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Westlaw Download Summary Report for USER 1, 4413332

Your Search: "03-03927"Date/Time of Request: Friday, September 16, 2005 06:45:00 CentralClient Identifier: INTAMSTERDatabase: ALLCASESCitation Text: Not Reported in F.Supp.2dLines: 388Documents: 1Images: 0The material accompanying this summary is subject to copyright. Usage is governed by contract with Thomson,West and their affiliates.

Motions, Pleadings and Filings

Only the Westlaw citation is currently available.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, RobertMueller, 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, forPlaintiffs.Tracie L. Brown, U.S. Attorney's Office, San Francisco,CA, for Defendants.ORDER GRANTING DEFENDANTS' MOTION TODISMISSILLSTON, J.

Defendants have filed a motion to dismiss plaintiffs'Second Amended Complaint pursuant toFed.R.Civ.P.12(b)(1)and12(b)(6).The Court has deemed the motion submitted without oral argument pursuant to Local Rule7- 1(b). Having carefully considered the papers submitted,the Court hereby GRANTS the motion for the reasons setforth below.BACKGROUNDPlaintiffs, identified as "Taxpayers of the United States of America" and "United States Government," plusindividuals Scott Munsun, Abel Ashes, Ralph Tibbs, andStanley G. Hilton, filed a Second Amended Complaint onAugust 27, 2004, against President George W. Bush, VicePresident Dick Cheney, CIA Director George Tenet, FBIDirector Robert Mueller, National Security AdvisorCondoleezza Rice, Attorney General John Ashcroft andthe United States of America (collectively "defendants").In their first cause of action, characterized as a "taxpayersuit under the Constitution," plaintiffs allege thatdefendants, in conspiracy with the government of SaudiArabia, orchestrated the September 11, 2001 attacks onthe World Trade Center and Pentagon in order to gatherpublic support for the military invasion of Iraq andpersuade Congress to enact the U.S.A. Patriot Acts.Second Am. Compl. ¶ 12. In addition, the individualplaintiffs allege violations of their constitutional rights:(1) plaintiff Scott Munsun alleges that federal park rangers at Baker Beach, San Francisco, stopped him fromdistributing literature critical of defendants andconfiscated the literature; (2) plaintiff Abel Ashes allegeshe was fired from his job at a Nieman Marcus departmentstore in San Francisco for distributing anti-war literature;and (3) plaintiff Ralph Tibbs alleges that his veteranpension payment has been reduced by militaryexpenditures.

Id.

at ¶14.[FN1]FN1.In their Opposition brief, plaintiffs allegethat on September 22, 2004, plaintiff Hilton's lawoffice was broken into and files were searchedand seized "under the auspices and authority of the unconstitutional U.S.A. Patriot Acts." Pls.'Opp'n at 2. Plaintiffs seek leave to amend thecomplaint to add another cause of action toaddress this conduct.In their second cause of action, plaintiffs allege thatdefendants violated the Fraudulent Claims Act,31 U.S.C.§ 3729, by presenting false claims to Congress about theweapons capability of Iraq and the ties between thegovernment of Iraq and Al Qaeda in order to divertfederal taxpayer funds to the military campaign againstIraq.

Id.

at ¶ 22, 25. Plaintiffs' third cause of action, underthe Racketeer Influenced and Corrupt Organization Act("RICO"), asserts that the Iraq war "has been a cover forracketeering activity" to generate income for defendantsand the Halliburton and Bechtel companies.

Id.

at ¶ 25.For their first claim, plaintiffs ask the Court for aninjunction prohibiting the Attorney General fromenforcing the U.S.A. Patriot Acts, a declaratory judgmentthat the U.S.A. Patriot Acts and the military action in Iraqare unconstitutional, and an injunction removingdefendants from office.

Id.

at ¶¶ 6-7, 16. They also seek,among other relief, reimbursement of the federal fundsallegedly defrauded from Congress, reimbursement of thetax dollars gained by Halliburton and Bechtel, an ordercompelling defendants and their business associates torelease all information concerning the genesis andexecution of the September 11 attacks, and otherNot Reported in F.Supp.2d FOR EDUCATIONAL USE ONLY Page 1Not Reported in F.Supp.2d, 2004 WL 3030076 (N.D.Cal.)

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damages.

Id.

at 11-12.

Now before the Court is defendants' motion to dismissthe Second Amended Complaint.LEGAL STANDARDS1. Motion to dismiss pursuant toFRCP 12(b)(1)A motion to dismiss underFederal Rule of CivilProcedure 12(b)(1)for lack of subject matter jurisdictionmay either "attack the allegations of the complaint or maybe 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 jurisdictionalissue is separable from the merits of the case, the courtneed only consider evidence related to the jurisdictionissue, and rule on that issue, resolving factual disputes asnecessary.

Id.

(citing

Berardinelli v. Castle & Cooke, Inc.,

587 F.2d 37 (9th Cir.1978)).2. Motion to dismiss pursuant toFRCP 12(b)(6)UnderFederal Rule of Civil Procedure 12(b)(6), a districtcourt must dismiss a complaint if it fails to state a claimupon which relief can be granted. The question presentedby a motion to dismiss is not whether the plaintiff willprevail in the action, but whether the plaintiff is entitled tooffer 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 theplaintiff's allegations are true and must draw allreasonable inferences in the plaintiff's favor.

Usher v. Cityof 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 todevelop the case at this stage of the proceedings.

U nited States v. City of Redwood City,

640 F.2d 963, 966 (9thCir.1981).If the Court dismisses the complaint, it must then decidewhether to grant leave to amend. In general, leave toamend is only denied if it is clear that amendment wouldbe futile and "that the deficiencies of the complaint couldnot be cured by amendment."

N oll v. Carlson,

809 F.2d1446, 1448 (9th Cir.1987)(quoting

Broughton v. Cutter Laboratories,

622 F.2d 458, 460 (9th Cir.1980)(percuriam)); see

Poling v. Morgan,

829 F.2d 882, 886 (9thCir.1987)(citing

Foman v. Davis,

371 U.S. 178, 182, 83S.Ct. 227, 9 L.Ed.2d 222 (1962)) (futility is basis fordenying amendment under Rule 15).DISCUSSION1. Plaintiffs' First Cause of Action[FN2]FN2.Plaintiffs object to the exhibits defendantshave submitted in support of their motion todismiss. The exhibits consist of various orders inother district court cases and are notaccompanied by a formal request for judicialnotice. The Court declines to "strike" the exhibitsas plaintiffs request, but does not rely on themfor its decision.Defendants move to dismiss plaintiffs' first cause of actionon grounds that (1) the claim presents a non-justiciablepolitical question, and (2) plaintiffs lack standing to bringthe claim. Under Article III of the United StatesConstitution, federal courts may only adjudicate actual"cases" and "controversies." U.S. Const., art. III, § 2. This"case or controversy" requirement imposes on federalcourts a limitation known as "justiciability."

SeeBarber v.Widnall,

78 F.3d 1419, 1422 (9th Cir.1996). The justiciability doctrines--standing, ripeness, mootness, andthe political question doctrine-- present a thresholdquestion in every federal case because they determine thepower of the court to entertain a suit.

Warth v. Seldin,

422U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975).A. Political question doctrine

The political question doctrine arises out of ArticleIII's "case or controversy" requirement and has its roots inseparation of powers concerns.

Baker v. Carr,

369 U.S.186, 210, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). Politicalquestion doctrine is based on the tenet that "certainpolitical questions are by their nature committed to thepolitical branches to the exclusion of the judiciary."

United States v. Mandel,

914 F.2d 1215, 1222 (9thCir.1990). In

Baker,

the Supreme Court found six criteriato be considered in determining whether a case is anon-justiciable political question:Prominent on the surface of any case held to involve apolitical question is found a textually demonstrableconstitutional commitment of the issue to a coordinatepolitical department; or a lack of judicially discoverableand manageable standards for resolving it; or theNot Reported in F.Supp.2d FOR EDUCATIONAL USE ONLY Page 2Not Reported in F.Supp.2d, 2004 WL 3030076 (N.D.Cal.)

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