The opinion of the court was delivered by: Illston, J.
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS
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. p 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 p 14. *fn1
In their second cause of action, plaintiffs allege that defendants violated the Fraudulent Claims Act, 31 U.S.C. s 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 p 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 p 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 pp 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.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 ...