                        NOT RECOMMENDED FOR PUBLICATION
                                File Name: 06a0780n.06
                                Filed: October 19, 2006

                                            No. 05-4303


                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

CAPITOL PARK LIMITED                  DIVIDEND
HOUSING ASSOCIATION,

       Plaintiff-Appellant,

v.                                                     ON APPEAL FROM THE UNITED
                                                       STATES DISTRICT COURT FOR THE
ALPHONSO JACKSON, SECRETARY OF                         NORTHERN DISTRICT OF OHIO
HOUSING & URBAN DEVELOPMENT.;
MILLENNIA HOUSING MANAGEMENT,
LTD.,

       Defendants-Appellees.

                                                /



BEFORE:        CLAY and GILMAN, Circuit Judges; and STAFFORD, District Judge.*

       CLAY, Circuit Judge. Plaintiff, Capitol Park Limited Dividend Housing Association

(“Capitol Park”), appeals two orders from the United States District Court for the Northern District

of Ohio. Plaintiff commenced this action by bringing claims against Defendant Millennia Housing

Management (“Millennia”) and Defendant Alphonso Jackson (“Jackson”), the Secretary of the

United States Department of Housing and Urban Development (“HUD”). Plaintiff’s first claim was

against Defendant Jackson. In that claim, Plaintiff asserted that Jackson was segregating disabled



       *
         The Honorable William H. Stafford, Jr. United States District Judge for the Northern District
of Florida, sitting by designation.
                                            No. 05-4303

persons in Plaintiff’s housing complex in violation of 24 C.F.R. §§ 8.24(b) and 8.4(b)(1) (2006),

retaliating against Plaintiff for complaining about the segregation, and was in the process of

executing a de facto taking of the housing complex in violation of the Fifth Amendment of the

United States Constitution by foreclosing on it. The second claim was against Defendant Millennia

for breach of contract. Plaintiff asserted that Defendant Millennia warehoused disabled individuals

at Plaintiff’s housing complex in violation of federal civil rights laws and, accordingly, in violation

of Plaintiff’s and Defendant’s housing management contract.           Specifically, Plaintiff alleged

violations of the Developmental Disabilities Assistance Bill of Rights of 2000, 42 U.S.C. § 15041

(2000); the Fair Housing Act of 1968, 42 U.S.C. § 3601 (2000); the Housing and Community

Development Act of 1992, 42 U.S.C. § 13612 (2000); the Rehabilitation Act, 29 U.S.C. § 791(504)

(2000); and the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 (2000). The district

court issued two orders that Plaintiff now appeals.

       The first order, issued on May 13, 2005, did three things: 1) it denied Plaintiff’s motion for

a preliminary injunction against HUD to stop the sale and foreclosure of Plaintiff’s housing complex;

2) it denied Plaintiff’s motion for summary judgment against Millennia on Plaintiff’s breach of

contract claim; and 3) it granted Millennia’s motion for summary judgment on the same claim. The

second order, issued on August 11, 2005, granted summary judgment to Defendant Jackson on all

of Plaintiff’s claims against him for lack of jurisdiction.

       For the reasons set forth below, we AFFIRM the orders of the district court, granting

summary judgment to both Defendants and denying Plaintiff’s motions for a preliminary

injunction and for summary judgment.


                                                  2
                                           No. 05-4303

                                         BACKGROUND

       Capitol Park is the owner of a 98-unit apartment building called “the Porter,” which is

located in Lansing, Michigan. In 1981, Capitol Park entered into a regulatory agreement with

HUD. The agreement called for HUD to insure a mortgage in the amount of $4,051,200 and,

pursuant to the Housing Assistance Payment Agreement (“HAP”), to subsidize a portion of the

rent at the Porter. In exchange, Capitol Park agreed to operate the Porter as a federally

subsidized Section 8 housing project. Subject to certain income restrictions, the Porter was to be

open to individuals over the age of 62, as well as physically and developmentally disabled

individuals regardless of age. In 1996, Millennia began operating the Porter. Plaintiff alleges

that since that time, only disabled individuals have lived there.

       In 2002, Capitol Park and HUD began discussions about renewing the regulatory

agreement and the HAP. According to Plaintiff, it was informed at that time that the Porter was

to become part of HUD’s “Mark to Market Program.” Under this program, rent at the Porter

would be further reduced in order to more accurately reflect the market in Lansing. In return,

HUD would adjust the underlying mortgage obligation to compensate for the reduction.

Regardless of whether Capitol Park agreed to the renegotiation terms of these agreements, the

rents at the Porter would be reduced.

       Capitol Park alleged that HUD and Millennia were “causing” the Porter to be occupied

primarily by disabled individuals who were less than 62 years old. According to Capitol Park,

HUD required that an additional 10 units be set aside for the disabled. Capitol Park believed that

this practice resulted in the illegal “warehousing” of disabled individuals in the Porter. In

                                                  3
                                          No. 05-4303

response to this practice, Capitol Park refused to accept the renewal offer made by HUD. The

rents were subsequently reduced and Capitol Park was unable to make the mortgage payments.

HUD, as insurer, paid off the mortgage and foreclosed the Porter. It has now been sold.

       On July 23, 2004, Plaintiff filed a complaint in the United States District Court for the

Northern District of Ohio, naming only Jackson as the defendant. On September 20, 2004,

Jackson moved to dismiss Plaintiff’s complaint for improper venue, arguing that Plaintiff should

file suit in Michigan. Plaintiff subsequently amended its complaint on October 18, 2004. The

amended complaint restated the allegations against Jackson contained in the original complaint

and added Millennia as a second defendant. Both Defendants subsequently filed answers to the

amended complaint and, on November 23, 2004, the district court denied Jackson’s motion to

dismiss for improper venue.

       On March 25, 2005, Plaintiff moved for a temporary restraining order (“TRO”) and a

preliminary injunction, seeking to prohibit HUD from foreclosing on the Porter. Jackson filed a

brief in opposition on April 20, 2005. On April 25, 2005, Millennia moved for summary

judgment. Plaintiff filed a brief in opposition and its own motion for summary judgment against

Millennia on May 2, 2005. Millennia replied on May 9, 2005. On May 11, 2005, Plaintiff

requested leave to file a reply brief and a renewed motion for a TRO. The district court denied

Plaintiff’s request. On May 13, 2005, the district court denied Plaintiff’s motion for a TRO and

preliminary injunction, denied Plaintiff’s motion for summary judgment against Millennia, and

granted Millennia’s motion for summary judgment against Plaintiff.




                                                4
                                             No. 05-4303

         On June 21, 2005, Jackson moved for summary judgment. Plaintiff filed a brief in

opposition on July 15, 2005. On August 12, 2005, the district court granted summary judgment

in favor of Jackson. That same day, the district court filed a separate order of final judgment,

officially dismissing Plaintiff’s claims against Millennia and Jackson. Plaintiff timely filed a

notice of appeal on October 11, 2005.

                                            DISCUSSION
I.       THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION BY DENYING
         PLAINTIFF’S APPLICATION FOR A TEMPORARY RESTRAINING ORDER
         AND MOTION FOR PRELIMINARY INJUNCTIVE RELIEF


         Defendant Millennia contends that Plaintiff’s request for injunctive relief is moot because

the Porter has already been sold, and, accordingly, this Court lacks jurisdiction to decide the

merits of the request. We review the district court’s denial of injunctive relief for abuse of

discretion. United States v. Any & All Radio Station Transmission Equip., 204 F.3d 658 (6th Cir.

2000).

         Article III of the United States Constitution limits this Court’s jurisdiction to actual,

ongoing “Cases” and “Controversies.” U.S. Const. art. III. A controversy is no longer ongoing,

or is moot, when the parties cease to possess a presently existing legally cognizable interest in the

outcome of the litigation. Murphy v. Hunt, 455 U.S. 478, 481 (1982) (internal quotations marks

and citation omitted); see also Weinstein v. Bradford, 423 U.S. 147, 148 (1975) (per curiam)

(holding a case moot because the respondent “no longer ha[d] any present interest affected by

th[e] [challenged] policy”). Generally, a party lacks a sufficient present interest in the outcome

of a case when events render a court unable to effectuate any relief in the event of a favorable

                                                    5
                                            No. 05-4303

decision. Murphy, 455 U.S. at 481-82; S. Pac. Terminal Co. v. Interstate Commerce Comm’n,

219 U.S. 498, 514 (1911). Because HUD has already foreclosed on Plaintiff’s mortgage and sold

the Porter, neither this Court nor the district court can now enjoin HUD from foreclosing and

selling. Accordingly, Plaintiff’s request for injunctive relief is moot. See Parsons Inv. Co. v.

Chase Manhattan Bank, 466 F.2d 869, 871 (6th Cir. 1972) (holding that the propriety of a district

court’s decision to deny an appellant a preliminary injunction prohibiting the sale of stock was

moot where the stock was sold prior to the appeal).

II.    THE DISTRICT COURT PROPERLY DENIED PLAINTIFF’S MOTION FOR
       SUMMARY JUDGMENT AGAINST MILLENNIA AND PROPERLY GRANTED
       DEFENDANT MILLENNIA’S MOTION FOR SUMMARY JUDGMENT


A.     Jurisdiction

       The district court properly exercised supplemental jurisdiction over Plaintiff’s claims

against Millennia, and accordingly, this Court has jurisdiction pursuant to 28 U.S.C. § 1367.

       Section 1367 of Title 28 grants federal district courts “supplemental jurisdiction over all

other claims that are so related to claims in the action within such original jurisdiction that they

form part of the same case or controversy under Article III.” 28 U.S.C. § 1367(a) (2000). This

Court has original jurisdiction over the claim against HUD since that claim rests on federal civil

rights law. In order for the district court to have properly asserted supplemental jurisdiction over

the claim against Millennia, the two claims must form part of the same case or controversy.

       A claim “form[s] part of the same case or controversy when [it] derive[s] from a common

nucleus of operative facts.” Harper v. AutoAlliance Int’l, Inc., 392 F.3d 195, 209 (6th Cir. 2004)


                                                  6
                                             No. 05-4303

(internal citation and quotation marks omitted). Plaintiff’s contract claims against Millennia

derive from the same “nucleus of operative fact” as its claims against Jackson for injunctive

relief.

          Furthermore, although Plaintiff’s claims for injunctive relief are now moot, the district

court had original jurisdiction over the claims for injunctive relief when they were filed and when

the district court ruled on Plaintiff’s claims against Millennia. Cf. Arbaugh v. Y & H Corp., 126

S. Ct. 1235, 1244-45 (2006) (holding that dismissal of federal claims does not automatically

deprive court of supplemental jurisdiction over non-federal claims). Finally, neither sovereign

immunity nor the Tucker Act deprived the district court of jurisdiction over Plaintiff’s claims for

injunctive relief. The Administrative Procedure Act (“APA”) waives sovereign immunity for

claims for equitable relief against federal officials. 5 U.S.C. § 702 (2000); Bowen v.

Massachusetts, 487 U.S. 879, 891-92 (1988). Similarly, the Tucker Act applies only to claims

for monetary damages. Coal. for Gov’t Procurement v. Fed. Prison Indus., Inc., 365 F.3d 435,

479 (6th Cir. 2004) (citing 28 U.S.C. § 1491(a)(1) (2000)). Thus, neither sovereign immunity

nor the Tucker Act deprived the district court of subject-matter jurisdiction on Plaintiff’s claims

for injunctive relief.

B.        Standard of Review

          This Court reviews a district court’s grant of summary judgment de novo. Blackmore v.

Kalamazoo, 390 F.3d 890, 894-95 (6th Cir. 2004). Summary judgment is proper where there is

no genuine issue as to any material fact and the moving party is entitled to judgment as a matter



                                                   7
                                             No. 05-4303

of law. Fed. R. Civ. P. 56(c). On a motion for summary judgment, the Court must view all the

facts in the light most favorable to the non-moving party. Id.

C.      Breach of Contract Claim Against Millennia

        The district court did not err in granting Millennia’s motion for summary judgment and in

denying Plaintiff’s motion for summary judgment because Plaintiff’s contract with Millennia

does not prohibit disability discrimination. As the district court correctly observed, Plaintiff

conceded in its brief in opposition to Millennia’s motion for summary judgment that its claim

against Millennia arose not out of federal law, but out of the management contract between

Plaintiff and Millennia. Presumably, Plaintiff conceded this point to avoid the private right of

action and standing problems that Plaintiff would have encountered by suing Millennia directly

for breaches of federal civil rights law. As Plaintiff explained in its brief to the district court:

        Millennia’s protestations about private rights of action and standing are equally
        without merit. Capitol Park has referred to federal law prohibiting segregation at
        the Porter to define Millennia’s contractual obligation (Management Agreement
        Par. 23) to operate the Porter in compliance with federal law. Capitol Park does
        not seek to enforce these statutes per se, but rather it is Millennia’s violation of
        the statutes that constitutes a violation of its contractual obligations to Capitol
        Park.
(J.A. at 451).


The contractual provision upon which Millennia relies reads:

        Nondiscrimination. In the performance of its obligations under this Agreement,
        the Agent will comply with the provisions of any Federal, State, or Local law
        prohibiting discrimination in housing on the grounds of race, color, sex, creed, or
        national origin, as well as all requirements imposed by or pursuant to the
        Regulations of the Secretary.
(J.A. at 451).

                                                   8
                                            No. 05-4303

This contract does not incorporate any federal laws prohibiting discrimination based on physical

or mental disabilities into this provision.1 This is not to say that a resident of the Porter could not

sue Millennia for violating federal prohibitions on disability discrimination because a resident

almost certainly could. But Plaintiff cannot argue that such a failing constitutes a breach of the

above quoted contract provision.

III.   THE DISTRICT COURT PROPERLY GRANTED DEFENDANT ALPHONSO
       JACKSON’S MOTION FOR SUMMARY JUDGMENT


A.     Preservation

       Although Plaintiff timely filed a notice of appeal with this Court, as we discuss in the

analysis below, Plaintiff failed to properly brief the propriety of the district court’s ruling with

respect to the motion for summary judgment to this Court. Accordingly, we find that the

Plaintiff did not preserve the issue for this Court’s review.

B.     Standard of Review

       This Court reviews a district court’s grant of summary judgment de novo. Blackmore,

390 F.3d at 894-95.

C.     The District Court’s Decision




       1
         It is worth noting that the phrase “all requirements imposed by or pursuant to the
Regulations of the Secretary” may well have been an attempt to make Defendant subject to federal
laws prohibiting other types of discrimination, including disability discrimination. However, we
decline to address this argument because it was not raised by Plaintiff at any stage of litigation and
is thus waived. McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997).

                                                   9
                                             No. 05-4303

        The district court offered two separate jurisdictional bases for dismissing Plaintiff’s

claims against Jackson: sovereign immunity and the Tucker Act. First, the district court held that

Plaintiff failed to fulfill its obligation to point to a specific statute waiving Jackson’s entitlement

to sovereign immunity on its “statutory” or “civil rights” type claims. (J.A. 55-58). The district

court pointed out that Plaintiff simply cited cases that stood for the proposition that HUD was

amenable to suit on certain types of claims, but that Plaintiff failed to apply those cases to its own

claims or to explain why, on the facts of this case, HUD was not entitled to sovereign immunity.

(J.A. at 56). The district court further reasoned that the APA, upon which a broad reading of

Plaintiff’s brief could be interpreted to rely, did not provide for a waiver of sovereign immunity

in this case because it applied only to claims for equitable relief. (J.A. at 56). As discussed

above, Plaintiff’s claims for injunctive relief are moot. Therefore, there is no claim for which

Plaintiff could have been seeking equitable relief. Accordingly, the district court correctly held

that the APA cannot waive sovereign immunity for the purposes of this claim.

        Second, the district court held that it did not have jurisdiction over Defendant’s “contract”

or “takings” claims because the Tucker Act granted exclusive jurisdiction over such claims to the

Court of Federal Claims. (J.A. at 58). The court correctly observed that, according to the Tucker

Act,

                the Court of Federal Claims shall have jurisdiction to render judgment
                upon any claim against the United States founded either upon the
                Constitution, or any Act of Congress or any regulation of an executive
                department, or upon any express or implied contract with the United
                States, or for liquidated or unliquidated damages in cases not sounding in
                tort.



                                                  10
                                               No. 05-4303

28 U.S.C. § 1491(a)(1) (2000). Further, this Court has held in the past that “[i]t is well-

established that regardless of the nature of the relief sought, the availability of the Tucker Act

renders premature any takings claim in the federal district court.” Coal. for Gov't Procurement,

365 F.3d at 460. Taken together, the Tucker Act and the past rulings of this Court support the

district court’s ruling that it did not have jurisdiction over these claims.

D.      Waiver of these Issues

        In its brief on appeal, Plaintiff fails to address the bases for the district court’s ruling that

the court did not have jurisdiction to decide the case. Instead, Plaintiff simply asserts that 1) it

cited statutes in support of its position that HUD’s actions were illegal, 2) it argued in its brief to

the district court that the APA provided a statutory waiver for sovereign immunity, and 3) the

district court erred in finding that Plaintiff’s claims for injunctive relief were moot. (J.A. at 24).

Plaintiff’s brief offers absolutely no citation to authority or explanation for its positions and

instead simply incorporates its briefs to the district court.2 Only one of the incorporated

documents, Plaintiff’s Opposition to Motion for Summary Judgment, discusses sovereign



        2
            Instead of affirmatively citing authority for its argument, Plaintiff simply states:
                   The constraints of space and time do not permit the repetition of all
                   of those arguments herein, so Plaintiff makes reference to its Briefs
                   set forth in its Application for Temporary Restraining Order and
                   Motion for a Preliminary Injunction; Reply to Response to Motion for
                   Preliminary Injunction; Opposition to Motion for Summary
                   Judgment; Gibbons Aff.; Reply Brief; and Opposition to Motion for
                   Summary Judgment of Federal Defendant, all of which are reflected
                   in the record and incorporated herein by reference.

       Brief of Plaintiff at 24, Capitol Park Ltd. Dividend Hous. Ass’n v. Jackson et. al, No. 05-
4303 (6th Cir. April 27, 2006).

                                                     11
                                          No. 05-4303

immunity at all. None of the documents discuss the Tucker Act. Thus, we find that Plaintiff

waived appeal of the district court’s ruling by addressing the issue in this perfunctory manner and

failing to challenge the underlying rationale for the district court’s ruling. McPherson, 125 F.3d

at 995-96.

                                         CONCLUSION

       For the foregoing reasons, we AFFIRM the orders of the district court.




                                                12
