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Indymedia NL (The Netherlands) - Stanley Hilton case

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Stanley Hilton case


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a friend - 01.04.2006 14:21

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Not Reported in F.Supp.2d


Not Reported in F.Supp.2d, 2004 WL 3030076 (N.D.Cal.)
All Words

Any Word United States District Court,


Contains Media: N.D. California.
TAXPAYERS OF UNITED STATES OF AMERICA,
Only images
United States Government, Scott Munsun,
Only video Abel Ashes, Ralph Tibbs, and Stanley G. Hilton,
Plaintiffs,
Only audio
v.
George W. BUSH, Dick Cheney, George Tenet, Robert
Mueller, Condoleeza Rice,
Dossiers
John Ashcroft, and United States of America, Defendants.
Agenda No. C 03-03927 SI.
CHAT!
LINKS Dec. 30, 2004.
Stanley G. Hilton, S. G. Hilton, San Francisco, CA, for
European NewsReal
Plaintiffs.
MDI's complaint against
Indymedia.nl Tracie L. Brown, U.S. Attorney's Office, San Francisco,
Courtcase Deutsche Bahn CA, for Defendants.
vs. Indymedia.nl
ORDER GRANTING DEFENDANTS' MOTION TO
Topics DISMISS
anti-fascisme / racisme ILLSTON, J.
europa
feminisme *1 Defendants have filed a motion to dismiss plaintiffs' Second Amended Complaint
gentechnologie pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). The Court has deemed the motion
globalisering submitted without oral argument pursuant to Local Rule 7- 1(b). Having carefully
kunst, cultuur en muziek considered the papers submitted, the Court hereby GRANTS the motion for the
media reasons set forth below.
militarisme
natuur, dier en mens BACKGROUND
oranje Plaintiffs, identified as "Taxpayers of the United States of America" and "United
vrijheid, repressie & States Government," plus individuals Scott Munsun, Abel Ashes, Ralph Tibbs, and
mensenrechten Stanley G. Hilton, filed a Second Amended Complaint on August 27, 2004, against
wereldcrisis President George W. Bush, Vice President Dick Cheney, CIA Director George Tenet,
wonen/kraken FBI Director Robert Mueller, National Security Advisor Condoleezza Rice, Attorney
zonder rubriek General John Ashcroft and the United States of America (collectively "defendants").

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Indymedia NL (The Netherlands) - Stanley Hilton case

In their first cause of action, characterized as a "taxpayer


Events
suit under the Constitution," plaintiffs allege that defendants, in conspiracy with the
G8 government of Saudi Arabia, orchestrated the September 11, 2001 attacks on the
Oaxaca World Trade Center and Pentagon in order to gather public support for the military
Schinveld 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
Help constitutional rights:
(1) plaintiff Scott Munsun alleges that federal park rangers at Baker Beach, San
Tips for newbies
Francisco, stopped him from distributing literature critical of defendants and
A short intro into Indymedia
confiscated the literature; (2) plaintiff Abel Ashes alleges he was fired from his job at
NL
a Nieman Marcus department store in San Francisco for distributing anti-war
The policy of Indymedia NL literature; and (3) plaintiff Ralph Tibbs alleges that his veteran pension payment has
How to join? been reduced by military expenditures. Id. at ¶ 14. [FN1]
Donate FN1. In their Opposition brief, plaintiffs allege that on September 22, 2004, plaintiff
Support Indymedia NL with Hilton's law office was broken into and files were searched and seized "under the
donations! auspices and authority of the unconstitutional U.S.A. Patriot Acts." Pls.' Opp'n at 2.
Lawsuits cost a lot of money, Plaintiffs seek leave to amend the complaint to add another cause of action to
we appreciate every (euro) address this conduct.
cent you can spare!
In their second cause of action, plaintiffs allege that defendants violated the
You can also direct your
Fraudulent Claims Act, 31 U.S.C. § 3729, by presenting false claims to Congress
donation to Dutch bank about the weapons capability of Iraq and the ties between the government of Iraq
account 94.32.153 on behalf and Al Qaeda in order to divert federal taxpayer funds to the military campaign
of Stichting Vrienden van against Iraq. Id. at ¶ 22, 25. Plaintiffs' third cause of action, under the Racketeer
Indymedia, Amsterdam Influenced and Corrupt Organization Act ("RICO"), asserts that the Iraq war "has
(IBAN: NL41 PSTB 0009 been a cover for racketeering activity" to generate income for defendants and the
4321 53) Halliburton and Bechtel companies. Id. at ¶ 25. For their first claim, plaintiffs ask the
Indymedia Network 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.
www.indymedia.org 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
Projects
print by Halliburton and Bechtel, an order compelling defendants and their business
radio associates to release all information concerning the genesis and execution of the
satellite tv
September 11 attacks, and other damages. Id. at 11-12.
video
*2 Now before the Court is defendants' motion to dismiss the Second Amended
Africa Complaint.
ambazonia
canarias
LEGAL STANDARDS
estrecho / madiaq
1. Motion to dismiss pursuant to FRCP 12(b)(1)
nigeria
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of subject
south africa
matter jurisdiction may either "attack the allegations of the complaint or may be made
Canada as a 'speaking motion' attacking the existence of subject matter jurisdiction in fact."
hamilton Thornhill Publ'g Co. v. General Tel. And Elec., 594 F.2d 730, 733 (9th Cir.1979)
maritimes (citing Land v. Dollars, 330 U.S. 731, 735 n. 4, 67 S.Ct. 1009, 91 L.Ed. 1209. (1947)).
montreal Where the jurisdictional issue is separable from the merits of the case, the court
ontario need only consider evidence related to the jurisdiction issue, and rule on that issue,
ottawa resolving factual disputes as necessary. Id. (citing Berardinelli v. Castle & Cooke,
quebec
Inc., 587 F.2d 37 (9th Cir.1978)).
thunder bay
2. Motion to dismiss pursuant to FRCP 12(b)(6)
vancouver

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Indymedia NL (The Netherlands) - Stanley Hilton case

victoria Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a
windsor complaint if it fails to state a claim upon which relief can be granted. The question
winnipeg 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
East Asia v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). In answering
burma
this question, the Court must assume that the plaintiff's allegations are true and must
jakarta
draw all reasonable inferences in the plaintiff's favor. Usher v. City of Los Angeles,
japan
828 F.2d 556, 561 (9th Cir.1987). Even if the face of the pleadings suggests that the
manila chance of recovery is remote, the Court must allow the plaintiff to develop the case at
qc this stage of the proceedings. United States v. City of Redwood City, 640 F.2d 963,
Europe
966 (9th Cir.1981).
alacant
If the Court dismisses the complaint, it must then decide whether to grant leave to
andorra
amend. In general, leave to amend is only denied if it is clear that amendment would
antwerpen
be futile and "that the deficiencies of the complaint could not be cured by
armenia
amendment." Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir.1987) (quoting Broughton
athens
v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir.1980) (per curiam)); see Poling v.
austria
Morgan, 829 F.2d 882, 886 (9th Cir.1987) (citing Foman v. Davis, 371 U.S. 178, 182,
barcelona
83 S.Ct. 227, 9 L.Ed.2d 222 (1962)) (futility is basis for denying amendment under
belarus Rule 15).
belgium
belgrade DISCUSSION
bristol 1. Plaintiffs' First Cause of Action [FN2]
bulgaria
croatia FN2. Plaintiffs object to the exhibits defendants have submitted in support of their
cyprus motion to dismiss. The exhibits consist of various orders in other district court cases
estrecho / madiaq and are not accompanied by a formal request for judicial notice. The Court declines
euskal herria to "strike" the exhibits as plaintiffs request, but does not rely on them for its decision.
galiza
germany
Defendants move to dismiss plaintiffs' first cause of action on grounds that (1) the
grenoble
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
hungary
only adjudicate actual "cases" and "controversies." U.S. Const., art. III, § 2. This
ireland
"case or controversy" requirement imposes on federal courts a limitation known as
istanbul
"justiciability." See Barber v. Widnall, 78 F.3d 1419, 1422 (9th Cir.1996). The
italy
justiciability doctrines--standing, ripeness, mootness, and the political question
la plana
doctrine-- present a threshold question in every federal case because they determine
liege
the power of the court to entertain a suit. Warth v. Seldin, 422 U.S. 490, 498, 95 S.
lille
Ct. 2197, 45 L.Ed.2d 343 (1975).
madrid
malta A. Political question doctrine
marseille *3 The political question doctrine arises out of Article III's "case or controversy"
nantes requirement and has its roots in separation of powers concerns. Baker v. Carr, 369 U.
netherlands S. 186, 210, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). Political question doctrine is based
nice on the tenet that "certain political questions are by their nature committed to the
norway political branches to the exclusion of the judiciary." United States v. Mandel, 914
oost-vlaanderen F.2d 1215, 1222 (9th Cir.1990). In Baker, the Supreme Court found six criteria to be
paris/île-de-france considered in determining whether a case is a non-justiciable political question:
poland Prominent on the surface of any case held to involve a political question is found a
portugal textually demonstrable constitutional commitment of the issue to a coordinate
romania political department; or a lack of judicially discoverable and manageable standards
russia for resolving it; or the impossibility of deciding without an initial policy determination
scotland of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking
sverige independent resolution without expressing lack of the respect due coordinate
switzerland branches of government; or an unusual need for unquestioning adherence to a

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Indymedia NL (The Netherlands) - Stanley Hilton case

thessaloniki political decision already made; or the potentiality of embarrassment from


toulouse multifarious pronouncements by various departments on one question. Baker, 369 U.
ukraine S. at 217. Where one of these formulations is inextricable from a case, a federal
united kingdom court should dismiss
valencia the case on political question grounds. Id.
west vlaanderen
Here, plaintiffs' first cause of action raises a non-justiciable political question. The
Latin America text of the Constitution clearly confers authority over the military and foreign affairs to
argentina the executive and legislative branches of the government. U.S. Const., art. I, § 8, cls.
bolivia 11-16 (granting Congress the power to declare war and to provide for, organize, arm,
brasil maintain, and govern the military); U.S. Const., art. II, § 2 (providing the President
chiapas shall be the Commander-in-Chief of the armed forces); see also United States v.
chile Stanley, 483 U.S. 669, 682, 107 S.Ct. 3054, 97 L.Ed.2d 550 (1987) (emphasizing
chile sur "the insistence ... with which the Constitution confers authority over the Army, Navy,
colombia and militia upon the political branches"). In addition, there are no "judicially
ecuador discoverable standards" for addressing plaintiffs' allegations. In order to determine
mexico the legitimacy of United States' military operation in Iraq or decide whether to enjoin
peru defendants from withdrawing funds from the U.S. Treasury to finance the ongoing
puerto rico military activity, this Court would have to engage in decision-making on the basis of
qollasuyu policy rather than law. That is not the role of the judicial branch, and federal courts
rosario have recognized the non-justiciability of similar questions. See, e.g., Doe v. Bush,
santiago 257 F.Supp.2d 436 (D.Mass.2003), aff'd on other grounds, 323 F.3d 133 (1st
tijuana Cir.2003); [FN3] Sarnoff v. Connally, 457 F.2d 809 (9th Cir.1972) (dismissing
uruguay challenge to Vietnam war).
valparaiso
FN3. Plaintiffs cite Doe for their argument that they are challenging past misconduct
Oceania by the Bush administration rather than future possible misconduct. Pls.' Opp'n at 13-
adelaide 14. Doe was affirmed because the case was not "ripe" for judicial review, but the
aotearoa district court also found that it presented a political question.
brisbane
Plaintiffs argue that the case is not "political" because defendants are accused "of
burma
violating federal laws and abusing powers, i.e., committing illegal acts, not of political
darwin
decision." Second Am. Compl. ¶ 3. However, plaintiffs' characterization does not
jakarta
change the fact that the case is nonjusticiable. The facts alleged in the Second
manila
Amended Complaint deal directly with political branches' decisions in the realm of
melbourne
foreign and military policy. And in any event, the Supreme Court has expressly held
oceania
that plaintiffs lack standing when they sue as citizens or taxpayers with a
perth
"generalized grievance" based on alleged government misconduct. See Warth v.
qc Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). Plaintiffs' lack of
sydney standing is discussed further below.
South Asia
*4 Plaintiffs' first claim thus presents a non-justiciable political question. Therefore,
india
this Court DISMISSES plaintiffs' this cause of action.
mumbai

United States
B. Standing
arizona
The doctrine of standing addresses whether "a party has a sufficient stake in an
arkansas
otherwise justiciable controversy to obtain judicial resolution of that controversy."
atlanta Sierra Club v. Morton, 405 U.S. 727, 731, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972).
austin Article III requires a litigant invoking the authority of the federal court to demonstrate:
baltimore (1) an injury in fact, (2) a causal relationship between the injury and the challenged
big muddy conduct, and (3) a likelihood that the injury will be redressed by a favorable decision.
binghamton Vermont Agency of Natural Resources v. U.S. ex rel. Stevens, 529 U.S. 765, 771,
boston 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000); Lujan v. Defenders of Wildlife, 504 U.S.
buffalo 555, 560-561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); Oregon Advocacy Center v.

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Indymedia NL (The Netherlands) - Stanley Hilton case

charlottesville Mink, 322 F.3d 1101, 1108 (9th Cir.2003).


chicago
cleveland Even if plaintiffs' claim did not present a non-justiciable political question, as
colorado discussed above, they would lack standing to bring their claim on behalf of all
columbus indymedia taxpayers or citizens. When the asserted harm is a "generalized grievance" shared in
danbury, ct substantially equal measure by all or a large class of citizens, that harm alone does
dc not warrant exercise of jurisdiction. Warth, 422 U.S. at 499. Unless there is a
hawaii substantial likelihood that the plaintiff will suffer harm in the future, a plaintiff
houston requesting injunctive relief cannot satisfy the Article III standing requirement.
hudson mohawk Canatella v. State of California, 304 F.3d 843, 852 (9th Cir.2002).
idaho
Plaintiffs' taxpayer claim presents precisely the kind of "generalized grievance"
ithaca
barred under the standing doctrine. As the Supreme Court has stated, "suits
kansas city
premised on federal taxpayer status are not cognizable in the federal courts because
la
a taxpayer's 'interest in the moneys of the Treasury is shared with millions of others,
madison
is comparatively minute and indeterminable." ' Asarco Inc. v. Kadish, 490 U.S. 605,
maine
613-614, 109 S.Ct. 2037, 104 L.Ed.2d 696 (1989) (quoting Forthington v. Mellon, 262
miami
U.S. 447, 487, 43 S.Ct. 597, 67 L.Ed. 1078 (1923)). Standing to sue may not be
michigan predicated upon an interest "held in common by all members of the public, because
milwaukee of the necessarily abstract nature of the injury all citizens share." Schlesinger v.
minneapolis/st. paul Reservists Committee to Stop the War, 418 U.S. 208, 220, 94 S.Ct. 2925, 41 L.Ed.2d
new hampshire 706 (1974); see also Bell v. City of Kellogg, 922 F.2d 1418, 1423 (9th Cir.1991).
new jersey [FN4] Here, the injuries claimed by plaintiffs regarding the "loss of taxpayer
new mexico revenues, emotional distress, [and] loss of government services" are all losses
new orleans shared generally by the members of the public. Second Am. Compl. ¶ 14. Therefore,
north carolina plaintiffs lack standing to sue on behalf of all taxpayers.
north texas
nyc FN4. In their Opposition, plaintiffs argue that they have taxpayer standing under the
oklahoma principle of Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968) and
omaha Valley Forge Christian College v. Americans United for Separation of Church &
philadelphia State, 454 U.S. 464, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982). These cases reflect a
pittsburgh narrow exception allowing taxpayer standing for challenges to government
portland expenditures for violating the Establishment Clause.
richmond
rochester In addition, the individual plaintiffs lack standing to sue defendants for the conduct
rogue valley
alleged: a violation of "free speech rights" to plaintiff Munsun from the confiscation of
saint louis
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
san diego
from Bush's Iraq policies," and the reduction of military pensions to plaintiff Tibbs as
san francisco
the result of defendants' "expensive and wasteful" war spending in Iraq. [FN5] Id. at ¶
san francisco bay area
14; Pls.' Opp'n at 17. Defendants argue that plaintiffs
santa barbara
have failed to establish the required causal connection between these alleged
santa cruz, ca
injuries and these defendants' conduct, and the Court agrees.
seattle
tallahassee-red hills FN5. Plaintiff Hilton also claims as personal injury suffered the invasion of his law
tampa bay office and the ensuing search and seizure of files by federal agents under the Patriot
tennessee Act in September 2004. Pls .' Opp'n at 17. However, in determining a Rule 12(b)(6)
united states motion to dismiss, "a court may not look beyond the complaint to a plaintiff's moving
urbana-champaign papers, such as a memorandum in opposition to a defendant's motion to dismiss."
utah Schneider v. California Department of Corrections, 151 F.3d 1194, 1197 n. 1 (9th
vermont Cir.1998). As plaintiffs' new allegation is only raised in the Opposition, the Court will
virginia beach not consider it.
western mass
worcester *5 Defendants' motion to dismiss is GRANTED on this ground as well. [FN6]

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Indymedia NL (The Netherlands) - Stanley Hilton case

West Asia FN6. Plaintiffs allege the unconstitutionality of the U.S.A. Patriot Acts in the first
armenia cause of action and ask the Court to enjoin the Acts' enforcement and declare them
beirut unconstitutional. However, plaintiffs do not specifically allege what makes the Acts
israel unconstitutional, and they do not challenge any specific provisions of the Acts. As
palestine pled, plaintiffs have not stated any claim regarding the Acts on which the Court could
ukraine rule. Consequently, the Court does not address this issue.
Topics 2. Fraudulent Claims Act
biotech
Plaintiffs allege that defendants violated the Fraudulent Claims Act ("FCA") by
Process
presenting to Congress false and fraudulent claims that Iraq possessed weapons of
discussion
mass destruction, that Osama bin Laden was "a live leader of a worldwide
fbi/legal updates
conspiracy to deploy WMD against the U.S. ... when in fact defendants knew that
indymedia faq
[he] had been killed many years before," and that the government of Iraq was linked
mailing lists
to bin Laden and A1 Qaeda. Second Am. Compl.¶ 22. Defendants argue that, even if
process & imc docs
plaintiffs could surmount the justiciability obstacles to their suit, the Court lacks
tech
jurisdiction over their FCA claim, because of both sovereign immunity and the
volunteer
express terms of the FCA. Defs.' Mot. at 12.
Credits
Under the doctrine of sovereign immunity, the United States is immune from suit
This site is produced by unless it waives this immunity in a particular statute that grants a specific right of
volunteers using free action against it. See United States v. Shaw, 309 U.S. 495, 500-01, 60 S.Ct. 659, 84
software where possible. 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
The system we use is
also bars suits against individual federal officers "if the judgment sought would
available from:mir.indymedia.
expend itself on the public treasury or domain, or interfere with the public
de
administration," or if the effect of the judgment would be "to restrain the Government
an alternative is available
from: active.org.au/doc
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.
Thanks to indymedia.de and Ct. 1457, 93 L.Ed. 1628 (1947)).
mir-coders for creating and
sharing mir! Here, plaintiffs have specifically sued the "United States of America," along with the
President, Vice President, CIA Director, FBI Director, National Security Advisor, and
Contact: Attorney General. They claim damages of loss of taxpayer money, denial and
info @ indymedia.nl 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.

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Indymedia NL (The Netherlands) - Stanley Hilton case

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.

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.

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Indymedia NL (The Netherlands) - Stanley Hilton case

[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

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