United States Court of Appeals for the Federal Circuit
01-5011, -5012
ANAHEIM GARDENS, B-L ASSOCIATES, CEDAR GARDENS ASSOCIATES,
C-W ASSOCIATES, DENISE A. KELLENBECK (doing business as VICTORIAN ARMS
APARTMENTS), EARL W. KELLENBECK, FLORIN MEADOWS I, LTD., FLORIN
MEADOWS II, LTD., FRANCES T. WARD, GLENVIEW GARDENS LIMITED
PARTNERSHIP, HILLVIEW TOWNHOUSES LIMITED, HILLVIEW TOWNHOUSES
LIMITED NO. 1, INDIAN HEAD MANOR LIMITED PARTNERSHIP I, J.D.V. WARD,
JAMES W.Y. WONG, JEWEL LAKE VILLA II, JOSEPH BIAFORA and STEFI
BIAFORA, METRO WEST LIMITED, MILLWOOD ASSOCIATES LIMITED
PARTNERSHIP, NAPA PARK APARTMENTS LIMITED PARTNERSHIP, NORMAN M.
KRONICK and LOUIS DULIEN (doing business as HALAWA VIEW APARTMENTS),
ONTARIO TOWNHOUSES LIMITED PARTNERSHIP, PETER H.Y. HSI and
PRISCILLA L.F. HSI (doing business as GENERAL PARTNERS OF WAIPAHU
TOWER), ROCK CREEK TERRACE LIMITED PARTNERSHIP, SIERRA VISTA ONE,
SILVERLAKE VILLAGE, THE PALOMAR APARTMENTS, THETFORD PROPERTIES
III, LIMITED PARTNERSHIP, THETFORD PROPERTIES IV, LIMITED PARTNERSHIP,
WASHINGTON PLAZA PARTNERS, LTD., 185-225 PARKHILL CORP.,
620 SU CASA POR CORTEZ, 825 SAN TOMAS APARTMENTS,
3740 SILVERLAKE VILLAGE, and 5324 FOOTHILL APARTMENTS,
Plaintiffs-Appellants,
v.
UNITED STATES,
Defendant-Appellee.
-----------------------------------------------------------------
ALCONQUIN HEIGHTS ASSOCIATES, L.P., BRANDY HILL COMPANY, BROOKSIDE
MANOR ASSOCIATES LIMITED PARTNERSHIP, BUCKMAN GARDENS LIMITED
PARTNERSHIP, CHAUNCY HOUSE COMPANY, CROMWELL COURT COMPANY,
COUNTRY TOWNE APARTMENTS PARTNERSHIP, DOLLY ANN APARTMENTS
LIMITED PARTNERSHIP, EMORY GROVE LIMITED PARTNERSHIP, FIRST
LANDMARK ASSOCIATES LIMITED PARTNERSHIP, FOREST GLEN LIMITED
DIVIDEND HOUSING ASSOCIATION, FORT HEATH ASSOCIATES, GARRISON
FOREST ASSOCIATES, GLENARDEN LIMITED PARTNERSHIP, JODANI
ASSOCIATES, L.P., KIMBERLY ASSOCIATES, KING’S GRANT COMPANY, LEADER
HOUSE ASSOCIATES AND LEADER HOUSING CO., INC.,
NEW AMSTERDAM ASSOCIATES AND NEW AMSTERDAM HOUSES, INC., PINE
CREST COMPANY, RIVERSIDE VILLAGE COMPANY, SUBURBIA ASSOCIATES
LIMITED PARTNERSHIP, SUEHAR ASSOCIATES, L.P., TOWER WEST
ASSOCIATES, L.P. AND TOWER WEST, INC., and TOWN & COUNTRY
APARTMENTS AND TOWNHOUSES,
Plaintiffs-Appellants,
v.
UNITED STATES,
Defendant-Appellee.
Harry J. Kelly, Nixon Peabody LLP, of Washington, DC, argued for plaintiffs-
appellants. Of counsel was Charles L. Edson.
David Harrington, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, argued for defendant-
appellee. With him on the brief were Peter D. Keisler, Assistant Attorney General,
David M. Cohen, Director, and Brian M. Simkin, Assistant Director.
Appealed from: United States Court of Federal Claims
Judge Robert H. Hodges, Jr.
United States Court of Appeals for the Federal Circuit
01-5011, -5012
ANAHEIM GARDENS, B-L ASSOCIATES, CEDAR GARDENS ASSOCIATES,
C-W ASSOCIATES, DENISE A. KELLENBECK (doing business as VICTORIAN ARMS
APARTMENTS), EARL W. KELLENBECK, FLORIN MEADOWS I, LTD., FLORIN
MEADOWS II, LTD., FRANCES T. WARD, GLENVIEW GARDENS LIMITED
PARTNERSHIP, HILLVIEW TOWNHOUSES LIMITED, HILLVIEW TOWNHOUSES
LIMITED NO. 1, INDIAN HEAD MANOR LIMITED PARTNERSHIP I, J.D.V. WARD,
JAMES W.Y. WONG, JEWEL LAKE VILLA II, JOSEPH BIAFORA and STEFI
BIAFORA, METRO WEST LIMITED, MILLWOOD ASSOCIATES LIMITED
PARTNERSHIP, NAPA PARK APARTMENTS LIMITED PARTNERSHIP, NORMAN M.
KRONICK and LOUIS DULIEN (doing business as HALAWA VIEW APARTMENTS),
ONTARIO TOWNHOUSES LIMITED PARTNERSHIP, PETER H.Y. HSI and
PRISCILLA L.F. HSI (doing business as GENERAL PARTNERS OF WAIPAHU
TOWER), ROCK CREEK TERRACE LIMITED PARTNERSHIP, SIERRA VISTA ONE,
SILVERLAKE VILLAGE, THE PALOMAR APARTMENTS, THETFORD PROPERTIES
III, LIMITED PARTNERSHIP, THETFORD PROPERTIES IV, LIMITED PARTNERSHIP,
WASHINGTON PLAZA PARTNERS, LTD., 185-225 PARKHILL CORP.,
620 SU CASA POR CORTEZ, 825 SAN TOMAS APARTMENTS,
3740 SILVERLAKE VILLAGE, and 5324 FOOTHILL APARTMENTS,
Plaintiffs-Appellants,
v.
UNITED STATES,
Defendant-Appellee.
-----------------------------------------------------------------
ALCONQUIN HEIGHTS ASSOCIATES, L.P., BRANDY HILL COMPANY, BROOKSIDE
MANOR ASSOCIATES LIMITED PARTNERSHIP, BUCKMAN GARDENS LIMITED
PARTNERSHIP, CHAUNCY HOUSE COMPANY, CROMWELL COURT COMPANY,
COUNTRY TOWNE APARTMENTS PARTNERSHIP, DOLLY ANN APARTMENTS
LIMITED PARTNERSHIP, EMORY GROVE LIMITED PARTNERSHIP, FIRST
LANDMARK ASSOCIATES LIMITED PARTNERSHIP, FOREST GLEN LIMITED
DIVIDEND HOUSING ASSOCIATION, FORT HEATH ASSOCIATES, GARRISON
FOREST ASSOCIATES, GLENARDEN LIMITED PARTNERSHIP, JODANI
ASSOCIATES, L.P., KIMBERLY ASSOCIATES, KING’S GRANT COMPANY, LEADER
HOUSE ASSOCIATES AND LEADER HOUSING CO., INC.,
NEW AMSTERDAM ASSOCIATES AND NEW AMSTERDAM HOUSES, INC., PINE
CREST COMPANY, RIVERSIDE VILLAGE COMPANY, SUBURBIA ASSOCIATES
LIMITED PARTNERSHIP, SUEHAR ASSOCIATES, L.P., TOWER WEST
ASSOCIATES, L.P. AND TOWER WEST, INC., and TOWN & COUNTRY
APARTMENTS AND TOWNHOUSES,
Plaintiffs-Appellants,
v.
UNITED STATES,
Defendant-Appellee.
___________________________
DECIDED: March 24, 2006
___________________________
Before LOURIE, RADER, and LINN, Circuit Judges.
RADER, Circuit Judge.
The United States Court of Federal Claims dismissed two regulatory takings
cases, Anaheim Gardens v. United States, No. 93-655C (Anaheim); and Algonquin
Heights v. United States, No. 97-582C (Algonquin). The trial court determined that
these claims are not ripe for suit because the parties have not obtained a “final decision”
from the U.S. Department of Housing and Urban Development (HUD). In light of
Cienega Gardens v. United States,
265 F.3d 1237 (Fed. Cir. 2001) (Cienega II), this
court reverses and remands these cases for further findings of fact on whether
appellants can demonstrate evidence of “administrative futility” that would exempt them
from exhausting their administrative remedies.
01-5011,-5012 2
I.
These cases are intertwined with another takings case, Cienega Gardens v.
United States,
33 Fed. Cl. 196 (1995) (original case) (Cienega Gardens).1 The Court of
Federal Claims dismissed the Anaheim and Algonquin cases on the basis of its ruling in
Cienega Gardens v. United States,
46 Fed. Cl. 506 (2000) (Cienega Remand). At that
time, this court had not issued its Cienega II opinion. Instead, following the issuance of
this court’s opinion in Cienega Gardens (Cienega Gardens v. United States
194 F.3d
1231 (Fed. Cir. 1998) (Cienega I)),2 the Court of Federal Claims issued its revised
second decision that is set out in Cienega Remand. In Cienega Remand, the Court of
Federal Claims ruled on cross-motions for summary judgment, relying on Greenbrier v.
United States,
193 F.3d 1348 (Fed. Cir. 1999), and concluded that the Cienega
Gardens’ plaintiffs’ claims were not ripe.
Following issuance of its Cienega Remand opinion, the Court of Federal Claims
turned its attention back to the Anaheim and Algonquin cases now before this court. On
May 18, 2000, the Court of Federal Claims entered identical orders in both the Anaheim
and Algonquin cases stating that it “intend[ed] to dismiss all related cases pursuant to
[the Cienega Remand] decision.” The Court of Federal Claims’ May 18, 2000 order
further directed the parties to “notify the court by June 1” if the facts of their cases could
1
Cienega Gardens v. United States,
33 Fed. Cl. 196 (1995), judgment vacated by,
Cienega Gardens v. United States,
194 F.3d 1231 (Fed. Cir. 1998) (Cienega I), on
remand to, Cienega Gardens v. United States,
46 Fed. Cl. 506 (2000) (Cienega
Remand); aff’d in part, rev’d in part, Cienega Gardens v. United States,
265 F.3d 1237
(Fed. Cir. 2001) (Cienega II), appeal after remand, Cienega Gardens v. United States,
331 F.3d 1319 (Fed. Cir. 2003) (Cienega III), on remand to, Cienega Gardens v. United
States,
67 Fed. Cl. 434 (Fed. Cl. 2005) (Cienega Second Remand).
2
Cienega I remanded the appeal to the Court of Federal Claims for further decision in
light of this court’s opinion that the necessary contractual privity required under the
Tucker Act between the Cienega Gardens’ plaintiffs and the Government was lacking.
01-5011,-5012 3
be “distinguished from those in the Cienega [Remand] case.” If not distinguishable, the
May 18, 2000 order stated: “[W]e will order the clerk to dismiss this case.”
On August 16, 2000, relying upon its Cienega Remand opinion and Greenbrier,
the Court of Federal Claims entered an order and Court of Federal Claims Rule 58
judgment dismissing all of the Anaheim and Algonquin claims. R. Ct. Fed. Cl. 58. In
dismissing their claims, the Court of Federal Claims concluded that they could not
satisfy the Greenbrier ripeness standards. In addition, this court notes that, though
unclear from the order, the Court of Federal Claims seems to have sua sponte
dismissed these cases under its continuing obligation to ensure it had continuing
subject matter jurisdiction of its cases under Court of Federal Claims Rule 12(h)(3); or
for failure to state a claim under Court of Federal Claims Rule 12(b)(6). Regardless,
following the August 16, 2000 dismissal orders, the parties timely appealed both cases
to this court.
Upon appeal to this court, the parties again agreed to stay their appellate
proceedings in anticipation of this court’s ruling on the Cienega Gardens case (following
the Cienega Remand opinion). This second appeal in Cienega Gardens also featured
the issue of ripeness. The parties agreed that this court’s ruling on ripeness in the
second Cienega Gardens appeal would apply to their dismissed regulatory takings
claims.
On September 18, 2001, this court issued its second opinion in Cienega
Gardens, which reversed the Court of Federal Claims’ decision and found the takings
claims ripe for adjudication. Cienega II,
265 F.3d at 1248. Nevertheless, after remand,
Cienega Gardens was, for the third time, appealed to this court on the issue of, inter
01-5011,-5012 4
alia, whether the Cienega Gardens plaintiffs had vested property rights that could be
violated by an uncompensated taking. Therefore, after the filing of a second unopposed
motion to stay the appellate proceedings herein, on May 3, 2002, this court entered a
second order staying the proceedings pending outcome of the third Cienega Gardens
appeal.
In the third Cienega Gardens appeal, this court ruled that all of the Cienega
Gardens plaintiffs “had vested property interests under the Fifth Amendment in their
contractual and regulatory rights to post-twentieth-year prepayment[,] and under real
property law[,] to repossess.” Cienega Gardens v. United States,
331 F.3d 1319, 1353
(Fed. Cir. 2003) (Cienega III). In addition, on four of the Cienega Gardens’ plaintiffs’
claims (the Model Plaintiffs), for whom a factual record had been developed and
presented to the court, this court ruled that they had vested property interests that
became a compensable, temporary, regulatory taking because a government regulation
conflicted with their investment-backed expectations in a twenty-year prepayment plan.
Id. at 1353. However, this court remanded the remaining Cienega Gardens’ plaintiffs’
claims for further development of the facts on liability and damages.
Id. at 1354. As a
result, this court now applies the Cienega II and Cienega III holdings to the Court of
Federal Claims’ dismissal of both appellants’ entire cases.
II.
Under the National Housing Act of 1954, as amended in the 1960s, Housing Act
of 1961, P.L. 87-70,
75 Stat. 149 (1961), appellants agreed to construct and maintain
housing for low-income renters in exchange for HUD’s provision of mortgage insurance
and interest subsidies. National Housing Act of 1954, P.L. 560, § 221(a),
68 Stat. 599
01-5011,-5012 5
(1954); Conf. Report, H. Rep. No. 2271, 83rd Cong., 2d Sess. 70 (1954) (codified at
12
U.S.C. §§ 1701, et seq.) (the Act). Before the modifications to the Act in the mid-1980s,
investors could pay off their mortgages and convert to market-rate housing after twenty
years, without seeking permission from HUD to pay off their mortgages. However, in
the mid-1980s, faced with the loss of much low-income housing due to investors leaving
the program, Congress passed two new laws: (1) the Emergency Low-Income Housing
Preservation Act of 1987, Pub. L. No. 100-242, tit. II,
101 Stat. 1877 (1988) (codified at
12 U.S.C. §§ 1715, et seq. (1988)) (ELIHPA); and (2) the Low-Income Housing
Preservation and Resident Homeownership Act of 1990, Pub. L. No. 101-625, tit. VI,
104 Stat 4249 (1990) (codified at
12 U.S.C. §§ 4101, et seq. (1994)) (LIHPRHA). Both
the ELIHPA and LIHPRHA banned mortgage prepayment without HUD approval. In
addition, the Acts set very high the statutory conditions for HUD approval of a mortgage
pre-payment plan. As a result, because investors could not prepay mortgages and turn
their properties into better investments, many felt they had effectively lost the use of
their property.
Appellants sued for breach of contract and a regulatory taking because they
believe their inability to prepay their mortgages without HUD approval is a compensable
taking. They pled that, under LIHPRHA, they filed Notices of Intent (NOIs)3 to prepay or
seek compensation. Nevertheless, following submission of the appellants’ NOIs, they
claim that HUD did not provide the requisite appraisals within the four-month period
required under LIHPRHA. According to the appellants, without the appraisals, they
3
Within thirty days after the NOI is submitted, HUD notifies the property owner of the
need to obtain an appraisal of the project. Both HUD and the property owner must
complete appraisals and must do so within four months. If the appraisals yield different
values, and HUD and the property owner cannot agree on the project’s value, then they
are required to obtain a third appraisal.
12 U.S.C. § 4103 (2001).
01-5011,-5012 6
could not comply with LIHPRHA provisions. They also allege that HUD delayed in
providing the Preservation Capital Needs Assessments (PCNAs)4, another step
preceding any filing of a Plan of Action (PA). The PA, in turn, is a prerequisite for
requesting prepayment.
Specifically, appellant Thetford claims it filed its NOI, and should have received
its PCNA within the statutory sixty-day deadline. Instead HUD did not provide the
PCNA for approximately five months, which then delayed Thetford’s completion and
submission of its own appraisal until after the statutory deadline. HUD was also
supposed to concurrently provide its own appraisal on Thetford’s property, but allegedly
did not do so until more than eight months after the statutory deadline. At the time of
the filing of the appellants’ complaint, and fifteen months following its commencement of
the LIHPRA process, Thetford alleged it still had not received the necessary
“preservation value” information from HUD. Appellants also pled that appellant Napa
Park Apartments had, likewise, encountered similar fatal delays.
The Government contends that Greenbrier governs appellants’ case because
they have not shown futility. The Government also contends that appellants have
admitted that their case should be governed by Greenbrier because they admitted their
cases were factually indistinguishable from Greenbrier.
Appellants present the following issues for review: (1) whether appellants are
excused from exhausting their administrative remedies before filing suit because HUD
has no discretion to grant relief under the LIHPRHA; (2) whether appellants possess a
4
In addition to the acquisition of appraisals, HUD is required to provide the PCNA.
These are to be completed, and included with the appraisals, within sixty days of HUD’s
receipt of the NOIs. Within nine months of the property owner’s filing of the NOI, HUD
must notify the owner of the “preservation value” of the property, the “preservation
rents” and the “federal cost limits.”
12 U.S.C. § 4103-4105 (2001).
01-5011,-5012 7
vested property interest in the right to pre-pay their mortgages after the twenty year
deadline agreed to at the inception of HUD’s and appellants’ agreements; and (3) if so,
then whether enactment of the LIHPRHA constituted a compensable taking of the
appellants’ vested property interest in their right to pre-pay their mortgages after twenty
years, in violation of the Fifth Amendment.
Consideration of these issues is premature. For review, this court only has the
dismissal before it. The record on appeal does not contain a full factual record on the
question of “administrative futility,” which in turn controls the ripeness question. Until
“ripeness” is determined, this court cannot reach the remaining issues.
However, on the question of ripeness, Greenbrier does not control the outcome
of this case. Rather, in making a determination, this court must also take Cienega II into
account. In addition, in this case, the Court of Federal Claims dismissed appellants’
complaints sua sponte—as opposed to following the grant of a motion for summary
judgment or a judgment. Moreover, the dismissals came on the heels of numerous
stays of all proceedings. In that procedural posture, these appellants have not had the
opportunity to develop facts relative to futility and ripeness. Thus, this court remands to
permit development of the requisite facts.
III.
This court reviews Court of Federal Claims’ decisions de novo for errors of law,
and for clear error on findings of fact. Yancey v. United States,
915 F.2d 1534, 1537
(Fed. Cir. 1990). This court also reviews the legal determination of a dismissal of a
case for lack of subject matter jurisdiction without deference. Venture Coal Sales Co. v.
United States,
370 F.3d 1102, 1104 (Fed. Cir. 2004); Shelden v. United States,
7 F.3d
01-5011,-5012 8
1022, 1026 (Fed. Cir. 1993). In addition, this court reviews de novo whether the Court
of Federal Claims properly dismissed a complaint for failure to state a claim. Boise
Cascade Corp. v. United States,
296 F.3d 1339, 1343 (Fed. Cir. 2002) (citing Dehne v.
United States,
970 F.2d 890, 892 (Fed. Cir. 1992)). “[I]n reviewing a dismissal for failure
to state a claim, we must assume all well-pled factual allegations are true and indulge in
all reasonable inferences in favor of the nonmovant.” Gould, Inc. v. United States,
935
F.2d 1271, 1274 (Fed. Cir. 1991).
The trial court may dismiss sua sponte under Rule 12(b)(6), provided that the
pleadings sufficiently evince a basis for that action. R. Ct. Fed. Cl. 12(b)(6); R. Ct. Fed.
Cl. 12(h); cf. Myers v. Polk Miller Prods., Inc.,
201 F.2d 373, 376 (C.C.P.A. 1953). In
that case, this court must accept as true all well-pleaded facts alleged in the complaint
and draw all reasonable inferences in the plaintiff's favor. Conley v. Gibson,
355 U.S.
41, 45-46 (1957); Boyle v. United States,
200 F.3d 1369, 1372 (Fed. Cir. 2000). This
court may affirm the dismissal of a complaint if it is clear that no relief could be granted
under any set of facts that could be proved consistent with the allegations. Hishon v.
King & Spalding,
467 U.S. 69, 73, 104 (1984); Conley,
355 U.S. at 45-46.
Because these cases are before this Court after a sua sponte dismissal, this
court must review de novo if, as pled, there is any relief that could be granted under any
set of facts that could be proven consistent with appellants’ allegations. If no relief
could be granted, then the dismissal was proper. However, if there is any relief that
could be granted, as pled, this court must reverse the dismissal and remand the cases
for development of facts.
01-5011,-5012 9
IV.
The Takings Clause of the Fifth Amendment prohibits the federal Government
from taking private property for public use without just compensation. U.S. Const.
amend. V. A “regulatory taking” may occur when Government action, although not
encroaching upon or occupying private property, “goes too far” and still amounts to a
taking. Palazzolo v. Rhode Island,
533 U.S. 606, 617 (2001) (citing Pa. Coal Co. v.
Mahon,
260 U.S. 393, 415 (1922)).
A claim for an uncompensated regulatory taking, however, must be ripe, meaning
that it is the result of a “final decision” by the allegedly offending agency. Palazzolo,
533 U.S. at 618. This ripeness or finality rule ensures that the courts can properly
assess the scope or existence of a taking. Lucas v. S.C. Coastal Council,
505 U.S.
1003, 1015 (1992); Penn Cent. Transp. Co. v. City of New York,
438 U.S. 104, 124
(1978). Ordinarily, a court cannot assess a taking claim without facts about “the extent
of permitted development” or “restriction” on the land in question. Palazzolo,
533 U.S.
at 621 (citing Suitum v. Tahoe Reg’l Planning Agency,
520 U.S. 725, 736, n.10 (1997));
MacDonald, Sommer & Frates v. Yolo County,
477 U.S. 340, 351 (1986).
However, the Supreme Court has specifically excused a failure to show finality in
the face of “administrative futility.” Palazzolo,
533 U.S. at 620 (citing Suitum,
520 U.S.
at 738) (“Once it becomes clear that the agency lacks the discretion to permit any
development, or the permissible uses of the property are known to a reasonable degree
of certainty, a takings claim is likely to have ripened.”). A claimant can show its claim
was ripe with sufficient evidence of the futility of further pursuit of a permit through the
administrative process. MacDonald,
477 U.S. at 350 n.7; cf. United States v. Dickinson,
01-5011,-5012 10
331 U.S. 745, 749 (1947). Though the ripeness doctrine imposes obligations on
landowners because “[a] court cannot determine whether a regulation goes ‘too far’
unless it knows how far the regulation goes;” the ripeness doctrine does not require a
landowner to submit applications for their own sake. Palazzolo,
533 U.S. at 622 (citing
MacDonald,
477 U.S. at 348). Though a party is required to explore development
opportunities on the land in question, this is true only if there is uncertainty as to the
land's permitted use. Id., at 622.
Thus, a claimant need not obtain a final decision if the agency lacks any
discretion to avoid the allegedly offending regulatory action, or if the record shows, with
a reasonable degree of certainty, the remaining permissible uses of the property after
the regulatory action because there can be no variance from the facial requirements of
the applicable regulation. Id. at 620 (citing Suitum,
520 U.S. at 738). This amounts to
the futility exception to the finality rule. In Greenbrier, this court concluded that the
plaintiffs’ claims were not ripe for review because they had not met the futility exception
to the finality rule. 193 F.3d at 1359-60.
As noted, Greenbrier’s rejection of the futility exception’s applicability does not
govern this case because the Greenbrier plaintiffs had fully developed the facts of their
cases and still failed to show futility. Indeed, in Greenbrier, the record showed that HUD
had granted some applications for prepayment and that the plaintiffs did not follow HUD
procedures for obtaining permission to prepay their mortgage loans. Id. at 1359.
Unlike the plaintiffs in Greenbrier, appellants have pled that they have applied for
relief under the LIHPRHA, but that HUD has so severely delayed in meeting its requisite
deadlines under the statute, that they have, as a result, missed their statutory deadlines.
01-5011,-5012 11
The appellants have pled specific facts, like the plaintiffs in Cienega Gardens, showing
their attempts to obtain relief under the statute. As discussed in Cienega II, where no
final agency decision had been made notifying the petitioner in Suitum “as to the
amount of development . . . that may be allowed by the agency,” it was, nevertheless,
undisputed that the agency had finally determined that petitioner’s land was ineligible for
development. Cienega II,
265 F.3d at 1245-47 (citing Suitum,
520 U.S. at 739). As
applied to Suitum, in the Supreme Court’s Suitum opinion, it was clear the agency did
not dispute that she would not be allowed to develop her land, and thus, that she met
the futility exception to the finality rule.
520 U.S. at 739. Because appellants have
begun the application process, but have run into delays or are missing information on
the value of their project because of HUD’s delays or refusals to provide the requisite
appraisals and PCNAs, their claims, if proven, may also fall into the administrative
futility category and be ripe without a final decision.
Moreover this court has no record that the appellants have admitted that their
cases “were factually indistinguishable from the owners in Greenbrier.” Rather
appellants have stated ambiguously that they were “unable to identify facts that would
distinguish their cases from the holding in Greenbrier,” and they made this statement
without the benefit of this court’s holding in Cienega II. Subsequent to appellants’
statement regarding Greenbrier, this court issued its Cienega II holding. The appellants’
pertinent facts, which were absent in Greenbrier, but are present in Cienega Gardens,
were directly addressed in the Cienega II and Cienega III decisions.
Consequently, this case is unlike Greenbrier, where the Court of Federal Claims
had granted the Government’s motion for summary judgment on the basis of facts that
01-5011,-5012 12
had been developed and placed before the court revealing a lack of “futility.”
Greenbrier, 193 F.3d at 1351. The current appeal falls under Cienega II—specifically
under the subset of appellants who did not have the opportunity to develop a factual
record. In Cienega II, this court stated: “If the factual circumstances of any or all of the
remaining Owners present a similarly compelling case of administrative futility, then the
trial court should adjudicate their takings claims, as well.”
265 F.3d at 1248. In
conclusion, this court reverses the Court of Federal Claims’ dismissal of appellants’
complaints and remands for the development of facts on whether appellants’ takings
claims are ripe.
COSTS
Each party shall bear its own costs.
REVERSED and REMANDED.
01-5011,-5012 13
