Not Reported in F.Supp.2d, 2004 WL 3030076 (N.D.Cal.)
United States District Court,
TAXPAYERS OF UNITED STATES OF AMERICA,
United States Government, Scott Munsun,
Abel Ashes, Ralph Tibbs, and Stanley G. Hilton,
George W. BUSH, Dick Cheney, George Tenet, Robert
Mueller, Condoleeza Rice,
John Ashcroft, and United States of America, Defendants.
No. C 03-03927 SI.
Dec. 30, 2004.
Stanley G. Hilton, S. G. Hilton, San Francisco, CA, for
Tracie L. Brown, U.S. Attorney's Office, San Francisco,
CA, for Defendants.
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS
*1 Defendants have filed a motion to dismiss plaintiffs' Second Amended Complaint pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). The Court has deemed the motion submitted without oral argument pursuant to Local Rule 7- 1(b). Having carefully considered the papers submitted, the Court hereby GRANTS the motion for the reasons set forth below.
Plaintiffs, identified as "Taxpayers of the United States of America" and "United States Government," plus individuals Scott Munsun, Abel Ashes, Ralph Tibbs, and Stanley G. Hilton, filed a Second Amended Complaint on August 27, 2004, against President George W. Bush, Vice President Dick Cheney, CIA Director George Tenet, FBI Director Robert Mueller, National Security Advisor Condoleezza Rice, Attorney General John Ashcroft and the United States of America (collectively "defendants"). In their first cause of action, characterized as a "taxpayer suit under the Constitution," plaintiffs allege that defendants, in conspiracy with the government of Saudi Arabia, orchestrated the September 11, 2001 attacks on the World Trade Center and Pentagon in order to gather public support for the military invasion of Iraq and persuade Congress to enact the U.S.A. Patriot Acts. Second Am. Compl. ¶ 12. In addition, the individual plaintiffs allege violations of their constitutional rights:
(1) plaintiff Scott Munsun alleges that federal park rangers at Baker Beach, San Francisco, stopped him from distributing literature critical of defendants and confiscated the literature; (2) plaintiff Abel Ashes alleges he was fired from his job at a Nieman Marcus department store in San Francisco for distributing anti-war literature; and (3) plaintiff Ralph Tibbs alleges that his veteran pension payment has been reduced by military expenditures. Id. at ¶ 14. [FN1]
FN1. In their Opposition brief, plaintiffs allege that on September 22, 2004, plaintiff Hilton's law office was broken into and files were searched and seized "under the auspices and authority of the unconstitutional U.S.A. Patriot Acts." Pls.' Opp'n at 2. Plaintiffs seek leave to amend the complaint to add another cause of action to address this conduct.
In their second cause of action, plaintiffs allege that defendants violated the Fraudulent Claims Act, 31 U.S.C. § 3729, by presenting false claims to Congress about the weapons capability of Iraq and the ties between the government of Iraq and Al Qaeda in order to divert federal taxpayer funds to the military campaign against Iraq. Id. at ¶ 22, 25. Plaintiffs' third cause of action, under the Racketeer Influenced and Corrupt Organization Act ("RICO"), asserts that the Iraq war "has been a cover for racketeering activity" to generate income for defendants and the Halliburton and Bechtel companies. Id. at ¶ 25. For their first claim, plaintiffs ask the Court for an injunction prohibiting the Attorney General from enforcing the U.S.A. Patriot Acts, a declaratory judgment that the U.S.A. Patriot Acts and the military action in Iraq are unconstitutional, and an injunction removing defendants from office. Id. at ¶¶ 6-7, 16. They also seek, among other relief, reimbursement of the federal funds allegedly defrauded from Congress, reimbursement of the tax dollars gained by Halliburton and Bechtel, an order compelling defendants and their business associates to release all information concerning the genesis and execution of the September 11 attacks, and other damages. Id. at 11-12.
*2 Now before the Court is defendants' motion to dismiss the Second Amended Complaint.
1. Motion to dismiss pursuant to FRCP 12(b)(1)
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction may either "attack the allegations of the complaint or may be made as a 'speaking motion' attacking the existence of subject matter jurisdiction in fact." Thornhill Publ'g Co. v. General Tel. And Elec., 594 F.2d 730, 733 (9th Cir.1979) (citing Land v. Dollars, 330 U.S. 731, 735 n. 4, 67 S.Ct. 1009, 91 L.Ed. 1209. (1947)). Where the jurisdictional issue is separable from the merits of the case, the court need only consider evidence related to the jurisdiction issue, and rule on that issue, resolving factual disputes as necessary. Id. (citing Berardinelli v. Castle & Cooke, Inc., 587 F.2d 37 (9th Cir.1978)).
2. Motion to dismiss pursuant to FRCP 12(b)(6)
Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint if it fails to state a claim upon which relief can be granted. The question presented by a motion to dismiss is not whether the plaintiff will prevail in the action, but whether the plaintiff is entitled to offer evidence in support of the claim. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). In answering this question, the Court must assume that the plaintiff's allegations are true and must draw all reasonable inferences in the plaintiff's favor. Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir.1987). Even if the face of the pleadings suggests that the chance of recovery is remote, the Court must allow the plaintiff to develop the case at this stage of the proceedings. United States v. City of Redwood City, 640 F.2d 963, 966 (9th Cir.1981).
If the Court dismisses the complaint, it must then decide whether to grant leave to amend. In general, leave to amend is only denied if it is clear that amendment would be futile and "that the deficiencies of the complaint could not be cured by amendment." Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir.1987) (quoting Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir.1980) (per curiam)); see Poling v. Morgan, 829 F.2d 882, 886 (9th Cir.1987) (citing Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)) (futility is basis for denying amendment under Rule 15).
1. Plaintiffs' First Cause of Action [FN2]
FN2. Plaintiffs object to the exhibits defendants have submitted in support of their motion to dismiss. The exhibits consist of various orders in other district court cases and are not accompanied by a formal request for judicial notice. The Court declines to "strike" the exhibits as plaintiffs request, but does not rely on them for its decision.
Defendants move to dismiss plaintiffs' first cause of action on grounds that (1) the claim presents a non-justiciable political question, and (2) plaintiffs lack standing to bring the claim. Under Article III of the United States Constitution, federal courts may only adjudicate actual "cases" and "controversies." U.S. Const., art. III, § 2. This "case or controversy" requirement imposes on federal courts a limitation known as "justiciability." See Barber v. Widnall, 78 F.3d 1419, 1422 (9th Cir.1996). The justiciability doctrines--standing, ripeness, mootness, and the political question doctrine-- present a threshold question in every federal case because they determine the power of the court to entertain a suit. Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975).
A. Political question doctrine
*3 The political question doctrine arises out of Article III's "case or controversy" requirement and has its roots in separation of powers concerns. Baker v. Carr, 369 U.S. 186, 210, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). Political question doctrine is based on the tenet that "certain political questions are by their nature committed to the political branches to the exclusion of the judiciary." United States v. Mandel, 914 F.2d 1215, 1222 (9th Cir.1990). In Baker, the Supreme Court found six criteria to be considered in determining whether a case is a non-justiciable political question:
Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question. Baker, 369 U.S. at 217. Where one of these formulations is inextricable from a case, a federal court should dismiss the case on political question grounds. Id.
Here, plaintiffs' first cause of action raises a non-justiciable political question. The text of the Constitution clearly confers authority over the military and foreign affairs to the executive and legislative branches of the government. U.S. Const., art. I, § 8, cls. 11-16 (granting Congress the power to declare war and to provide for, organize, arm, maintain, and govern the military); U.S. Const., art. II, § 2 (providing the President shall be the Commander-in-Chief of the armed forces); see also United States v. Stanley, 483 U.S. 669, 682, 107 S.Ct. 3054, 97 L.Ed.2d 550 (1987) (emphasizing "the insistence ... with which the Constitution confers authority over the Army, Navy, and militia upon the political branches"). In addition, there are no "judicially discoverable standards" for addressing plaintiffs' allegations. In order to determine the legitimacy of United States' military operation in Iraq or decide whether to enjoin defendants from withdrawing funds from the U.S. Treasury to finance the ongoing military activity, this Court would have to engage in decision-making on the basis of policy rather than law. That is not the role of the judicial branch, and federal courts have recognized the non-justiciability of similar questions. See, e.g., Doe v. Bush, 257 F.Supp.2d 436 (D.Mass.2003), aff'd on other grounds, 323 F.3d 133 (1st Cir.2003); [FN3] Sarnoff v. Connally, 457 F.2d 809 (9th Cir.1972) (dismissing challenge to Vietnam war).
FN3. Plaintiffs cite Doe for their argument that they are challenging past misconduct by the Bush administration rather than future possible misconduct. Pls.' Opp'n at 13-14. Doe was affirmed because the case was not "ripe" for judicial review, but the district court also found that it presented a political question.
Plaintiffs argue that the case is not "political" because defendants are accused "of violating federal laws and abusing powers, i.e., committing illegal acts, not of political decision." Second Am. Compl. ¶ 3. However, plaintiffs' characterization does not change the fact that the case is nonjusticiable. The facts alleged in the Second Amended Complaint deal directly with political branches' decisions in the realm of foreign and military policy. And in any event, the Supreme Court has expressly held that plaintiffs lack standing when they sue as citizens or taxpayers with a "generalized grievance" based on alleged government misconduct. See Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). Plaintiffs' lack of standing is discussed further below.
*4 Plaintiffs' first claim thus presents a non-justiciable political question. Therefore, this Court DISMISSES plaintiffs' this cause of action.
The doctrine of standing addresses whether "a party has a sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy." Sierra Club v. Morton, 405 U.S. 727, 731, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). Article III requires a litigant invoking the authority of the federal court to demonstrate: (1) an injury in fact, (2) a causal relationship between the injury and the challenged conduct, and (3) a likelihood that the injury will be redressed by a favorable decision. Vermont Agency of Natural Resources v. U.S. ex rel. Stevens, 529 U.S. 765, 771, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000); Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); Oregon Advocacy Center v. Mink, 322 F.3d 1101, 1108 (9th Cir.2003).
Even if plaintiffs' claim did not present a non-justiciable political question, as discussed above, they would lack standing to bring their claim on behalf of all taxpayers or citizens. When the asserted harm is a "generalized grievance" shared in substantially equal measure by all or a large class of citizens, that harm alone does not warrant exercise of jurisdiction. Warth, 422 U.S. at 499. Unless there is a substantial likelihood that the plaintiff will suffer harm in the future, a plaintiff requesting injunctive relief cannot satisfy the Article III standing requirement. Canatella v. State of California, 304 F.3d 843, 852 (9th Cir.2002).
Plaintiffs' taxpayer claim presents precisely the kind of "generalized grievance" barred under the standing doctrine. As the Supreme Court has stated, "suits premised on federal taxpayer status are not cognizable in the federal courts because a taxpayer's 'interest in the moneys of the Treasury is shared with millions of others, is comparatively minute and indeterminable." ' Asarco Inc. v. Kadish, 490 U.S. 605, 613-614, 109 S.Ct. 2037, 104 L.Ed.2d 696 (1989) (quoting Forthington v. Mellon, 262 U.S. 447, 487, 43 S.Ct. 597, 67 L.Ed. 1078 (1923)). Standing to sue may not be predicated upon an interest "held in common by all members of the public, because of the necessarily abstract nature of the injury all citizens share." Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 220, 94 S.Ct. 2925, 41 L.Ed.2d 706 (1974); see also Bell v. City of Kellogg, 922 F.2d 1418, 1423 (9th Cir.1991). [FN4] Here, the injuries claimed by plaintiffs regarding the "loss of taxpayer revenues, emotional distress, [and] loss of government services" are all losses shared generally by the members of the public. Second Am. Compl. ¶ 14. Therefore, plaintiffs lack standing to sue on behalf of all taxpayers.
FN4. In their Opposition, plaintiffs argue that they have taxpayer standing under the principle of Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968) and Valley Forge Christian College v. Americans United for Separation of Church & State, 454 U.S. 464, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982). These cases reflect a narrow exception allowing taxpayer standing for challenges to government expenditures for violating the Establishment Clause.
In addition, the individual plaintiffs lack standing to sue defendants for the conduct alleged: a violation of "free speech rights" to plaintiff Munsun from the confiscation of his anti-war literature by park rangers, the loss of plaintiff Ashes' job when defendants "communicated orders to Nieman Marcus to fire anyone who dissented from Bush's Iraq policies," and the reduction of military pensions to plaintiff Tibbs as the result of defendants' "expensive and wasteful" war spending in Iraq. [FN5] Id. at ¶ 14; Pls.' Opp'n at 17. Defendants argue that plaintiffs have failed to establish the required causal connection between these alleged injuries and these defendants' conduct, and the Court agrees.
FN5. Plaintiff Hilton also claims as personal injury suffered the invasion of his law office and the ensuing search and seizure of files by federal agents under the Patriot Act in September 2004. Pls .' Opp'n at 17. However, in determining a Rule 12(b)(6) motion to dismiss, "a court may not look beyond the complaint to a plaintiff's moving papers, such as a memorandum in opposition to a defendant's motion to dismiss." Schneider v. California Department of Corrections, 151 F.3d 1194, 1197 n. 1 (9th Cir.1998). As plaintiffs' new allegation is only raised in the Opposition, the Court will not consider it.
*5 Defendants' motion to dismiss is GRANTED on this ground as well. [FN6]
FN6. Plaintiffs allege the unconstitutionality of the U.S.A. Patriot Acts in the first cause of action and ask the Court to enjoin the Acts' enforcement and declare them unconstitutional. However, plaintiffs do not specifically allege what makes the Acts unconstitutional, and they do not challenge any specific provisions of the Acts. As pled, plaintiffs have not stated any claim regarding the Acts on which the Court could rule. Consequently, the Court does not address this issue.
2. Fraudulent Claims Act
Plaintiffs allege that defendants violated the Fraudulent Claims Act ("FCA") by presenting to Congress false and fraudulent claims that Iraq possessed weapons of mass destruction, that Osama bin Laden was "a live leader of a worldwide conspiracy to deploy WMD against the U.S. ... when in fact defendants knew that [he] had been killed many years before," and that the government of Iraq was linked to bin Laden and A1 Qaeda. Second Am. Compl.¶ 22. Defendants argue that, even if plaintiffs could surmount the justiciability obstacles to their suit, the Court lacks jurisdiction over their FCA claim, because of both sovereign immunity and the express terms of the FCA. Defs.' Mot. at 12.
Under the doctrine of sovereign immunity, the United States is immune from suit unless it waives this immunity in a particular statute that grants a specific right of action against it. See United States v. Shaw, 309 U.S. 495, 500-01, 60 S.Ct. 659, 84 L.Ed. 888 (1940); United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 85 L.Ed. 1058 (1941). The False Claims Act contains no such waiver. Sovereign immunity also bars suits against individual federal officers "if the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration," or if the effect of the judgment would be "to restrain the Government from acting, or to compel it to act." Dugan v. Rank, 372 U.S. 609, 620, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963) (citing Larson v. Domestic & Foreign Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628 (1947)).
Here, plaintiffs have specifically sued the "United States of America," along with the President, Vice President, CIA Director, FBI Director, National Security Advisor, and Attorney General. They claim damages of loss of taxpayer money, denial and reduction in public services, loss of life, emotional distress, and federal budget deficits. Id. at ¶ 25. They ask the Court for an order compelling defendants to reimburse the U.S. Treasury for the federal funds allegedly defrauded from the Congress. For the Court to grant any of this relief, it must intervene directly in the administration of public funds and expenditures and compel the legislative and executive branches of government to spend government funds in particular ways. Thus, the claim is "against the sovereign," and is barred accordingly.
In addition, the FCA states that "[n]o court shall have jurisdiction over an action brought under subsection (b) against a Member of Congress, a member of the judiciary, or a senior executive branch official if the action is based on evidence or information known to the Government when the action was brought." 31 U.S.C. § 3730(e)(2)(A) (2004). [FN7] The defendants here are all "senior executive branch officials." Plaintiffs allege that members of one branch of government--the executive--defrauded members of another--the Congress--but their allegations are based entirely "on evidence or information known to the Government." Thus, the FCA expressly precludes jurisdiction over plaintiffs' claim.
FN7. Plaintiffs' claim is brought under § 3730(b).
*6 Therefore, plaintiffs' FCA claim is DISMISSED.
3. RICO claim
Plaintiffs also assert a violation of the RICO statute, 18 U.S.C. § 1961 et seq., alleging that the Iraq war and reconstruction are a cover to bring income to defendants, including defendant Cheney's former company Halliburton and Bechtel. Second Am. Compl. ¶ 25. Plaintiffs claim as damages the denial of their rights to receive federal services and funds, and the invasion of their privacy and constitutional rights by the defendants through the U.S.A. Patriot Acts. Id. at ¶ 27.
Defendants argue that this Court lacks jurisdiction over the RICO claim because of sovereign immunity. It is well-settled that "the United States is a sovereign, and, as such, is immune from suit unless it has expressly waived such immunity and consented to be sued." United States v. Shaw, 309 U.S. 495, 500-501, 60 S.Ct. 659, 84 L.Ed. 888 (1940); Hutchinson v. United States, 677 F.2d 1322, 1327 (9th Cir.1982); Beller v. Middendorf, 632 F.2d 788, 796 (9th Cir.1980). Here, the United States is a named defendant over which this Court lacks jurisdiction. Federal courts have held that "there can be no RICO claims against the federal government." Berger v. Pierce, 933 F.2d 393, 397 (6th Cir.1991); Robinson v. California Bd. of Prison Terms, 997 F.Supp. 1303, 1307 (C.D.Cal.1998). [FN8] The individually named defendants are also immune from suit because "the bar of sovereign immunity cannot be avoided by naming officers and employees of the United States as defendants." Larson, 337 U.S. at 688. Therefore, this Court is precluded by sovereign immunity from exercising jurisdiction.
FN8. Plaintiffs cite various federal cases which they argue demonstrate the amenability of federal officials to RICO suits. See Pls.' Opp'n at 26. These cases are all criminal cases, in which federal officials were convicted under the criminal RICO statute--not defendants in civil RICO suits.
Plaintiffs' RICO claim is dismissed accordingly.
4. Plaintiffs' request to file a third amended complaint
In their Opposition, plaintiffs request leave to file a third amended complaint "to specify exact actions and injuries being complained about by each plaintiff." Pls.' Opp'n at 2. In addition, they request leave to amend to split their first cause of action into two separate claims: "(A) a Bivens type of action directly under the U.S. Constitution and (B) a 'taxpayer' suit wherein the taxpayers sue in their status qua taxpayers." Pls.' Opp'n at 5.
Leave to amend need not be granted when amendment would be futile and the deficiencies of the complaint could not be cured by amendment. See Reddy v. Litton Indus., 912 F.2d 291, 296 (9th Cir.1990); Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir.1987). Even if plaintiffs' complaint were amended a third time, the first cause of action split into two, and the alleged injuries better specified, the justiciability doctrines of standing and political question would still preclude this Court from exercising jurisdiction, and these defendants would remain immune from suit under the FCA and the RICO statutes. Therefore, this Court DENIES plaintiffs' request for leave to file a third amended complaint.
The complaint is DISMISSED without leave to amend.
*7 For the foregoing reasons and for good cause shown, the Court hereby GRANTS defendants' motion to dismiss the Second Amended Complaint with prejudice. [Docket # 35]
IT IS SO ORDERED.
Not Reported in F.Supp.2d, 2004 WL 3030076 (N.D.Cal.)
Motions, Pleadings and Filings
• 3:03cv03927 (Docket) (Aug. 26, 2003)
END OF DOCUMENT