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Not Reported in F.Supp.2d FOR EDUCATIONAL USE ONLY
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Motions, Pleadings and Filings
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United States District Court,
N.D. California.
TAXPAYERS OF UNITED STATES OF AMERICA,
United States Government, Scott Munsun,
Abel Ashes, Ralph Tibbs, and Stanley G. Hilton,
Plaintiffs,
v.
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
Plaintiffs.
Tracie L. Brown, U.S. Attorney's Office, San Francisco,
CA, for Defendants.
ORDER GRANTING DEFENDANTS' MOTION TO
DISMISS
ILLSTON, J.
*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.
BACKGROUND
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
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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
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damages. Id. at 11-12.
*2 Now before the Court is defendants' motion to dismiss
the Second Amended Complaint.
LEGAL STANDARDS
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
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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).
DISCUSSION
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
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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.
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Plaintiffs argue that the case is not "political" because
defendants are accused "of violating federal laws and
abusing powers, i.e., committing illegalacts, 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.
B. Standing
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).
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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.
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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
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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
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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
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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.

CONCLUSION
*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.

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Motions, Pleadings and Filings (Back to top)

• 3:03cv03927 (Docket) (Aug. 26, 2003)

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