                   United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 01-2022
                                    ___________

Community Stabilization Project,        *
                                        *
                    Appellant,          *
                                        *
      v.                                *
                                        * Appeal from the United States
Mel Martinez, in his official capacity * District Court for the District
as Secretary of the Department of       * of Minnesota.
Housing and Urban Development;          *
United States Department of Housing *          [UNPUBLISHED]
and Urban Development; City of          *
St. Paul; Carey Apartments Limited      *
Partnership; Firstar Trust Co.,         *
                                        *
                    Appellees.          *
                                   ___________

                            Submitted: February 13, 2002

                                   Filed: February 27, 2002
                                    ___________

Before McMILLIAN, FAGG, and LOKEN, Circuit Judges.
                            ___________

PER CURIAM.

      After the City of St. Paul proposed to purchase and demolish a low-income
apartment building owned by the Carey Apartments Limited Partnership and
subsidized by the United States Department of Housing and Urban Development
(HUD), Community Stabilization Project (CSP), a nonprofit organization seeking to
preserve affordable rental housing, brought this action against the City, the owner,
and HUD. CSP mainly alleged HUD violated 12 U.S.C. § 1701z-11(k) when it sold
the mortgage on the apartments without attaching restrictions ensuring the building
would continue to operate as low-income housing for the mortgage’s full term. On
February 27, 2001, the district court granted the defendants’ motion to dismiss,
concluding CSP lacked standing and failed to state a claim for relief. On April 20,
2001, the owner served notice of its intent to sell, making the earliest possible closing
date 150 days later. CSP filed its notice of appeal on April 24, 2001. Despite having
notice of the impending sale, CSP did not seek an expedited appeal. CSP then waited
until September 13, 2001 to seek a stay or injunction pending appeal from the district
court, and until September 24, 2001, nine days before the closing, before asking us
for a stay or injunction pending appeal. Like the district court, we denied relief. The
apartments were sold on October 3 and demolished three weeks later.

       CSP has now filed a motion to dismiss its appeal as moot. CSP says it brought
this action to preserve the building as low-income housing and, because the building
no longer exists, “there is no longer a basis for proceeding with this action.” CSP
states it “would be very difficult if not impossible for the court to fashion a remedy
directed at the injury CSP has suffered.” When the City completed the purchase,
HUD lost control over the building’s future, and when the building was demolished,
there was no longer anything left to preserve. CSP’s complaint also sought
replacement housing, but CSP contends the fashioning of such a remedy would be
extremely difficult because HUD’s regulatory agreement with the owner no longer
exists. We agree with CSP that all the claims in its lawsuit are moot.

         CSP also contends we should vacate the district court judgment and thus
effectively deny the judgment the effect of res judicata. As the party who sought
relief from the judgment below, CSP has the burden to show “equitable entitlement
to the extraordinary remedy of vacatur.” U.S. Bancorp Mortgage Co. v. Bonner Mall
P’ship, 513 U.S. 18, 26 (1994). Whether we vacate the district court’s judgment or

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simply dismiss the appeal, leaving the district court’s judgment intact, depends on the
equities of the case. Id. at 24. Vacating the judgment is appropriate when the losing
party “is frustrated by the vagaries of circumstance,” or mootness results from
unilateral action of the prevailing party. Id. at 25. Vacatur is not appropriate when
mootness arises from the voluntary actions of the party who lost below. Id. at 24.

       CSP asserts it is entitled to vacatur of the district court’s judgment because this
action was mooted by the unilateral action of the prevailing parties in selling and
demolishing the building while the judgment was pending appeal. We disagree. CSP
knew the sale and demolition of the building would proceed unless it obtained a stay
or an injunction. Rather than diligently protecting its rights, CSP waited for five
months after receiving notice of the sale before seeking a stay or an injunction, just
days before the closing. Further, CSP could have sought an expedited appeal, but
failed to do so. Under these circumstances, we cannot say the equities favor CSP, and
thus deny CSP the extraordinary remedy of vacatur.

     In sum, we grant CSP’s motion to dismiss the appeal as moot, and deny CSP’s
motion to vacate the district court’s judgment.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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