Saline Associates No. 1 v. United States ( 2019 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
SALINE ASSOCIATES NO. 1 LIMITED
PARTNERSHIP, ST. CLAIR WEST LIMITED
PARTNERSHIP, STOCKBRIDGE ASSOCIATES
LIMITED PARTNERSHIP,
Plaintiffs-Appellants
v.
UNITED STATES,
Defendant-Appellee
______________________
2017-1688
______________________
Appeal from the United States Court of Federal Claims
in No. 1:13-cv-00908-EGB, Senior Judge Eric G. Bruggink.
______________________
Decided: March 19, 2019
______________________
MARK BLANDO, Eckland & Blando LLP, Minneapolis,
MN, argued for plaintiffs-appellants. Also represented by
JEFF HOWARD ECKLAND, VINCE REUTER, LARA SANDBERG;
WILLIAM LEWIS ROBERTS, Faegre Baker Daniels LLP, Min-
neapolis, MN.
2 SALINE ASSOCIATES NO. 1 v. UNITED STATES
MATTHEW PAUL ROCHE, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, argued for defendant-appellee. Also repre-
sented by JOSEPH H. HUNT, ROBERT E. KIRSCHMAN, JR.,
FRANKLIN E. WHITE, JR.
______________________
Before NEWMAN, LOURIE, and STOLL, Circuit Judges.
NEWMAN, Circuit Judge.
In this action brought under the Tucker Act and the
Fifth Amendment, the plaintiffs are three limited partner-
ships: Saline Associates No. 1 Limited Partnership, St.
Clair West Associates Limited Partnership, and Stock-
bridge Associates Limited Partnership, (collectively, “Sa-
line”). Their suit in the United States Court of Federal
Claims (“CFC”) alleges breach of contract and property tak-
ing arising from the government’s repudiation of the pre-
payment terms of loan agreements that were made under
section 515 of the Housing Act of 1949. The CFC granted
summary judgment that there was no breach of contract
and no taking, and alternatively that even if the govern-
ment had violated its contracts, all of Saline’s claims were
barred by the Tucker Act’s six-year statute of limitations. 1
On appellate review, we affirm that no liability is incurred
with respect to these plaintiffs.
BACKGROUND
A. The Statutory and Constitutional Framework
The Rural Housing Service (“RHS”) of the United
States Department of Agriculture, through its predecessor
the Farmers Home Administration (“FmHA”), is author-
ized to make low-interest mortgage loans to private
1 Saline Assocs. No.1 Ltd. P’ship v. United States,
129 Fed. Cl. 737 (2016) (“CFC Op.”).
SALINE ASSOCIATES NO. 1 v. UNITED STATES 3
nonprofit entities to provide rental housing for low-income
tenants, pursuant to § 515 of the Housing Act of 1949 (cod-
ified at 42 U.S.C. § 1485). The mortgage loan agreements
contain restrictions on, inter alia, eligible renters and rents
that can be charged.
Beginning in 1985, plaintiffs entered into several loan
agreements pursuant to § 515. Each owner was required
to preserve the property in accordance with the terms of
the § 515 program for twenty years, and after twenty years
the owners had the right to prepay the loan and release the
property from the restrictions.
By the mid-1980’s Congress became concerned about
the extent of § 515 loan prepayment, for it reduced the
availability of low-income housing. See Franconia Associ-
ates v. United States, 536 U.S. 129, 136 (2002). Thus, Con-
gress enacted the Emergency Low Income Housing
Preservation Act of 1987 (“ELIHPA”) (codified at 42 U.S.C.
§ 1472(c)). ELIHPA affected § 515 loan prepayments by
providing that before RHS can accept an offer to prepay
such mortgage:
the Secretary shall make reasonable efforts to en-
ter into an agreement with the borrower under
which the borrower will make a binding commit-
ment to extend the low income use of the assisted
housing and related facilities involved for not less
than the 20–year period beginning on the date on
which the agreement is executed.
42 U.S.C. § 1472(c)(4)(A). The Secretary is authorized to
offer incentives to the borrower, see § 1472(c)(4)(B) (the
Secretary can, e.g., increase the rate of return on the prop-
erty, reduce the interest rate of the loan, provide rental as-
sistance, and grant equity loans).
Section 1472(c)(5)(A)(i) provides that if an agreement
to extend the low income use of the housing is not reached,
the owner must offer to sell the housing to “any qualified
4 SALINE ASSOCIATES NO. 1 v. UNITED STATES
nonprofit organization or public agency at a fair market
value determined by 2 independent appraisers.” If such of-
fer to sell is not accepted within 180 days, the Secretary
may accept the prepayment and release the property from
the § 515 controls. § 1472(c)(5)(A)(ii). Any such sale re-
quires RHS approval.
ELIHPA § 1472(c)(5)(G)(ii) further provides that an
owner may avoid the offer-for-sale requirement if RHS de-
termines that prepayment will not materially affect hous-
ing opportunities for minorities, and either of two other
conditions is met: (1) prepayment will not displace the ten-
ants of the affected housing, or (2) there is an adequate
supply of safe, decent, and affordable rental housing within
the market area and sufficient actions have been taken to
ensure that such housing will be made available to dis-
placed tenants.
In Franconia Associates the Supreme Court explained
that “ELIHPA effected a repudiation of the FmHA loan
contracts, not an immediate breach. The Act conveyed an
announcement by the Government that it would not per-
form as represented in the promissory notes if and when,
at some point in the future, petitioners attempted to prepay
their mortgages.” 536 U.S. at 143.
B. The Saline Sales to Union Street
Saline’s § 515 loan contracts were entered into on
March 1st, June 27th, and July 24th of 1985. On October
12, 2007 the Saline owners entered into contracts to sell
their properties to Union Street Enterprises, LLC (“Union
Street”) at an appraised price, and Union Street agreed to
assume Saline’s § 515 mortgage loans. The sales contracts
stated that they were subject to RHS approval and re-
quired Saline to continue operating the properties until the
closing.
On November 14, 2007, RHS approved the sales from
Saline to Union Street. The sales closed on November 19,
SALINE ASSOCIATES NO. 1 v. UNITED STATES 5
2007, and Union Street executed new 20-year loan agree-
ments with RHS, accepting new § 515 restrictions.
C. The CFC Proceedings
On November 15, 2013 Saline filed suit against the
United States stating two causes of action—breach of con-
tract and Fifth Amendment taking—based on the enact-
ment of ELIHPA and the imposition of prepayment
restrictions in violation of Saline’s § 515 loan agreements.
The government moved for summary judgment, argu-
ing that under ELIPHA, as construed by Franconia, RHS
could not breach its agreement to accept prepayment un-
less either (1) Saline offered to prepay the mortgage loan
and RHS rejected the offer, or (2) if Saline treated the gov-
ernment’s ELIPHA right to refuse prepayment as a present
breach and filed suit. Neither event occurred before Saline
sold the properties to Union Street, with the approval of
RHS.
The CFC agreed with the government, holding that in
accordance with Franconia:
[P]laintiffs were thus limited to two options: they
could file suit immediately or attempt to exercise
their prepayment right and file suit when the gov-
ernment refused to accept prepayment. Because
plaintiffs transferred their respective properties
and loan agreements prior to taking either of those
steps, they failed to place the government in breach
when they had the right to do so.
CFC Op. at 741. The CFC also addressed Saline’s argu-
ment that it placed the government in breach of contract
by “materially changing its position” in reliance on the
ELIHPA repudiation by selling the properties to Union
Street. The CFC held that even if Franconia did not fore-
close this theory, Saline’s actions “did not establish a ma-
terial change of position that could serve as an election to
treat the government’s repudiation as a breach” because
6 SALINE ASSOCIATES NO. 1 v. UNITED STATES
Saline “transferred all rights they had under the contracts
to Union Street” and Saline’s “transfers were consistent
with continued performance by the government and Union
Street.” Id.
The CFC held that even if the sales to Union Street
were treated as a material change in position due to the
ELIHPA repudiation, Saline’s claim of breach on this
ground was barred by the Tucker Act six-year statute of
limitations. The CFC found that Saline’s claim accrued on
the date of the sales contracts between the Saline owners
and Union Street, October 12, 2007, or at the latest when
RHS approved the sale, on November 14, 2007—because
“[w]hen plaintiffs contracted to sell their properties, Union
Street could enforce the sales contracts through an action
for specific performance or seek money damages if faced
with a breach by plaintiffs.” CFC Op. at 741–42. Both
dates are more than six years before Saline filed this suit
on November 15, 2013. The CFC further held that Saline’s
theories of Fifth Amendment taking were either non-exist-
ent or time-barred on the same grounds. See id. at 742.
Saline appeals, alleging error in the CFC’s analysis of
both the breach of contract and the taking claims.
DISCUSSION
The Tucker Act provides that “[e]very claim of which
the United States Court of Federal Claims has jurisdiction
shall be barred unless the petition thereon is filed within
six years after the claim accrues.” 28 U.S.C. § 2501. This
period of limitations is deemed a jurisdictional require-
ment, John R. Sand & Gravel Co. v. United States, 552 U.S.
130, 133–34 (2008).
“Whether the Court of Federal Claims possesses juris-
diction over a claim is a question of law subject to de novo
review.” Navajo Nation v. United States, 631 F.3d 1268,
1272 (Fed. Cir. 2011). “Whether a taking compensable un-
der the Fifth Amendment has occurred is a question of law
SALINE ASSOCIATES NO. 1 v. UNITED STATES 7
based on factual underpinnings.” Bass Enters. Prod. Co. v.
United States, 133 F.3d 893, 895 (Fed. Cir. 1998). We re-
view the CFC’s rulings of law de novo, Massachusetts Bay
Transportation Authority v. United States, 254 F.3d 1367,
1372 (Fed. Cir. 2001), and factual findings underlying the
analysis are reviewed for clear error, City of El Centro v.
United States, 922 F.2d 816, 819 (Fed. Cir. 1990).
A. The Contract Claims
In Franconia the Court explained that “[u]nless peti-
tioners treated ELIHPA as a present breach by filing suit
prior to the date indicated for performance, breach would
occur when a borrower attempted to prepay, for only at that
time would the Government’s responsive performance be-
come due.” 536 U.S. at 143. The CFC found that “[b]ecause
plaintiffs transferred their respective properties and loan
agreements prior to taking either of those steps, they failed
to place the government in breach when they had the right
to do so.” CFC Op. at 741. 2 Applying Franconia, the CFC
held that no breach of contract occurred because prepay-
ment was not offered and refused. Nor did Saline treat
ELIHPA as a present breach by filing suit during Saline’s
ownership of the properties.
In Tamerlane, Ltd. v. United States, 550 F.3d 1135(Fed. Cir. 2008), this court sought to “define the contours
of the tender and rejection that are sufficient to trigger” the
running of the statute of limitations regarding an ELIPHA
claim for breach of contract. We held that “[t]he Franconia
decision requires no more formalism than the written re-
quest to prepay followed by non-acceptance of the request
2 The record supports this finding, for Saline’s owner
told the CFC that she “did not give any serious considera-
tion to submitting a prepayment request to the agency on
any of the properties.” Decl. of Elsie J. Garner, ¶ 9 (July
13, 2016) (Appx.18).
8 SALINE ASSOCIATES NO. 1 v. UNITED STATES
by the government to trigger the running [of] the statute of
limitations.” Id. at 1143. We also observed that “other con-
duct” by the government, aside from refusing to accept a
prepayment request, “could constitute breach,” id. How-
ever, here Saline did not make a written request, and Sa-
line has not alleged any other conduct by the government
that might constitute breach.
In Airport Road Associates, Ltd. v. United States, 866
F.3d 1346 (Fed. Cir. 2017), this court stated that “[t]he Su-
preme Court’s decision in Franconia expressly distin-
guished between repudiation and breach by drawing the
line at the time for performance—until the government’s
obligation to allow or accept prepayment comes due, it has
at most repudiated its obligation to accept prepayment.”
Id. at 1352 (internal quotation marks omitted). We held
that the borrower’s correspondence with RHS, including a
“request to pay off the mortgage(s),” was insufficient to in-
itiate RHS’s obligation to accept prepayment, for the gov-
ernment responded with a request for additional
information. A request to prepay the loans and denial are
not here asserted. It appears undisputed that the only re-
quest Saline made of the government was for approval of
the sale to Union Street—which RHS duly granted.
Responding to the government’s argument that the
failure to file an ELIPHA suit or offer prepayment did not
place the government in breach of contract, Saline argues
that breach nonetheless occurred because it made a mate-
rial change of position due to ELIHPA, by selling the prop-
erties to Union Street at a lower value than the properties
would have had if they were unrestricted by the terms of
§ 515.
A cause of action against the United States accrues
when all events have occurred which fix the government’s
liability. Kinsey v. United States, 852 F.2d 556, 557 (Fed.
Cir. 1988) (quoting Oceanic Steamship Co. v. United States,
165 Ct. Cl. 217, 225 (1964)) (determining liability in a
SALINE ASSOCIATES NO. 1 v. UNITED STATES 9
breach of contract claim); Seldovia Native Ass’n, Inc. v.
United States, 144 F.3d 769, 774 (Fed. Cir. 1998) (deter-
mining liability in a taking claim).
In Franconia, the Court held that “ELIHPA effected a
repudiation of the FmHA loan contracts, not an immediate
breach.” 536 U.S. at 143. The Court explained that the
injured party may choose to treat the repudiation as a pre-
sent breach, or may choose to await the previously estab-
lished contract performance date:
“[t]he time of accrual . . . depends on whether the
injured party chooses to treat the . . . repudiation
as a present breach.” 1 C. Corman, Limitation of
Actions § 7.2.1, p. 488 (1991). If that party “[e]lects
to place the repudiator in breach before the perfor-
mance date, the accrual date of the cause of action
is accelerated from [the] time of performance to the
date of such election.” Id., at 488–489. But if the
injured party instead opts to await performance,
“the cause of action accrues, and the statute of lim-
itations commences to run, from the time fixed for
performance rather than from the earlier date of
repudiation. Id., at 488.
Id. at 144; see also Roehm v. Horst, 178 U.S. 1, 13 (1900)
(repudiation “give[s] the promisee the right of electing ei-
ther to . . . wait till the time for [the promisor’s] perfor-
mance has arrived, or to act upon [the renunciation] and
treat it as a final assertion by the promisor that he is no
longer bound by the contract”).
In Franconia the Court explained that “[w]ere ELHIPA
so regarded [as an anticipatory repudiation], petitioners’
suit would be timely if filed within six years of either the
date performance fell due (the date petitioners tendered
prepayment) or the date on which petitioners elected to
treat the repudiation as a present breach. Id. at 139. Here
Saline’s sales occurred after the ELIHPA extension of the
20-year restriction on prepayment. Saline did not tender
10 SALINE ASSOCIATES NO. 1 v. UNITED STATES
prepayment, and Saline did not treat the ELIPHA repudi-
ation as a present breach.
Saline argues that a non-repudiating party may elect
to treat repudiation as breach “either by bringing suit
promptly, or by making some change of position.” S. Wil-
liston & R. Lord, A Treatise on the Law of Contracts § 63:33
(4th ed. 2002). The question then is when the events sur-
rounding Saline’s sale of the properties to Union Street
started the accrual of the six-year statute of limitations.
Saline asserts that the period of limitations did not start to
accrue until the date of closing of the sale.
The CFC held that Saline’s claim on the ground of ma-
terial change in position was time-barred. The CFC dis-
cussed the applicable dates of such change of position,
among (1) October 12, 2007, the date of the sales contract
between Saline and Union Street; or (2) November 14,
2007, the date RHS approved the sale; or (3) November 19,
2007, the closing date of the sale. Because Saline filed suit
on November 15, 2013, its claim is untimely if the material
change in position occurred before November 15, 2007.
The CFC held that if such a change in position oc-
curred, it happened on October 12, 2007—the date Saline
contracted to sell the properties to Union Street—and cer-
tainly no later than November 14, 2007, when RHS ap-
proved the sale. CFC Op. at 741. Saline argues that a
material change in position for a real property sale occurs
only on the closing date, for “closing” is the “definite action
indicating that the anticipatory breach has been accepted
as final[.]” Williston § 63.55. Saline points out that until
November 19, 2007, the date of closing, Saline was still per-
forming in accordance with its agreement with RHS, and
that the sales contract of October 12, 2007 so required.
Thus, Saline asserts that until the closing of the sale and
transfer of ownership, including Union Street’s assumption
of the mortgage and acceptance of the § 515 restrictions,
SALINE ASSOCIATES NO. 1 v. UNITED STATES 11
there was no material change in Saline’s relationship with
the government.
The CFC did not accept Saline’s argument that no ma-
terial change in position occurred before the date of closing.
The CFC correctly observed that upon execution of the con-
tracts for sale, Saline transferred interests in the proper-
ties to Union Street. Among other interests under the
contracts, as noted by the CFC, Union Street became the
equitable owner of the properties and Saline merely held
legal title as security. See 17 Williston on Contracts § 50:42
(4th ed.) (“The rule in the vast majority of jurisdictions is
that on entering into a contract for the purchase and sale
of land, the purchaser is the owner in equity of the land,
and the seller holds legal title as security for payment of
the purchase price.”); 8 Corbin on Contracts § 33A.7 (2018)
(“The contract itself was a conveyance of almost all of the
jural relations constituting property. It at once created ‘eq-
uitable ownership’ in the purchaser, leaving in the vendor
only the ‘bare legal title,’ once historically important but
now relatively negligible.”).
The sales contracts herein are governed by Michigan
property law, which applies the doctrine of equitable con-
version as described by Williston and Corbin. See Batton-
Jajuga v. Farm Bureau Gen. Ins. Co. of Michigan, 322
Mich. App. 422, 436–37, 913 N.W.2d 351, 358 (2017), ap-
peal denied, 502 Mich. 938, 918 N.W.2d 523 (2018) (“Under
Michigan law, the sale of real property under a land con-
tract operates as an equitable conversion. Under the doc-
trine of equitable conversion, equity treats the sale as
actually taking place when the land contract becomes ef-
fective.” (internal citation and quotation marks omitted)).
Thus when Saline entered into the contracts to sell the
properties to Union Street on October 12, 2007, a material
change occurred with respect to the interests in the prop-
erties. This effected a change in Saline’s position concern-
ing the repudiated right to prepay the § 515 loans, for
12 SALINE ASSOCIATES NO. 1 v. UNITED STATES
Saline states that the sales price took account of the con-
tinuing § 515 prepayment restrictions.
We conclude that the CFC correctly denied Saline’s
claim for breach of contract. On the law established by
Franconia, Saline did not place the government in breach
prior to contracting to sell the properties, and such mate-
rial change in position occurred more than six years before
this suit was filed. Thus the contract claim is time barred
by the Tucker Act’s six-year statute of limitations.
B. The Taking Claims
The CFC also granted summary judgment in favor of
the government on Saline’s taking claims. Saline advanced
two theories: (1) taking of its contractual prepayment
rights; and (2) regulatory taking based on restrictions on
the use and disposition of their property.
With respect to the taking of the contract right, the
CFC held:
[P]laintiffs’ contract rights cannot be greater in a
takings analysis than in a contract analysis. If
they do not have a contract right, there is no prop-
erty to be taken. Vice versa, if they have a contract
right, their remedy is to assert that right. They
continued to have a contract remedy after the leg-
islation was adopted, up until the time they sold all
of their contractual rights. The fact that they
elected not to place the government in breach prior
to sale does not generate a hitherto nonexistent
taking.
CFC Op. at 742. The CFC thus concluded that no taking
of a contractual right occurred, as a matter of law.
This court has explained that “the concept of a taking
as a compensable claim theory has limited application to
the relative rights of party litigants when those rights have
been voluntarily created by contract. In such instances,
SALINE ASSOCIATES NO. 1 v. UNITED STATES 13
interference with such contractual rights generally gives
rise to a breach claim not a taking claim.” Baggett Transp.
Co. v. United States, 969 F.2d 1028, 1034 (Fed. Cir. 1992)
(quoting Sun Oil Co. v. United States, 572 F.2d 786, 818
(Ct. Cl. 1978)) (citation omitted).
Precedent is consistent. See Piszel v. United States,
833 F.3d 1366, 1376 (Fed. Cir. 2016) (“We have held that
when the government itself breaches a contract, a party
must seek compensation from the government in contract
rather than under a takings claim.”); Castle v. United
States, 301 F.3d 1328, 1342 (Fed. Cir. 2002) (“Thus, by en-
acting FIRREA, the government did not deprive the plain-
tiffs from a contractual remedy—injunctive relief—to
which they otherwise might have been entitled against a
private defendant. Nor did FIRREA remove the plaintiffs’
cause of action for damages. We agree with the Court of
Federal Claims that the plaintiffs retained the full range
of remedies associated with any contractual property right
they possessed. Consequently, we hold that even assuming
the enactment and enforcement of FIRREA breached a con-
tract the government had with Castle and Harlan, it did
not constitute a taking of the contract.”); see Dureiko v.
United States, 209 F.3d 1345, 1359 (Fed. Cir. 2000) (“Pine
Isle’s alternative contention that FEMA violated the Fifth
Amendment by breaching its contract with Pine Isle is also
deficient, since FEMA’s conduct here would only appropri-
ately give rise to a claim under contract law, not the Fifth
Amendment.”).
Saline states that the CFC erred in law, and that a tak-
ing of a contract-based right can occur in the absence of a
breach of contract, citing Stockton E. Water Dist. v. United
States, 583 F.3d 1344, 1369 (Fed. Cir. 2009), on reh’g in
part, 638 F.3d 781 (Fed. Cir. 2011) (“In this case, the trial
judge denied the contract claim, and then dismissed with-
out trial the takings claim on the ground that the contract
claim precluded the takings claim. That is error.”). How-
ever, in Stockton the question was not whether a
14 SALINE ASSOCIATES NO. 1 v. UNITED STATES
contractual right was taken; rather, the question was
whether it was error to deny the claim for breach of con-
tract and subsequently dismiss the claim for a taking on
the ground that the contract claim precluded any taking.
See id. at 1369. Here, the CFC considered the contract and
the property issues separately.
On Saline’s argument for a regulatory taking, the CFC
held that the economic impact of the restrictions placed on
Saline’s property began on enactment of ELIPHA, or alter-
natively at the time of extension of the 20-year restrictive
use provision in the loan agreements; both dates occurred
more than six years before this suit was filed. CFC Op. at
742.
The government states that the CFC incorrectly stated
that a taking claim accrued at the time ELIPHA was en-
acted. Gov. Br. at 57 (“In any event, we do not dispute ap-
pellants’ argument that the trial court incorrectly held that
their real property takings claims accrued upon the pas-
sage of ELIHPA.”). This court has observed that “[t]he Su-
preme Court in Franconia did not provide guidance as to
when the statute of limitations begins to run on takings
claims brought by a § 515 borrower.” Airport Rd. Assocs.,
Ltd. v. United States, 866 F.3d 1346, 1354 n.8 (Fed. Cir.
2017). The Court in Franconia did, however, reject our
holding that “takings relief was time barred” because it
“hinged entirely on [our] conclusion that petitioners’ con-
tract claims accrued upon passage of ELIHPA.” Franconia,
536 U.S. at 149.
Applying the Franconia conditions to the facts and re-
lationships herein, we agree that the taking claim did not
accrue on enactment of ELIHPA. The situation is analo-
gous to that in Greenbrier v. United States, 193 F.3d 1348(Fed. Cir. 1999), where this court held that the taking claim
under ELIHPA was not ripe because:
None of the Owners in this case have alleged that
they followed the procedures provided for obtaining
SALINE ASSOCIATES NO. 1 v. UNITED STATES 15
HUD permission to prepay their mortgage loans,
much less that they have received final decisions
from HUD denying them such permission. The en-
actment of the statutes did not constitute such final
decisions. That HUD may have set a high hurdle
by imposing stringent requirements for granting
such permission does not excuse the Owners’ fail-
ure to seek such permission.
Id. at 1358–59 (footnote omitted).
The issue here is simpler, in that Saline neither re-
quested to prepay nor filed suit, but instead sold its prop-
erties and waited longer than six years after contracting
for that sale before bringing suit.
Saline asserts that it would have been futile to make a
prepayment request before disposing of the properties. Sa-
line provided a Declaration from an owner, who stated:
Because I understood that prepayment was no
longer an option for the partnerships, I did not give
any serious consideration to submitting a prepay-
ment request to the agency on any of the proper-
ties. This was based on my discussions with my
limited partners and advisors, including a former
agency employee. It made no sense to me to spend
the time and money to prepare and submit a pre-
payment application when I knew that it would be
denied.
Decl. of Elsie J. Garner, ¶ 9 (July 13, 2016) (Appx.18).
In Biafora v. United States, 773 F.3d 1326, 1331 (Fed.
Cir. 2014), this court rejected a similar claim of futility, and
explained that “whether it would be futile for a property
owner to seek prepayment approval must be determined on
the basis of facts and calculations specific to each prop-
erty.” Id. at 1337. We further suggested that to establish
futility, objective evidence is required, such as property
16 SALINE ASSOCIATES NO. 1 v. UNITED STATES
specific data, and analysis of whatever aspects RHS would
have to consider. See id. at 1331, 1336–37.
Precedent has observed that “the futility exception
simply serves to protect property owners from being re-
quired to submit multiple applications when the manner in
which the first application was rejected makes it clear that
no project will be approved.” Howard W. Heck & Assocs.,
Inc. v. United States, 134 F.3d 1468, 1472 (Fed. Cir. 1998)
(quoting Southern Pac. Transp. Co. v. City of Los Angeles,
922 F.2d 498, 504 (9th Cir. 1990)) (internal quotations re-
moved). Although futility may be rationally based, it does
not overcome the jurisdictional weight of the statute of lim-
itations in dealings with the government. Aectra Ref. &
Mktg., Inc. v. United States, 565 F.3d 1364, 1373 (Fed. Cir.
2009) (“[F]utility does not excuse the failure to file a proper
claim for limitations purposes.”).
On the facts and events hereof, reversible error has not
been shown in the CFC’s ruling that a taking action is time-
barred.
CONCLUSION
The decision of the Court of Federal Claims is
AFFIRMED
COSTS
No costs.