United States Court of Appeals
for the Federal Circuit
______________________
HADDON HOUSING ASSOCIATES, LIMITED
PARTNERSHIP AND HOUSING AUTHORITY OF
THE TOWNSHIP OF HADDON,
Plaintiffs-Cross Appellants,
v.
UNITED STATES,
Defendant-Appellant.
______________________
2012-5046, -5060
______________________
Appeals from the United States Court of Federal
Claims in No. 07-CV-646, Judge Charles F. Lettow.
______________________
Decided: March 22, 2013
______________________
MARK J. VALPONI, Taft Stettinius & Hollister LLP, of
Cleveland, Ohio, argued for plaintiffs-cross appellants.
With him on the brief was MICHAEL J. ZBIEGIEN, JR. Of
counsel was JOHN B. NALBANDIAN, of Cincinnati, Ohio.
CAMERON COHICK, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, argued for defendant-
appellant. With him on the brief were STUART F. DELERY,
2 HADDON HOUSING ASSOCIATES v. US
Acting Assistant Attorney General, JEANNE E. DAVIDSON,
Director, and BRIAN M. SIMKIN, Assistant Director.
______________________
Before O’MALLEY, PLAGER, and REYNA, Circuit Judges.
O’MALLEY, Circuit Judge.
The United States (“the government”) appeals two de-
cisions of the United States Court of Federal Claims
(“Claims Court”). The first is an order denying the gov-
ernment’s motion to dismiss a portion of Appellees’ breach
of contract action on statute of limitations grounds.
Pennsauken Senior Towers Urban Renewal Assoc. v.
United States,
83 Fed. Cl. 623, 624 (2008). The second
issued following a three-day trial, finding the United
States liable for breaching its contract with Appellees
during 2001, and each of the years 2003-2006. Haddon
Hous. Assoc. v. United States,
99 Fed. Cl. 311 (2011).
Rohrer Towers II Apartments (“Rohrer Towers II”) is
a housing facility for low-income elderly residents in
Haddon Township, Camden County, New Jersey. Haddon
Housing Associates, Limited Partnership leased Rohrer
Towers II to Housing Authority of the Township of Had-
don (collectively “Haddon”), which, in turn, entered into a
housing assistance payments contract (“HAP Contract”)
with the United States Department of Housing and
Urban Development (“HUD”) to provide low-income
housing under the Housing Act of 1937 (“Housing Act”).
See Housing and Community Development Act of 1974,
Pub. L. No. 93-383,
88 Stat. 633, 662–66 (1974). Haddon
filed suit on September 4, 2007 alleging that HUD
breached the HAP Contract in each of the years from
2001-2006 by, among other things, requiring rent “compa-
rability studies” to be submitted along with requests for
annual rent adjustments and adopting a one-percent
reduction of the annual adjustment factors for units
occupied by the same tenant(s) from the previous year
HADDON HOUSING ASSOCIATES v. US 3
(“non-turnover units”). The Claims Court agreed and
ordered rent adjustments for all relevant years other than
2002.
The government appeals the Claims Court’s ruling
and contests the earlier denial of its motion to dismiss
Haddon’s claim for damages for the 2001 rent year on
statute of limitations grounds. The government also
appeals the Claims Court’s decision that regulatory
imposition of a mandatory one-percent (1%) rent reduc-
tion for non-turnover units was arbitrary, and thus be-
yond HUD’s authority. Haddon appeals the Claims
Court’s failure to order a rent adjustment for 2002.
Finally, Haddon appeals the Claims Court’s refusal to set
aside the government’s post-contract imposition of a
requirement that rent adjustment requests be submitted
sixty (60) days prior to the HAP Contract anniversary
date. All appeals are timely. This court has jurisdiction
pursuant to
28 U.S.C. § 1295(a)(3). For the reasons
below, we affirm-in-part and reverse-in-part.
I.
Section 8 of the Housing Act created a housing assis-
tance program through which HUD subsidizes the rents
of low-income individuals and families living in privately-
owned homes and apartments. See 42 U.S.C. § 1437f.
Building owners enter into HAP Contracts that obligate
HUD to pay rent subsidies on behalf of low-income occu-
pants. Id. Each HAP Contract establishes the maximum
monthly rent, otherwise known as the “contract rent,”
that a building owner is entitled to receive for a particular
housing unit. 42 U.S.C. § 1437f(c)(1);
24 C.F.R. § 880.201.
The tenants are obligated to pay a portion of the estab-
lished monthly rent based on particular income guide-
lines, see 42 U.S.C. § 1437a, while the government pays a
subsidy to the building owner to bridge the difference
between the tenant obligation and contract rent. See 42
U.S.C. § 1437f.
4 HADDON HOUSING ASSOCIATES v. US
The maximum monthly rent is tied to the fair market
rental value of the housing. The “fair market rental”
value for an area is published in the Federal Register and
is based on the most recent available data of rents for
existing or newly constructed rental units of various sizes
and types in the market area. 42 U.S.C. § 1437f(c)(1).
Once a baseline rent is established, the Housing Act also
provides for at least yearly adjustments of the contract
rent. 42 U.S.C. § 1437f(c)(2)(A). The upward rental
adjustments are to “reflect changes in the fair market
rentals established in [a] housing area for similar types
and sizes of dwelling units or, if the Secretary determines,
on the basis of a reasonable formula.” 42 U.S.C. §
1437f(c)(2)(A).
HUD uses Automatic Annual Adjustment Factors
(“AAAF”) to calculate the amount of the upward rental
adjustments.
24 C.F.R. § 888.201. HUD publishes the
AAAFs in the Federal Register at least annually.
24
C.F.R. § 888.202. Yearly increases, however, are subject
to an overall limitation to ensure that “[a]djustments in
the maximum rents . . . shall not result in material
differences between the rents charged for assisted and
comparable unassisted units of similar quality, type, and
age in the same market area, as determined by the Secre-
tary.” 42 U.S.C. § 1437f(c)(2)(C).
Congress twice modified the administration of HAP
Contracts, in 1989 and 1994. In 1989, Congress amended
the Housing Act to enforce the overall limitation by
providing that the Secretary will establish regulations for
conducting “comparability studies.” See Department of
Housing and Urban Development Reform Act of 1989,
Pub. L. No. 101-235,
103 Stat. 1987, 2057–59 (codified at
42 U.S.C. § 1437f(c)(2)(C)). A comparability study com-
pares private market rents against Section 8 rents of
units of comparable size and type in a particular area.
See Cisneros v. Alpine Ridge Grp.,
508 U.S. 10, 14 (1993).
HUD, prompted by the amendment requirement, began to
HADDON HOUSING ASSOCIATES v. US 5
create the studies to enforce the overall limitation in
rental markets where the Secretary believed application
of the AAAFs to the contract rents would generate mate-
rially higher rents for assisted units compared to similar
unassisted units.
Id. After a challenge by building own-
ers, the Supreme Court concluded that the HAP Contracts
authorized HUD to conduct such comparability studies.
Id. at 21. Congress was not yet finished amending the
statutory framework of Section 8.
In 1994, Congress revised the Housing Act and shifted
the burden to building owners to prove that the adjusted
rents (i.e., the maximum rents plus a particular year’s
AAAFs) do not exceed rents of comparable unassisted
units. The amendment states that, should an AAAF
adjustment cause the monthly rent to exceed the fair
market rent for the units, the owner must demonstrate
that the adjusted rent would not exceed the rent for
comparable unassisted units in the same market. See
Departments of Veterans Affairs and Housing and Urban
Development, and Independent Agencies Appropriations
Act of 1995, Pub. L. No. 103-327,
108 Stat. 2298, 2315
(1994) (“1994 Amendments”).
In response to the 1994 Amendments, HUD issued
Notice 95-12. See HUD Directive 95-12, Annual Adjust-
ment Factor Rent Increase Requirements Pursuant to the
Housing Appropriations Act of 1995 (Mar. 7, 1995).
Notice 95-12 provides that a building owner must submit
a rent comparability study at least 60 days prior to the
HAP Contract anniversary date if the adjusted rent (after
application of the annual AAAF) should exceed the pub-
lished fair market rent for the area.
Id. at 2–3. Absent
submission of such a study, the rent would not be adjust-
ed. But, if the owner submitted the information outside
the 60-day window, the rent would be adjusted 60 days
after receipt of the required information, so long as the
request was made before the next contract anniversary
date. Id. at 3. Should the owner demonstrate via a
6 HADDON HOUSING ASSOCIATES v. US
comparability study that rents for unassisted units in the
area are more than five percent over the current contract
rent, HUD maintained that it would increase the rent to
the lesser of: (1) the rent level adjusted by the AAAF or
(2) the comparable, unassisted rent plus the initial differ-
ence (the amount by which the original contract rent
exceeded the original comparable rent). Id. at 3–4.
Should the comparability study demonstrate that the
current contract rent was above the current rents for
comparable unassisted units, the rent would remain
steady and would not be reduced. Id. at 4.
Beyond the rent comparability study requirement, the
1994 Amendments amended other aspects of the admin-
istration of HAP Contracts. For non-turnover units, or
units occupied by the same family at the time of the last
annual rental adjustment, Congress instituted a manda-
tory one-percent reduction of the applicable AAAFs. See
42 U.S.C. § 1437f(c)(2)(A); Department of Veterans Affairs
and Housing and Urban Development, and Independent
Agencies Appropriations Act of 1995, 108 Stat. at 2315.
Congress also added a provision to 42 U.S.C. §
1437f(c)(2)(A) that where application of an AAAF causes
the contract rent to exceed “the fair market rental for an
existing dwelling unit in [a] market area,” the owner must
demonstrate that the adjusted rent would not exceed the
rent for an unassisted unit. See id. (emphasis added).
This new provision could be interpreted to supersede the
overall limitation in existing HAP Contracts targeted to
identify “material differences” between the rents charged
for assisted units and comparable unassisted units, not
whether the rent would exceed the fair market rental
value. See, e.g., § 2.7(d) of Haddon HAP Contract.
On January 1, 1980, Haddon Housing Associates
leased Rohrer Towers II to the Housing Authority. The
Housing Authority, in turn, entered into a HAP Contract
with HUD for Rohrer Towers II, effective March 17, 1981.
During the term of the lease, Haddon Housing Associates
HADDON HOUSING ASSOCIATES v. US 7
agreed to operate and maintain the project and, on behalf
of the Housing Authority, submit requests for rent ad-
justments to HUD. The HAP Contract allowed for a
maximum term of 30 years and terminated on March 16,
2011. Section 2.7(b) of the HAP Contract provided that
“[u]pon request from the owner to the CA [Contract
Administrator], Contract Rents will be adjusted on the
anniversary date of the Contract in accordance with 24
CFR 888 and this Contract.” Section 2.7(d) recited the
“overall limitation” provision, which provided that appli-
cation of a given AAAF to the contract rent “shall not”
result in “material differences” between the rents charged
for assisted units and comparable unassisted units in the
same market.
HUD provided rent adjustments to Haddon from 1982
to 1987, but no adjustments for 1988 and 1989. From
1990 through 1995, HUD granted all of Haddon’s requests
for rent adjustments. HUD, however, denied Haddon’s
requests for rent adjustments from 1996 through 1998, for
failure to include an attendant rent comparability study
in compliance with recently issued Notice 95-12. Haddon
did not submit requests for rent adjustments or conduct
rent comparability studies from 1999 to 2001 and in 2003.
In 2002, Haddon conducted a rent comparability study,
but decided not to submit a request for a rent adjustment
based upon its belief that the request might result in a
downward adjustment of contract rents. Haddon again
submitted requests for rent adjustments from 2004
through 2006, all of which HUD denied for lack of an
accompanying comparability study. From 2007 through
2010, Haddon accompanied its rent adjustment requests
with rent comparability studies and HUD accordingly
granted the adjustments. Despite the parties’ disagree-
ment regarding rent adjustments, they continued comply-
ing with all other duties and obligations under the
contract: HUD continued paying subsidies to Haddon,
8 HADDON HOUSING ASSOCIATES v. US
while Haddon maintained and provided housing to its
elderly residents.
Haddon filed suit against the government on Septem-
ber 4, 2007, seeking damages from September 4, 2001,
forward, alleging that HUD breached the HAP Contract
by not providing rent adjustments from 2001 to 2006. See
Haddon Hous. Assoc., 99 Fed. Cl. at 313–14. The case
was initially consolidated with Pennsauken Senior Towers
Urban Renewal Assocs. v. United States, No. 07-174C
(Fed. Cl., filed March 15, 2007). Id. at 314, n.2. While the
cases were consolidated, the government moved pursuant
to Rule 12(b)(1) to dismiss Haddon’s claim for damages
from September 4, 2001 to March 16, 2002, contending
that any claim relating to the 2001 contract year accrued
on March 17, 2001, outside the six-year statute of limita-
tions for contract claims against the government.
Pennsauken Senior Towers Urban Renewal Assoc., 83 Fed.
Cl. at 624. The Claims Court denied the government’s
motion, holding that Haddon’s claim for 2001 was not
outside the limitations period because Haddon could have
requested a 2001 rent adjustment at any time prior to
March 17, 2002, and was not limited to making a request
as of the beginning of the contract year. Id. at 628–29.
The Pennsauken case settled, and Haddon and the United
States went to trial between November 15-17, 2010.
Haddon, 99 Fed. Cl. at 314.
The Claims Court issued its opinion and order on lia-
bility on June 24, 2011. The Claims Court held that the
1994 Amendments and HUD’s implementation of the
changes, namely Notice 95-12 and the comparability
study requirement, constituted a breach of Haddon’s HAP
Contract. Id. at 330. The Claims Court found that HUD
was liable for denying Haddon’s rent adjustments from
2004 through 2006, the years during which Haddon had
submitted rent adjustment requests absent a comparabil-
ity study. Id. The Claims Court also held that Haddon
HADDON HOUSING ASSOCIATES v. US 9
was entitled to recover the cost of the comparability study
it conducted in 2007. Id.
The Claims Court further found that Haddon failed to
submit rent adjustment requests from 2001 through 2003;
a condition precedent in the HAP Contract to obtaining
an adjustment. Id. at 330–33. The Claims Court, never-
theless, held that Haddon was excused from performance
of the condition precedent under the “prevention doctrine”
for the years 2001 and 2003. Id. The Claims Court found
that the facts adduced at trial demonstrated that Had-
don’s failure to submit rent requests in those years was a
direct result of HUD’s previous denials. Id. As such, the
Claims Court held that the government materially con-
tributed to Haddon’s failure to fulfill the condition prece-
dent and, therefore, that Haddon was excused from
performance. Id. Regarding 2002, the Claims Court
found that the trial evidence demonstrated that the
government’s previous denials did not contribute to
Haddon’s failure to submit a rent adjustment request. Id.
Haddon thus was not awarded any recovery for 2002. Id.
The trial court also held that: (1) the one-percent re-
duction for “non-turnover” units was not supported by
adequate rationale to satisfy the Secretary’s duty under
42 U.S.C. § 1437f; (2) the overall limitation in the Haddon
HAP Contract does not serve as a cap on Haddon’s dam-
ages because it was superseded by the 1994 Amend-
ments 1; and (3) the requirement that owners submit their
rent requests 60 days prior to the anniversary date (or
rental adjustment date if made after the anniversary
date) is reasonable and within the boundaries of HUD’s
discretion. Id. at 335–42. This appeal followed.
The government argues that the trial court erred in
holding that: (1) HUD breached the HAP contract by not
granting rent adjustments from 2004 to 2006; (2) Haddon
1 The government does not appeal this conclusion.
10 HADDON HOUSING ASSOCIATES v. US
was excused for not submitting rent adjustment requests
in 2001 and 2003; (3) the one-percent reduction for non-
turnover units was improper; and (4) the statute of limi-
tations did not bar Haddon’s claim for damages for 2001. 2
Haddon cross-appeals, contending that the trial court
erred in holding that Haddon was not entitled to a rent
adjustment for 2002. Alternatively, Haddon argues that
the Claims Court should have found the 60-day require-
ment established in Notice 95-12 arbitrary, thus granting
Haddon’s retroactive request for the 2002 adjustment.
II.
We turn first to the Claims Court’s decision in Had-
don Hous. Assoc. v. United States,
99 Fed. Cl. 311 (2011).
There, the Claims Court provided a well-reasoned and
meticulous opinion detailing its factual findings and legal
conclusions thereon. In significant measure, we see no
reason to revisit that careful analysis. Thus, for the
reasons set forth in the Claims Court’s opinion, we agree
that the 1994 Amendments and HUD’s implementation
thereof is a breach of the Haddon HAP Contract for all
years at issue here. We also agree that the government’s
deduction of one percent (1%) from the annual adjustment
factor to be applied to contract rents for non-turnover
units breached the HAP Contract because the one-percent
(1%) figure was arbitrary. Finally, we agree that HUD’s
requirement that owners request rent adjustments at
least sixty (60) days prior to the contract anniversary date
“fits within the boundaries of the administrative discre-
tion HUD possesses,” Haddon Hous. Assoc., 99 Fed. Cl. at
341, and thus, did not breach the Haddon HAP Contract.
We disagree with only the Claims Court’s decision that
Haddon was excused from submitting rent adjustment
requests in 2001 and 2003.
The government does not appeal the Claims Court’s
2
judgment regarding the impact of the overall limitation
on Haddon’s damages claims.
HADDON HOUSING ASSOCIATES v. US 11
Haddon’s HAP Contract contains a condition prece-
dent that requires Haddon to affirmatively request a rent
adjustment each year to trigger HUD’s duty to provide an
adjustment. Haddon failed to make any requests for rent
adjustments from 1999 to 2003. The Claims Court ex-
cused Haddon’s failure to fulfill the condition precedent in
2001 and 2003 under the so-called “prevention doctrine.”
The Claims Court found that the government, via the
1994 Amendments and HUD’s implementation thereof,
breached the Haddon HAP Contract and made clear its
intention to continue to breach that contract by requiring
rent comparability studies as a precondition to receipt of
any rent adjustment. Id. at 330. The Claims Court thus
concluded that Haddon’s failure to fulfill the condition
precedent of making a rent adjustment request in 2001
and 2003 was a direct result of the government’s prior
breach of its express contractual duty to grant rent ad-
justments upon Haddon’s request, and a breach of its
implied contractual duty of good faith and fair dealing.
Id. at 332. As a result of such breach, the Claims Court
found that Haddon’s failure to fulfill the condition prece-
dent was excused under the prevention doctrine. Id. We
disagree.
A.
We review the Claims Court’s legal determinations de
novo and its findings of fact for clear error. Home Sav. of
Am. v. United States,
399 F.3d 1341, 1346 (Fed. Cir. 2005)
(citations omitted). “A finding may be held clearly erro-
neous when . . . the appellate court is left with a ‘definite
and firm conviction that a mistake has been committed.’”
In re Mark Indus.,
751 F.2d 1219, 1222–23 (Fed. Cir.
1984) (citations omitted).
We first turn to the Claims Court’s factual findings
relevant to Haddon’s failure to make rent adjustment
requests in 2001 and 2003. During the bench trial, Ms.
Kathleen Simpkins, the Administrator of Rohrer Towers
12 HADDON HOUSING ASSOCIATES v. US
II, testified that she submitted a letter to HUD in 1996
requesting a rent increase in accordance with that year’s
AAAFs. HUD denied the request because she did not
include a rent comparability study along with the request,
as application of the AAAFs would exceed the published
fair market rental values in the area. Id. at 319. Ms.
Simpkins again submitted rent increase requests in 1997
and 1998, and both similarly were denied because they
lacked a companion comparability study. Id. Ms. Simp-
kins then chose not to submit rent increase requests from
1998 to 2003. 3 Id. at 319. She testified that she stopped
making the requests because: “[a]fter asking for requests
for three years and being denied for three years, I stopped
asking. I didn’t feel as though if I sent a letter every day
they would – I would receive the same response.” Id. at
332; Joint Appendix at 1046 (Trial Transcript, 234:9–13).
Beginning in 2004, and continuing through 2006, Ms.
Simpkins again submitted rent adjustment requests to
HUD without comparability studies. Haddon Hous.
3 The Claims Court held that Haddon’s decision to
forgo requesting a rent adjustment in 2002 was based
solely on its misapprehension that if the comparability
study demonstrated that the current rents were more
than the current fair market value rents, HUD may
decrease the amount of rent subsidy it provides. Haddon
Hous. Assoc., 99 Fed. Cl. at 333. The Claims Court there-
fore found that the evidence demonstrated that the gov-
ernment’s previous denials were not the cause of
Haddon’s failure to seek a rent adjustment in 2002. Id.
Haddon now appeals that decision. Given our holding
that the prevention doctrine does not apply in these
circumstances, however, Haddon’s contract claim for 2002
would fall under the same analysis we employ for 2001
and 2003. We, thus, do not address the precise grounds
for the Claims Court’s judgment regarding the 2002
contract year; we affirm it on other grounds.
HADDON HOUSING ASSOCIATES v. US 13
Assoc., 99 Fed. Cl. at 320. She restarted making the
requests at the urging of Mr. Steenland, the Managing
Partner of Haddon Housing Associates, because he read
about a court decision which held that HUD could not
require owners to generate and submit rent comparability
studies. Id. at 320, n.19. All of the requests from 2004 to
2006 were denied for lack of a study. Id. In 2007, Ms.
Simpkins submitted a rent increase request that included
a rent comparability study. Id. That adjustment was
granted. Id.
We find no error in the Claims Court’s factual find-
ings. These facts, nevertheless, do not justify application
of the prevention doctrine to excuse Haddon’s failure to
make rent adjustment requests in 2001 and 2003. As
such, we conclude that the prevention doctrine does not
apply under these circumstances as a matter of law.
Generally, a party to a contract may assert the non-
occurrence of a contractual condition precedent as a
defense to a claim of breach. When the party asserting
the defense prevented or hindered fulfillment of the
condition precedent, however, it cannot rely on that
failure to avoid its own obligation to perform under the
contract. See Restatement (Second) of Contracts § 245;
Williston, § 39:3. Such waiver is premised on the princi-
ple that a contracting party has an additional duty to
refrain from conduct that prevents or hinders the occur-
rence of the fulfillment of the condition precedent. Id. If
one party’s prevention or hindrance of the other party’s
ability to fulfill a condition precedent constitutes a
breach, then the party’s failure to fulfill the condition
precedent is excused. Id. Put simply, “where a party to a
contract is the cause of the failure of the performance of
the obligation due him or her, that party cannot in any
way take advantage of that failure.” Williston, § 39:4.
The prevention doctrine has long been applied by our
sister circuits with relative consistency. See Akanthos
Capital Mgmt., LLC v. CompuCredit Holdings Corp., 677
14 HADDON HOUSING ASSOCIATES v. US
F.3d 1286, 1296 (11th Cir. 2012) (“the prevention doctrine
will operate to excuse [a] condition precedent which was
wrongfully prevented from occurring”) (quoting Lomaglio
Assocs. Inc. v. LBK Mktg. Corp.,
892 F.Supp. 89, 93
(S.D.N.Y. 1995)); Tabatabai v. West Coast Life Ins. Co.,
664 F.3d 663, 667 (7th Cir. 2011) (stating that if one party
to a contract hinders, prevents, or makes impossible
performance by the other party, the latter’s failure to
perform will be excused); Consol. Edison, Inc. v. Ne.
Utilities,
426 F.3d 524, 528 (2d Cir. 2005) (“a party may
not avoid performance of a contractual duty by preventing
the occurrence of a condition precedent.”); Ne. Drilling,
Inc. v. Inner Space Servs., Inc.,
243 F.3d 25, 40 (1st Cir.
2001) (“[u]nder the so-called prevention doctrine, a con-
tractual condition precedent is deemed excused when a
promisor hinders or precludes fulfillment of a condition
and that hindrance or preclusion contributes materially to
the nonoccurrence of the condition.”); Mendoza v.
COMSAT Corp.,
201 F.3d 626, 630 (5th Cir. 2000) (same);
Moore Bros. Co. v. Brown & Root, Inc.,
207 F.3d 717, 725
(4th Cir. 2000) (“[t]he prevention doctrine is a generally
recognized principle of contract law according to which if
a promisor prevents or hinders fulfillment of a condition
to his performance, the condition may be waived or ex-
cused.”); Apalucci v. Agora Syndicate,
145 F.3d 630, 634
(3d Cir. 1998) (“when one party to a contract unilaterally
prevents the performance of a condition upon which his
own liability depends, the culpable party may not then
capitalize on that failure.”). We do not take issue with the
Claims Court’s recognition of the doctrine in the abstract.
We find, however, that HUD’s insistence on compara-
bility studies, though a breach of the HAP contract, does
not operate to excuse Haddon’s failure to make the re-
quests for adjustments required under § 2.7(b) of the HAP
Contract. HUD’s implementation of the 1994 Amend-
ments and subsequent denials of rent adjustments in
2001 and 2003 did not “prevent” or “hinder” Haddon from
HADDON HOUSING ASSOCIATES v. US 15
making future requests and, thus, cannot justify applica-
tion of the prevention doctrine.
Haddon has made no showing that HUD took any ac-
tion that prevented or hindered its ability to make a
request for a rent adjustment in 2001 and 2003. While
the previous denials may have served to discourage
Haddon from making future requests, HUD nevertheless
did not impede Haddon from doing so. HUD received
Haddon’s previous requests from 1996 to 1998, deter-
mined that application of the AAAFs to the current con-
tract rents would violate the overall limitation in § 2.7 of
the HAP Contract and, because Haddon had not submit-
ted a comparability study as required under those circum-
stances, denied the requests. HUD took no other action
that conceivably could be interpreted as preventing Had-
don from making requests in 2001 and 2003. HUD, for
example, did not refuse to process Haddon’s requests, nor
did HUD threaten to penalize Haddon for making the
requests without comparability studies. HUD’s require-
ment that Haddon submit a comparability study improp-
erly imposed an additional obligation on Haddon, but
HUD did nothing to prevent Haddon from submitting a
request without a rent comparability study in compliance
with its original obligations under the HAP Contract.
The trial testimony unequivocally demonstrated that
Ms. Simpkins stopped submitting requests for rent ad-
justments after the previous denials because she was
frustrated by HUD’s insistence on comparability studies,
and for no other reason. Mere discouragement is not
enough to demonstrate that HUD “prevented” Haddon
from submitting the requests. Indeed, Haddon’s ability to
restart submitting rent adjustment requests in 2004
(without rent comparability studies) belies Haddon’s
contention that HUD prevented or hindered Haddon from
submitting the previous years’ requests. Nothing changed
from 2003 to 2004 other than Haddon’s subjective belief
that HUD lacked the legal authority to require rent
16 HADDON HOUSING ASSOCIATES v. US
comparability studies with rent adjustment requests.
Absent a showing that HUD took some action that pre-
vented or hindered Haddon’s ability to submit its re-
quests, the prevention doctrine does not apply to excuse
Haddon’s failure to submit rent requests in 2001 and
2003.
B.
Haddon also argues that HUD undoubtedly would
have denied the requests in 2001 and 2003, making it
futile to have submitted them. Because it found that the
prevention doctrine applied, the Claims Court did not
address Haddon’s futility argument. Haddon, 99 Fed. Cl.
at 335 n.37. We find, however, that the prevention doc-
trine does not apply under the circumstances presented;
therefore, we turn to Haddon’s alternative argument.
Because Haddon did not bring a claim for anticipatory
repudiation, Haddon’s futility argument does not absolve
it from satisfying its own contractual obligations—
including its duty to actually make requests for rent
adjustments before they are granted.
For “an aggrieved party to recover damages for an an-
ticipatory repudiation, it must elect to treat the repudia-
tion as a total breach.” Indiana Michigan Power Co. v.
United States,
422 F.3d 1369, 1374 (Fed. Cir. 2005). A
claim of anticipatory repudiation requires the aggrieved
party to terminate the contract and file suit. See Willis-
ton § 39:32. Haddon did not pursue a claim for anticipa-
tory repudiation, but instead filed a claim for partial
breach. Haddon, 99 Fed. Cl. at 333–35. Both parties,
moreover, continued to perform their duties and obliga-
tions as required by the HAP Contract. Id.
Had Haddon pursued a claim for anticipatory repudi-
ation, the posture of this suit would be different. Haddon
would have treated HUD’s adoption of Notice 95-12 as a
total breach, terminated the contract, and filed suit. See
Williston § 39:32. Under those circumstances, the gov-
HADDON HOUSING ASSOCIATES v. US 17
ernment would have been relieved of any continuing duty
to perform according to the contract. Id. But, as the
Claims Court recognized, Haddon elected to pursue a
claim for partial breach and the government continued
performing, Haddon therefore cannot then refuse to
perform its obligations under the contract. Haddon, 99
Fed. Cl. at 334 n.35 (citing Williston § 39:32).
As such, Haddon cannot now argue, in the context of a
partial breach claim, that it should be absolved of per-
forming its obligations under the HAP contract. Crediting
such an argument would allow Haddon an end run
around the consequence of electing not to bring an antici-
patory breach claim. In other words, Haddon would gain
the benefit of the government’s continued performance
and also be absolved of performing its own end of the
bargain. Haddon cannot have it both ways. Haddon
elected to pursue a claim for partial breach and continued
to receive the benefits of the government’s performance,
i.e. rent subsidies; it cannot now claim that the govern-
ment was required to perform despite Haddon’s failure to
make a simple request for a rent adjustment in 2001 and
2003—even if such a request would have been futile.
Without the prevention doctrine relieving Haddon of its
responsibilities, Haddon’s futility argument is without
merit.
III.
We now turn to the Claims Court’s decision in
Pennsauken Senior Towers Urban Renewal Assocs., LLC
v. United States,
83 Fed. Cl. 623 (2008), regarding the
applicability of the six-year statute of limitations to
Haddon’s claim for damages from 2001. The Claims
Court’s jurisdiction under the Tucker Act,
28 U.S.C. §
1491(a), is limited to claims filed within six years after a
claim first accrues.
28 U.S.C. § 2501. This six-year
statute of limitations is not an affirmative defense, but
18 HADDON HOUSING ASSOCIATES v. US
affects the Claims Court’s jurisdiction. John R. Sand &
Gravel Co. v. United States,
552 U.S. 130, 132–33 (2008).
Haddon filed its suit on September 4, 2007, effectively
conferring the Claims Court’s jurisdiction over claims that
accrued on or after September 4, 2001. As the Claims
Court recognized, because “the portion of Haddon’s claim
extending from September 4, 2001, through the following
six months [fell] within the 2001 anniversary year of the
[Haddon HAP Contract], which began on March 17,
2001,” the issue is whether Haddon’s claim for adjust-
ments during the 2001 anniversary year is barred because
it relates back to an anniversary date that falls outside
the statute of limitations. Pennsauken Senior Towers
Urban Renewal Assocs., LLC, 83 Fed. Cl. at 627.
The Claims Court first found that there was an “in-
tractable ambiguity” on the face of the Haddon HAP
Contract and
24 C.F.R. § 888.203, which is incorporated
into § 2.7(b) of the Haddon HAP Contract. 4 Id. at 627.
Section 2.7(b)(1) provides that contract rents will be
adjusted on the anniversary date of the contract, or here,
March 17, 2001. Section 888.203 of the Code of Federal
Regulations, however, refers to the “adjusted monthly
amount,” which might be interpreted to allow for monthly
rent adjustments. See 24 C.F.R. 888.203(b) (emphasis
added). As such, the Claims Court turned to HUD’s
interpretation of its own regulation to resolve the ambigu-
ity. Pennsauken Senior Towers Urban Renewal Assocs.,
LLC, 83 Fed. Cl. at 628.
The Claims Court consulted HUD’s Notice 95-12 for
the proper interpretation. Id. at 628–29. Notice 95-12
4 As previously discussed, § 2.7(b)(2) of the Haddon
HAP Contract states: “[u]pon request from the Owner to
the [Contract Administrator], Contract Rents will be
adjusted on the anniversary date of the Contract in ac-
cordance with 24 CFR 888 and this Contract.”
HADDON HOUSING ASSOCIATES v. US 19
specifies that a building owner must submit its request
for a rent adjustment sixty (60) days before the contract
anniversary date to receive a rent adjustment on the
anniversary date. Id. at 626. HUD’s notice, however, also
provides that, should an owner submit a rent adjustment
request after the anniversary date, the adjusted rent will
go into effect 60 days after receipt of the information, so
long as it is submitted prior to the next anniversary date.
Id. The Claims Court thus concluded that HUD’s own
interpretation of the regulation contemplated mid-year
adjustments of the contract rents. Id. at 629. As such,
the Claims Court held Haddon could have requested a
rent adjustment on or after September 4, 2001, and still
received an adjustment; therefore, Haddon’s claims from
the latter months of 2001 were not barred by the six-year
statute of limitations. Id.
The Claims Court provided a succinct analysis of the
jurisdictional issue and whether the statute of limitations
barred Haddon’s claims. We decline to reach the merits of
the issue, however. It is undisputed that Haddon did not
make a request for a rent adjustment in 2001, with or
without a rent comparability study. Because we find that
the prevention doctrine does not excuse Haddon’s failure
to make a request in 2001, the question of whether the
statute of limitations bars any claims from September 4,
2001 to March 17, 2002, the contract anniversary date, is
moot.
IV.
For the foregoing reasons, we reverse the Claims
Court’s finding that the prevention doctrine applied to the
circumstances surrounding Haddon’s 2001 and 2003 rent
adjustment. We affirm the Claims Court’s judgment with
respect to the contract years 2002 and 2004-2006.
AFFIRMED IN PART, REVERSED IN PART
