The Council For Education v. California Attorney General et al

Filing 60

STIPULATION and ORDER 59 signed by Judge Frank C. Damrell, Jr., on 5/20/10: The proposed amended complaint 8 filed on 7/28/09 is ACCEPTED as of 7/28/09. The U.S. Dept of Education's motion to dismiss the claim against it for lack of jurisdi ction because of the anti-injunction provision in the Higher Education Act, 20 U.S.C. § 1082(a)(2), is GRANTED. The US' motion to dismiss for lack of subject matter jurisdiction, on behalf of the IRS, for lack of a waiver of sovereign immun ity under 26U.S.C. § 7408(a) and for pltfs' lack of standing to challenge a third-party organization'stax-exempt status, is GRANTED. The US' motion on behalf of the IRS to dismiss all remaining claims against the IRS for lack of s ubject matter jurisdiction, for failure to show an applicable waiver of sovereign immunity, is GRANTED. Because the Council for Education is now represented by counsel, the motion to dismiss it as a pltf for lack of counsel is WITHDRAWN. The amended complaint 8 is DISMISSED for the reasons stated in this Order. Pltf's 27 motion to recuse an Asst US Atty and award monetary sanctions is DENIED with prejudice. Pltfs have 30 days leave to amend. If pltfs do not file an amended complaint by the 30th day from the filing date of this order, without further order of the Court the action will be dismissed with prejudice as to the fed dfts. (Kastilahn, A)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

BENJAMIN B. WAGNER United States Attorney YOSHINORI H. T. HIMEL #66194 Assistant U. S. Attorney 501 I Street, Suite 10-100 Sacramento, California 95814 Telephone: [phone] Attorneys for Defendant U.S. DEPARTMENT OF EDUCATION

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA THE COUNCIL FOR EDUCATION, a nonprofit corporation, and HAROLD HUGGINS, Plaintiffs, v. U.S. DEPARTMENT OF EDUCATION and INTERNAL REVENUE SERVICES [sic], Defendants. The parties, through their undersigned counsel of record, and subject to the approval of the Court as provided for hereon, hereby stipulate as follows. 1. The "Proposed First Amended Complaint for a Notice of Claim of Unconstitutionality of State Law (Local Rule 24-132(b))," filed July 28 2009, Clerk's Record ("CR") 8, is ACCEPTED as of July 28, 2009. That complaint is the complaint before the Court. 2. The next five paragraphs dispose of the defendants' motion filed October 19 and November 4, 2009, CR 25-2 (points and authorities) and 27 (motion and exhibits), to dismiss the complaint now before the Court, CR 8. 3. The U.S. Department of Education's motion to dismiss the claim against it for lack of jurisdiction because of the anti-injunction provision in the Higher Education Act, 20 U.S.C. § 1082(a)(2), is GRANTED.
PARTIES' STIPULATION AND ORDER OF DISMISSAL WITH LIMITED LEAVE TO AMEND

2:09-cv-1503 FCD KJN PARTIES' STIPULATION AND ORDER OF DISMISSAL WITH LIMITED LEAVE TO AMEND

Page 1

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 above.

4. The United States' motion to dismiss for lack of subject matter jurisdiction, on behalf of the Internal Revenue Service, for lack of a waiver of sovereign immunity under 26 U.S.C. § 7408(a) and for plaintiffs' lack of standing to challenge a third-party organization's tax-exempt status, is GRANTED. 5. The United States' motion on behalf of the Internal Revenue Service to dismiss all remaining claims against the Internal Revenue Service for lack of subject matter jurisdiction, for failure to show an applicable waiver of sovereign immunity, is GRANTED. 6. Because the Council for Education now is represented by counsel, the motion to dismiss it as a plaintiff for lack of counsel is WITHDRAWN. 7. The complaint now before the Court, CR 8, is DISMISSED for the reasons stated

8. Plaintiffs' motion filed November 4, 2009, CR 30, to recuse an Assistant United States Attorney and award monetary sanctions including attorney's fees and expert witness's fees, based on an asserted conflict of interest and on the proposition that the motion to dismiss, CR 27, was frivolous, lacked merit, was extortion, and violated 42 U.S.C. § 1983, is DENIED WITH PREJUDICE. 9. The plaintiffs shall have 30 days' leave to amend. Should the plaintiffs amend, the defendants do not waive any possible ground for challenging the amended complaint. 10. If the plaintiffs do not file an amended complaint by the 30th day from the filing date of this order, without further order of the Court the action is DISMISSED WITH PREJUDICE as to the federal defendants. Dated: May 13, 2010 By: Dated: May 7, 2010 By: IVIE McNEILL & WYATT /s/ Rickey Ivie RICKEY IVIE BENJAMIN B. WAGNER United States Attorney /s/ Colin C. Sampson COLIN C. SAMPSON Trial Attorney, Tax Division Page 2

PARTIES' STIPULATION AND ORDER OF DISMISSAL WITH LIMITED LEAVE TO AMEND

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Dated: May 7, 2010 By:

BENJAMIN B. WAGNER United States Attorney /s/ Y H T Himel YOSHINORI H. T. HIMEL Assistant United States Attorney

ORDER It is APPROVED and SO ORDERED. DATED: May 20, 2010

_______________________________________ FRANK C. DAMRELL, JR. UNITED STATES DISTRICT JUDGE

PARTIES' STIPULATION AND ORDER OF DISMISSAL WITH LIMITED LEAVE TO AMEND

Page 3