (1(a)) that they have been injured, (1(b)) that they have been injured, (2) that the Control Board has caused at least some of the injuries complained of in the complaint, and (3) that the court can redress the injuries with even only part of the remedies demanded, these twenty plaintiffs have standing to prosecute this suit.
WHETHER THE PLAINTIFFS "STATE A CLAIM"
AGAINST THE CONTROL BOARD
Although the Control Board's assertion of "failure to state a claim" can be answered in part with reference to the "causation" and "redressability "elements" of "standing" (and the Plaintiffs incorporate their discussion of "standing," supra, as part of their response here), the Control Board's Motion to dismiss for failure to state a claim (Fed. R. Civ. P. 12(b)(6), Memorandum at 6-7) must be addressed and decided separately, because the evidentiary burdens under Fed. R. Civ. P. 12(b)(6) are quite different from those under Rule 12(b)(1). See generally In re Swine Flu Immunization Prod. Liability Lit. 880 F.2d 1439, 1442-43 (D.C. Cir. 1989). In short, the burden under 12(b)(1) is on the Plaintiffs; the burden under 12(b)(6) is on the Defendant.
The standard for dismissal under Rule 12(b)(6) is "quite strict," In re Swine Flu, supra, 880 F.2d at 1442, so dismissal under Rule 12(b)(6) is "not favored, and should be granted sparingly and with caution," Dann v. Studebaker-Packard Corp., 288 F.2d 201, 215-16 (6th Cir. 1961) (footnote with citations omitted); accord Tele-communications of Key West v. United States, 757 F.2d 1330, 1334-35 (D.C. Cir. 1985). The burden under Rule 12(b)(6) is entirely on the party moving for dismissal to show, "beyond a doubt that the plaintiff can prove no set of facts in support of [the] claim which would entitle [the plaintiff] to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed. 80 (1957) (citations omitted); see also Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984); In re Swine Flu, supra, 880 F.2d at 1442. In making this evaluation, "the factual allegations of the complaint must be taken as true, and any doubt must be resolved in favor of the pleader." Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Ramirez de Arellano v. Weinberger, 745 F.2d 1500, 1506 (D.C. Cir. 1984), vacated and remanded on different grounds, 471 U.S. 1113, 105 S.Ct. 2353, 86 L.Ed.2d 255 (1985).
Discussion & Answer: Yes
The Plaintiffs understand the Control Board's argument in support of its Motion to dismiss (Memorandum, pp. 6-7) to boil down to the assertion that, since the Plaintiffs don't allege that the Control Board is originally responsible for their injuries, [FOOTNOTE 23: Note the language used in the "standing" portion of the Control Board's Memorandum: "If Plaintiffs have a legitimate grievance . . . , 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." (Memorandum at 4).] don't allege the Control Board was the author of the policies or decisions which have led to the status quo, there are no remediable claims to be laid against the Control Board. The Control Board refers to various portions of the Complaint and opines that the Plaintiffs make no allegations there implicating the Control Board in their injuries. But the Complaint does state remediable claims against the Control Board.
Among the allegations against the Control Board in Count One of the Complaint, the following few paragraphs frame a core claim supporting a remedy against the Control Board (although the Control Board is implicated elsewhere as well):
52. In no federal enclave has Congress imposed a unique, non-republican form of government [as a matter of law, see Shook, supra, this "form of government" includes the Control Board]. . . .
54. In no federal enclave does Congress rule the lives of the residents directly and intimately [which means, as a matter of law, see Shook, supra, by means of the Control Board], without the possibility of the intervening umbrella of state governments to exercise all non-federal governmental powers. . . .
70. Specifically, the Congress of the United States . . . has imposed [the Control Board] upon the District of Columbia, burdening the Plaintiffs, yet the Congress . . . ha[s] not imposed a similar agent or instrumentality upon any federal enclave or upon the former part of the District of Columbia lying south-west of the Potomac River . . . .
71. Specifically, [the Control Board] is directed solely at . . . the Plaintiffs, and is not directed at any resident of any federal enclave . . . .
These paragraphs, construed in light of the law, provide the fundamental factual correlation of the Plaintiffs' claim of violation of their equal protection rights with the presence of the Control Board before the court as a defendant in this suit. As a threshold matter, Scheuer, supra, 416 U.S. at 236, 94 S.Ct. at 1686, these allegations demonstrate that the Control Board is a ministerial instrument or tool of Congress, exercising powers delegated by Congress (chiefly under Pub. L. 104-8, 109 Stat. 97 (1995) & Pub. L. 105-33, 111 Stat. 712 (1997)) in ways which trench on the rights of the Plaintiffs. Since the tool is not inanimate, since it is a "knowing" tool, it is susceptible itself to an order of the Court to cease being a tool, to desist from trenching on the rights of the Plaintiffs, to withdraw from the lives of the Plaintiffs. The Plaintiffs' remedies would accomplish these ends.
As outlined above in the discussion of "causation" under the "standing" question (pages 13-28, supra), the Control Board is part of the chain of causation, Public Citizen, supra. 565 F.2d at 717 n.31, of the Plaintiffs' injuries because it is the tool or instrument of Congress which facilitates and perpetuates Congressional control of the lives of the Plaintiffs, which control violates the Plaintiffs' right to equal protection. Continued enforcement of the Acts empowering the Control Board to do business perpetuates and is a link in the chain perpetuating the denial of equal treatment of the Plaintiffs, so it not only can but should be restrained. Until and unless the Control Board can provide persuasive argument or authority supporting the proposition "beyond a doubt that the plaintiff can prove no set of facts in support of [the] claim which would entitle [the plaintiff] to relief," Conley, supra, 355 U.S. at 45-46, 78 S.Ct. at 102, the Plaintiffs can do little more than reiterate the "causation" and "redressability" elements of standing (see pages 13-28, supra).
The Plaintiffs' claims against the Control Board under Count Two of the Complaint are actually two-fold: that the Control Board is a decidedly non-republican form of government of the District of Columbia and that the Control Board, as an agent and instrumentality of the federal government fails in its obligation to insure to the Plaintiffs republican forms of government. These claims are set forth in the following paragraphs (although implicated elsewhere).
91. The home rule government . . . does not constitute a republican form of government, because every action of the home rule government is subject to absolute review and veto . . . by [the Control Board] acting as an administrative agent or instrumentality for the Congress . . . .
93. The [Control Board] is not a republican form of government because it was not elected by the citizens of the District of Columbia, because it is not subject to their control, and because it was created by the Congress of the United States and is subject always to the power and control of the Congress of the United States. . . .
95. [The Control Board] is an agent or instrumentality of the federal government, since it was created by an Act of Congress under powers purported to arise from the Constitution of the United States and all power it exercises follows only from Acts of Congress.
96. Therefore, [the Control Board is] obligated to guarantee to the Plaintiffs republican forms of government.
These paragraphs, construed in light of the law, provide the fundamental factual correlation of the Plaintiffs' claim of violation of their equal protection rights with the presence of the Control Board before the court as a defendant in this suit. As a threshold matter, Scheuer, supra, 416 U.S. at 236, 94 S.Ct. at 1686, these allegations demonstrate that the Control Board is the government of the District of Columbia ( 91, 93) and it is not republican in form ( 93, 95). These two facts alone present prima facie claims against the Control Board sufficient to support an injunction that the Control Board cease being a component of the government of the District of Columbia, taking all inferences in the Plaintiffs' favor. Scheuer, supra, 416 U.S. at 236, 94 S.Ct. at 1686.

These facts also support the proposition that, as a component of the federal government, the Control Board is obligated to take an affirmative role in guaranteeing a republican form of government to the Plaintiffs ( 95-96), which is fails to do ( 98, 100), which also presents an independent basis for a claim against the Control Board sufficient to support an injunction that the Control Board act on its mandate to guarantee a republican form of government to the Plaintiffs, taking all inferences in the Plaintiffs' favor. Scheuer, supra, 416 U.S. at 236, 94 S.Ct. at 1686.
Again, the Control Board was empowered by certain Acts of Congress which both make the Control Board the effective government of the District of Columbia and make the Control Board an agent or instrument of the federal government for the purposes of the Guarantee Clause. Insofar as these Acts impose a government on these twenty Plaintiffs which is decidedly anti-republican in form, enforcement of these Acts can be and should be restrained. Insofar as these Acts make the Control Board a component, agency, or instrument of the federal government, the Control Board is obligated to take affirmative action, insofar as it can withdraw or, refusing to do that, insofar as it must obey any order of this court that it withdraw, which would have the direct effect of returning the management of local matters to the home rule government as a necessary interim step towards forms of government for the District of Columbia which pass the simplest, most fundamental tests of being republican in form. In short, the Plaintiffs have stated specific claims against the Control Board and the Control Board has not shown otherwise.
Conclusion: The Plaintiffs State Claims
Because the Plaintiffs have stated a prima facie case against the Control Board, Scheuer, supra, 416 U.S. at 236, 94 S.Ct. at 1686, the burden is on the Control Board to show "beyond a doubt[,] that the plaintiff can prove no set of facts in support of [the] claim which would entitle [the plaintiff] to relief." Conley, supra, 355 U.S. at 45-46, 78 S.Ct. at 102. The Defendant has not done this. Indeed, the Control Board has presented nothing but short direct denials in lieu of argument. Without presentation of dispositive authority, the Control Board's Motion to dismiss the Complaint for failure to state a claim against the Defendant must be denied. [FOOTNOTE 24: Finally, in footnote 2 of its Memorandum (page 8), the Control Board alleges that "there is no need for the Court to reach the merits of the Constitutional claims at this time." Certainly that is the case, since "the merits of the Constitutional claims" are under the jurisdiction of a three-judge district court. But the Control Board also mentions two cases identified as times "other Courts have [addressed] similar claims" to those presented in the instant case. The two cases are Darby v. United States, 681 A.2d 1156 (D.C. 1996) and Hobson v. Tobriner, 255 F.Supp. 295 (D.D.C. 1966).
The question to which the Control Board proffers Darby and Hobson as "answers" is one which Plaintiffs expect to arise regularly in this case. This question, however, is not whether another case (such as Darby or Hobson) has said anything about the power of Congress over the District of Columbia. The question is whether another case has "faced squarely," Flast, supra, 392 U.S. at 91, 88 S.Ct. at 1948, the claims and arguments presented by these Plaintiffs in this case (note that, prior to Flast, at least three ("taxpayer standing") cases had been decided by the Supreme Court, on their merits before the Court, finally in Flast, was "first faced squarely" the question whether there was such a thing as "taxpayer standing") .
So far as counsel for the Plaintiffs has been able to discover, no case has brought the claims presented in the instant case before any court and no court has decided the merits of these claims or arguments in support of the claims. No case, in other words, has even come close to providing a court with "clear concreteness provided when a question emerges precisely framed" and "exploring every aspect of [the] multifaced situation[.]" United States v. Fruehauf, 365 U.S. 146, 157, 81 S.Ct. 547, 554, 5 L.Ed.2d 476 (1961) (discussing "case or controversy" requirements under Article III of the Constitution).]
OVERALL CONCLUSION
For the reasons set forth in this memorandum of Opposition to the Control Board's Motion to Dismiss, the Motion must be denied.
Respectfully submitted,
George S. LaRoche

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