From: Keith Henson <hkhenson@netcom11.netcom.com>
Subject: Re: Judge Ware rules in Henson/IRS case
Date: 1999/08/30
Message-ID: <7qd85f$ecm@dfw-ixnews11.ix.netcom.com>
References: <37c9cfa4.0@news2.lightlink.com>
Organization: Netcom
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User-Agent: tin/pre-1.4-19990517 ("Psychonaut") (UNIX) (SunOS/4.1.4 (sun4m))
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Zinj <zinjifar@i.am> wrote:
: Since keith's post seems to be disappearing when he sends it in I'll give it 
: a shot:

This one worked, and I get reports some earlier ones worked, but I can't 
see them on Netcom.

Here is the full text as well.  Keith Henson

        FILED AUG 20 1999
        RICHARD W. WIEKING
        CLERK, U.S. DISTRICT COURT

        NOT FOR PUBLICATION

  IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA


KEITH HENSON,                  NO. C 98-21290 JW
                               ORDER GRANTING
        Plaintiff              DEFENDANT'S MOTION TO
        V.                     DISMISS

INTERNAL REVENUE SERVICE,       docket no.8
        Defendant.



I. INTRODUCTION

        Defendant Internal Revenue Service ("IRS") filed a motion to
dismiss, and noticed the motion for hearing on July 19, 1999. The
Court finds it appropriate to take the motion tinder submission for
decision based on the papers filed by the parties, without oral
argument pursuant to Civil Local Rule 7-1(b)

II. BACKGROUND

        Plaintiff H Keith Henson alleges that the IRS conspired with
the Church of Scientology ("Church") and various Church related
entities to defraud the United States. More specifically Plaintiff
alleges that the IRS unlawfully executed a "closing agreement"
granting the Church tax exempt status.(1)  Plaintiff alleges that the
IRS' conduct violated the Establishment clause of the

**********Footnote 1

        Sections 7121 and 7122 of the Internal Revenue Code provide
that the Commissioner of Internal Revenue may enter into binding
contracts called "closing agreements" with taxpayers, covering
specific matters that may not be reopened unless there is fraud,
malfeasance or a misrepresentation of a material fact. In re
Spendthrift Forms, Inc., 931 F.2d 405,407 (6th Cir. l991).

**************end note

Constitution of the United States.

        Plaintiff alleges that he has special standing to bring this
action because the Church has allegedly "paid approximately one
million dollars collected as 'charitable donations' to harass
Plaintiff, up to and including physical attack, and for other purposes which
are clearly outside of the legislatively sanctioned uses of
'charitable donations."' First Amended Complaint, p.6. Plaintiff also
alleges that he has standing as a taxpayer to sue the IRS.

        Plaintiff asserts claims for violations of 42 U.S.C. Section 1985 and
1988, and conspiracy, Plaintiff also seeks declaratory and injunctive
relief against the IRS.

        The United States moves to dismiss the action, contending that
Plaintiff lacks standing, has failed to include an indispensable
party, namely the Church, and cannot demonstrate waiver of sovereign
immunity or that this Court otherwise has jurisdiction to hear this
matter.

III. STANDARDS

        Pursuant to Rule 12(b)(6), Fed.R.Civ.P., a complaint may be
dismissed for failure to state a claim upon which relief can be
granted. For purposes of evaluating a motion to dismiss, the complaint
is construed in the light most favorable to plaintiff and its
allegations are taken as true Abramson v. Brownstein, 897 F.2d 389
(9th Cir. 1990). Federal courts are particularly liberal in construing
complaints prepared by parties appearing pro se Hughes v. Rowe, 449
U.S. 5,9 (1980).  Such a complaint should not be dismissed under Rule
12(b)(6) unless "it appears beyond doubt that the plaintiff can prove
no set of facts in support of [his] claim which would entitle [him] to
relief." Id at 10.

IV. DISCUSSION

        As a threshold matter, Plaintiff has failed to establish that
the Court has jurisdiction over this case. Even if the Court could
exercise jurisdiction, the Court finds that Plaintiff lacks standing
to bring the present lawsuit. Article III of the Constitution confines
the federal courts to deciding actual 'cases" and "controversies."
Allen v. Wright, 468 U.S. 737, 751(1984). The requirement of standing
derives directly from this constitutional provision. Fulani v.
Bentsen, 35 F.3d 49 (2nd Cir. 1994). "It focusses upon the party seeking
to invoke federal jurisdiction, rather than the justiciability of the
issue at stake in the litigation." Fulani, 35 F.3d at 51, citing Flast
v. Cohen, 392 U.S. 83. 99)

2

*****page break

(1968). In order to have standing, a plaintiff must allege a personal
injury fairly traceable to the defendant's allegedly unlawful conduct
and likely to be redressed by the requested relief.  Allen v Wright,
468 U.S. at 751. A plaintiff must have suffered a distinct and
palpable injury to himself.  Fulani, 35 F.3d at 52. The injury must be
concrete and particularized to the plaintiff and not abstract,
conjectural, or hypothetical. Id.

        Plaintiff asserts standing generally as a "federal taxpayer,"
claiming the public treasury has been harmed because of the IRS. In
Flast, the Supreme Court held that a taxpayer will be a proper party to
allege the unconstitutionality only of exercises of congressional
power under the taxing and spending clause of Art. I, Section 8, of
the Constitution. Flast, 392 U.S. at 102. Second, the Supreme Court
required that the taxpayer "show that the challenged enactment exceeds
specific constitutional limitations upon the exercise of the taxing
and spending power." Id.

        Plaintiff has failed to satisfy both of the Flast
requirements. First, Plaintiff is not challenging congressional power,
but rather challenging an executive branch action, the IRS execution
of a closing agreement with the Church. Second, Plaintiff has failed to
show, and cannot show that the IRS' conduct exceeded constitutional
limitations.  Plaintiff has alleged that the IRS' conduct violated the
Establishment Clause of the Constitution. However, Plaintiff's
constitutional challenge is without merit in light of the Supreme
Court's holding in Hernandez V. Commissioner, 490 US 680 (1989).

        Plaintiff appears to argue in the alternative that he has
standing to assert his claims because the Church has used tax-exempt
funds to harass Plaintiff with lawsuits and pay private investigators
to attack his reputation and physically attack him while picketing.
However, these alleged injuries are not "traceable" to the IRS'
allegedly unlawful conduct. Furthermore, Plaintiff concedes that these
alleged injuries are not likely to be redressed in this action. See
Plaintiffs Brief, p.18. In other words, Plaintiff acknowledges that
even if he were to prevail in this litigation, Plaintiff would he
unable to stop the Church from continuing the alleged harmful conduct.
Therefore, the Plaintiff lacks standing.  See Allen v. Wright, 468 U.S.
at 751.

V. CONCLUSION
3
*******page break

        For the reasons set forth above, the IRS' motion to dismiss is
GRANTED with prejudice.

Dated: August 16, 1999

        JAMES WARE
United States District Judge