                                                                           FILED
                            NOT FOR PUBLICATION                             JUN 21 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



CATHOLIC ANSWERS, INC.; KARL                     No. 09-56926
KEATING,
                                                 D.C. No. 3:09-cv-00670-IEG-AJB
              Plaintiffs - Appellants,

  v.                                             MEMORANDUM *

UNITED STATES OF AMERICA,

              Defendant - Appellee.



                   Appeal from the United States District Court
                      for the Southern District of California
                 Irma E. Gonzalez, Chief District Judge, Presiding

                        Argued and Submitted May 4, 2011
                              Pasadena, California

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




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




                                           2
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.




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