UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

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No. 99-51127

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EMMA BENAVIDES; ET AL,

Plaint iffs,

EMMA BENAVIDES; CARMEN PADILLA; JONATHAN

BENAVIDES

Plaintiffs - Appellants,

versus

HOUSING AUTHORITY OF THE CITY OF SAN ANTONIO,

TEXAS; BOARD OF COMMISSIONERS OF THE SAN ANTONIO

HOUSING AUT HORITY; ANDREW CUOMO, Secretary of the

Department of Housing and Urban Develo pment; US

DEP ARTMENT OF HOUSING & URBAN DEVELOPMENT;

MELVIN BRAZIEL, Pres ident and Chief Executive Officer of the

San Antonio Housing Authori ty ; LUPITA GUTIERREZ, Chairperson

of the Housing Authority o f the City of San Antonio; BOB

BELTRAN, Commissioner of the Hous ing Authority of the City of

San Antonio; HENRY HULL, Commissioner of the Housing

Authority of the City of San A nt onio; EMILIO AMAYA,

Commissioner of the Housing Authority of the City of San Antonio,

Defendants - Appellees.

Appeal from the United States District Court

For the Western District of Texas

January 25, 2001* Judge of the U.S. Court of International Trade, sitting by designation.

1 Victoria Courts was constructed in 1941-42, a product of New Deal legislation. The

Courts are two-story buildings of cinder block construction, with 660 living units. The buildings are

not equipped with central air and heat. SAHA provided documentation indicating that the cost of

renovating the structures ($52,226,665) would far exceed the cost of demolishing the structures and

building new housing on the site ($34,772,100).

2 This demolition has include d asbestos abatement (leaving the interior of the units

gutted), the removal of the roofs of the buildings, severance of utilities, and removal of all appliances.

-2- Before DAVIS and EMILIO M. GARZA, Circuit Judges, and POGUE, Judge. *

EMILIO M. GARZA, Circuit Judge:

Emma Benavides, her son Jonathan , and Carmen Padilla are all former residents of the

Victoria Courts public housing project in San Antonio, Texas. In 1995, the San Antonio Housing

Authority (SAHA) filed an application for demolition of Victoria Courts, based primarily on concerns

of obsolescence. 1 Demolition of Victoria Courts began in November 1999. As of the time of the

writing of this opinion, approximately 55% of the units have been demolished. 2 Carmen Padilla has

relocated from Victoria Courts an d current ly resides in private rental housing. The Benavideses

currently reside at the Alazan-Apache Courts, another San Antonio publi c ho using project, where

they await further relocation to a new housing unit adjacent to the Alazan-Apache Courts.

Before their relocation

fro m Victoria Courts, however, Padilla and the Benavideses

(hereinafter, Benavides) filed suit against defendants SAHA, the U.S. Department of Housing and

Urban Development, and others (hereinafter, SAHA), seeking a temporary restraining order and a

preliminary injunction to stop the demolition. Benavides alleged deficiencies in the demolition

application, statut o ry and constitutional violations from the relocation process, statutory and

co nstitutional violations from SAHA’s use of site-based waiting lists for public housing, and-3-

violations of the National Historic Preservation Act of 1966, 16 U.S.C. § 470 et seq. The district

court denied the temp o rary rest raining order, and in a subsequent order denied injunctive and

declaratory relief and granted summary judgment to SAHA, reasoning that Benavides had failed to

demonstrate a likelihood of success on any of her claims.

On appeal, Benavides argues that the district court erred in four ways: (1) by failing to declare

the demolition application invalid; (2) by failing to enjoin future relocations from demolished public

housing; (3) by failing to enjoin the demolition of Victoria Courts; and (4) by failing to enjoin the use

of site-based waiting lists. Benavides did not seek a stay of the demolition pending appeal. SAHA

filed a motion to dismiss the appeal as m oot. SAHA asserts that because the demolition of Victoria

Courts has advanced to a point where the units are no longer habitable, and because Benavides has

voluntarily relocated to other housing, the relief sought can no longer be provided by this court.

I

We must first decide which, if any, of Benavides’ claims are m oot . Benavides argues in

opposition to the motion to dismiss the appeal that two of her claims are still viable: the request for

relief under the National Historic Preservation Act and the site-based waiting list claim. She also

contends that her other claims fall into the “capable of repetition yet evading review” exception to

the doctrine of mootness.

Benavides maintain s t hat demolition of Victoria Courts violates the National Historic

Preservation Act because SAHA did not comply with the process dictated by t he Act, requiring,

among other things, consultation with the Advisory Council on Historic Preservation. S ee 36 C.F.R.

§ 800.2. The district court, however, found no violation of the procedures of the National Historic

Preservation Act, and denied injunctive relief on this basis. SAHA argues in its motion to dismiss the-4-

appeal that the demolition that is underway at Victoria Courts m oots Benavides’ appeal of the denial

of injunctive and declaratory relief. We agree. A substantial portion of the demolition has occurred,

such that “no order of this court could affect the parties’ rights with respect to the injunction we are

called upon to review.” H onig v. Students of Cal. Sch. For the Blind

, 471 U.S. 148, 149, 105 S.Ct.

1820, 1821, 85 L.Ed. 2d 114 (1985); see also Harris v. City of Houston

, 151 F.3d 186, 189 (5t h Cir.

1989) (“[A] request for injunctive relief generally becomes moot upon the happening o f the event

sought to be enjoined.”).

B enavides attem

pts to demonstrate the continued existence of a live controversy by

suggesting ways in which Victoria Courts could again be made habitable, and refers us to Vieux Carre

Property Owners, Residents, & Assoc ., Inc. v. Brow n , 948 F.2d 1436 (5th Cir. 1991). In V ieux

Carre

, a historical preservation society claimed that the Army Corps of Engineers approved

construction of a park and aquarium (and demolition of the structures that stood on the land to be

used) without complying with the National Historic Preservation Act. When after an initial appeal

the demolition had already occurred and the construction was underway, the district court held the

declaratory judgment action moot because no meaningful relief could be granted. We reversed,

relying on the pr inciple t hat “a suit is moot only when it can be shown that a court cannot even

‘t heoretically grant’ relief.” I d. at 1446. We reasoned that because the outcome of t he hist oric

review process was uncertain, we could not know if meaningful relief was possible. S ee id. at 1446-

447 (“It is...possible...the Advisory Council [on Historic Preservation], the Corps, and other

interested parties, will be able to implement measures, great or small, in mitigation of so me or all

adverse effects, if any, wrought by the [construction].”).

Benavides urges that we can “theoretically grant” relief here by ordering preservation of any3 Benavides d i sputes this holding, pointing to evidence that the Advisory Council on

Historic Preservation sought to enter the historic review process. Entry of the Advisory Council

would mean that the Secretary of the Interior would potentially be required to make a determination

of eligibilit

y for the historic registry, a step which has not been completed in this case. The district

court, however, struck the evidence pertaining to the Advisory Council’s decision to intervene in the

historical review process because Benavides filed the materials after September 14, 1999, the date

agreed upon by the parties in a stipulation pertaining to the briefing schedule. Although Benavides

protests the district court’s decision, arguing that the materials were either not available to the parties

or not in existence until after September 14, we do not find any abuse of discretion. S ee, e.g., Munoz

v. Orr

, 200 F.3d 291, 303 (5th Cir. 2000). It was because of Benavides’ own delay in appealing the

decision of the Texas Historical Commission, a decision made in 1993, that the documents Benavides

urges us to review were not prepared before the September 14, 1999 deadline. Accordingly, the

evidence that the Advisory Council sought to enter the historical review process is not before us.

-5- undemolished units or restorati on of the Courts. V ieux Carre bears only superficial resemblance to

the facts of this case, however. Victoria Courts was determined not to be eligible for listing in the

National Register of Historic Places by the U.S. Department of Housing and Urban Development.

The district court af

firmed this agency decision and found no procedural violation of the National

Historic Preservation Act. 3 S ee 36 C.F.R. § 800.4(c)(2). In V ieux Carre

, by contrast, the district

court found the suit moot before the agency was able to make any determination under the National

Historic Preservation Act. We reversed because of the possibility that such a determination would

affect the propriety of the construction then underway. We have since int erpreted V

ieux Carre

narrowly. In Bayou Liberty Assoc., Inc. v. United States Army Corps of Engineers , 217 F.3d 393

(5th Cir. 2000) we held that no theoretical relief was available to a party seeking prospective relief

against the Army Corps of Engineers, alle ging deficiencies in a construction permit, when that

construction was already substantially comple t ed. We distinguished V ieux Carre

, reasoning that

Vieux Carre involved the unique situati o n where the absence of review by the appropriate

government agency made uncertain the mooting effect of the substantially completed construction.

Thus, although it may appear under Vieux Carre that any amount of remaining demolition or4 Benavides makes a final attempt to demonstrate the continued existence of a live

controversy by stating in her brief in opposition to the motion to dismiss the appeal tha t she has

substantially prevailed in an action to preserve the administration building of Victoria Courts, such

that she is entitled to attorney’s fees and costs. This claim was not presented either to the district

court or in her appeal to this court, and is not properly considered by us now. See, e.g., Trevino v.

Johnson

, 168 F.3d 173, 181 n.3 (5th Cir.1999) (issues not briefed on appeal are deemed waived) ;

see also Harris ,151 F.3d at 190 (“ Vieux Carre contains no support for the appellant’s notion that we

may fashion relief not requested below in order to keep a suit viable.”).

5 Benavides’ reply to SAHA’s motion for summary judgment does contain a more

generalized argument challenging the use of site-based waiting lists, an argument not linked to the

demolition of Victoria Courts. The district court, however, excluded this brief as it was filed well

after the deadline for plaint iffs’ responsive and dispositive pleadings agreed upon by the parties. We

-6- construction means that the case is not moot because theoretical relief is available, our subsequent

case law indicates that it was the combination of the uncertainty surrounding the pending agency

review and the partial state of the construction that contributed to the vi abilit y o f t he plaintiff’s

claims. Here, however, even assuming we were to grant complete relief to Benavides and order the

compliance with the historic review process, there is no evidence on the record that further agency

review could possibly affect the substantially-completed demolition of Victoria Courts. Benavides’

claims for prospective relief based on the National Historic Preservation Act are moot. 4

II

Benavides contends next that her claim challenging the validity of SAHA’s use of site-based

waiting lists is still viable. We decline to reach the question of the possible mootness of this claim,

or whether Benavides has standing to bring this claim, because we find that the claim Benavides seeks

to address on appeal was not presented to the district court. See United States ex rel. Wallace v.

Flintco Inc. , 143 F.3d 955, 971 (5th Cir.1998).

In her brief to the district court, Benavides addressed SAHA’s use of site-based waiting lists

as part of a broader challenge to the relocation of residents of Victoria Courts. 5 The district courtfind no abuse of discretion by the district court in striking this brief.

6 As noted above, Padilla has relocated to private residential housing. The Benavideses

have moved to the Alazan-Apache Courts through an arrangement that allowed them to be placed

at the top of all waiting lists due to their relocation from Victoria Courts.

-7- accordingly addre ssed Benavides’ discriminatory relocation practice argument, holding that

Benavides did have standing to bring this challenge, but that the plan did not violate Title VI of the

Civil Rights Act of 1964, 42 U.S.C. §§ 2000d, et. seq., or the Fair Housing Act, 42 U.S.C. § 3601

et seq. At that time Benavides had not yet relo cated, and her waiting list claim was intimately

connected to the injunctive re lief so ught to prevent the demolition of or alter the relocation from

Victoria Courts. Now, however, all plaintiffs have relocated voluntarily from Victoria Courts, and

none is currently on a site-based waiting list, nor offers allegations of possible future placement on

a site-based waiting list. The relocation that followed the district court’s decision on this issue was

ultimately voluntary, and the waiting lists factored into that relocation little or not at all. 6

Benavides’ claim has therefore transformed into a more abstract claim that SAHA’s practice

of maint aining site-based w ait ing lists deprives her, as a current resident of public housing in San

Antonio, of the opportuni ty to live in an integrated community. Although this claim may bear some

res emblance t o t he relief originally sought in district court, we find that the claims are sufficiently

distinct, such that the generalized challenge to site-based waiting lists is not properly considered by

us on appeal. See United States ex rel. Wallace , 143 F.3d at 971.

III

Benavides’ final argument is that her appeal is not moot because it falls into the “capable of

repetition yet evading review” exception to the mootness doctrine. This exception applies “only in

exceptional situations...where the following two circumstances are simultaneously present: (1) the7 Moreover, SAHA has provided sworn affidavits establishing that there are no current

plans in San Antonio for any funded demolition projects of public housing facilities.

-8- challenged action is in its duration too short to be fully litigated prior to cessation or expiration, and

(2) there is a reasonable expectation that the same complaining party will be subject to the sam e

action again.” S

pencer v. Kemna

, 523 U.S. 1, 17, 118 S .Ct. 978, 988, 140 L.Ed.2d 43 (1998).

Benavides maintains that even once the demolition of Victoria Courts is complete, SAHA will

continue t o act based on its alleged policies of (1) failing to adopt relocation plans for tenants of

demolished public housing facilit ies that prom ote integration rather than segregation; (2) failing to

comply with the National Historic Preservation Act with respect to other public housing

developments; and (3) failing to discontinue the use of site-based waiting lists. Benavides has failed,

however, t o meet her burden under the second prong of the S pencer test for application of the

capable of repetition yet evading review: she has not demonstrated that she, as a current resident of

Alazan-Apache Courts, will again be subject to the demolition and relocation process. 7 S ee DeFunis

v. Odegaard

, 416 U.S. 312, 315-17, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974) (requiring a reasonable

expectation that the same litigant will again be subjected to the same action). We therefore find the

capable of repetition yet evading review exception to the mootness doctrine inapplicable.

IV

For the foregoing reasons, we DISMISS this appeal as moot.