ALEJANDRO N. MAYORKAS

United States Attorney

LEON W. WEIDMAN

Assistant United States Attorney

Chief, Civil Division

JOHN E. NORDIN II (No. 049680)

Assistant United States Attorney

Assistant Chief, Civil Division

Room 7516 Federal Building

300 North Los Angeles Street

Los Angeles, California 90012

Telephone: (213) 894-3552

Facsimile: (213) 894-7819

Attorneys for Defendant

United States of America

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

WESTERN DIVISION

CYRUS CARDAN, individually ) Case No. CV99-13570-WJR(MANx)

and on behalf of his former )

public utility telephone ) (1) NOTICE OF MOTION AND MOTION corporation:
PTT ) TO DISMISS FIRST AMENDED

Telecommunications; and all ) COMPLAINT; AND

those similarly situated, )

) (2) MEMORANDUM OF POINTS AND

> Plaintiffs, ) AUTHORITIES IN SUPPORT
>
> ) THEREOF
>
> v\. )
>
> ) Date: January 15, 2001

UNITED STATES OF AMERICA, )

BILL CLINTON, WILLIAM S. ) Time: 10:00 a.m.

COHEN, JANET RENO, JIMMY )

CARTER, ESTATE OF THEODORE ) Place: William J. Rea, Crt. 10

ROOSEVELT, LOUIS CALDERA, )

MARKOS K. MARINAKIS, FERNANDO )

CARDOZE, ALBERT H. NAHMAD )

EMANUEL GONZALEZ-REVILLA, )

CLIFFORD B. O'HARA, MOISES D. )

MIZRACHI, VINCE RYAN, )

JORGE E. RITTER, ALBERTO )

ALEMAN ZUBIETA, JOSEPH W. )

CoRNELISON, WILLIAM J. )

CONNOLLY, DOES 1-100, )

INCLUSIVE, )

> )
>
> [Defendants.]{.underline} )

**[NOTICE OF MOTION AND MOTION DISMISS FIRST AMENDED
COMPLAINT]{.underline}**

PLEASE TAKE NOTICE that on January 15, 2001, at 10:00 a.m., or as soon
thereafter as the parties may be heard, in the courtroom of the
Honorable William J. Rea, United States District Judge, located at the
United States Courthouse, 312 North Spring Street, Los Angeles,
California, Defendant United States of America will and hereby does move
this Court to dismiss the First Amended Complaint pursuant to Rules
12(b)(1) and (b)(6) of the Federal Rules of Civil Procedure.

This Motion is based on the grounds that the Court lacks subject matter
jurisdiction over the claims alleged and that the First Amended
Complaint fails to state a claim upon which relief may be granted. This
Motion is based on this Notice and Motion, the attached Memorandum of
Points and Authorities, and upon such other matters as may be presented
to the Court.

**[Pre-filing Conference]{.underline}:** Because plaintiff is proceeding
*pro se*, this motion is exempt from the requirement of a pre‑filing
conference of counsel under Local Rules 6.10 & 7.4.1.

Dated: December , 2000.

ALEJANDRO N. MAYORKAS

United States Attorney

LEON W. WEIDMAN

Assistant United States Attorney

Chief, Civil Division

\_\_\_\_

JOHN E. NORDIN II

Assistant United States Attorney

> Assistant Chief, Civil Division

Attorneys for Defendant

United States of America

[**MEMORANDUM OF POINTS AND AUTHORITIES** **IN SUPPORT OF MOTION TO
DISMISS FIRST AMENDED COMPLAINT**]{.underline}

**I.**

#  INTRODUCTION

Defendant United States of America[^1] hereby dismiss the First Amended
Complaint ("FAC") filed by Plaintiff Cyrus Cardan ("Cardan"), pursuant
to Rules 12(b)(1) and (b)(6) of the Federal Rules of Civil Procedure
because the Court lacks subject matter jurisdiction over the claims
asserted in the FAC and the FAC fails to state a claim upon which relief
may be granted.

Cardan does not allege that the transfer of the Panama Canal to Panama
will cause him any injury-in-fact, nor that he falls within the zone of
interests protected by the treaty he cites, therefore, he lacks standing
to maintain this action. In addition, to the extent that plaintiff still
seeks to block the transfer of the Canal, a claim which may have been
abandoned, this action would be moot, as the United States returned the
Canal to Panama on December 31, 1999. Furthermore, even if Cardan could
overcome these threshold jurisdictional defects, his FAC would be
subject to dismissal for failure to state a claim upon which relief may
be granted because there is no private right of action to enforce terms
of the treaty cited as it has been superseded by a later treaty between
the United States and Colombia.

Cardan styles the FAC as a verified complaint based upon racketeering,
extortion, fraud and deceit, civil conspiracy, negligence, violation of
the covenant of good faith and fair dealing, violation of Article VI,
Section 2 of the United States Constitution, and an unspecified
violation of his civil rights. However, he does not allege a waiver of
sovereign immunity,[^2] nor does he state facts sufficient to state a
claim with regard to such causes of action. For example, he claims that
the violation of the 1846 New Granada Treaty by "defendant was a
barbaric act of racketeering and extortion under the color of
defendants' military authority, and a conspiracy to defraud the Republic
of Colombia\...." That appears to be the most specific allegation
contained in the First Amended Complaint. FAC 5. There appear to be no
specific allegations regarding any other claims.

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

Cardan apparently seeks damages as well as, "a jury trial\...to try and
investigate the facts of this case,\..." FAC 6. Finally, Cardan appears
to have added a new plaintiff, PTT Telecommunications, in violation of
Fed.R.Civ.P. 14(b). The relationship of that new plaintiff to the new
claims alleged is not specified in the body of the FAC.

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

For all of these reasons, the FAC should be dismissed with prejudice as
plaintiff cannot allege a claim upon which relief could be granted.

**II.**

**STATEMENT OF FACTS**

In 1846, the United States and New Granada, which later became the
nation of Colombia, signed a treaty which recognized the sovereignty of
New Granada over the Panamanian Isthmus. FAC at 4-5; [see
also]{.underline} Original Complaint at 5 & 7.[^3] A portion of the
nation of Colombia located on the Isthmus declared independence in 1903
and became the nation of Panama. [See]{.underline} Complaint at 2. The
United States then constructed the Panama Canal across the Isthmus.
[Id.]{.underline} In 1914, the United States and Colombia signed a
treaty which recognized the title of the United States to the Canal,
granted Colombia with certain rights regarding the Canal, and provided
for a \$25,000,000 payment by the United States to Colombia. Exhibit 1
attached hereto, Treaty Between the United States of America and the
Republic of Colombia For the Settlement of Their Differences Arising out
of the Events Which Took Place on the Isthmus of Panama in November 1903
signed April 6, 1914 (the "1914 Treaty"). The United States signed a
treaty with Panama in 1977 which provided that the Canal would be turned
over to Panama by the United States on December 31, 1999.
[See]{.underline} Complaint at 3. The Canal was in fact transferred to
Panama on December 31, 1999. Exhibit 2 attached hereto, Information
Bulletin.

**III.**

**ARGUMENT**

**A. [This Action Must Be Construed to be Based on the Administrative
Procedure Act and Governed by the Deferential Standard Employed
Thereunder.]{.underline}**

Although Cardan does not cite it in the FAC, it is apparent that his
action may be asserted, if at all, only under the Administrative
Procedure Act ("APA"), 5 U.S.C. §§ 551, [et seq.]{.underline}, 701, [et
seq.]{.underline} One defendant is the United States, which may be sued
only if Congress has waived sovereign immunity, [U.S. v.
Testan]{.underline}, 424 U.S. 392, 399, 96 S.Ct. 948, 47 L.Ed.2d 114
(1976), [Morris v. U.S.]{.underline}, 521 F.2d 872, 874 (9th Cir. 1975).
The APA waives sovereign immunity to allow a person to obtain judicial
review of a final action of the federal government. 5 U.S.C. § 702;
[see]{.underline} [Preferred Risk Mut. Ins. Co. v. U.S.]{.underline}, 86
F.3d 789, 792 (8th Cir. 1996), [cert.]{.underline} [den.]{.underline},
117 S.Ct. 1245 (1997). However, the APA is not a grant of subject matter
jurisdiction. [Id.]{.underline} at 792. Instead, jurisdiction in an APA
case is derived from 28 U.S.C. § 1331, because a suit seeking judicial
review under the APA arises under federal law. [Id.]{.underline},
[citing]{.underline} [Califano v. Sanders]{.underline}, 430 U.S. 99,
107, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). The APA waives sovereign
immunity and provides a cause of action for nonmonetary relief and a
standard for review of final agency action. 5 U.S.C. § 702, 704,
706(2)(A); [see]{.underline} [Camp v. Pitts]{.underline}, 411 U.S. 138,
140 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973).

Cardan's citation of the Supremacy Clause does not provide a
jurisdictional basis for his action. The provisions of the Constitution
do not create a private right of action nor do they waive sovereign
immunity. [See]{.underline} [Stehney v. Perry]{.underline}, 907 F.Supp.
806, 819 (D.N.J. 1995), [aff'd]{.underline}, 101 F.3d 925 (3rd Cir.
1996). Neither the Supremacy Clause, nor anything else cited by Cardan
provides a waiver of sovereign immunity for this action. As the APA is
the only waiver for a claim that a federal action should be set aside as
contrary to law, the only proper basis for his action would be the APA.
5 U.S.C. § 706(2)(A). Accordingly, Cardan's lawsuit should be deemed to
be an APA action.

Review of agency action under the APA is highly deferential and the
agency's action is entitled to a presumption of validity. [Florida
Manufactured Housing Ass'n v. Cisneros]{.underline}, 53 F.3d 1565, 1572
(11th Cir. 1995); [Kisser v. Cisneros]{.underline}, 14 F.3d 615, 618
(D.C. Cir. 1994). Of all standards of review, the one provided by the
APA gives a court the least latitude.
[See]{.underline} [id.]{.underline}; [see]{.underline}
[also]{.underline} [Louisiana v. Verity]{.underline}, 853 F.2d 322, 327
(5th Cir. 1988)(scope of APA review is very narrow);
[accord]{.underline} [U.S. v. Alpine Land and Reservoir
Co.]{.underline}, 887 F.2d 207, 213 (9th Cir. 1989), [cert.
denied]{.underline}, 498 U.S. 817 (1990).

2.  [Cardan Has Not Alleged Any Personal Connection to the Panama Canal
    or to Colombia, Therefore, He Lacks Standing.]{.underline}

Cardan lacks standing to maintain this action because he has not set
forth any personal connection to the Panama Canal or to the nation of
Colombia, therefore, the Court lacks subject matter jurisdiction over
the Complaint. The Supreme Court has held that an APA plaintiff has
standing to sue under Section 702 only if the challenged governmental
action (1) caused the plaintiff injury-in-fact, and (2) the injury was
to an interest arguably within the zone of interests to be protected or
regulated by the law that plaintiff claims that the government has
violated. [U.S. v. Students Challenging Regulatory Agency Procedures
(SCRAP)]{.underline}, 412 U.S. 669, 686, 93 S.Ct. 2405, 37 L.Ed.2d 254
(1973), [citing]{.underline} [Sierra Club v. Morton]{.underline}, 405
U.S. 727, 733, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). The second prong of
the foregoing analysis is referred to as the "zone of interests" test.
[See]{.underline} [Sierra Club]{.underline}, 405 U.S. at 733, n.5.

Cardan cannot satisfy either prong of this test because he has not
alleged that he has been injured in any manner that is particular to him
nor has he shown that he is within the relevant zone of interest. The
gravamen of Cardan's FAC is that the transfer of the Panama Canal by the
United States to Panama is a violation of the December 12, 1846 Treaty
of Peace, Amity, Navigation, and Commerce between Colombia (which was
then called New Granada) and the United States (the "1846 Treaty"). FAC
at 4-5; [See]{.underline} [also]{.underline} Original Complaint at 2-3,
5-10. The area that is now the nation of Panama was, prior to the
construction of the Canal, a part of Colombia. FAC at 3-5. In 1903,
Panama declared its independence from Colombia and the United States
proceeded to construct the Canal in Panama. Original Complaint at 2.
Cardan alleges that the acquisition of the Canal by the United States
was illegal because it purportedly violated several provisions of the
1846 Treaty. [Id.]{.underline} Because the Canal allegedly was not
obtained in a legitimate manner, Cardan contends that the September 7,
1977 Panama Canal Treaty, which required the United States to transfer
the Canal to Panama on December 31, 1999, lacked a legal basis.
Complaint at 2-3; FAC at 3-5. As a result, Cardan asserts that it is
unlawful for the United States to return the Canal to Panama.
[See]{.underline} [also]{.underline} FAC at 3-5; Complaint at 3-4.

It is apparent from the foregoing review that Cardan's action asserts an
alleged injury to Colombia or to Colombian citizens. Cardan contends
that the United States is transferring or did transfer territory (i.e.,
the Canal) to Panama over which Colombia should have sovereignty.
[See]{.underline} [also]{.underline} FAC at 4; Complaint at 4. However,
Cardan does not allege that he has any relationship with Colombia such
that an alleged injury to Colombia would have any personal effect on
him. Cardan acknowledges that he is a citizen of the United States, not
Colombia. FAC at 4-5. Cardan resides in California. FAC at 1 (setting
forth Cardan's address in Los Angeles, California). Nowhere does Cardan
show that he has any connection with Colombia. Therefore, even if it
were assumed *arguendo* that Cardan was correct in his assertion that
the transfer of the Canal to Panama was harmful to Colombia, he has not
shown that this would result in any injury to him. The allegation of
solicitation and assault by unnamed drug addicts cannot be shown to be
proximately caused by any act or omission of any defendant. Accordingly,
Cardan fails to satisfy the requirement of an injury-in-fact to himself
and, as a result, he lacks standing.

In addition, Cardan cannot establish standing because he has not shown
that he is within the relevant zone of interest. In order to assess
whether an APA plaintiff falls within the zone of interest so as to have
standing, a court must determine which law's violation forms the basis
of the complaint. [See]{.underline} [Air Courier Conference of America
v. American Postal Workers' Union]{.underline}, 498 U.S. 517, 529-30,
111 S.Ct. 913, 112 L.Ed.2d 1125 (1991); [Lujan v. Nat'l Wildlife
Fed'n]{.underline}, 497 U.S. 871, 886, 110 S.Ct. 3177, 111 L.Ed.2d 695
(1990) ("[Lujan I]{.underline}"); [cf.]{.underline} [Natural Resources
Defense Council v. Patterson]{.underline}, 791 F.Supp. 1425, 1429-30
(E.D.Cal. 1992), [aff'd.]{.underline}, 146 F.3d 1118 (9th Cir.
1998)(court first must determine which statute is violated before
considering whether plaintiff's interests are within zone). As explained
above, the alleged violation of the 1846 Treaty apparently forms the
basis of Cardan's Complaint. That treaty was intended to promote
commerce and navigation between Colombia and the United States.
[See]{.underline} Original Complaint, Exhibit 10, 1846 Treaty, at 1.[^4]
Cardan's Complaint does not show that Cardan has any personal stake in
those interests which were to be advanced by the 1846 Treaty. On the
contrary, Cardan appears to have no connection to the relationship
between the United States and Colombia that is any different than the
general interest that any American citizen has in the lawful conduct of
affairs by the United States. However, such a general interest by a
citizen in lawful governance has been consistently held by the Supreme
Court not to be sufficient to support standing. [Lujan v. Nat'l Wildlife
Fed'n]{.underline}, 504 U.S. 555, 573, 112 S.Ct. 2130, 119 L.Ed.2d 351
(1992)("[Lujan II]{.underline}") (no standing to assert a claim only of
harm to the interest of the plaintiff and every other citizen in the
proper application of the Constitution and the laws which seeks relief
that does not benefit plaintiff more than the public at large). As
Cardan has not shown any injury-in-fact proximately caused by the
actions of any defendant, or that he falls within the zone of interest
protected by the 1846 Treaty, he cannot establish that he has standing.

Standing is a necessary prerequisite to federal court jurisdiction.
[Id.]{.underline} at 561. Because Cardan cannot show that he has
standing to bring this action, the Court lacks subject matter
jurisdiction over it. [Id.]{.underline} Therefore, the FAC should be
dismissed pursuant to Rule 12(b)(1) of the Federal Rules of Civil
Procedure.

3.  [The United States Has Already Returned the Canal to Panama,
    Therefore, this Action Is Moot.]{.underline}

Cardan's incorporation of the original complaint into the FAC by
reference suggests that he may still be attempting to rescind the
transfer of the Canal. If so, in addition to lacking standing, such
claims would be barred as moot. As Cardan pointed out in the FAC, the
United States was scheduled to transfer the Canal to Panama on December
31, 1999 in accordance with the 1977 Panama Canal Treaty. FAC at 3.
Pursuant to this arrangement, the Canal was indeed turned over to Panama
on December 31, 1999. [See]{.underline} Ex. 2, Information Bulletin
(stating that, at noon on December 31, 1999, the United States
Government transferred the Canal and related real property to the
Republic of Panama, thereby "complet\[ing\] the total and absolute
transfer of the Panama Canal"); Fed. R. Evid. 201 (court may take
judicial notice of matters not subject to dispute); [Shaw v.
Hahn]{.underline}, 56 F.3d 1128, 1129, n.1 (9th Cir.),
[cert.]{.underline} [den.]{.underline}, 116 S.Ct. 418 (1995) (court may
take judicial notice of official records of public action).

This action was intended to prevent the return of the Panama Canal to
Panama by the United States. [See]{.underline} Complaint at 3-4.
Plaintiff now apparently seeks to also recover damages based on such
transfer. FAC at 6. However, the United States has now taken the action
(i.e., transferring the Canal) which Cardan sought to block. Because the
United States has relinquished control over the Canal, it is no longer
possible for the resolution of this action to have any impact on the
status of the Canal. Therefore, this case would be moot to the extent
that plaintiff seeks to prevent or rescind the transfer of the canal.
[See]{.underline} argument in Motion to Dismiss, filed November 6, 2000.

4.  [Even If Cardan Had Standing and the Action Were Not Moot, He Cannot
    State a Claim for Relief Because the Relinquishment of the Canal Was
    Consistent with Law.]{.underline}

Even if it were assumed *arguendo* that Cardan could overcome the
threshold jurisdictional hurdles of standing and mootness, his Complaint
would nevertheless be subject to dismissal for failure to state a claim.
Cardan cannot state a cognizable claim that the transfer of the Canal is
unlawful for two reasons: (1)

as an individual, he does not have a private right of action to enforce
terms of an international treaty, and (2) the provisions of the 1846
Treaty upon which Cardan relies were superseded by a later treaty
between the United States and Colombia. It has been widely recognized
that international treaties do not create a private right of action in
the absence of an express provision therefor in the treaty. [Goldstar
(Panama) S.A. v. U.S.]{.underline}, 967 F.2d 965, 968 (4th Cir. 1992);
[More v. Intelcom Support Servs., Inc.]{.underline}, 960 F.2d 466, 469
(5th Cir. 1992); [Matta-Ballesteros v. Henman]{.underline}, 896 F.2d
255, 259 (7th Cir. 1990). Cardan does not allege that the 1846 Treaty
contains any provision for a private right of action. On the contrary,
it states that, if it is violated, the aggrieved nation shall present a
claim to the other nation. [See]{.underline} Original Complaint at 8. As
Cardan lacks a right of action to sue to enforce the 1846 Treaty, he
cannot state a claim upon which relief may be granted.

Furthermore, even if it were assumed *arguendo* that Cardan could have a
right of action, his FAC should be dismissed nevertheless because the
1846 Treaty was superseded by a later treaty between the United States
and Colombia. In 1914, the two nations signed a "Treaty. . .For the
Settlement of Their Differences Arising out of the Events Which Took
Place on the Isthmus of Panama in November 1903\". [See]{.underline} Ex.
1, 1914 Treaty.[^5] The 1914 Treaty states that it is intended "to
define and regulate the\[\] rights and interests \[of the United States
and Colombia\] in respect of the interoceanic canal which the Government
of the United States has constructed across the Isthmus of Panama".
[Id.]{.underline} at 1. It is apparent therefore that the 1846 Treaty
relied upon by Cardan no longer governs the relations of the United
States and Colombia in regard to the Canal and that the nations chose to
supersede the provisions of the 1846 Treaty with a new agreement.

In addition, the 1914 Treaty set forth the "rights in respect to the
interoceanic Canal" which "shall be enjoyed" by Colombia, which did not
include the right of sovereignty which is asserted by Cardan. Ex. 1 at
2. Furthermore, the 1914 Treaty precluded any assertions, such as that
asserted by Cardan, that Colombia retained a claim to the Canal, by its
express acknowledgment that "the title to which \[i.e.,the Canal\] is
now vested entirely and absolutely in the United States of America,
without any encumbrances or indemnities whatever." [Id.]{.underline} The
1914 Treaty also provided for a payment by the United States to Colombia
of \$25,000,000, presumably in compensation for and settlement of any
claims Colombia had in regard to the Canal. [Id.]{.underline} at 3. In
view of these provisions, it is apparent that the United States'
disposition of the Canal in the 1977 Panama Canal Treaty and return of
the Canal to Panama were not unlawful.

As Cardan does not have a private right of action to enforce treaty
terms, the treaty upon which he relies has been superseded, and the
alleged claim of Colombia to the Canal which Cardan purports to assert
was resolved by the 1914 Treaty, his FAC fails to state a cognizable
claim for relief. Therefore, it should be dismissed pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure.

> **E. [Plaintiff has Failed to State a Racketeering, Extortion,
> Conspiracy, Civil Rights, Tort, or Other Claim]{.underline}.**

Plaintiff styled the FAC as based upon racketeering, extortion, fraud
and deceit, civil conspiracy, negligence, violation of the covenant of
good faith and fair dealing, violation of Article VI, Section 2 of the
United States Constitution, and unspecified violation of civil rights.
However, it appears that plaintiff has simply listed such claims in the
title of the FAC. There are no specific factual allegations regarding
such claims in the body of the FAC. Indeed, most of the claims are not
mentioned in the body of the FAC. As noted above, the most specific such
allegation to be found in the FAC is the claim that the violation of the
1846 New Granada Treaty by defendant was a barbaric act of racketeering
and extortion under the color of defendants' military authority, and the
conspiracy to defraud the Republic of Colombia\..." There are no
specific allegations regarding what activity constituted racketeering,
extortion, or any other wrongful act. Similarly, there are no specific
allegations of any meeting of the minds, or actions taken in furtherance
of a conspiracy. There are no specific allegations regarding which
defendants were guilty of any act or omission. Indeed, plaintiff does
not identify the numerous defendants.

Plaintiff does not allege any basis for jurisdiction over such claims,
nor any specific statutory basis for such claims. If plaintiff seeks to
allege common-law torts committed by an employee of the United States,
such claims would fall under the purview of the Federal Tort Claims Act,
28 U.S.C. §§ 1346(b) & 2671. However, such claims would be barred as
plaintiff has not alleged that he submitted an administrative tort claim
to the appropriate government agency as required by 28 U.S.C § 2675(a).

Finally, the FAC lacks any allegation of any injury or damage
proximately caused by the United States or by any other defendant.
Plaintiff apparently asserts that due the alleged violation of the 1846
New Granada Treaty, he was solicited on unspecified occasions by unnamed
drug "addicts" seeking donations, and in one instance, may have been
assaulted by alleged drug addicts. The complaint lacks any allegation of
facts showing that such injury or damages could possibly be linked to
any violation of the 1846 treaty.

///Again, plaintiff's allegations lack the required specificity and any
foundation in discernable logic.

**IV.**

**CONCLUSION**

For the foregoing reasons, the Court should dismiss Cardan's FAC with
prejudice for lack of subject matter jurisdiction and failure to state a
claim upon which relief may be granted pursuant to Rules 12(b)(1) and
(b)(6) of the Federal Rules of Civil Procedure.

Dated: December \_\_, 2000.

ALEJANDRO N. MAYORKAS

United States Attorney

LEON W. WEIDMAN

Assistant United States Attorney

Chief, Civil Division

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

JOHN E. NORDIN II

Assistant United States Attorney

> Assistant Chief, Civil Division

Attorneys for Defendant

United States of America

[TABLE OF CONTENTS]{.underline}

[Page]{.underline}

I. INTRODUCTION 2

II\. STATEMENT OF FACTS 4

III\. ARGUMENT 5

A. [This Action Must Be Construed to be Based on the Administrative
Procedure Act and Governed by the]{.underline}

[Deferential Standard Employed Thereunder.]{.underline} 5

B. [Cardan Has Not Alleged Any Personal Connection to]{.underline}

[the Panama Canal or to Colombia, Therefore, He Lacks]{.underline}
[Standing.]{.underline} 7

C. [The United States Has Already Returned the Canal]{.underline}

[to Panama, Therefore, this Action Is Moot.]{.underline} 11

D. [Even If Cardan Had Standing and the Action Were]{.underline}

[Not Moot, He Cannot State a Claim for Relief]{.underline}

[Because the Relinquishment of the Canal Was]{.underline}

[Consistent with Law.]{.underline} 12

5.  

> [Plaintiff has Failed to State a Racketeering, ExtortionConspiracy,
> Civil Rights, Tort,or Other Claim]{.underline} 15

IV\. CONCLUSION 17

TABLE OF AUTHORITIES

FEDERAL CASES

> [Page]{.underline}
>
> [Air Courier Conference of America v.]{.underline}
>
> [American Postal Workers\' Union]{.underline},
>
> 498 U.S. 517, 111 S. Ct. 913,
>
> 112 L. Ed. 2d 1125 (1991) 9
>
> [Califano v. Sanders]{.underline},
>
> 430 U.S. 99, 97 S. Ct. 980, 51 L. Ed. 2d
>
> 192 (1977). 6
>
> [Camp v. Pitts]{.underline},
>
> 411 U.S. 138, 93 S.Ct. 1241, 36 L.Ed.2d 106
>
> \(1973\) 6
>
> [Capitol Industries-EMI, Inc. v. Bennett]{.underline},
>
> 681 F.2d 1107 (9th Cir. 1982) 8
>
> [Florida Manufactured Housing Association]{.underline}
>
> [v. Cisneros]{.underline}, 53 F.3d 1565 (11th Cir. 1995) 6
>
> [Goldstar (Panama) S.A. v. U.S.]{.underline},
>
> 967 F.2d 965 (4th Cir. 1992) 12
>
> [Kisser v. Cisneros]{.underline},
>
> 14 F.3d 615 (D.C. Cir. 1994) 6
>
> [Louisiana v. Verity]{.underline},
>
> 853 F.2d 322 (5th Cir. 1988) 7
>
> [Lujan v. National Wildlife Federation]{.underline},
>
> 497 U.S. 871, 110 S. Ct. 3177,
>
> 111 L. Ed. 2d 695 (1990) 9
>
> [Lujan v. National Wildlife Federation]{.underline},
>
> 504 U.S. 555, 112 S. Ct. 2130,
>
> 119 L. Ed. 2d 351 (1992) 10
>
> [Matta-Ballesteros v. Henman]{.underline},
>
> 896 F.2d 255 (7th Cir. 1990) 13
>
> [More v. Intelcom Support Services, Inc.]{.underline},
>
> 960 F.2d 466 (5th Cir. 1992) 12
>
> [Morris v. U.S.]{.underline},
>
> 521 F.2d 872 (9th Cir. 1975) 5
>
> [Natural Resources Defense Council v.]{.underline}
>
> [Patterson]{.underline},791 F. Supp. 1425 (E.D.Cal. 1992),
>
> [aff\'d.]{.underline}, 146 F.3d 1118 (9th Cir. 1998) 9
>
> [O\'Donnell v. Wien Air Alaska, Inc.]{.underline},
>
> 551 F.2d 1141 (9th Cir. 1977) 10
>
> [Preferred Risk Mutual Insurance Co. v. U.S.]{.underline},
>
> 86 F.3d 789 (8th Cir. 1996), [cert.]{.underline} [den.]{.underline},
>
> 117 S.Ct. 1245 (1997) 4
>
> [Shaw v. Hahn]{.underline},
>
> 56 F.3d 1128 (9th Cir.), [cert.]{.underline} [denied]{.underline},
>
> 116 S.Ct. 418 (1995) 11
>
> [Sierra Club v. Morton]{.underline},
>
> 405 U.S. 727, 92 S. Ct. 1361,
>
> 31 L. Ed. 2d 636 (1972) 7
>
> [Stehney v. Perry]{.underline},
>
> 907 F. Supp. 806 (D.N.J. 1995), [aff\'d]{.underline},
>
> 101 F.3d 925 (3rd Cir. 1996) 6
>
> [U.S. v. Alpine Land and Reservoir Co.]{.underline},
>
> 887 F.2d 207 (9th Cir. 1989), [cert. denied]{.underline},
>
> 498 U.S. 817 (1990) 7
>
> [U.S. v. Students Challenging Regulatory]{.underline}
>
> [Agency Procedures (SCRAP)]{.underline}, 412 U.S. 669,
>
> 93 S. Ct. 2405, 37 L. Ed. 2d 254 (1973)\...\...\...\...\...7
>
> [U.S. v. Testan]{.underline},
>
> 424 U.S. 392, 96 S. Ct. 948,
>
> 47 L. Ed. 2d 114 (1976) 5

**FEDERAL STATUTES & RULES**

5 U.S.C. §§ 551, [et seq.]{.underline},
\...\...\...\...\...\...\...\...\... 5

5 U.S.C. § 701, [et
seq.]{.underline},\...\...\...\...\...\...\...\...\..... 5

5 U.S.C. § 702, \...\...\...\...\...\...\...\...\...\...\...\...4,5

5 U.S.C. § 704 \...\...\...\...\...\...\...\...\...\...\...\..... 6

5 U.S.C. § 706(2)(A) \...\...\...\...\...\...\...\...\...\..... 6

28 U.S.C. § 1331 \...\...\...\...\...\...\...\...\...\...\...\... 5

28 U.S.C. §§ 1346(b)& 2671 [et]{.underline}
[seq.]{.underline}\...\...\...\...\...\....16

28 U.S.C. § 2675(a)\...\...\...\...\...\...\...\...\...\..... 16

Fed. R. Evid. 201\...\...\...\...\...\...\...\...\...\...\...\...11

[^1]: ^?^ As far as government counsel is aware, the United States is
    the only defendant that has been served.

[^2]: ^?^ As, for example, the waiver of the Federal Tort Claims Act, 28
    U.S.C. 1346(b) & 2671 [et]{.underline} [seq]{.underline}. Indeed,
    the common-law tort claims are barred by plaintiff's failure to
    allege that he filed an administrative claim. 28 U.S.C. § 2675(a).

[^3]: ^?^ Plaintiff apparently incorporates the original complaint into
    the FAC in violation of Local Rule 3.8.2. FAC 4.

[^4]: ^?^ The copy of the FAC served on government counsel had no
    exhibits or attachments. Because this portion of defendants' Motion
    seeks dismissal pursuant to Rule 12(b)(1) for lack of subject matter
    jurisdiction, evidence outside of the Complaint and its attachments
    (such as the exhibits attached to this Motion) may be considered by
    the Court without converting it into a motion for summary judgment.
    [Capitol Industries-EMI, Inc. v. Bennett]{.underline}, 681 F.2d
    1107, 1118 (9th Cir. 1982). In fact, if jurisdiction is lacking, the
    Court cannot do anything but dismiss the action \-- it would lack
    the power to grant judgment for the moving party. [See]{.underline}
    [O'Donnell v. Wien Air Alaska, Inc.]{.underline}, 551 F.2d 1141,
    1145, n.4 (9th Cir. 1977). Furthermore, the Court is not required to
    accept plaintiff's allegations as true in regard 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 on a failure to state a claim
    pursuant to Rule 12(b)(6). [See]{.underline} [id.]{.underline}
    Accordingly, the Court is authorized to consider evidence that is
    pertinent to determining whether jurisdiction exits.
    [See]{.underline} [id.]{.underline}; [Capitol]{.underline}, 681 F.2d
    at 1118.

[^5]: ^?^Although a court considering a motion to dismiss for failure to
    state a claim under Rule 12(b)(6) (such as the portion of the United
    States' Motion which is being discussed here) is usually limited to
    consideration of the complaint and attachments thereto, when the
    material outside the complaint which is submitted is subject to
    judicial notice, the motion need not be converted into a motion for
    summary judgment under Rule 12(b)(6) of the Federal Rules of Civil
    Procedure. [Shaw v. Hahn]{.underline}, 56 F.3d at 1129, n.1. The
    1914 Treaty is an official record of public action, therefore, it is
    proper for the Court to take judicial notice of it. Fed. R. Evid.
    201. Accordingly, the 1914 Treaty may be considered in regard to
    this Motion without converting it into a motion for summary
    judgment.