Catholic Answers, Inc. v. United States

Jun 21, 2011
09-56926
Versions:

have passed since the alien‘s last departure and if the alien obtains the Secretary of the Department of Homeland Security‘s consent to reapply for admission before reentering the United States.

In light of our decision in Carrillo de Palacios v. Holder, 651 F.3d 969 (9th Cir. 2011), filed this date, Petitioner is not entitled to a waiver of inadmissibility—nunc pro tunc or otherwise—because, although 10 years have elapsed since she last departed the United States, she did not remain outside the United States for at least 10 years before reentry. We therefore deny the petition.

Petition DENIED.

James Bopp, Jr., Esquire, Scott F. Bieniek, Barry A. Bostrom, Bopp, Coleson & Bostrom, Terre Haute, IN, Charles S. Limandri, Esquire, Law Offices of Charles S. Limandri, Rancho Santa Fe, CA, for Plaintiffs-Appellants.

Jeremy Hendon, U.S Department Of Justice, Regina S. Moriarty, Kenneth Greene, Esquire, Supervisory, Gilbert Steven Rothenberg, Esquire, Deputy Assistant Attorney General, U.S. Department of Justice, Tax Division/Appellate Section, Washington, DC, for Defendant-Appellee.

Before: NOONAN and WARDLAW, Circuit Judges, and KORMAN, Senior District Judge.*

MEMORANDUM **

Catholic Answers, a 26 U.S.C. § 501(c)(3) nonprofit organization, and Karl Keating, its president, appeal the district court‘s Federal Rule of Civil Procedure 12(b)(1) dismissal of their suit seeking a tax refund and declaratory judgment.

Catholic Answers seeks a refund of money the IRS already had tendered to the organization prior to the filing of this suit, and a declaratory judgment that sections of the tax code and implementing regula-tions are void for vagueness. The district court dismissed the case on various grounds including mootness.

This suit is moot. There is no relief that this court could grant. The tax paid has already been abated. The Declaratory Judgment Act grants federal courts jurisdiction to declare the rights and relations of interested parties “except with respect to Federal taxes.” 28 U.S.C. § 2201. The doctrine of variance precludes Catholic Answers’ First Amendment claims. See 26 C.F.R. § 301.6402-2(b)(1).

Moreover, the district court was correct that this case does not fall into the exception to mootness for cases capable of repetition, yet evading review. This set of facts may be capable of repetition, given Catholic Answers’ assertion that it will engage in similar political speech in the future. See FEC v. Wis. Right to Life, Inc., 551 U.S. 449, 463-64, 127 S.Ct. 2652, 168 L.Ed.2d 329 (2007). However, should this set of facts recur, the case will not evade review because it will be clear then, while it is not now, that the IRS has intentionally maneuvered to avoid judicial scrutiny and will not be permitted to engage in evasion of this kind.

For the reasons stated, the judgment of the district court is AFFIRMED.

Notes

*
The Honorable Edward R. Korman, Senior District Judge for the U.S. District Court for Eastern New York, Brooklyn, sitting by designation.
**
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.