UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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No. 99-51127
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EMMA BENAVIDES; ET AL,
Plaintiffs,
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 AUTHORITY; ANDREW CUOMO, Secretary of the
Department of Housing and Urban Development; US
DEPARTMENT OF HOUSING & URBAN DEVELOPMENT;
MELVIN BRAZIEL, President and Chief Executive Officer of the
San Antonio Housing Authority; LUPITA GUTIERREZ, Chairperson
of the Housing Authority of the City of San Antonio; BOB
BELTRAN, Commissioner of the Housing Authority of the City of
San Antonio; HENRY HULL, Commissioner of the Housing
Authority of the City of San Antonio; 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
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 and current ly resides in private rental housing. The Benavideses
currently reside at the Alazan-Apache Courts, another San Antonio public housing project, where
they await further relocation to a new housing unit adjacent to the Alazan-Apache Courts.
Before their relocation from 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, statutory and constitutional violations from the relocation process, statutory and
constitutional violations from SAHA’s use of site-based waiting lists for public housing, and
*
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 included 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.
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violations of the National Historic Preservation Act of 1966, 16 U.S.C. § 470 et seq. The district
court denied the temporary 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 moot. 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 moot . 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 maintains that demolition of Victoria Courts violates the National Historic
Preservation Act because SAHA did not comply with the process dictated by the Act, requiring,
among other things, consultation with the Advisory Council on Historic Preservation. See 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
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appeal that the demolition that is underway at Victoria Courts moots 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.” Honig 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 of the event
sought to be enjoined.”).
Benavides attempts 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. Brown, 948 F.2d 1436 (5th Cir. 1991). In Vieux
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 principle that “a suit is moot only when it can be shown that a court cannot even
‘theoretically grant’ relief.” Id. at 1446. We reasoned that because the outcome of the historic
review process was uncertain, we could not know if meaningful relief was possible. See 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 some or all
adverse effects, if any, wrought by the [construction].”).
Benavides urges that we can “theoretically grant” relief here by ordering preservation of any
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undemolished units or restoration of the Courts. Vieux 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 affirmed this agency decision and found no procedural violation of the National
Historic Preservation Act.3 See 36 C.F.R. § 800.4(c)(2). In Vieux 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 interpreted Vieux 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, alleging deficiencies in a construction permit, when that
construction was already substantially completed. We distinguished Vieux Carre, reasoning that
Vieux Carre involved the unique situation 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 or
3
Benavides disputes 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 eligibility 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. See, 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.
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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 viability of the 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 court
4
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 that 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 plaintiffs’ responsive and dispositive pleadings agreed upon by the parties. We
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accordingly addressed 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 relief sought 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 maintaining site-based waiting lists deprives her, as a current resident of public housing in San
Antonio, of the opportunity to live in an integrated community. Although this claim may bear some
resemblance t o the 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) the
find 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.
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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 same
action again.” Spencer 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 to act based on its alleged policies of (1) failing to adopt relocation plans for tenants of
demolished public housing facilities that promote 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, to meet her burden under the second prong of the Spencer 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 See 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.
7
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.
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