ALEJANDRO N. MAYORKAS United States1 Attorney LEON W. WEIDMAN Assistant 2United States Attorney Chief, Civil Division JOHN E. NORDIN3 II (No. 049680) Assistant United States Attorney Assistant 4Chief, Civil Division Room 7516 Federal Building 300 North5 Los Angeles Street Los Angeles, California 90012 Telephone:6 (213) 894-3552 Facsimile: (213) 894-7819 7 Attorneys for Defendant United States8 of America

9 UNITED STATES DISTRICT COURT

10 CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 11 CYRUS CARDAN, individually ) Case No. CV99-13570-WJR(MANx) and on behalf12 of his former ) public utility telephone ) (1) NOTICE OF MOTION AND MOTION corporation:13 PTT ) TO DISMISS FIRST AMENDED Telecommunications; and all ) COMPLAINT; AND those similarly14 situated, ) ) (2) MEMORANDUM OF POINTS AND Plaintiffs,15 ) AUTHORITIES IN SUPPORT 16 ) THEREOF v. ) 17 ) Date: January 15, 2001 UNITED STATES OF AMERICA, ) BILL CLINTON,18 WILLIAM S. ) Time: 10:00 a.m. COHEN, JANET RENO, JIMMY ) CARTER, ESTATE19 OF THEODORE ) Place: William J. Rea, Crt. 10 ROOSEVELT, LOUIS CALDERA, ) MARKOS K. 20MARINAKIS, FERNANDO ) CARDOZE, ALBERT H. NAHMAD ) EMANUEL GONZALEZ-REVILLA,21 ) CLIFFORD B. O’HARA, MOISES D. ) MIZRACHI, 22VINCE RYAN, ) JORGE E. RITTER, ALBERTO ) ALEMAN ZUBIETA,23 JOSEPH W. ) CoRNELISON, WILLIAM J. ) CONNOLLY, 24DOES 1-100, ) INCLUSIVE, ) 25 ) Defendants. ) 26 27 28 NOTICE1 OF MOTION AND MOTION DISMISS FIRST AMENDED COMPLAINT

PLEASE2 TAKE NOTICE that on January 15, 2001, at 10:00 a.m., or as soon thereafter3 as the parties may be heard, in the courtroom of the Honorable

William J.4 Rea, United States District Judge, located at the United States

Courthouse,5 312 North Spring Street, Los Angeles, California, Defendant

United States6 of America will and hereby does move this Court to dismiss the

First Amended7 Complaint pursuant to Rules 12(b)(1) and (b)(6) of the Federal

Rules of Civil8 Procedure.

This9 Motion is based on the grounds that the Court lacks subject matter jurisdiction10 over the claims alleged and that the First Amended Complaint fails to state11 a claim upon which relief may be granted. This Motion is based on this12 Notice and Motion, the attached Memorandum of Points and

Authorities,13 and upon such other matters as may be presented to the Court.

Pre-filing14 Conference: Because plaintiff is proceeding pro se, this motion is 15exempt from the requirement of a pre-filing conference of counsel under Local16 Rules 6.10 & 7.4.1. Dated: December , 2000. 17 ALEJANDRO N. MAYORKAS 18 United States Attorney LEON W. WEIDMAN 19 Assistant United States Attorney Chief, Civil Division 20 ____ JOHN E. NORDIN II 21 Assistant United States Attorney Assistant Chief, Civil Division 22 Attorneys for Defendant United States of America 23 24 25 26 27 28 1 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS FIRST 2 AMENDED COMPLAINT 3 I. 4 INTRODUCTION 5 Defendant United States of America1 hereby dismiss the First Amended 6 Complaint (“FAC”) filed by Plaintiff Cyrus Cardan (“Cardan”), pursuant to 7 Rules 12(b)(1) and (b)(6) of the Federal Rules of Civil Procedure because the 8 Court lacks subject matter jurisdiction over the claims asserted in the FAC 9 and the FAC fails to state a claim upon which relief may be granted. 10 Cardan does not allege that the transfer of the Panama Canal to Panama 11 will cause him any injury-in-fact, nor that he falls within the zone of 12 interests protected by the treaty he cites, therefore, he lacks standing to 13 maintain this action. In addition, to the extent that plaintiff still seeks 14 to block the transfer of the Canal, a claim which may have been abandoned, 15 this action would be moot, as the United States returned the Canal to Panama 16 on December 31, 1999. Furthermore, even if Cardan could overcome these 17 threshold jurisdictional defects, his FAC would be subject to dismissal for 18 failure to state a claim upon which relief may be granted because there is no 19 private right of action to enforce terms of the treaty cited as it has been 20 superseded by a later treaty between the United States and Colombia. 21 Cardan styles the FAC as a verified complaint based upon racketeering, extortion, 22 fraud and deceit, civil conspiracy, negligence, violation of the covenant of 23 good faith and fair dealing, violation of Article VI, Section 2 of the United 24 States Constitution, and an unspecified violation of his civil rights. 25

1 As far26 as government counsel is aware, the United States is the only defendant that has been served. 27 28 However, he1 does not allege a waiver of sovereign immunity,2 nor does he state facts sufficient2 to state a claim with regard to such causes of action. For example, he3 claims that the violation of the 1846 New Granada Treaty by

“defendant4 was a barbaric act of racketeering and extortion under the color of defendants’5 military authority, and a conspiracy to defraud the Republic of Colombia....”6 That appears to be the most specific allegation contained in the First7 Amended Complaint. FAC 5. There appear to be no specific allegations8 regarding any other claims.

Cardan9 does not identify the numerous defendants, nor does he suggest what specific10 acts they might have committed. He apparently asserts that due to such treaty11 violation, Cardan was solicited by drug addicts seeking donations,12 and in one instance, that he may have been assaulted by alleged drug addicts.13 However, there are no specific allegations showing any legal injury proximately14 caused by any defendant. FAC, 5-6.

Cardan15 apparently seeks damages as well as, “a jury trial...to try and investigate16 the facts of this case,...” FAC 6. Finally, Cardan appears to have added17 a new plaintiff, PTT Telecommunications, in violation of

Fed.R.Civ.P.18 14(b). The relationship of that new plaintiff to the new claims alleged is19 not specified in the body of the FAC.

Although20 the court has permitted Cardan to file an amended complaint, the FAC is21 not in fact a substantive improvement over the original complaint in that it22 suffers the same defects, i.e., lack of subject matter jurisdiction,23 failure to state a claim, lack of standing and mootness.

For 24all of these reasons, the FAC should be dismissed with prejudice as

2 As, 25for example, the waiver of the Federal Tort Claims Act, 28 U.S.C. 1346(b) & 2671 et seq. Indeed, the common-law tort claims are26 barred by plaintiff’s failure to allege that he filed an administrative claim. 28 U.S.C. § 2675(a). 27 28 plaintiff 1cannot allege a claim upon which relief could be granted.

2 II.

3 STATEMENT OF FACTS

In 1846,4 the United States and New Granada, which later became the nation of 5Colombia, signed a treaty which recognized the sovereignty of New

Granada over6 the Panamanian Isthmus. FAC at 4-5; see also Original

Complaint 7at 5 & 7.3 A portion of the nation of Colombia located on the

Isthmus declared8 independence in 1903 and became the nation of Panama. See

Complaint 9at 2. The United States then constructed the Panama Canal across the Isthmus.10 Id. In 1914, the United States and Colombia signed a treaty which recognized11 the title of the United States to the Canal, granted

Colombia with12 certain rights regarding the Canal, and provided for a

$25,000,00013 payment by the United States to Colombia. Exhibit 1 attached hereto, Treaty14 Between the United States of America and the Republic of

Colombia For15 the Settlement of Their Differences Arising out of the Events

Which Took16 Place on the Isthmus of Panama in November 1903 signed April 6,

1914 (the 17“1914 Treaty”). The United States signed a treaty with Panama in

1977 which18 provided that the Canal would be turned over to Panama by the

United States19 on December 31, 1999. See Complaint at 3. The Canal was in fact transferred20 to Panama on December 31, 1999. Exhibit 2 attached hereto,

Information21 Bulletin. 22 23 24 25

3 Plaintiff26 apparently incorporates the original complaint into the FAC in violation of Local Rule 3.8.2. FAC 4. 27 28 1 III.

2 ARGUMENT

A. This3 Action Must Be Construed to be Based on the Administrative

Procedure4 Act and Governed by the Deferential Standard Employed

Thereunder.5

Although6 Cardan does not cite it in the FAC, it is apparent that his action may7 be asserted, if at all, only under the Administrative Procedure

Act (“APA”),8 5 U.S.C. §§ 551, et seq., 701, et seq. One defendant is the

United States,9 which may be sued only if Congress has waived sovereign immunity, 10U.S. v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 47 L.Ed.2d 114

(1976), Morris11 v. U.S., 521 F.2d 872, 874 (9th Cir. 1975). The APA waives sovereign 12immunity to allow a person to obtain judicial review of a final action of 13the federal government. 5 U.S.C. § 702; see Preferred Risk Mut.

Ins. Co. v.14 U.S., 86 F.3d 789, 792 (8th Cir. 1996), cert. den., 117 S.Ct.

1245 (1997).15 However, the APA is not a grant of subject matter jurisdiction.

Id. at 792.16 Instead, jurisdiction in an APA case is derived from 28 U.S.C. §

1331, because17 a suit seeking judicial review under the APA arises under federal law.18 Id., citing Califano v. Sanders, 430 U.S. 99, 107, 97 S.Ct.

980, 51 L.Ed.2d19 192 (1977). The APA waives sovereign immunity and provides a cause of action20 for nonmonetary relief and a standard for review of final agency action.21 5 U.S.C. § 702, 704, 706(2)(A); see Camp v. Pitts, 411 U.S.

138, 140 9322 S.Ct. 1241, 36 L.Ed.2d 106 (1973).

Cardan’s23 citation of the Supremacy Clause does not provide a jurisdictional24 basis for his action. The provisions of the Constitution do not create25 a private right of action nor do they waive sovereign immunity.

See Stehney26 v. Perry, 907 F.Supp. 806, 819 (D.N.J. 1995), aff’d, 101 F.3d 925 27 28 (3rd Cir. 11996). Neither the Supremacy Clause, nor anything else cited by

Cardan provides2 a waiver of sovereign immunity for this action. As the APA is the only3 waiver for a claim that a federal action should be set aside as contrary to4 law, the only proper basis for his action would be the APA. 5

U.S.C. § 706(2)(A).5 Accordingly, Cardan’s lawsuit should be deemed to be an

APA action.6

Review7 of agency action under the APA is highly deferential and the agency’s action8 is entitled to a presumption of validity. Florida

Manufactured9 Housing Ass’n v. Cisneros, 53 F.3d 1565, 1572 (11th Cir. 1995);

Kisser v. 10Cisneros, 14 F.3d 615, 618 (D.C. Cir. 1994). Of all standards of review, the11 one provided by the APA gives a court the least latitude.

See id.; see12 also Louisiana v. Verity, 853 F.2d 322, 327 (5th Cir. 1988)

(scope of 13APA review is very narrow); accord U.S. v. Alpine Land and

Reservoir 14Co., 887 F.2d 207, 213 (9th Cir. 1989), cert. denied, 498 U.S. 817

(1990). 15

2. Cardan16 Has Not Alleged Any Personal Connection to the Panama Canal or

to Colombia,17 Therefore, He Lacks Standing.

Cardan18 lacks standing to maintain this action because he has not set forth any 19personal connection to the Panama Canal or to the nation of

Colombia, 20therefore, the Court lacks subject matter jurisdiction over the

Complaint.21 The Supreme Court has held that an APA plaintiff has standing to sue under 22Section 702 only if the challenged governmental action (1) caused the plaintiff23 injury-in-fact, and (2) the injury was to an interest arguably within the24 zone of interests to be protected or regulated by the law that plaintiff 25claims that the government has violated. U.S. v. Students

Challenging26 Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 686, 93 S.Ct. 27 28 2405, 37 L.Ed.2d1 254 (1973), citing Sierra Club v. Morton, 405 U.S. 727, 733,

92 S.Ct. 1361,2 31 L.Ed.2d 636 (1972). The second prong of the foregoing analysis is3 referred to as the “zone of interests” test. See Sierra Club,

405 U.S. at4 733, n.5.

Cardan5 cannot satisfy either prong of this test because he has not alleged that6 he has been injured in any manner that is particular to him nor has he shown7 that he is within the relevant zone of interest. The gravamen of Cardan’s8 FAC is that the transfer of the Panama Canal by the United States to Panama 9is a violation of the December 12, 1846 Treaty of Peace, Amity,

Navigation,10 and Commerce between Colombia (which was then called New Granada) and the United11 States (the “1846 Treaty”). FAC at 4-5; See also Original

Complaint 12at 2-3, 5-10. The area that is now the nation of Panama was, prior to the construction13 of the Canal, a part of Colombia. FAC at 3-5. In 1903,

Panama declared14 its independence from Colombia and the United States proceeded 15to construct the Canal in Panama. Original Complaint at 2. Cardan alleges that16 the acquisition of the Canal by the United States was illegal because it17 purportedly violated several provisions of the 1846 Treaty. Id.

Because the18 Canal allegedly was not obtained in a legitimate manner, Cardan contends that19 the September 7, 1977 Panama Canal Treaty, which required the

United States20 to transfer the Canal to Panama on December 31, 1999, lacked a legal basis.21 Complaint at 2-3; FAC at 3-5. As a result, Cardan asserts that it is22 unlawful for the United States to return the Canal to Panama. See also FAC at23 3-5; Complaint at 3-4.

It is24 apparent from the foregoing review that Cardan’s action asserts an alleged25 injury to Colombia or to Colombian citizens. Cardan contends that the United26 States is transferring or did transfer territory (i.e., the Canal) 27 28 to Panama 1over which Colombia should have sovereignty. See also FAC at 4;

Complaint 2at 4. However, Cardan does not allege that he has any relationship with Colombia3 such that an alleged injury to Colombia would have any personal effect on 4him. Cardan acknowledges that he is a citizen of the United

States, not5 Colombia. FAC at 4-5. Cardan resides in California. FAC at 1

(setting forth6 Cardan’s address in Los Angeles, California). Nowhere does

Cardan show7 that he has any connection with Colombia. Therefore, even if it were assumed8 arguendo that Cardan was correct in his assertion that the transfer of9 the Canal to Panama was harmful to Colombia, he has not shown that this 10would result in any injury to him. The allegation of solicitation and assault11 by unnamed drug addicts cannot be shown to be proximately caused by any act12 or omission of any defendant. Accordingly, Cardan fails to satisfy the13 requirement of an injury-in-fact to himself and, as a result, he lacks standing.14

In addition,15 Cardan cannot establish standing because he has not shown that he is16 within the relevant zone of interest. In order to assess whether an APA plaintiff17 falls within the zone of interest so as to have standing, a court must18 determine which law’s violation forms the basis of the complaint.

See Air Courier19 Conference of America v. American Postal Workers’ Union, 498

U.S. 517, 20529-30, 111 S.Ct. 913, 112 L.Ed.2d 1125 (1991); Lujan v. Nat’l

Wildlife Fed’n21 , 497 U.S. 871, 886, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990)

(“Lujan I”);22 cf. Natural Resources Defense Council v. Patterson, 791 F.Supp.

1425, 1429-3023 (E.D.Cal. 1992), aff’d., 146 F.3d 1118 (9th Cir. 1998)(court first must24 determine which statute is violated before considering whether plaintiff’s25 interests are within zone). As explained above, the alleged violation 26of the 1846 Treaty apparently forms the basis of Cardan’s 27 28 Complaint.1 That treaty was intended to promote commerce and navigation between Colombia2 and the United States. See Original Complaint, Exhibit 10,

1846 Treaty,3 at 1.4 Cardan’s Complaint does not show that Cardan has any personal stake4 in those interests which were to be advanced by the 1846

Treaty. On5 the contrary, Cardan appears to have no connection to the relationship6 between the United States and Colombia that is any different than the general7 interest that any American citizen has in the lawful conduct of affairs8 by the United States. However, such a general interest by a citizen in9 lawful governance has been consistently held by the Supreme Court not to be 10sufficient to support standing. Lujan v. Nat’l Wildlife Fed’n, 504

U.S. 555, 11573, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)(“Lujan II”) (no standing to12 assert a claim only of harm to the interest of the plaintiff and every other13 citizen in the proper application of the Constitution and the laws which14 seeks relief that does not benefit plaintiff more than the public at large).15 As Cardan has not shown any injury-in-fact proximately caused by the actions16 of any defendant, or that he falls within the zone of interest 17 4 The copy of the FAC served on government counsel had no exhibits18 or attachments. Because this portion of defendants’ Motion seeks dismissal pursuant to Rule 12(b)(1) for lack of subject 19matter jurisdiction, evidence outside of the Complaint and its attachments (such as the exhibits attached to this Motion) 20may be considered by the Court without converting it into a motion for summary judgment. Capitol Industries-EMI, Inc. v. 21Bennett, 681 F.2d 1107, 1118 (9th Cir. 1982). In fact, if jurisdiction is lacking, the Court cannot do anything but dismiss 22the action -- it would lack the power to grant judgment for the moving party. See O’Donnell v. Wien Air Alaska, Inc., 551 F.2d23 1141, 1145, n.4 (9th Cir. 1977). Furthermore, the Court is not required to accept plaintiff’s allegations as true in regard24 to the portion of this Motion that is based on Rule 12(b)(1), as it would in a motion to dismiss that was based solely on25 a failure to state a claim pursuant to Rule 12(b)(6). See id. Accordingly, the Court is authorized to consider evidence26 that is pertinent to determining whether jurisdiction exits. See id.; Capitol, 681 F.2d at 1118. 27 28 protected 1by the 1846 Treaty, he cannot establish that he has standing.

Standing2 is a necessary prerequisite to federal court jurisdiction. Id. at 561. Because3 Cardan cannot show that he has standing to bring this action, the4 Court lacks subject matter jurisdiction over it. Id. Therefore, the FAC should5 be dismissed pursuant to Rule 12(b)(1) of the Federal Rules of

Civil Procedure.6

3. The 7United States Has Already Returned the Canal to Panama, Therefore,

this8 Action Is Moot.

Cardan’s9 incorporation of the original complaint into the FAC by reference 10suggests that he may still be attempting to rescind the transfer of the Canal.11 If so, in addition to lacking standing, such claims would be barred as 12moot. As Cardan pointed out in the FAC, the United States was scheduled 13to transfer the Canal to Panama on December 31, 1999 in accordance with the 197714 Panama Canal Treaty. FAC at 3. Pursuant to this arrangement, the Canal 15was indeed turned over to Panama on December 31, 1999. See Ex. 2,

Information16 Bulletin (stating that, at noon on December 31, 1999, the United

States Government17 transferred the Canal and related real property to the

Republic of18 Panama, thereby “complet[ing] the total and absolute transfer of the Panama19 Canal”); Fed. R. Evid. 201 (court may take judicial notice of matters not20 subject to dispute); Shaw v. Hahn, 56 F.3d 1128, 1129, n.1 (9th

Cir.), cert.21 den., 116 S.Ct. 418 (1995) (court may take judicial notice of official records22 of public action).

This23 action was intended to prevent the return of the Panama Canal to

Panama by 24the United States. See Complaint at 3-4. Plaintiff now apparently seeks to also25 recover damages based on such transfer. FAC at 6. However, the United26 States has now taken the action (i.e., transferring the Canal) 27 28 which Cardan1 sought to block. Because the United States has relinquished control over2 the Canal, it is no longer possible for the resolution of this action to 3have any impact on the status of the Canal. Therefore, this case would be moot4 to the extent that plaintiff seeks to prevent or rescind the transfer of5 the canal. See argument in Motion to Dismiss, filed November 6,

2000. 6

4. Even7 If Cardan Had Standing and the Action Were Not Moot, He Cannot

State8 a Claim for Relief Because the Relinquishment of the Canal Was

Consistent9 with Law.

Even10 if it were assumed arguendo that Cardan could overcome the threshold 11jurisdictional hurdles of standing and mootness, his Complaint would nevertheless12 be subject to dismissal for failure to state a claim.

Cardan cannot13 state a cognizable claim that the transfer of the Canal is unlawful for14 two reasons: (1) as an individual,15 he does not have a private right of action to enforce terms of an international16 treaty, and (2) the provisions of the 1846 Treaty upon which Cardan17 relies were superseded by a later treaty between the United

States and18 Colombia. It has been widely recognized that international treaties do19 not create a private right of action in the absence of an express provision 20therefor in the treaty. Goldstar (Panama) S.A. v. U.S., 967 F.2d

965, 968 (4th21 Cir. 1992); More v. Intelcom Support Servs., Inc., 960 F.2d

466, 469 (5th22 Cir. 1992); Matta-Ballesteros v. Henman, 896 F.2d 255, 259 (7th

Cir. 1990).23 Cardan does not allege that the 1846 Treaty contains any provision 24for a private right of action. On the contrary, it states that, if it is violated,25 the aggrieved nation shall present a claim to the other nation. See26 Original Complaint at 8. As Cardan lacks a right of action to 27 28 sue to enforce1 the 1846 Treaty, he cannot state a claim upon which relief may be granted.2

Furthermore,3 even if it were assumed arguendo that Cardan could have a right of action,4 his FAC should be dismissed nevertheless because the 1846

Treaty was5 superseded by a later treaty between the United States and

Colombia. 6 In 1914, the two nations signed a “Treaty. . .For the Settlement of Their Differences7 Arising out of the Events Which Took Place on the

Isthmus of8 Panama in November 1903". See Ex. 1, 1914 Treaty.5 The 1914

Treaty states9 that it is intended “to define and regulate the[] rights and interests 10[of the United States and Colombia] in respect of the interoceanic canal which11 the Government of the United States has constructed across the

Isthmus of12 Panama”. Id. at 1. It is apparent therefore that the 1846 Treaty relied upon13 by Cardan no longer governs the relations of the United States and Colombia14 in regard to the Canal and that the nations chose to supersede the provisions15 of the 1846 Treaty with a new agreement.

In addition,16 the 1914 Treaty set forth the “rights in respect to the interoceanic17 Canal” which “shall be enjoyed” by Colombia, which did not include the18 right of sovereignty which is asserted by Cardan. Ex. 1 at 2.

Furthermore,19 the 1914 Treaty precluded any assertions, such as that asserted 20 5 Although a court considering a motion to dismiss for failure to state21 a claim under Rule 12(b)(6) (such as the portion of the United States’ Motion which is being discussed here) is usually limited 22to consideration of the complaint and attachments thereto, when the material outside the complaint which is submitted23 is subject to judicial notice, the motion need not be converted into a motion for summary judgment under Rule 12(b)(6) of the Federal24 Rules of Civil Procedure. Shaw v. Hahn, 56 F.3d at 1129, n.1. The 1914 Treaty is an official record of public action, 25therefore, it is proper for the Court to take judicial notice of it. Fed. R. Evid. 201. Accordingly, the 1914 Treaty may be considered26 in regard to this Motion without converting it into a motion for summary judgment. 27 28 by Cardan,1 that Colombia retained a claim to the Canal, by its express acknowledgment2 that “the title to which [i.e.,the Canal] is now vested entirely and3 absolutely in the United States of America, without any encumbrances4 or indemnities whatever.” Id. The 1914 Treaty also provided for a payment5 by the United States to Colombia of $25,000,000, presumably in compensation6 for and settlement of any claims Colombia had in regard to the

Canal. Id.7 at 3. In view of these provisions, it is apparent that the

United States’8 disposition of the Canal in the 1977 Panama Canal Treaty and return of 9the Canal to Panama were not unlawful.

As Cardan10 does not have a private right of action to enforce treaty terms, the11 treaty upon which he relies has been superseded, and the alleged claim of Colombia12 to the Canal which Cardan purports to assert was resolved by the 191413 Treaty, his FAC fails to state a cognizable claim for relief.

Therefore,14 it should be dismissed pursuant to Rule 12(b)(6) of the Federal

Rules of Civil15 Procedure.

E. 16 Plaintiff has Failed to State a Racketeering, Extortion,

17 Conspiracy, Civil Rights, Tort, or Other Claim.

Plaintiff18 styled the FAC as based upon racketeering, extortion, fraud and deceit,19 civil conspiracy, negligence, violation of the covenant of good faith and 20fair dealing, violation of Article VI, Section 2 of the United

States Constitution,21 and unspecified violation of civil rights. However, it appears that22 plaintiff has simply listed such claims in the title of the FAC.

There are 23no specific factual allegations regarding such claims in the body of the FAC.24 Indeed, most of the claims are not mentioned in the body of the

FAC. As noted25 above, the most specific such allegation to be found in the

FAC is the26 claim that the violation of the 1846 New Granada Treaty by 27 28 defendant 1was a barbaric act of racketeering and extortion under the color of defendants’2 military authority, and the conspiracy to defraud the Republic of

Colombia...”3 There are no specific allegations regarding what activity constituted4 racketeering, extortion, or any other wrongful act. Similarly, there are 5no specific allegations of any meeting of the minds, or actions taken in furtherance6 of a conspiracy. There are no specific allegations regarding 7which defendants were guilty of any act or omission. Indeed, plaintiff 8does not identify the numerous defendants.

Plaintiff9 does not allege any basis for jurisdiction over such claims, nor any specific10 statutory basis for such claims. If plaintiff seeks to allege common-law11 torts committed by an employee of the United States, such claims would12 fall under the purview of the Federal Tort Claims Act, 28 U.S.C.

§§ 1346(b)13 & 2671. However, such claims would be barred as plaintiff has not alleged that14 he submitted an administrative tort claim to the appropriate government15 agency as required by 28 U.S.C § 2675(a).

Finally,16 the FAC lacks any allegation of any injury or damage proximately17 caused by the United States or by any other defendant. Plaintiff apparently18 asserts that due the alleged violation of the 1846 New Granada

Treaty, he19 was solicited on unspecified occasions by unnamed drug “addicts” seeking donations,20 and in one instance, may have been assaulted by alleged drug addicts.21 The complaint lacks any allegation of facts showing that such injury or 22damages could possibly be linked to any violation of the 1846 treaty. 23

///Again, 24plaintiff’s allegations lack the required specificity and any foundation25 in discernable logic. 26 27 28 1 IV.

2 CONCLUSION

For 3the foregoing reasons, the Court should dismiss Cardan’s FAC with prejudice 4for lack of subject matter jurisdiction and failure to state a claim upon5 which relief may be granted pursuant to Rules 12(b)(1) and (b)(6) of the Federal6 Rules of Civil Procedure. Dated: December __, 2000. 7 ALEJANDRO N. MAYORKAS 8 United States Attorney LEON W. WEIDMAN 9 Assistant United States Attorney Chief, Civil Division 10 11 ______12 JOHN E. NORDIN II Assistant United States Attorney 13 Assistant Chief, Civil Division Attorneys for Defendant 14 United States of America 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS 1 Page

I. INTRODUCTION2 ...... 2

II. STATEMENT3 OF FACTS...... 4

III. ARGUMENT4 ...... 5

A. This5 Action Must Be Construed to be Based on the Administrative Procedure Act and Governed by the Deferential6 Standard Employed Thereunder...... 5

B. Cardan7 Has Not Alleged Any Personal Connection to the Panama Canal or to Colombia, Therefore, He Lacks Standing...7 8 C. The United States Has Already Returned the Canal to Panama,9 Therefore, this Action Is Moot...... 11

D. Even10 If Cardan Had Standing and the Action Were Not Moot, He Cannot State a Claim for Relief Because11 the Relinquishment of the Canal Was Consistent with Law...... 12 12 5. Plaintiff has Failed to State a Racketeering, Extortion Conspiracy,13 Civil Rights, Tort,or Other Claim...... 15

IV. CONCLUSION14 ...... 17 15 TABLE OF AUTHORITIES 16 FEDERAL CASES 17 Page Air 18Courier Conference of America v. American Postal Workers' Union, 498 19U.S. 517, 111 S. Ct. 913, 112 L. Ed. 2d 1125 (1991) ...... 9 20 Califano v. Sanders, 430 21U.S. 99, 97 S. Ct. 980, 51 L. Ed. 2d 192 (1977)...... 6 22 Camp v. Pitts, 411 23U.S. 138, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973) ...... 6 24 Capitol Industries-EMI, Inc. v. Bennett, 681 25F.2d 1107 (9th Cir. 1982) ...... 8

Florida26 Manufactured Housing Association 27 28 v. Cisneros, 53 F.3d 1565 (11th Cir. 1995) ...... 6 1 Goldstar (Panama) S.A. v. U.S., 967 2F.2d 965 (4th Cir. 1992) ...... 12

Kisser3 v. Cisneros, 14 F.3d 615 (D.C. Cir. 1994) ...... 6 4 Louisiana v. Verity, 853 5F.2d 322 (5th Cir. 1988) ...... 7

Lujan6 v. National Wildlife Federation, 497 U.S. 871, 110 S. Ct. 3177, 111 7L. Ed. 2d 695 (1990) ...... 9

Lujan8 v. National Wildlife Federation, 504 U.S. 555, 112 S. Ct. 2130, 119 9L. Ed. 2d 351 (1992) ...... 10

Matta-Ballesteros10 v. Henman, 896 F.2d 255 (7th Cir. 1990) ...... 13 11 More v. Intelcom Support Services, Inc., 960 12F.2d 466 (5th Cir. 1992) ...... 12

Morris13 v. U.S., 521 F.2d 872 (9th Cir. 1975) ...... 5 14 Natural Resources Defense Council v. Patterson15 ,791 F. Supp. 1425 (E.D.Cal. 1992), aff'd., 146 F.3d 1118 (9th Cir. 1998) ...... 9 16 O'Donnell v. Wien Air Alaska, Inc., 551 17F.2d 1141 (9th Cir. 1977) ...... 10

Preferred18 Risk Mutual Insurance Co. v. U.S., 86 F.3d 789 (8th Cir. 1996), cert. den., 117 19S.Ct. 1245 (1997) ...... 4

Shaw20 v. Hahn, 56 F.3d 1128 (9th Cir.), cert. denied, 116 21S.Ct. 418 (1995) ...... 11

Sierra22 Club v. Morton, 405 U.S. 727, 92 S. Ct. 1361, 31 L.23 Ed. 2d 636 (1972) ...... 7

Stehney24 v. Perry, 907 F. Supp. 806 (D.N.J. 1995), aff'd, 101 25F.3d 925 (3rd Cir. 1996) ...... 6

U.S.26 v. Alpine Land and Reservoir Co., 27 28 887 F.2d 207 (9th Cir. 1989), cert. denied, 498 1U.S. 817 (1990) ...... 7

U.S.2 v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 93 S.3 Ct. 2405, 37 L. Ed. 2d 254 (1973)...... 7

U.S.4 v. Testan, 424 U.S. 392, 96 S. Ct. 948, 47 L.5 Ed. 2d 114 (1976) ...... 5

6 FEDERAL STATUTES & RULES

5 U.S.C.7 §§ 551, et seq., ...... 5

5 U.S.C.8 § 701, et seq.,...... 5

5 U.S.C.9 § 702, ...... 4,5

5 U.S.C.10 § 704 ...... 6

5 U.S.C.11 § 706(2)(A) ...... 6

28 U.S.C.12 § 1331 ...... 5

28 U.S.C.13 §§ 1346(b)& 2671 et seq...... 16

28 U.S.C.14 § 2675(a)...... 16 Fed. R. Evid. 201...... 11 15 16 17 18 19 20 21 22 23 24 25 26 27 28