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Appealed from: United States Court of Federal Claims Judge Robert H. Hodges, Jr.

This is a takings case. Appellants are forty-two partnerships (“Owners”) formed to develop and operate residential apartment buildings, primarily in California. Owners’ claims arise from Congress’ enactment of the Emergency Low Income Housing Preservation Act of 1987, Pub. L. No. 100-242, 101 Stat. 1877 (1987) (pertinent parts reprinted in 12 U.S.C. � 1715l, note (1994) (Preservation of Low Income Housing) (“ELIHPA”) and the Low-Income Housing Preservation and Resident Homeownership Act of 1990 (codified at 12 U.S.C. �� 4101-4147 (1994)) (“LIHPRHA”), both of which prohibited the prepayment of Owners’ federally subsidized mortgage loans after 20 years without pre-approval from the Department of Housing and Urban Development (“HUD”). Asserting that ELIHPA and LIHPRHA abrogated their contractual rights to prepay their mortgages (and thus to convert their federally regulated housing into market-rate residences), Owners sued the United States on January 3, 1994 for breach of contract, for just compensation under the Takings Clause of the Fifth Amendment, and for allegedly unlawful administrative actions.

On March 27, 1995, the U.S. Court of Federal Claims granted summary judgment in favor of the Owners on their breach of contract claims, but denied their motion for summary judgment on their takings claims. The court dismissed their administrative law claims for lack of jurisdiction. Cienega Gardens v. United States, 33 Fed. Cl. 196 (1995). Four model plaintiffs (Sherman Park Apartments, Independence Park Apartments, St. Andrews Garden Apartments, and Pico Plaza Apartments, collectively “Model Plaintiffs”) were selected for the purposes of litigating the damages trial on the breach of contract claim. The trial court awarded the Model Plaintiffs $3,061,107 and entered judgment in their favor pursuant to Fed. R. Civ. P. 54(b). Cienega Gardens v. United States, 38 Fed. Cl. 64 (1997). After the government appealed the breach of contract issue, we vacated and remanded the case, finding no privity of contract between the Owners and the United States with respect to the right to prepay the mortgages after twenty years. Cienega Gardens v. United States, 194 F.3d 1231 (Fed. Cir. 1998).

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