* After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument. This order and judgment is not binding

precedent, except under the doctrines of law of the case, res judicata, and

collateral estoppel. It may be cited, however, for its persuasive value consistent

with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

FILED

United States Court of Appeals

Tenth Circuit

November 21, 2007

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

STACY UNDERWOOD,

Plaintiff-Appellant,

v.

UNITED STATES OF AMERICA,

Defendant-Appellee.

No. 07-2079

(D.C. No. CIV-06-824 RB/LFG)

(D. N.M.)

ORDER AND JUDGMENT*

Before KELLY, PORFILIO, and ANDERSON, Circuit Judges.

Plaintiff-appellant Stacy Underwood filed suit against the United States in

district court claiming a refund of FICA and Medicare taxes withheld from her

wages in 2003 and 2004, damages for unauthorized collection activities,

injunctive relief against collection, and requesting Internal Revenue Service

(“IRS”) documentation under the Freedom of Information Act (“FOIA”). The
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district court granted the government’s motion to dismiss, finding that it lacked

subject matter jurisdiction over plaintiff’s refund claim, damages claim, and

request for injunctive relief and holding that plaintiff’s FOIA claim was moot. 

The court denied plaintiff’s separate application for a preliminary injunction to

stop the government’s collection activities because she had failed to show a

substantial likelihood of success on the merits.

After this case was at issue on appeal, the government filed supplemental

authority informing the court that the IRS had abated the penalties assessed

against plaintiff and had issued her a refund for amounts already collected, plus

interest. Thus, the government argued, the case is moot. Plaintiff responded

contending that, while other issues may be moot, her claim for injunctive relief is

not because “the issue is subject to repetition, yet evading review.” Pl’s. Letter to

Court, Aug. 31, 2007, at 1. We disagree.

“In general a case becomes moot when the issues presented are no longer

live or the parties lack a legally cognizable interest in the outcome.” Murphy v.

Hunt, 455 U.S. 478, 481 (1982) (quotations omitted). An exception to this

general rule occurs in cases which are deemed to be “capable of repetition, yet

evading review.” Id. at 482 (quotation omitted). Application of this exception is

“limited to the situation where two elements combined: (1) the challenged action

was in its duration too short to be fully litigated prior to its cessation or

expiration, and (2) there was a reasonable expectation that the same complaining
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party would be subjected to the same action again.” Weinstein v. Bradford, 423

U.S. 147, 149 (1975). Neither of these conditions is present here.

Plaintiff hypothesizes that “nothing . . . would stop [the IRS] from

arbitrarily reversing its position once again (after this appeal), and start[ing] its

capricious collection actions once more.” Pl’s. Letter to Court, Aug. 31, 2007,

at 1. To invoke the exception to mootness, however, plaintiff must do more than

speculate about future possibilities. She must show a “‘reasonable expectation’”

or a “‘demonstrated probability’” that this same controversy, involving herself

and the government, will recur. Murphy, 455 U.S. at 482 (quoting Weinstein,

423 U.S. at 149). The Supreme Court “has never held that a mere physical or

theoretical possibility was sufficient to satisfy the test stated in Weinstein.” Id.

Specifically with respect to an injunction, this court has held that “a

plaintiff cannot maintain a declaratory or injunctive action unless he or she can

demonstrate a good chance of being likewise injured [by the defendant] in the

future.” McAlpine v. Thompson, 187 F.3d 1213, 1216 (10th Cir. 1999) (quotation

omitted and alteration in original). Further, “‘[p]ast exposure to illegal conduct

does not in itself show a present case or controversy regarding injunctive relief

. . . if unaccompanied by any continuing, present adverse effects.’” Id. (quoting

O’Shea v. Littleton, 414 U.S. 488, 495-96 (1974) (alteration in original)).
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Plaintiff has not only failed to demonstrate a reasonable probability that the

current controversy will recur, she has not even attempted to show that she would

be without legal remedy should the IRS wrongly resume its collection activities. 

We VACATE the district court’s order and REMAND with instructions that

the district court DISMISS this case as moot.

Entered for the Court

John C. Porfilio

Circuit Judge