Académique Documents
Professionnel Documents
Culture Documents
Indymedia NL
Independent Media Centre of the Netherlands
Indymedia NL is an independent free communication organisation. Indymedia offers an
alternative approach to the news by using an open publishing method for text, images,
video and audio. english
nederlands
> contact > search > archive > help > join > publish news > open newswire > disclaimer > chat
Check it out.
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
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.
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.
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.
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.
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.
END OF DOCUMENT
supplements
> indymedia.nl > search > archive > help > join > publish news > open newswire > disclaimer > chat
DISCLAIMER: Indymedia NL uses the 'open posting' principle to promote freedom of speech. The news (text, images, audio and video) posted in the
open newswire of Indymedia NL remains the property of the author who posted it. The views in these postings do not necesseraly reflect the views of the
editorial team of Indymedia NL. Furthermore, it is not always possible to guarantee the accuracy of the postings.