Normandy Apartments, Limited v. United States ( 2015 )

United States Court of Appeals
for the Federal Circuit
______________________
NORMANDY APARTMENTS, LIMITED,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2014-5135
______________________
Appeal from the United States Court of Federal
Claims in No. 1:10-cv-00051-EGB, Senior Judge Eric G.
Bruggink.
______________________
Decided: November 20, 2015
______________________
TERRY MICHAEL MCKEEVER, Foshee & Yaffe, Oklaho-
ma City, OK, argued for plaintiff-appellant.
AMANDA TANTUM, Commercial Litigation Branch, Civ-
il Division, United States Department of Justice, Wash-
ington, DC, argued for defendant-appellee. Also
represented by JOYCE R. BRANDA, ROBERT E. KIRSCHMAN,
JR., KIRK T. MANHARDT; PATRICIA SHARIN FLAGG, Office of
General Counsel, United States Department of Housing
and Urban Development, Washington, DC.
______________________
2 NORMANDY APARTMENTS, LTD. v. UNITED STATES
Before NEWMAN, REYNA, and WALLACH, Circuit Judges.
Opinion for the court filed by WALLACH, Circuit Judge.
Additional views filed by REYNA, Circuit Judge, with
whom WALLACH, Circuit Judge, joins.
Dissenting opinion filed by NEWMAN, Circuit Judge.
WALLACH, Circuit Judge.
Normandy Apartments, Ltd. (“Normandy”) appeals
the United States Court of Federal Claims’ orders grant-
ing the government’s: (1) motion to dismiss for lack of
jurisdiction; and (2) motion for summary judgment on
Normandy’s takings claim. Normandy Apartments, Ltd.
v. United States, 116 Fed. Cl. 431 (2014); see also Nor-
mandy Apartments, Ltd. v. United States, 100 Fed. Cl.
247 (2011). For the reasons set forth below, this court
affirms.
BACKGROUND
I. Facts
Normandy owned and managed Normandy Apart-
ments, a low-income rental housing project constructed in
1968 in Tulsa, Oklahoma. Tenants’ rents at Normandy
Apartments were federally subsidized under the Section 8
project-based program, see 42 U.S.C. § 1437f, which was
created “to ‘ai[d] low-income families in obtaining a decent
place to live . . . by subsidizing private landlords who
would rent to low-income tenants.’” Cisneros v. Alpine
Ridge Grp., 508 U.S. 10, 12 (1993) (alteration in original)
(quoting 42 U.S.C. § 1437f(a)). In this system, a monthly
rent is set for each apartment, the tenants pay a portion
of that rent based on their ability to pay, and the United
States Department of Housing and Urban Development
(“HUD”) pays the difference between each tenant’s contri-
bution and the allowable rent for the unit. 42 U.S.C.
§ 1437f(c)(3).
NORMANDY APARTMENTS, LTD. v. UNITED STATES 3
Effective October 1, 1992, Normandy and the United
States, acting through HUD, entered into a Section 8
rental subsidy agreement called a Housing Assistance
Payments (“HAP”) contract (the “Original HAP Con-
tract”). Pursuant to this contract, HUD agreed to pay the
difference between the tenant’s contribution and the rent,
and Normandy agreed it would “‘maintain and operate
the contract units and related facilities so as to provide
decent, safe, and sanitary housing as defined by HUD,’ to
clean and ‘make repairs with reasonable promptness,’ to
‘respond promptly to HUD’s Physical Inspection Reports
and to implement corrective actions within a reasonable
time.’” Normandy, 116 Fed. Cl. at 434 (quoting Original
HAP Contract). HUD enforces these requirements
through inspections, audits, and other actions, including
withholding assistance payments. 42 U.S.C. § 1437c(h);
24 C.F.R. § 886.123. HUD’s Real Estate Assessment
Center (“REAC”) inspects Section 8 housing and assigns a
score on a 100-point scale. 24 C.F.R. §§ 5.705, 200.857
(2014).
In 1997, the Original HAP Contract expired, and
Normandy and HUD renewed the contract annually until
2004. On October 1, 2004, when the prior year’s HAP
contract had expired, Normandy entered into the next
renewal contract (“2004 HAP Contract”)—the basis for
Normandy’s breach of contract claims. Though the earlier
HAP contracts had been made with HUD, in the 2004
HAP Contract, the Oklahoma Housing Finance Authority
(“OHFA”), a public housing agency (“PHA”), was identi-
fied as the “contract administrator.” Normandy, 116 Fed.
Cl. at 434. While HUD was no longer a party to the
contract, the rest of the contract terms in the Original
HAP Contract were renewed, including the provision that
Normandy “maintain and operate the contract units and
related facilities so as to provide decent, safe, and sani-
tary housing as defined by HUD.” Id.
4 NORMANDY APARTMENTS, LTD. v. UNITED STATES
On May 23, 2000, Normandy entered into a separate
“Use Agreement” with HUD, which “allowed Normandy to
prepay its HUD-backed mortgage and terminate the 1967
Regulatory Agreement between it and HUD.” Id.; see also
id. at 435 (“The Use Agreement is independent of the
HAP contract, although the former contemplates the
possibility that a HAP contract may cover some or all of
the units.”). Under the Use Agreement, Normandy pre-
paid its HUD-insured mortgage, and, in exchange, Nor-
mandy agreed to continue housing low-income families
until June 1, 2009, the original maturity date of the
mortgage. Pursuant to the Use Agreement, Normandy’s
use of the apartment complex was restricted to “rental
housing for tenants of lower income,” Normandy agreed
not to evict existing tenants based on income, J.A. 148,
Normandy was required to maintain the apartment
complex “in a condition that is decent, safe, sanitary, and
in good repair, as well as in compliance with all applicable
state and local building and health codes,” J.A. 151, and
Normandy was required to obtain HUD’s approval before
conveying the property.
Pursuant to the 2004 HAP Contract, in November
2004, REAC “inspected the Normandy Apartments to
verify the units were safe, decent, and sanitary.” Nor-
mandy, 116 Fed. Cl. at 435. The apartments received a
failing score. Normandy corrected the identified problems
and, when OHFA conducted an inspection in February
2005, it noted the previous deficiencies had been fixed.
HUD itself did not reinspect the apartments, but notified
Normandy in February 2006 that it was closing the
November 2004 inspection.
Under 24 C.F.R. §§ 200.855(c)(l), 886.323 (2014), HUD
is required to inspect a property between nine and fifteen
months from the date of the prior inspection. Here, the
next REAC inspection did not occur until August 23,
2006, more than twenty months after the November 2004
inspection. Normandy failed this inspection, but subse-
NORMANDY APARTMENTS, LTD. v. UNITED STATES 5
quently requested that HUD adjust the score “because the
apartment complex was undergoing repairs; specifically,
all of the windows were being replaced.” Normandy, 116
Fed. Cl. at 435. On October 15, 2006, Normandy inquired
with HUD about the status of its appeal regarding its
failing score. In November, HUD replied and notified
Normandy that it had missed the deadline to appeal the
score.
In March 2007, HUD requested that Normandy write
a letter certifying that it was in compliance with the
inspection requirements. Because the window replace-
ment was ongoing, Normandy was not able to certify its
compliance and instead provided a letter from its window
contractor stating the anticipated completion date for the
repairs. HUD then informed Normandy that it would
perform a reinspection, but never did so. Instead, it sent
a June 20, 2007, letter notifying Normandy that HUD
“would cease to fund housing assistance payments be-
cause [Normandy] had defaulted on the HAP [C]ontract
by repeatedly failing to maintain the apartments.” Id.
Specifically, on September 28, 2007, HUD warned
Normandy that its assistance payments would be termi-
nated and that Normandy should stop accepting new low-
income qualified tenants. HUD also notified Normandy
that any affected tenants could apply for vouchers to
offset their rent at the Normandy Apartments or enable
them to move elsewhere. Shortly before November 1,
2007, HUD informed Normandy that it was obligated to
continue honoring the below-market rental rates during
the existing lease terms.
Normandy attempted to sell the apartment complex
before the HUD payments stopped. Normandy alleges
that on October 16, 2007, Summit Assets Management,
L.L.C. (“Summit”) agreed to purchase the Normandy
Apartments for $8 million. Pursuant to the Use Agree-
ment, Normandy sought HUD’s approval of the sale, but,
6 NORMANDY APARTMENTS, LTD. v. UNITED STATES
according to Normandy, HUD withheld its approval and
Summit did not purchase the apartments. “Normandy
claims a loss of approximately $2.75 million because the
apartments subsequently decreased in value and, as of
2009, were appraised at $5.25 million.” Id. at 436.
II. Proceedings
On October 18, 2007, Normandy filed a lawsuit in the
United States District Court for the Western District of
Oklahoma, requesting, in relevant part, a preliminary
injunction ordering HUD to continue making housing
assistance payments pending the litigation. Normandy
Apartments, Ltd. v. U.S. Dep’t of Hous. & Urban Dev., No.
CIV-07-1161-R, 2007 U.S. Dist. LEXIS 81330, at *1 (W.D.
Okla. Nov. 1, 2007). The court concluded it lacked juris-
diction because Normandy’s claim fell under the Tucker
Act and therefore belonged in the United States Court of
Federal Claims. The court nevertheless addressed the
merits of the preliminary injunction, and found Norman-
dy was unable to satisfy the necessary irreparable harm
element to obtain the injunction.
Normandy appealed the district court’s decision to the
United States Court of Appeals for the Tenth Circuit. See
Normandy Apartments, Ltd. v. U.S. Dep’t of Hous. &
Urban Dev., 554 F.3d 1290 (10th Cir. 2009). The Tenth
Circuit affirmed-in-part and reversed-in-part, holding
“when a party asserts that the government’s breach of
contract is contrary to federal regulations, statutes, or the
Constitution, and when the party seeks relief other than
money damages, the [Administrative Procedure Act’s
(“APA”)] waiver of sovereign immunity applies and the
Tucker Act does not preclude a federal district court from
taking jurisdiction.” Id. at 1300.
Normandy did not pursue its APA claims and instead,
on January 25, 2010, brought suit in the United States
Court of Federal Claims (“Claims Court”). Normandy’s
first Complaint asserted a breach of the 2004 HAP Con-
NORMANDY APARTMENTS, LTD. v. UNITED STATES 7
tract and requested approximately $3.5 million in damag-
es. The government moved to dismiss the case for lack of
subject matter jurisdiction on the grounds that the United
States was not a party to the 2004 HAP Contract. The
Claims Court agreed, finding that without a contract
between Normandy and the United States, it lacked
jurisdiction. Normandy, 100 Fed. Cl. at 256–58.
In an amended Complaint, Normandy alleged “that
HUD’s actions interfered with [its] property interests in
the apartment complex, the Use Agreement, the [2004]
HAP [C]ontract, and its purchase agreement with Sum-
mit.” Normandy, 116 Fed. Cl. at 437. The government
filed a motion to dismiss the takings claim. The Claims
Court converted the motion into a summary judgment
motion and granted that motion. It also reaffirmed its
dismissal for lack of jurisdiction regarding Normandy’s
contract claim.
Normandy appeals; this court has jurisdiction pursu-
ant to 28 U.S.C. § 1295(a)(3) (2012).
DISCUSSION
I. Standard of Review
“We review the Court of Federal Claims’ grant of
summary judgment under a de novo standard of review,
with justifiable factual inferences being drawn in favor of
the party opposing summary judgment.” Winstar Corp. v.
United States, 64 F.3d 1531, 1539 (Fed. Cir. 1995), aff’d
and remanded, 518 U.S. 839 (1996). A motion for sum-
mary judgment is properly granted if “there is no genuine
dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
“The existence or nonexistence of a contract is a mixed
question of law and fact; contract interpretation is a
question of law, reviewed de novo.” S. Cal. Fed. Sav. &
Loan Ass’n v. United States, 422 F.3d 1319, 1328 (Fed.
Cir. 2005).
8 NORMANDY APARTMENTS, LTD. v. UNITED STATES
II. The Claims Court Correctly Dismissed Normandy’s
Breach of Contract Claim for Lack of Jurisdiction
A. The United States Is Not a Party to the 2004 HAP
Contract
The United States “is immune from suit save as it
consents to be sued . . . and the terms of its consent to be
sued in any court define that court’s jurisdiction to enter-
tain the suit.” United States v. Testan, 424 U.S. 392, 399
(1976) (quoting United States v. Sherwood, 312 U.S. 584,
586 (1941)). “To maintain a cause of action pursuant to
the Tucker Act that is based on a contract, the contract
must be between the plaintiff and the government and
entitle the plaintiff to money damages in the event of the
government’s breach of that contract.” Ransom v. United
States, 900 F.2d 242, 244 (Fed. Cir. 1990). In other words,
privity of contract is a “prerequisite for standing to sue in
the Court of Federal Claims under the Tucker Act.” Nat’l
Leased Hous. Ass’n v. United States, 105 F.3d 1423, 1435
(Fed. Cir. 1997).
The Claims Court held that “[t]he conclusion is ines-
capable: HUD and Normandy had no contractual rela-
tionship in the 2004 HAP [Contract]. [Normandy] is
unable to enforce its rights in that [C]ontract against the
federal government because the United States was not a
party to it.” Normandy, 116 Fed. Cl. at 443.
The named parties and the signatories of the 2004
HAP Contract are OHFA and Normandy. J.A. 82 (nam-
ing, in a section titled “Parties to Renewal Contract,”
OHFA as the “Contract Administrator” and Normandy
Apartment Limited as the “Name of Owner”). HUD is
neither a named party nor a signatory to the 2004 HAP
Contract. Section 4a(1) of the 2004 HAP Contract states:
“The Renewal Contract is a housing assistance payments
contract . . . between the Contract Administrator and the
Owner of the Project.” J.A. 84. Additionally, where the
[C]ontract requires “Signatures” on its last page, the
NORMANDY APARTMENTS, LTD. v. UNITED STATES 9
signing party under the line “Contract administrator
(HUD or PHA)” is solely OHFA. J.A. 92. Normandy is
the only other signatory that appears on the contract.
J.A. 92; see also 24 C.F.R. §§ 880.201, 881.201 (noting, in
the definition of “Contract,” that the HAP Contract is
“entered into by the owner and the contract administra-
tor,” and defining “Contract Administrator” as “[t]he
entity which enters into the Contract with the owner”).
Thus, by its plain language, the United States was not a
party to the 2004 HAP Contract.
Nonetheless, Normandy insists “HUD was a party in
privity to the 2004 [HAP Contract]” and relies on Eng-
lewood Terrace Limited Partnership v. United States, 79
Fed. Cl. 516, 534 (2007), aff’d in part and rev’d on other
grounds, 479 F. App’x 969 (Fed. Cir. 2012) (unpublished),
to argue that the Claims Court “should have drawn from
the reasoning” of that decision. Appellant’s Br. 19–20.
In that case, HUD attempted to modify a HAP agree-
ment by “substitut[ing] the short-term contracts for what
was reasonably anticipated to be a four-year contract” to
incentivize the property owner to improve its performance
under the HAP Contract. Englewood, 79 Fed. Cl. at 534.
Explaining “that a subsequent agreement between the
parties could supercede [sic] a term in an earlier agree-
ment by the same parties, if that was the mutual intent of
the parties,” the Englewood court found “[b]ased on the
record, [the] substitution was a unilateral act, on the part
of HUD, imposed on Englewood.” Id. The court reasoned
“[i]t is not logical, or based on the record, to conclude that
Englewood . . . was a willing participant in converting its
anticipated four-year contract into uncertain, short-term
contracts of varying length.” Id.
According to Normandy, “[t]he facts in this case can
be plugged directly into the Englewood analysis. In order
for the HUD to modify the prior Use Agreement and
HAP[] Agreements in a manner that would revoke its
10 NORMANDY APARTMENTS, LTD. v. UNITED STATES
contract privity with Normandy, both parties must mutu-
ally assent.” Appellant’s Br. 21. Furthermore, Normandy
argues that “[b]y signing the 2004 HAP Renewal Agree-
ment, Normandy had absolutely no intention of sacrificing
its ability to recover against the HUD in the event HUD
breached its prior agreements with Normandy.” Id.
As an initial matter, Normandy did not make this ar-
gument before the Claims Court and it is therefore
waived. Gant v. United States, 417 F.3d 1328, 1332 (Fed.
Cir. 2005) (“Arguments not made in the court or tribunal
whose order is under review are normally considered
waived.”). In any event, Englewood is inapposite and is
not binding on this court. Here, the Original HAP Con-
tract was between Normandy and HUD, with HUD noted
as the contract administrator, while the 2004 HAP Con-
tract was between Normandy and OHFA, with OHFA
noted as the contract administrator. By contrast, Eng-
lewood dealt with “a subsequent agreement between the
parties” and “an earlier agreement by the same parties.”
Englewood, 79 Fed. Cl. at 534 (second emphasis added).
Thus, the Englewood court had no need to address the
question of privity, and its reasoning does not apply to the
instant case.
Normandy also argues that “[t]he purpose of the
[2004] HAP [] Contract was to renew the expiring terms of
the [O]riginal HAP [C]ontract except for those terms
specifically modified by the Renewal Contract,” and “[i]n
essence, the HUD remained a party to the provisions of
the HAP Renewal Contract that pertained to HUD’s role,
and this would include any renewed provisions.” Appel-
lant’s Br. 22–23. The 2004 HAP Contract did specifically
modify the earlier contract, however, in that OHFA was
named the contract administrator, and HUD was not. See
Senate Manor Props., LLC v. U.S. Dep’t of Hous. & Urban
Dev., 315 F. App’x 235, 237–38 (Fed. Cir. 2008) (un-
published) (explaining HUD was not in privity because
“section 4a of the 2005 HAP [R]enewal [C]ontract stated
NORMANDY APARTMENTS, LTD. v. UNITED STATES 11
that terms of the expiring HAP [C]ontract were renewed
‘[e]xcept as specifically modified by the Renewal Con-
tract’” (fourth alteration in original)).
Normandy also argues “HUD stepped in[to] the shoes
of OHFA, giving itself privity” with respect to the 2004
HAP Contract. Appellant’s Br. 26. However, that HUD
provided funding, oversight, and enforcement does not
make HUD a party under the contract. In Katz v. Cisne-
ros, this court held that “a grant of benefits and subse-
quent oversight by HUD is insufficient to establish a
contractual obligation between [a property developer] and
the government.” 16 F.3d 1204, 1209–10 (Fed. Cir. 1994).
“‘This is true even if the local agency is acting merely as a
conduit for the federal funds.’” Id. (quoting Marshall N.
Dana Constr., Inc. v. United States, 229 Ct. Cl. 862
(1982)); see also Nat’l Leased Hous. Ass’n v. United States,
105 F.3d 1423, 1436 (Fed. Cir. 1997) (plaintiffs arguing
that the United States was in privity of contract because
“the PHAs acted as ‘agents’ for the United States,” and
this court finding the United States was not in privity of
contract). Accordingly, Normandy fails to show HUD was
in privity of contract.
B. HUD Did Not Have an Implied-in-Fact Contract with
Normandy
Normandy alternatively argues that “[e]ven if this
court finds that the HUD was not a party in privity to the
2004 HAP [Contract], HUD had privity with Normandy
through an implied-in-fact contract.” Appellant’s Br. 29.
“An implied-in-fact contract is one ‘founded upon a meet-
ing of the minds, which, although not embodied in an
express contract, is inferred, as a fact, from conduct of the
parties showing, in the light of the surrounding circum-
stances, their tacit understanding.’” City of Cincinnati v.
United States, 153 F.3d 1375, 1377 (Fed. Cir. 1998) (quot-
ing Balt. & Ohio R.R. Co. v. United States, 261 U.S. 592,
597 (1923)). “It is well settled that the existence of an
12 NORMANDY APARTMENTS, LTD. v. UNITED STATES
express contract precludes the existence of an implied-in-
fact contract dealing with the same subject matter, unless
the implied contract is entirely unrelated to the express
contract.” Schism v. United States, 316 F.3d 1259, 1278
(Fed. Cir. 2002). Because the 2004 HAP Contract and
Use Agreement contain requirements related to decent,
safe, and sanitary conditions and the 2004 HAP Contract
contained the requirements related to HAP payments, the
existence of an implied-in-fact contract regarding the
same requirements is precluded.
C. The Claims Court Correctly Found that HUD Did Not
Breach the 2000 Use Agreement
On May 23, 2000, Normandy entered into a separate
“Use Agreement” with HUD, which allowed Normandy to
prepay its HUD-backed mortgage and terminate a previ-
ous Regulatory Agreement between it and HUD. Nor-
mandy contends that HUD “breached its obligations
under the 2000 Use Agreement” because “HUD’s conduct
at issue took place within [the Use Agreement] time
period” and the “[Use] [A]greement incorporates any
applicable HAP contract.” Appellant’s Br. 17. The Claims
Court found there was “not the slightest hint that the
parties to the Use Agreement intended to incorporate
therein the provisions of current and future HAP con-
tracts dealing with the payment of rent subsidies.” J.A.
466–67. Normandy points to the Use Agreement’s refer-
ence to § 221(d)(3) of the National Housing Act, now 12
U.S.C. § 1715l, to argue that HUD was required to pro-
vide subsidies to property owners through HAP contracts.
Normandy asserts that 12 U.S.C. § 1715(d)(3) is an “ex-
press part of the Use Agreement.” Appellant’s Br. 19.
The reference to § 221(d)(3) Normandy relies on is in
the section of the Use Agreement reciting facts, and is
referenced in order to note that Normandy had “covenant-
ed that, in the event the Regulatory Agreement terminat-
ed by prepayment, in full, . . . [Normandy] would continue
NORMANDY APARTMENTS, LTD. v. UNITED STATES 13
to operate the Normandy Apartments project (as defined
therein) in accordance with Section 221(d)(3) of the NHA,
or any successor legislation, until the Maturity Date.”
J.A. 145. The other reference to § 221(d)(3) pertains to
the insurance of the loan secured by the mortgage of the
Normandy Apartments, and is not relevant here.
“[T]he incorporating contract must use language that
is express and clear, so as to leave no ambiguity about the
identity of the document being referenced, nor any rea-
sonable doubt about the fact that the referenced docu-
ment is being incorporated into the contract.” Northrop
Grumman Info. Tech., Inc. v. United States, 535 F.3d
1339, 1344 (Fed. Cir. 2008). Furthermore, “[t]his court
has been reluctant to find that statutory or regulatory
provisions are incorporated into a contract with the
government unless the contract explicitly provides for
their incorporation.” St. Christopher Assocs., L.P. v.
United States, 511 F.3d 1376, 1384 (Fed. Cir. 2008).
Here, the reference to § 221(d)(3) is reciting facts and,
even if it were expressly part of the contract as Normandy
claims, it does not unambiguously incorporate the 2004
HAP Contract.
Normandy insists that “[e]ven if such language does
not incorporate all of into [sic] the contract the parties’
statutory obligations under the statute, there still re-
mains a genuine issue of material fact as to whether the
HUD breached the Use Agreement.” Appellant’s Br. 18.
Normandy misunderstands the decision below: the Claims
Court did not grant summary judgment in favor of the
government; it dismissed for lack of jurisdiction because
HUD was not in privity of contract. See Normandy, 116
Fed. Cl. at 443 (“Defendant has maintained and we previ-
ously held that plaintiff was not in privity with HUD and
thus could not sue to enforce the [2004] HAP [] [C]ontract
in this court. . . . We reach the same conclusion again.”
(citation omitted)). Accordingly, because the reference to
§ 221(d)(3) does not make HUD in privity of contract, we
14 NORMANDY APARTMENTS, LTD. v. UNITED STATES
affirm the Claims Court’s dismissal for lack of jurisdiction
over the breach of contract claim.
III. HUD’s Conduct Did Not Constitute a Regulatory
Taking
The Claims Court found HUD’s conduct was not a
taking because “[Normandy’s] right to receive the housing
assistance payments was controlled by the HAP
[R]enewal [C]ontract with OHFA. Those payments were
conditioned, however, on performance to the satisfaction
of a third party, HUD.” Id. at 442. The court further
explained that though Normandy “may disagree with how
HUD handled the administrative procedures involved in
weighing the performance and the conclusion that HUD
reached, [] there is no question that the right to receive
those payments was limited by contract, and, indirectly,
by the regulatory regime incorporated into that contract.”
Id. “The result,” the court stated, “is that HUD was not
‘taking’ a property interest when it exercised its regulato-
ry role of monitoring the condition of the building. [Nor-
mandy] did not, by contract, have the right to those
payments free of potential HUD oversight. It had con-
tracted away that right.” Id.
On appeal, Normandy’s primary argument is that it
“had an investment-backed expectation to collect mini-
mum rents set forth under the 2000 Use Agreement and
applicable HAP contract unless Congress failed to appro-
priate funds or HUD exercised its regulatory and contrac-
tual remedy to abate or terminate HAP payments after
complying with the applicable contracts and HUD regula-
tions.” Appellant’s Br. 15. Normandy also contends that
it “received minimal rent from the tenant-based voucher
program. And some low-income tenants paid no rent for
several months after HUD’s abatement of the HAP pay-
ments.” Id. at 37. Thus, to Normandy, “the govern-
ment . . . went too far when it abated the HAP contract
payments and shifted a public burden of providing hous-
NORMANDY APARTMENTS, LTD. v. UNITED STATES 15
ing to low-income tenants disproportionately to Norman-
dy.” Id. at 37–38.
“A ‘taking’ may occur either by physical invasion or by
regulation.” Acceptance Ins. Cos. v. United States, 583
F.3d 849, 854 (Fed. Cir. 2009). “Typically, when consider-
ing whether government action constitutes a regulatory
taking, we apply factors set forth in Penn Central [Trans-
portation Co. v. New York City, 438 U.S. 104 (1978)]: (1)
‘[t]he economic impact of the regulation on the claimant’;
(2) ‘the extent to which the regulation has interfered with
distinct investment-backed expectations’; and (3) ‘the
character of the governmental action.’” CCA Assocs. v.
United States, 667 F.3d 1239, 1244 (Fed. Cir. 2011) (quot-
ing Penn Cent., 438 U.S. at 124).
The Claims Court correctly determined that the Penn
Central factors do not support Normandy’s takings claim.
With regard to the first Penn Central factor, the economic
impact of the regulation, Normandy argues that “HUD
failed to give it notice of default, the corrective action
required, and a reasonable time to cure the default before
HUD abated the HAP payments”; Normandy has found
“no compensation alternative that was directly available
to Normandy once the HAP payments were abated”; and
Normandy was unable to sell the apartments because
“HUD did not give reasonable, if any, consideration to the
proposed sale before its denial.” Appellant’s Br. 36, 39.
Normandy asserts it had an “investment backed ex-
pectation” that it would continue to receive HAP pay-
ments, even though it could “expect [that] subsidy
payments might be abated.” Id. at 40. The Claims Court
held Normandy “had neither an investment-backed
expectation in the right to receive subsidy payments
outside the limitations imposed by the HAP contract nor
did it have such an expectation in the right to set rents
after it voluntarily agreed to limit that right in exchange
for the right to prepay its mortgage.” Normandy, 116
16 NORMANDY APARTMENTS, LTD. v. UNITED STATES
Fed. Cl. at 442. Though Normandy broadly addresses the
first and second Penn Central factors, it does so without
specificity. Additionally, because the Use Agreement was
in effect until 2009, Normandy “was, completely inde-
pendent of the HAP contract or any HUD regulations,
obligated to preserve the Normandy project for low in-
come tenants at reduced rents and could not raise rents
without HUD’s approval.” Id. at 441.
Normandy fails to at all address the third Penn Cen-
tral factor, the character of the government regulation.
As the Claims Court found, “[t]he [O]riginal HAP
[C]ontract made it clear that, should Normandy fail to
correct deficiencies in performance to the satisfaction of
HUD, HUD could stop assistance payments.” Id. Thus,
“[t]o the extent that plaintiff had a property right in
receiving payments, it was one arising out of the HAP
contract. The relationship between plaintiff and the
Section 8 housing program is a voluntary one created by
contract.” Id. (emphasis added; footnote omitted). Nor-
mandy’s right to the HAP payments was governed by the
2004 HAP Contract with OHFA and conditioned upon
third-party HUD’s inspections. As the Claims Court
noted, Normandy may take issue with the process or
administrative procedures of HUD, but its actions do not
constitute a taking.
Accordingly, Normandy “did not, by contract, have the
right to those payments free of potential HUD oversight.
It had contracted away that right.” Id. at 442. The same
line of reasoning applies to Normandy’s ability to sell the
apartment to Summit. That Agreement provides that
Normandy “shall not without the written approval of the
Secretary [of HUD] . . . convey . . . any part of the Resi-
dential Area.” J.A. 204. Normandy thus contracted away
that right, and HUD’s withholding of approval does not
constitute a taking.
NORMANDY APARTMENTS, LTD. v. UNITED STATES 17
IV. The Dissent
The Dissent expresses concern whether “the United
States was correctly eliminated from its contracts with
Normandy Apartments, thereby eliminating Tucker Act
jurisdiction in the Court of Federal Claims.” Dissent Op.
2. Specifically, the Dissent argues judicial estoppel pre-
vents the government from first arguing before the dis-
trict court that the United States was a contractual party
and jurisdiction lies with the Claims Court and then later
arguing, in the Claims Court, that OHFA is the contrac-
tual party, not the United States. See id. at 4–8.
In support, the Dissent cites arguments made by the
government to the district court and the Tenth Circuit.
The Dissent states that before the district court, “[t]he
United States responded that Normandy was in the
wrong court, and that this was a Tucker Act suit on a
contract with the United States. The government stated
that ‘this case belongs in the Claims Court and [the
Western District of Oklahoma] lacks jurisdiction.’” Id. at
2 (alterations in original) (quoting Government’s Resp. in
Opp’n to Pl.’s Mot. for Prelim. Inj. 20, Normandy Apart-
ments, 2007 U.S. Dist. LEXIS 81330). The Dissent also
says that before the Tenth Circuit, the government stated
“these were contracts with the United States and were
actionable only in the Court of Federal Claims under the
Tucker Act,” such that “‘the Tucker Act impliedly forbids
the relief sought in this case.’” Id. (quoting Government’s
Resp. in Opp’n to Pl.’s Mot. for Prelim. Inj. 40, Normandy
Apartments, 2007 U.S. Dist. LEXIS 81330). 1
1 The Dissent quotes the government’s Tenth Cir-
cuit brief, which adopts a passage from the government’s
district court brief. For purposes of clarity, we cite only
the government’s district court brief.
18 NORMANDY APARTMENTS, LTD. v. UNITED STATES
The language cited by the Dissent was in the govern-
ment’s Response in Opposition to Normandy’s Motion for
Preliminary Injunction, specifically the section discussing
why the district court lacked subject matter jurisdiction.
See Government’s Resp. in Opp’n to Pl.’s Mot. for Prelim.
Inj. 20, Normandy Apartments, 2007 U.S. Dist. LEXIS
81330. Where a motion to dismiss for lack of subject
matter jurisdiction challenges the sufficiency of the plead-
ing’s factual allegations, the court assumes those allega-
tions are true. Cedars-Sinai Med. Ctr. v. Watkins, 11 F.3d
1573, 1583–84 (Fed. Cir. 1993). Any factual statements
made by the government within this portion of its brief
must be viewed through that lens.
The government noted the evidence submitted by
Normandy “indicates that under its current HAP
[C]ontract [it] is eligible for payments” that exceed the
Tucker Act’s $10,000 ceiling for exclusive jurisdiction in
the Claims Court, 28 U.S.C. § 1346(a)(2). Government’s
Resp. in Opp’n to Pl.’s Mot. for Prelim. Inj. 21–22, Nor-
mandy Apartments, 2007 U.S. Dist. LEXIS 81330. Thus,
the government’s arguments imply that it considered
Tucker Act jurisdiction to be appropriate in the Claims
Court in situations where a party is ultimately seeking
monetary relief in excess of $10,000. See id. That conten-
tion based on assumed facts, in Normandy’s Complaint
and Motion, is simply irrelevant here.
The Dissent’s second quotation is found in the same
brief. Id. at 40. The Dissent says the government stated
“these were contracts with the United States and were
actionable only in the Court of Federal Claims under the
Tucker Act.” Dissent Op. 2. The quotation does not
support this proposition when viewed in the context of the
brief’s structure and surrounding arguments. It is found
in the government’s preliminary injunction argument
discussing jurisdiction and the likelihood of success on the
merits.
NORMANDY APARTMENTS, LTD. v. UNITED STATES 19
In discussing the likelihood of the merits, the gov-
ernment explicitly incorporated by reference arguments
made in its discussion of subject matter jurisdiction. It
stated “[t]he Tenth Circuit has held that the Tucker Act
impliedly forbids federal courts from ordering declaratory
or injunctive relief, at least in the form of specific perfor-
mance, for contract claims against the federal govern-
ment, and that the APA thus does not waive sovereign
immunity for such claims.” Government’s Resp. in Opp’n
to Pl.’s Mot. for Prelim. Inj. 40, Normandy Apartments,
2007 U.S. Dist. LEXIS 81330 (citing Robbins v. Bureau of
Land Mgmt., 438 F.3d 1074, 1082 (10th Cir. 2006)). The
government concluded that section by arguing if the
District Court lacked jurisdiction, then Normandy did not
show a likelihood of success. Id.
The Dissent also contends the government, in this ap-
peal, no longer argues the United States is not a contrac-
tual party and no longer directly challenges Tucker Act
jurisdiction; and that instead the government argues the
merits of the termination. Dissent Op. 8–9.
That is certainly true to the extent that the govern-
ment no longer contested technical jurisdictional issues
because Normandy’s case was in the proper venue to
determine the merits of the case. Thus, the government
addressed the merits—i.e., whether the United States
was a party to the 2004 HAP Contract. The Claims Court
determined HUD was not in privity with Normandy and
accordingly, as a matter of fact, the Claims Court lacked
jurisdiction to hear this case.
Thus, the Dissent’s assertion of inconsistency evapo-
rates under the light of a full review of the record upon
which it relies.
CONCLUSION
For the reasons set forth above, the decisions of the
Claims Court dismissing the breach of contract claim for
20 NORMANDY APARTMENTS, LTD. v. UNITED STATES
lack of jurisdiction and granting summary judgment on
the takings claim are
AFFIRMED
United States Court of Appeals
for the Federal Circuit
______________________
NORMANDY APARTMENTS, LIMITED,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2014-5135
______________________
Appeal from the United States Court of Federal
Claims in No. 1:10-cv-00051-EGB, Senior Judge Eric G.
Bruggink.
______________________
REYNA, Circuit Judge, additional views, with whom
WALLACH, Circuit Judge, joins.
I join the court’s opinion. I write separately to explain
why our opinion raises troubling concern. HUD is man-
dated by Congress to implement and administer the
Section 8 program. Through its regulations and past
practices, HUD has obligated itself to Section 8 property
owners. Yet by creating a separate contract between
OHFA and Normandy, HUD has insulated itself from
liability. The court’s opinion describes why Normandy
cannot recover from HUD on the basis of HUD’s breach of
an express or implied contract. Nor can Normandy recov-
er in property law for the reasons the court explains.
2 NORMANDY APARTMENTS, LTD. v. UNITED STATES
Attempts to recover from HUD on other theories
would also have likely failed. The court has generally
rejected the notion that a local PHA acts as HUD’s agent
in administering a HAP contract, despite HUD’s extensive
involvement in contract administration. See, e.g., New
Era Constr. v. United States, 890 F.2d 1152, 1154–57
(Fed. Cir. 1989). Though Normandy could have claimed
third-party beneficiary status under HUD and OHFA’s
Annual Contributions Contract (i.e., the contract under
which a local PHA receives HUD funding), this court has
refused to label a property owner a third-party beneficiary
to such contracts. See, e.g., Nat’l Leased Hous. Ass’n v.
United States, 105 F.3d 1423, 1436–37 (Fed. Cir. 1997);
Katz v. Cisneros, 16 F.3d 1204, 1210 (Fed. Cir. 1994).
Judicial estoppel arguments would similarly fail be-
cause while HUD argued in the district court that Nor-
mandy’s claim belonged in the Court of Federal Claims,
the government did not clearly maintain that HUD was a
party to the 2004 HAP contract. J.A. 461 (HUD contend-
ed generally that “[a]llegations in Plaintiff’s Complaint
and Motion [for injunctive relief] demonstrate that this
case belongs in the [Court of Federal Claims] and that
this Court lacks jurisdiction”). Judicial estoppel argu-
ments thus fail at least because HUD’s position at the
Court of Federal Claims was not “clearly inconsistent”
with its earlier position in district court. See New Hamp-
shire v. Maine, 532 U.S. 742, 743 (2001).
In addition, Normandy could not recover from OHFA
under the 2004 HAP contract because HUD’s assistance
payments to OHFA under HUD and OHFA’s Annual
Contributions Contract would likely be a condition prece-
dent to OHFA’s performance under the 2004 HAP con-
tract. See Haddon Hous. Assocs., Ltd. P’ship v. United
States, 711 F.3d 1330, 1338 (Fed. Cir. 2013) (“Generally, a
party to a contract may assert the nonoccurrence of a
contractual condition precedent as a defense to a claim of
breach.”). In other words, OHFA’s performance under the
NORMANDY APARTMENTS, LTD. v. UNITED STATES 3
2004 HAP contract depends on HUD funding under the
Annual Contributions Contract.
To be clear, this is not a typical case in which sover-
eign immunity bars suit against the government. HUD
simultaneously obligated itself to OHFA—and, by exten-
sion, Normandy—under the Annual Contributions Con-
tract and exercised significant control of Normandy’s
property under the 2004 HAP contract, all while remain-
ing insulated from liability. Under HUD’s scheme, the
government conveniently escapes liability in contract
under the Tucker Act—a statute that provided “the wid-
est and most unequivocal waiver of federal immunity
from suit,” see United States v. Mitchell, 463 U.S. 206, 215
(1983), a waiver that Justice Holmes once deemed a
“great act of justice,” United States v. Emery, Bird, Thayer
Realty Co., 237 U.S. 28, 32 (1915).
But justice is hard to find in this case. Despite Nor-
mandy’s alleged $2.75 million loss, Normandy appears to
have no recourse against the government or anyone else.
The government’s position in this litigation risks under-
mining Section 8 by discouraging property owner partici-
pation in the Section 8 program, the purpose of which is
to provide low-income families with a decent place to live.
See, e.g., 42 U.S.C. § 1437f. By limiting incentives for
property owner participation, HUD’s scheme may have
negative consequences for Section 8 tenants. Be that as it
may, problems offered up by this case and others like it
are outside this court’s authority to remedy and are best
left for another branch of government to address.
United States Court of Appeals
for the Federal Circuit
______________________
NORMANDY APARTMENTS, LIMITED,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2014-5135
______________________
Appeal from the United States Court of Federal
Claims in No. 1:10-cv-00051-EGB, Senior Judge Eric G.
Bruggink.
______________________
NEWMAN, Circuit Judge, dissenting.
The United States, acting through the Department of
Housing and Urban Development (HUD), has since 1968
contracted with Normandy Apartments to provide federal-
ly subsidized low-income apartments, called “Section 8
housing” as established by the National Housing Act, 42
U.S.C. § 1437f. After inspections by HUD, wherein HUD
criticized Normandy’s compliance with the requirement
that the apartments be maintained in “decent, safe, and
sanitary” condition, in 2007 HUD terminated its subsidy
payments. Normandy objected to the termination, stating
that the perceived non-compliance was based on tempo-
rary disruption due to the ongoing apartment project of
installing double-pane windows throughout the complex,
2 NORMANDY APARTMENTS, LTD. v. UNITED STATES
and that it had inadequate opportunity to remedy any
perceived deficiency in property maintenance.
My concern relates to whether the United States was
correctly eliminated from its contracts with Normandy
Apartments, thereby eliminating Tucker Act jurisdiction
in the Court of Federal Claims. The government success-
fully argued this position in the Oklahoma district court
and in the Tenth Circuit, and successfully argued the
contrary position in the Court of Federal Claims. The
panel majority now denies Normandy Apartments all
access to judicial review.
DISCUSSION
Normandy Apartments had initially filed suit against
the United States Department of Housing and Urban
Development in the United States District Court for the
Western District of Oklahoma, asking that court to re-
quire HUD to continue the rental subsidies at least until
the merits of the issue were resolved. The United States
responded that Normandy was in the wrong court, and
that this was a Tucker Act suit on a contract with the
United States. The government stated that “this case
belongs in the Claims Court and [the Western District of
Oklahoma] lacks jurisdiction.” U.S. Dist. Ct. Br. 20. The
district court agreed. Normandy Apartments, Ltd., v. U.S.
Dep’t of Hous. & Urban Dev., No. Civ.-07-1161-R, 2007
WL3232610 (W.D. Okla. Nov. 1, 2007).
Normandy appealed to the Tenth Circuit, and the
United States again moved for dismissal, stating that
these were contracts with the United States and were
actionable only in the Court of Federal Claims under the
Tucker Act. U.S. Br. to 10th Cir. (“The Tucker Act im-
pliedly forbids the relief sought in this case”). The Tenth
Circuit agreed, ruling that Normandy’s contract claims
were within the “exclusive jurisdiction” of the Court of
Federal Claims. Normandy Apartments., Ltd. v. U.S.
NORMANDY APARTMENTS, LTD. v. UNITED STATES 3
Dep’t of Hous. & Urban Dev., 554 F.3d 1290, 1295-96
(10th Cir. 2009).
Normandy then filed suit in the Court of Federal
Claims. However, in the Court of Federal Claims the
United States argued that there was no jurisdiction in the
Court of Federal Claims. The government argued that
the contracts were not with the United States, but with
an Oklahoma state agency that had signed the most
recent Renewal Agreement as “Contract Administrator.”
The Court of Federal Claims agreed, and dismissed the
suit.
Thus the United States obtained dismissal of the con-
tract claims by the Oklahoma district court and the Tenth
Circuit on the argument that the contracts are with the
United States and can be litigated only in the Court of
Federal Claims. The United States then obtained dismis-
sal of the contract claims by the Court of Federal Claims
on the argument that the contracts are not with the
United States, but with the Oklahoma Contract Adminis-
trator. Normandy has exhausted the supply of courts in
which it can seek resolution of its claim for breach of
contract. In its shifting positions, the government avoid-
ed judicial determination of the merits for eight years. I
respectfully dissent.
The HUD contracts
Normandy Apartments had two contracts with the
United States Department of Housing and Urban Devel-
opment. The Housing Assistance Payments (HAP) Re-
newal Agreement of 2004 traces its renewals to 1968. The
Regulatory Use Agreement of 2000 stated the conditions
of Normandy’s prepayment of its mortgage, and also
contained all of the substantive terms of the Renewal
Agreement.
The Renewal Agreement states that “the purpose of
the Renewal contract is to renew the expiring contract for
4 NORMANDY APARTMENTS, LTD. v. UNITED STATES
a new term,” Contract Section 4c. Section 4 authorizes
HUD to assign the contract to a PHA (public housing
agency), but provides that “[n]otwithstanding such as-
signment, HUD shall remain a party to the provisions of
the Renewal Contract that specify HUD’s role pursuant to
the Renewal Contract, including such provisions of Sec-
tion 9 (HUD requirements), Section 10 (statutory changes
during term), and section 11 (PHA default) of the Renewal
Contract.” Section 4(a)(2).
The Renewal Agreement, but not the Regulatory Use
Agreement, was signed by the Oklahoma Housing and
Finance Authority as “Contract Administrator,” as au-
thorized by § 1437f(b)(1) of the Housing Act. No substan-
tive changes were made to HUD’s continuing authority
and responsibility. The government does not dispute that
the rental subsidies continued to be provided by HUD,
and that HUD retained full control and responsibility for
all of the contract provisions, including the rights of
inspection and termination as here exercised.
In accordance with the contracts, HUD conducted pe-
riodic inspections of the Normandy Apartments property.
In 2007 HUD terminated the federal subsidy payments,
on the ground that Normandy had not properly main-
tained the apartments, leading to the litigation starting in
Oklahoma in October 2007, and ending with the Federal
Circuit.
Suit in Oklahoma District Court
Normandy filed suit in the District Court for the
Western District of Oklahoma, seeking to enjoin the
termination that was ordered by HUD, and to require
that the rental subsidies be continued at least during
resolution of the issues in dispute. The United States
moved for dismissal on jurisdictional grounds, stating
that at “issue in the instant case are agreements between
Plaintiff and HUD.” Def.‘s Resp. to Pl.’s Mot. for Prelim.
Inj. at 2. As the district court recited, the United States
NORMANDY APARTMENTS, LTD. v. UNITED STATES 5
raised the question ”whether this court has jurisdiction to
entertain this action or whether jurisdiction lies exclu-
sively in the Court of Federal Claims pursuant to the
Tucker Act, 28 U.S.C. § 1491.” Normandy, 2007 WL
3232610, at *1.
The government provided the affidavit of Mr. Herman
Ransom in his position as Director of the HUD Multifami-
ly Hub responsible for HUD’s housing programs in the
region that includes Oklahoma. He averred that “Nor-
mandy Apartments, Ltd. (‘the owner’) entered into a
Housing Assistance Payments (‘HAP’) contract with HUD
September 2004,” and that the contracts provided that
HUD would pay Monthly Rental Assistance “according to
HUD’s regulations and administrative procedures,” citing
Agmt. §7(a). Ransom Aff. Mr. Ransom also described the
Regulatory Use Agreement of 2000, between Normandy
Apartments and HUD. He stressed that the Normandy
Apartments contracts are with the United States, with
elaboration such as “HUD has not authorized OHFA to
conduct physical inspections of Normandy Apartments.”
Ransom Aff. Thus the government argued that these
were contracts with the United States, and that remedy
for the asserted breach was available only in the Court of
Federal Claims. The Oklahoma district court agreed, and
ruled that “Plaintiff’s claims arise out of a contract with
the government and are for breach of that contract and
breach of regulations covering and relating to that con-
tract, the latter of which plaintiff could not even assert if
it did not have a HAP contract with HUD.” Normandy,
2007 WL 3232610, at *2.
The district court recited “HUD’s decision to abate
Housing Assistance Payments and to terminate the HAP
contract,” and reiterated that “plaintiff’s claims are
founded upon an express contract with the United States
and on regulations of an executive department. See 28
U.S.C. § 1491.” Normandy, 2007 WL 3232610, at *1, *2.
The court held that “jurisdiction over this case lies exclu-
6 NORMANDY APARTMENTS, LTD. v. UNITED STATES
sively in the United States Court of Federal Claims
pursuant to the Tucker Act.” Id. at *2.
Appeal to the Tenth Circuit
Normandy Apartments appealed to the Tenth Circuit,
and the government again moved for dismissal for lack of
jurisdiction. The Circuit court held that although Nor-
mandy’s APA claims were within the district court’s
jurisdiction, since the contracts were between the United
States and Normandy Apartments, the count “alleging an
ordinary breach of contract, seeks equitable relief for a
contract claim against the government. Because the
Court of Federal Claims has exclusive jurisdiction to hear
such a claim, the district court properly declined to take
jurisdiction over it.” Normandy, 554 F.3d at 1299.
The Tenth Circuit observed that “[u]nder HUD regu-
lations and Normandy’s contract with HUD, Normandy
was required to maintain the units,” id. at 1294, and
reiterated that the Court of Federal Claims is the exclu-
sive venue for suit for breach of a contract of this magni-
tude with the United States, id. at 1299.
The Court of Federal Claims
Normandy Apartments then filed suit in the Court of
Federal Claims. However, unlike the position on which it
had prevailed in the district court and the Tenth Circuit,
the government argued that the contracts are not with
the United States, but with the Oklahoma housing au-
thority as “Contract Administrator.” The principles of
judicial estoppel foreclose such maneuvers:
Where a party assumes a certain position in a le-
gal proceeding, and succeeds in maintaining that
position, he may not thereafter, simply because
his interests have changed, assume a contrary po-
sition, especially if it be to the prejudice of the
party who has acquiesced in the position formerly
taken by him.
NORMANDY APARTMENTS, LTD. v. UNITED STATES 7
New Hampshire v. Maine, 532 U.S. 742, 749 (2001); see,
e.g., Pegram v. Herdrich, 530 U.S. 211, 227 n.8 (2000)
(“Judicial estoppel generally prevents a party from pre-
vailing in one phase of a case on an argument and then
relying on a contradictory argument to prevail in another
phase.”).
This is not a new principle, see Davis v. Wakelee, 156
U.S. 680 (1895):
It may be laid down as a general proposition that,
where a party assumes a certain position in a le-
gal proceeding, and succeeds in maintaining that
position, he may not thereafter, simply because
his interests have changed, assume a contrary po-
sition, especially if it be to the prejudice of the
party who has acquiesced in the position formerly
taken by him.
Id. at 689. Nor is this principle new to the Federal Cir-
cuit. In Data Gen. Corp. v. Johnson, 78 F.3d 1556, 1565
(Fed. Cir. 1996) this court recognized that “where a party
successfully urges a particular position in a legal proceed-
ing it is estopped from taking a contrary position in a
subsequent proceeding where its interests have changed.”
On this appeal the government does not dispute that
HUD retained its full contract rights and obligations,
including the right of termination. It was HUD that
inspected the property, and it was HUD that terminated
the contracts. This relationship is not overridden by the
selection of a state housing authority as “contract admin-
istrator.” By the Housing statute, HUD “is authorized to
enter into annual contributions contracts with public
housing agencies pursuant to which such agencies may
enter into contracts to make assistance payments,” 42
U.S.C. §1437f(b)(1), and “[t]he Secretary shall embody the
provisions for such annual contributions in a contract
guaranteeing their payment,” 42 USC §1437c(a)(1).
8 NORMANDY APARTMENTS, LTD. v. UNITED STATES
However, such authorization does not remove HUD from
its contractual obligations to the property owner.
HUD’s public housing Guidebook for Section 8 con-
tracts is explicit that HUD is “contractually bound” by the
Renewal Contract executed by a state housing authority:
When a Renewal Contract is executed by a PHA
[public housing authority] pursuant to this
Guidebook, in accordance with HUD requirements
and on the form prescribed by HUD, HUD is con-
tractually bound by the Renewal Contract provi-
sions that specify HUD’s role pursuant to the
Renewal Contract.
William C. Apgar, HUD Office of Multifamily Housing,
Section 8 Renewal Policy (2001). The Guidebook is explic-
it that a renewal executed by a state housing authority
does not relieve HUD of its contract obligations. And
although the 2004 Renewal Agreement was signed by the
Oklahoma authority, the Regulatory Use Agreement,
which incorporates all of the contract obligations between
HUD and Normandy Apartments, was executed by HUD,
with no reference to any state authority.
Despite these explicit statements of HUD’s position,
obligations, and authority, the Court of Federal Claims
held that the “plaintiff is unable to enforce its rights in
that contract against the federal government because the
United States was not a party to it.” Fed. Cl. Op. at 20.
The Court of Federal Claims also rejected Normandy’s
alternative ground that its property had been taken in
violation of its Fifth Amendment rights. Normandy now
appeals to the Federal Circuit.
Appeal to the Federal Circuit
The government no longer argues that these contracts
are not with the United States, and does not directly
challenge Tucker Act jurisdiction. The government re-
cites that HUD funded the federal subsidy to Normandy,
NORMANDY APARTMENTS, LTD. v. UNITED STATES 9
that HUD inspected the Normandy Apartment premises,
and that HUD terminated the subsidy payments. See,
e.g., U.S. Br. 6-7 (“HUD abated—that is, suspended—
funding for HAP payments by OFHA to Normandy”). The
government does not argue in this court that the Oklaho-
ma “Contract Administrator” removed the United States
from the contracts with Normandy.
Instead, the United States now seeks to argue the
merits of the termination, stating that HUD did not
breach the contracts because Normandy had not main-
tained the apartments in “decent, safe, and sanitary
condition.” U.S. Br. 7. The propriety of the termination is
the issue for which Normandy has been seeking a forum,
now for eight years. The merits of the contract claim have
never been decided. And the Federal Circuit is not a trial
forum, for ab initio resolution of Normandy’s claim.
Summary
The United States argued successfully in the Okla-
homa district court and the Tenth Circuit that this case
belongs in the Court of Federal Claims because the con-
tracts are with the United States. The United States then
argued successfully in the Court of Federal Claims that
the contracts are not with the United States. This is not
only a classic exemplar of judicial estoppel, but the juris-
dictional ruling of the Court of Federal Claims is incor-
rect, for the contracts are indeed with the United States,
and subject to the Tucker Act.
I do not know how the merits would have been decid-
ed, had they been litigated. With the court’s ruling today,
however, all paths to judicial resolution appear to be
closed. This is not the process envisioned by President
Lincoln, his words carved at the entrance to this court-
house: “It is as much the duty of government to render
prompt justice against itself in favor of citizens as it is to
administer the same between private individuals.”
10 NORMANDY APARTMENTS, LTD. v. UNITED STATES
I respectfully dissent.