St. Christopher Associates, L.P. v. United States

United States Court of Appeals for the Federal Circuit

2007-5069

ST. CHRISTOPHER ASSOCIATES, L.P.,

Plaintiff-Appellant,

v.

UNITED STATES,

Defendant-Appellee.

Harry J. Kelly, Nixon Peabody LLP, of Washington, DC, argued for plaintiff-
appellant.

Sheryl L. Floyd, Senior Trial Counsel, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, argued for defendant-appellee.
With her on the brief were Peter D. Keisler, Acting Attorney General and Jeanne F.
Davidson, Director. Of counsel on the brief was Robert T. Farrell, Department of Housing
and Urban Development, of Boston, Massachusetts.

Carl A.S. Coan, III, Coan & Lyons, of Washington, DC, for amici curiae American
Association for Homes and Services for the Aging et al.

Appealed from: United States Court of Federal Claims

Judge Susan G. Braden
 United States Court of Appeals for the Federal Circuit
2007-5069

ST. CHRISTOPHER ASSOCIATES, L.P.,

Plaintiff-Appellant,

v.

UNITED STATES,

Defendant-Appellee.

Appeal from the United States Court of Federal Claims in 03-CV-2221, Judge Susan G.
Braden.

__________________________

DECIDED: January 9, 2008
__________________________

Before LOURIE, GAJARSA, and PROST, Circuit Judges.

PROST, Circuit Judge.

St. Christopher Associates, L.P. (“St. Christopher”) sued the U.S. Department of

Housing and Urban Development (“HUD”) for alleged violations of certain statutes,

regulations, and agency guidance; for breach of contract; and for a taking in violation of

the Fifth Amendment, because HUD failed to consider its request for a rent increase.

The U.S. Court of Federal Claims granted the government’s motion to dismiss and

motion for summary judgment. St. Christopher Assocs. v. United States, 75 Fed. Cl. 1

(2006). St. Christopher appeals the grant of summary judgment with respect to the

breach of contract claim and the Fifth Amendment takings claim.
 We affirm the Court of Federal Claims, agreeing that the Regulatory Agreement

does not expressly, nor by implication, require HUD to consider a rent increase request

and, therefore, HUD did not breach the Regulatory Agreement by not considering the

request. In addition, we find no Fifth Amendment taking by HUD’s failure to consider

the request.

BACKGROUND

On December 19, 1984, HUD entered into a Provisional Workout Arrangement

(“PWA”) with St. Christopher in which St. Christopher became the owner of an

apartment project for the elderly (“the Apartments”) in Hartford, Connecticut. Under the

PWA, St. Christopher agreed to make the mortgage and interest arrearage payments of

the former owner. On December 28, 1984, St. Christopher and HUD executed an

Agreement for Modification of Note and Mortgage (“Modification Agreement”),

incorporating the terms of the PWA, and a Regulatory Agreement. The Regulatory

Agreement placed restrictions on St. Christopher’s use and operation of the

Apartments.

The federal housing program allowed the previous owner, who ultimately

defaulted on his HUD loan, to acquire a forty-year loan at a one percent interest rate.

The owner was required to pass along the benefits of the federal interest subsidy to the

tenants by charging them a lower rent. At the time St. Christopher acquired the

Apartments, the prior owner had incurred large mortgage interest arrearages, totaling

approximately $767,000. St. Christopher made two of six annual mortgage interest

arrearage payments, but did not make any payments after December 28, 1986.

2007-5069 2
 On October 1, 1984, prior to execution of the PWA, the Modification Agreement,

and the Regulatory Agreement, HUD approved a rent increase request submitted by St.

Christopher based upon the “cost of electricity, reserve for replacements and

operational expenses.” Id. at 3. During the 1980s, St. Christopher made several

additional rent increase requests to HUD. HUD did not approve any of the requested

rent increases, contending that it was not obligated to consider them because St.

Christopher had failed to make the mortgage interest arrearage payments pursuant to

the PWA and the Modification Agreement.

The first rent increase request was made in January 1988. According to an

internal HUD memorandum dated May 9, 1988, HUD determined that a rent increase

was not justified based on the submitted information, but that St. Christopher could

submit supplemental information in support of a rent increase.

St. Christopher submitted a second request for a rent increase on December 5,

1988. HUD denied the request because St. Christopher had failed to make the annual

workout payment of $92,000 due on December 28, 1987. HUD advised St. Christopher

that an agreement must be reached between HUD and St. Christopher regarding “any

finding of a violation under the mortgage or regulatory agreement” before any action can

be taken on the rent increase request.

On January 6, 1989, HUD sent St. Christopher a letter stating that HUD had not

received mortgage interest arrearage payments for 1988 and 1989, resulting in a total

delinquency of $184,000. HUD informed St. Christopher that if HUD did not receive the

payment within thirty days, HUD would commence foreclosure proceedings. According

to the Court of Federal Claims, it is not clear what happened between 1989 and 1996.

2007-5069 3
Id. at 5. On November 6, 1996, HUD requested that St. Christopher submit a plan for

complying with the PWA. Id.

On September 25, 1997, St. Christopher submitted an additional request to

increase the rent at the Apartments. HUD did not respond to this request. 1 It is the

September 25, 1997, rent increase request that is the subject of this appeal.

In 1998, HUD notified St. Christopher that it was initiating foreclosure

proceedings, and, on January 3, 2001, HUD issued a Notice of Default and Foreclosure.

On May 29, 2002, St. Christopher submitted one last rent increase request to

HUD. HUD granted that request on July 2, 2002. St. Christopher filed the present

lawsuit on September 24, 2003. Id. at 6. Thereafter, St. Christopher sold the

Apartments and paid HUD the outstanding mortgage interest arrearages.

The Court of Federal Claims dismissed the complaint for lack of jurisdiction to the

extent St. Christopher sought relief based on violations of the statutes, regulations and

agency guidance independent of any contractual obligation, concluding none of these

were money-mandating. Id. at 10. The court granted summary judgment with respect

to the remainder of the complaint, finding that HUD did not breach the express

provisions of the Regulatory Agreement or violate the Fifth Amendment takings clause

by failing to respond to St. Christopher’s request for a rent increase. Id. at 13-14.

1
HUD later claimed that it had no knowledge of the request. The Court of
Federal Claims held that HUD’s statement was insufficient to rebut the presumption of
receipt and concluded as a matter of law that HUD had received the request. Id. at 12.
For the purpose of this appeal, HUD does not dispute that it received the request. Oral
Arg. at 16:35-57, available at http://www.cafc.uscourts.gov/oralarguments/mp3/2007-
5069.mp3.

2007-5069 4
 St. Christopher appeals the breach of contract claim and the Fifth Amendment

takings claim. 2 We have jurisdiction pursuant to 28 U.S.C. 1295(a)(3).

DISCUSSION

“We review the Court of Federal Claims’ grant of summary judgment without

deference.” Agwiak v. United States, 347 F.3d 1375, 1377 (Fed. Cir. 2003). Contract

interpretation is a matter of law, which we review de novo. Barron Bancshares, Inc. v.

United States, 366 F.3d 1360, 1368 (Fed. Cir. 2004).

The essence of St. Christopher’s appeal is that HUD was required to consider its

1997 request for a rent increase, and HUD’s failure to consider the request constituted

either a breach of contract or a taking under the Fifth Amendment. We take each issue

in turn.

I

In support of its breach of contract claim, St. Christopher contends that the

Regulatory Agreement both expressly and implicitly requires the government to

consider a rent increase request.

A

St. Christopher relies on sections 4(a) and 4(l) of the Regulatory Agreement as

the basis for an express duty by HUD to consider a rent increase request. Those

sections provide:

The owners covenant and agree that:

2
St. Christopher has conceded that none of the referenced statutes,
regulations, or agency guidance is money-mandating and, thus, the Court of Federal
Claims lacked jurisdiction to consider its complaint to the extent it sought relief based
directly on a violation of a statute, regulation, or agency guidance.

2007-5069 5
 (a) with the prior approval of the [Federal Housing] Commissioner, [the
owners] will establish for each dwelling unit (1) a basic rental charge
determined on the basis of operating the project with payments of principal
and interest under a mortgage bearing interest at one percent and (2) a
fair market rental charge determined on the basis of operating the project
with payments of principal, interest and mortgage insurance premiums
due under the insured mortgage on the project.
....
(l) no change will be made in the basic rental or fair market rental unless
approved by the Commissioner . . . .

Regulatory Agreement §§ 4(a), (l) (emphases added). According to St. Christopher, the

government breached these two provisions of the Regulatory Agreement when it failed

to consider St. Christopher’s rent increase request. These provisions, however, are

clearly directed to the obligations of the owners, requiring the owners to seek approval

in establishing and changing the fair market rental charge. The provisions impose no

duty on HUD. Hence, the Court of Federal Claims correctly concluded that there is no

basis to find a breach of contract by HUD in its failure to consider the September 25,

1997, request based on the express language in the Regulatory Agreement.

B

Alternatively, St. Christopher argues that the Regulatory Agreement implicitly

requires HUD to consider a rent increase request. While St. Christopher acknowledges

that the Regulatory Agreement does not incorporate by reference any statutory,

regulatory, or agency guidance, it nevertheless contends that the Regulatory Agreement

inherently includes an obligation to consider a rent increase request based on

underlying statutes, regulations, and agency guidance. We first consider whether the

cited statutes, regulations, or agency guidance contain an express obligation on the part

of HUD to consider a rent increase request, and then whether the statutes, regulations,

or agency guidance can be implied into the Regulatory Agreement.

2007-5069 6
 1

St. Christopher relies on section 236 of the National Housing Act, 24 C.F.R.

§§ 236.55(a), 245.325(b), and HUD Handbook §§ 7-1, 7-21, and 7-25, for an obligation

on the part of HUD to consider a rent increase request. While we agree that an express

obligation may be found in 24 C.F.R. § 245.325(b) and HUD Handbook § 7-25, we find

no such obligation in any of the other provisions. We look first at those provisions

where we fail to find an express obligation and then consider the two provisions where

we find an obligation.

Section 236 of the National Housing Act provides in relevant part:

(i) For each dwelling unit there shall be established, with the approval of
the Secretary, a basic rental charge and fair market rental charge
(ii) The basis rental charge shall be
(I) the amount needed to operate the project with payments of
principal and interest due under a mortgage bearing interest at the
rate of 1 percent per annum . . . .
....
(iii) The fair market rental charge shall be
(I) the amount needed to operate the project with payments of
principal, interest, and mortgage insurance premium which the
mortgagor is obligated to pay under the mortgage covering the
project . . . .

Pub. L. No. 90-448, § 201(a), 82 Stat. 476, 498 (1968) (codified as amended at 12

U.S.C. § 1715z-1(f)(1)(A) (2000)) (emphases added). St. Christopher contends that

because the rental charge is the amount needed to operate the project, there is an

implied obligation on the part of HUD to consider, and approve if necessary, a rent

increase request.

St. Christopher, however, reads too much into the statute. Section 236 requires

only that a rental charge be established with the approval of the Secretary. While it

places a duty on the owner to establish a rental charge and to seek approval from the

2007-5069 7
Secretary, it places no obligation on HUD to consider a request to increase the rent.

Hence, we find nothing in section 236 to obligate HUD to consider a rent increase

request.

Next, St. Christopher relies on the regulation, 24 C.F.R. § 236.55(a), for an

obligation on the part of HUD to consider a rent increase request. It provides:

Approved rental charge. The [Federal Housing] Commissioner will
establish, and the mortgagor will maintain, a Basic Rent and Market Rent
for each dwelling unit.

24 C.F.R. § 236.55(a) (1995) (saved by 24 C.F.R. § 236.1(b)(1997)). While this

regulation obligates HUD to establish a basic and market rent, it places no express

obligation on HUD to consider a request to increase the rent.

St. Christopher also refers to several sections of the HUD Handbook as the

source of an obligation on the part of HUD to consider a rent increase request. The

first, section 7-1, provides:

HUD’s prime interest is in promoting the efficient management and
continued financial viability of its projects. In reviewing requests from
owners concerning rents and charges, the [HUD] Field Office should be
guided by the fact that these rents and fees should and must provide
sufficient and adequate funding to operate the projects.

HUD Handbook 4350.1 REV-1, Occupancy Requirements of Subsidized Multifamily

Housing Programs, ch. 7 (hereinafter “HUD Handbook”) § 7-1 (1992) (emphasis added).

Section 7-21 provides:

When current rent levels are NOT sufficient to cover anticipated or
unavoidable increases in operating costs, owners should request that
HUD approve an increase in rents.

Id. (emphasis added). According to St. Christopher, these provisions establish that an

increase in rent is appropriate in order to ensure that the rent is adequate to cover

2007-5069 8
operating costs. St. Christopher argues that implicit in these provisions is a requirement

that HUD consider and approve a proper request to increase rent.

We disagree. Section 7-1 merely provides the basis for HUD to evaluate

whether a rental charge is appropriate. Section 7-21 establishes only when an owner

should seek an increase in rent. Neither section places an express duty on HUD to

consider a rent increase request.

In contrast to each of the provisions discussed above, there are two provisions

cited by St. Christopher in which we do find an express obligation on the part of HUD to

consider a rent increase request. First, the regulation, 24 C.F.R. § 245.325, provides:

(a) When processing a request for an increase in maximum permissible
rents, HUD shall take into consideration reasonably anticipated increases
in project operating costs . . . .
(b) After HUD has considered the request for an increase in rents, has
found that it meets the requirements of § 245.320, and has made its
determination to approve, adjust upward or downward, or disapprove the
request, it will furnish the mortgagor with a written statement of the
reasons for approval, adjustment upward or downward, or disapproval. . . .

(Emphases added). This regulation establishes what HUD should consider in deciding

whether or not to grant a rent increase and mandates that HUD provide a written

statement explaining the basis for its approval, adjustment, or disapproval of the

request. It does indeed obligate HUD to consider and respond to a rent increase

2007-5069 9
request, albeit within an unspecified time period. 3

Second, section 7-25 of the HUD Handbook provides in relevant part:

FIELD MANAGEMENT OF THE RENT REQUEST PROCESS.
Field Offices must establish a tracking system that will facilitate and
monitor compliance with the following process times:
....
B. When the Rent Increase Exceeds the Maximum Potential,
....
3) Projects subject to 24 CFR Tenant Comment procedures. Issue
decision letters within 30 days after receipt of the formal rent
increase request . . . .
....
D. You may not require that projects routinely submit materials NOT listed
in Section 4, paragraph 7-22. You may require additional submissions
ONLY if the actual or projected expense estimates appear to be
excessive . . . .
NOTE: Your requests for additional information must be made in
writing and within 30 days of receipt of initial package.

(Emphases added). This provision of the HUD Handbook clearly requires HUD to

respond to a rent increase request, or request additional information, within thirty days

of the request.

In sum, of all the statutory, regulatory, and HUD Handbook provisions cited by St.

Christopher, only 24 C.F.R. § 245.325(b) and HUD Handbook section 7-25 place any

obligation on HUD to consider a request to increase rent, and only section 7-25 sets a

3
The government counters that the regulation stipulates that in order for
HUD to act on a rent increase request, it must first assure itself that the requester has
satisfied the requirements set forth in 24 C.F.R. § 245.320. Here, the government
argues, St. Christopher had not satisfied those requirements. Specifically, it contends
that St. Christopher defaulted on its obligation to make interest arrearage payments to
HUD and did not certify that it had posted notice of the rent increase request to the
tenants for at least thirty days prior to filing the request with HUD. The Court of Federal
Claims did not reach whether St. Christopher had met its § 245.320 obligations because
it found no duty on the part of HUD under the Regulatory Agreement to consider the
September 25, 1997, rent increase request. St. Christopher, 75 Fed. Cl. at 13. Thus,
resolution of this issue, if necessary, would require a remand.

2007-5069 10
time period for HUD to respond. Neither provision is incorporated by reference into the

Regulatory Agreement. Therefore, in order to find that HUD had a duty to consider a

rent increase request under the Regulatory Agreement, we would need to find that

either or both of the two provisions are incorporated into the Regulatory Agreement by

implication.

2

St. Christopher’s rationale for looking to the statutes, regulations, or agency

guidance in interpreting the Regulatory Agreement is not that the Regulatory Agreement

is ambiguous and that, therefore, the court needs to look to the statutes and regulations

in order to resolve the ambiguity. Instead, St. Christopher argues that the Regulatory

Agreement should be construed in light of the statutory program that it implements and

the purpose of that program. According to St. Christopher, the section 236 program

serves to encourage the private sector to provide affordable housing, and the statutes

and regulations were designed to stimulate private sector participation in the program.

Therefore, the government, in establishing the section 236 program, assumed certain

implied obligations essential to carrying out the program. In essence, St. Christopher is

arguing that although the statutory and regulatory provisions are not expressly

incorporated by reference into the Regulatory Agreement, we should incorporate the

provisions into the Regulatory Agreement by implication and find that the government

breached the Regulatory Agreement when it violated the provisions.

This 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. Smithson v. United States, 847 F.2d 791, 794 (Fed. Cir. 1988).

2007-5069 11
In Smithson, the court warned that wholesale incorporation of regulations into a contract

would allow the contracting party to “choose among a multitude of regulations as to

which he could claim a contract breach—and thus ‘[a] wholly new ground of obligation

would be summarily created by mere implication.’” Id. (quoting Eastport S.S. Corp. v.

United States, 372 F.2d 1002, 1010 (Ct. Cl. 1967)). Whereas in Smithson a clause in

the contract made a general reference to the regulations, here, there is no reference

whatsoever in the Regulatory Agreement to the implementing regulations or to the HUD

Handbook. Therefore, we cannot conclude that the Regulatory Agreement incorporates

24 C.F.R. § 245.325(b) or HUD Handbook section 7-25 by implication.

The cases cited by St. Christopher do not compel a different result. Each of the

cited cases involved not section 236, but another section of the National Housing Act,

governed by different implementing regulations. Further, in each of the cited cases,

there was express language in the contract that imposed a duty on the government to

act on a rent increase request. In Crest A Apartments Ltd., II v. United States, the

Court of Federal Claims found that the Housing Assistance Payments (“HAP”) contract

between the owner and the government imposed a duty on the government to process

rent increase requests. 52 Fed. Cl. 607, 611 (2002). The HAP contract expressly

required that “[c]ontract rents . . . shall be adjusted by HUD in accordance with HUD

regulations,” and thereby incorporated by reference the regulation which allowed HUD

to choose between two methods for annual rent adjustment. Id. In Brighton Village

Associates v. United States, this court found that HUD had breached a HAP contract by

failing to make annual adjustments to rents. 52 F.3d 1056, 1061 (Fed. Cir. 1995). Here

again, the HAP contract specifically required that HUD annually adjust contract rents by

2007-5069 12
one of two methods. Id. In Christopher Village, L.P. v. Retsinas, the Fifth Circuit held

that HUD had acted arbitrarily and capriciously in refusing to consider a rent increase

request. 190 F.3d 310, 316 (5th Cir. 1999). In that case, too, the Regulatory

Agreement itself required review of a rent increase request by HUD. Id. In the related

case before this court, Christopher Village, L.P. v. United States, the Fifth Circuit’s ruling

was found to be void for lack of jurisdiction and thus not entitled to preclusive effect in

the Court of Federal Claims. 360 F.3d 1319, 1333 (Fed. Cir. 2004). Yet, in dictum, this

court stated: “[W]hile we doubt the correctness of the Fifth Circuit’s decision that the

government breached in refusing to consider the appellants’ rent increase request, we

are reluctant to address the question of the government’s breach on the current record.”

Id. In sum, there is simply no Federal Circuit precedent holding that it is proper to read

into a contract statutes, regulations, or agency guidance when they are not incorporated

by reference into the contract. 4

Because we find that the Regulatory Agreement does not incorporate by

implication either 24 C.F.R. § 245.325(b) or HUD Handbook section 7-25, we find no

basis to conclude that HUD breached the Regulatory Agreement by failing to consider

St. Christopher’s September 25, 2007, rent increase request. We, therefore, conclude

4
St. Christopher’s reliance on Roedler v. Department of Energy, 255 F.3d
1347 (Fed. Cir. 2001), and Barsebäck Kraft AB v. United States, 121 F.3d 1475 (Fed.
Cir. 1997), is similarly misplaced. Roedler holds only that when it is unclear from the
contract whether a third party is a beneficiary, the court may look to the governing
statute to attempt to adduce whether the party is an intended third party beneficiary.
Roedler, 255 F.3d at 1352. In Barsebäck, the court held that a pricing provision in
contracts between foreign corporations and the Department of Energy (“DOE”) was
unambiguous and provided that charges to be paid to DOE could be determined in
accordance with any pricing policy in effect at time of performance. 121 F.3d at 1480.

2007-5069 13
that the Court of Federal Claims did not err in granting summary judgment on the

breach of contract claim.

II

In the alternative, St. Christopher argues that HUD’s failure to consider the

September 25, 1997, rent increase request was a taking under the Fifth Amendment for

which St. Christopher is entitled to compensation. According to St. Christopher, HUD’s

failure to consider its request resulted in a decrease in its return on and deterioration in

the condition of the Apartments, which amounted to a physical invasion of St.

Christopher’s property. St. Christopher contends that in entering into the Regulatory

Agreement, the government was not acting in its commercial capacity because the

purpose of the Regulatory Agreement was to carry out a sovereign interest of the

government—to provide affordable housing. Moreover, St. Christopher asserts that

because the Regulatory Agreement did not confer a right on St. Christopher to have its

rent increase request considered by HUD, St. Christopher could only defend that right

through a claim under the takings clause.

We disagree. In general, takings claims do not arise under a government

contract because, as stated by the Court of Federal Claims, the government is acting in

its proprietary rather than its sovereign capacity, and because remedies are provided by

the contract. Hughes Commc’ns Galaxy, Inc. v. United States, 271 F.3d 1060, 1070

(Fed. Cir. 2001). As stated by our predecessor court:

[T]he concept of a taking as a compensable claim theory has limited
application to the relative rights of party litigants when those rights have
been voluntarily created by contract. In such instances, interference with
such contractual rights generally gives rise to a breach claim not a taking
claim.

2007-5069 14
Sun Oil Co. v. United States, 572 F.2d 786, 818 (Ct. Cl. 1978) (citations omitted). Here,

HUD entered into the Regulatory Agreement with St. Christopher and, therefore, was

acting in its commercial capacity, not in its sovereign capacity, when it declined to

consider St. Christopher’s rent increase request. Likewise, St. Christopher established

its rights with respect to increasing rents for the Apartments when it voluntarily entered

into the Regulatory Agreement with HUD. Hence, any claim that St. Christopher may

have asserted should be a breach of contract claim, not a taking claim.

Even if we were to conclude that St. Christopher could pursue a claim outside of

the contract, St. Christopher has not clearly stated what type of taking it is alleging. The

court cannot find a physical taking of property because HUD has not authorized

physical occupation of, or taken title to, the property occupied by the Apartments.

Norman v. United States, 429 F.3d 1081, 1088-89 (Fed. Cir. 2005). There is not a

categorical taking of property because HUD has not deprived St. Christopher of all

beneficial use of the property occupied by the Apartments. Id. at 1090-91.

St. Christopher’s reliance on Cienega Gardens v. United States, 331 F.3d 1319

(Fed. Cir. 2003), suggests that it is alleging a regulatory taking. In Cienega, the owners

of low-income housing had entered into loan agreements with private lenders that were

subsidized by HUD. Id. at 1325. Thereafter, the government enacted two statutes that

prevented the owners from prepaying and exiting their mortgages after twenty years,

and repossessing under real property law. Id. at 1326-27. The court applied the Penn

Central factors and held that the government’s action, in enacting the statutes,

constituted a compensable, temporary, regulatory taking. Id. at 1353; see Penn Cent.

Transp. Co. v. City of N.Y., 438 U.S. 104, 124 (1978). In so finding, the court

2007-5069 15
considered that: (1) enactment of the statutes was for a public purpose and placed the

expense disproportionately on the owners; (2) the owners suffered serious financial loss

as a consequence; and (3) the owners bought the property in reliance on the right to

prepay and exit the housing program in twenty years. Cienega Gardens, 331 F.3d at

1337-53. 5 Here, in contrast, St. Christopher does not complain of an action taken by

HUD, but rather of inaction. The failure by HUD to consider its rent increase request

was not for a public purpose. Moreover, it is impossible to conclude that HUD’s failure

to consider alone (and not its failure to approve) resulted in serious financial loss to St.

Christopher. Accordingly, there was no taking of property by the government for which

compensation is due.

CONCLUSION

For the foregoing reasons, we affirm the grant of summary judgment for the

government by the Court of Federal Claims.

AFFIRMED

5
The court’s analysis pertained only to the four model plaintiffs. With
respect to the other plaintiffs, the court remanded for further development of the record.
Cienega Gardens, 331 F.3d at 1353-54. The Court of Federal Claims’ application of the
Penn Central factors to the non-model plaintiffs was thereafter appealed. This court
vacated and remanded for consideration of the impact of prepayment restriction on the
property as a whole, the offsetting benefits afforded by the statutory scheme, and the
duration of the legislation. Cienega Gardens v. United States, 503 F.2d 1266 (Fed. Cir.
2007).

2007-5069 16