Anaheim Gardens, L.P. v. United States

Case: 19-1277 Document: 49 Page: 1 Filed: 03/25/2020

United States Court of Appeals
for the Federal Circuit
______________________

ANAHEIM GARDENS, L.P., THETFORD
PROPERTIES III, L.P., THETFORD PROPERTIES
IV, L.P., B-L ASSOCIATES, L.P., C-W ASSOCIATES,
L.P., GLENVIEW GARDENS L.P., INDIAN HEAD
MANOR, L.P. I, METRO WEST LIMITED, L.P.,
MILLWOOD ASSOCIATES L.P., NAPA PARK
APARTMENTS L.P., ONTARIO TOWNHOUSES,
L.P., PALOMAR APARTMENTS, L.P., SIERRA
VISTA ONE, L.P., 825 SAN TOMAS APARTMENTS,
L.P., 5324 FOOTHILL APARTMENTS, G.P.,
ALGONQUIN HEIGHTS ASSOCIATES, L.P.,
BRANDY HILL COMPANY, BROOKSIDE MANOR
ASSOCIATES, L.P., BRIAR CREST, G.P., BRIAR
CREST APARTMENTS II, L.P., BRIAR HILLS, L.P.,
CLARENCE W. GOSNELL, JR., JOHN G. GOSNELL,
MURRAY HABER, RICHARD S. BRIGHT, PHILIP
BERMAN, ALFRED S. BRIGHT, SAMUEL
EISENSTAT, MELVIN S. HELLER, MILTON S.
LIDER, MARTIN MYERS, MALCOMB MEISTER,
HAROLD D. PRICE, HERBERT W. SAVIT, WALTER
WEITZNER, ESTATE OF JACK N. BLINKOFF,
HAROLD D. FRAZEE, TRUSTEE U/A DTD 4/2/89
FOR E.D. FRAZEE, CAMBRIDGE SQUARE NORTH
ASSOCIATES, LP, CAMBRIDGE SQUARE OF FORT
WAYNE ASSOCIATES I, LP, CAMBRIDGE SQUARE
OF GRAND RAPIDS ASSOCIATES I, LP,
CAMBRIDGE SQUARE OF GRAND RAPIDS
ASSOCIATES II, LP, CARRIAGE HOUSE NORTH
ASSOCIATES LP, CARRIAGE HOUSE OF
MISHAWAKA ASSOCIATES II LP, CARRIAGE
HOUSE WEST IV ASSOCIATES, LP, CROMWELL
COURT COMPANY, FIRST LANDMARK
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2 ANAHEIM GARDENS, L.P. v. UNITED STATES

ASSOCIATES, L.P., FOREST GLEN LIMITED
DIVIDEND HOUSING ASSOCIATION, FORT
HEATH ASSOCIATES, GARRISON FOREST
ASSOCIATES, JODANI ASSOCIATES, L.P.,
KIMBERLY ASSOCIATES L.P., KING'S GRANT
COMPANY, LEADER HOUSE ASSOCIATES,
LEADER HOUSING CO., INC., NEW AMSTERDAM
ASSOCIATES, NEW AMSTERDAM HOUSES, INC.,
PINE CREST COMPANY, RIVERSIDE VILLAGE
COMPANY, SUBURBIA ASSOCIATES, L.P.,
STEPHEN G. DAKES, HARVEY E. JOHNSON, JR.,
W. DEWEY RASNAKE, MARTIN E. BROWN,
WARREN W. TAYLOR, JR., WARREN W. TAYLOR,
JR., TRUSTEE, LUDLOW KING, JAMES L.
BREHONY, SUEHAR ASSOCIATES LP, TOWER
WEST ASSOCIATES LP, TOWER WEST INC., TOWN
& COUNTRY APARTMENTS & TOWNHOUSES,
Plaintiffs

CEDAR GARDENS ASSOCIATES, ROCK CREEK
TERRACE L.P., 620 SU CASA POR CORTEZ,
BUCKMAN GARDENS, L.P., 3740 SILVERLAKE
VILLAGE, L.P., CHAUNCY HOUSE COMPANY,
Plaintiffs-Appellants

v.

UNITED STATES,
Defendant-Appellee
______________________

2019-1277, 2019-1278, 2019-1279, 2019-1280, 2019-1281,
2019-1282
______________________

Appeals from the United States Court of Federal
Claims in Nos. 1:93-cv-00655-PEC, 1:93-cv-06568-PEC,
1:93-cv-06578-PEC, 1:93-cv-06580-PEC, 1:93-cv-06582-
Case: 19-1277 Document: 49 Page: 3 Filed: 03/25/2020

ANAHEIM GARDENS, L.P. v. UNITED STATES 3

PEC, 1:97-cv-05837-PEC, 1:97-cv-05845-PEC, Judge Patri-
cia E. Campbell-Smith.
______________________

Decided: March 25, 2020
______________________

HARRY JAMES KELLY, III, Nixon Peabody LLP, Wash-
ington, DC, argued for plaintiffs-appellants. Also repre-
sented by JOHN C. HAYES, JR., BRIAN J. WHITTAKER.

SHARI A. ROSE, Commercial Litigation Branch, Civil Di-
vision, United States Department of Justice, Washington,
DC, argued for defendant-appellee. Also represented by
JOSEPH H. HUNT, ANNA BONDURANT ELEY, ROBERT EDWARD
KIRSCHMAN, JR., FRANKLIN E. WHITE, JR.
______________________

Before LOURIE, CHEN, and STOLL, Circuit Judges.
LOURIE, Circuit Judge.
These cases involve takings claims resulting from the
enactment of the Emergency Low Income Housing Preser-
vation Act of 1987, Pub. L. No. 100-242, § 202, 101 Stat.
1877 (1988) (“ELIHPA”) and the Low-Income Housing
Preservation and Resident Homeownership Act of 1990,
Pub. L. No. 101-625, 104 Stat. 4249 (1990) (“LIHPRHA”)
(collectively, the “Preservation Statutes”). Currently, ap-
proximately fifty plaintiffs are asserting takings claims in
consolidated cases in the United States Court of Federal
Claims (“Claims Court”). The appellants here are Buck-
man Gardens L.P. (“Buckman”), Chauncy House Company
(“Chauncy”), Cedar Gardens Associates (“Cedar”), Rock
Creek Terrace L.P. (“Rock Creek”), 620 Su Casa Por Cortez
(“Su Casa”), and 3740 Silverlake Village, L.P. (“Silver-
lake”). The six appellants have been designated the First
Wave Plaintiffs (“FWPs”) in the Claims Court litigation.
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4 ANAHEIM GARDENS, L.P. v. UNITED STATES

The Claims Court granted summary judgment in favor
of the government on all six FWPs’ takings claims. Ana-
heim Gardens v. United States, 140 Fed. Cl. 72 (2018) (“De-
cision”). For the reasons below, we affirm the Claims
Court’s judgment with respect to Su Casa but we vacate
and remand with respect to the other five FWPs.
BACKGROUND
I
The history of the statutes involved in ELIHPA and
LIHPRHA takings cases has previously been summarized
by this court. See, e.g., CCA Assocs. v. United States, 667
F.3d 1239, 1242–43 (Fed. Cir. 2011); Cienega Gardens v.
United States, 503 F.3d 1266, 1270–74 (Fed. Cir. 2007)
(“Cienega X”). For completeness, we provide the following
brief summary of the relevant portions.
In 1961, Congress amended the National Housing Act
to provide financial incentives to private developers to
build low-income housing. Cienega X, 503 F.3d at 1270.
The financial incentives included below-market mortgages
insured by the Department of Housing and Urban Devel-
opment (“HUD”). Id. To participate in this development
program, each developer was required to sign a regulatory
agreement with HUD that limited its ability to increase
rent. Id. The restrictions in the regulatory agreement
would be in effect as long as HUD insured the mortgage;
for practical purposes, this meant a developer was subject
to HUD regulation until its mortgage was paid off. Id. Im-
portantly, while the term of the mortgages was 40 years,
the contracts allowed developers to prepay their mortgages
after 20 years. Id. This prepayment option gave each de-
veloper “an opportunity to cast off the regulatory burden
and convert [its] development to market rate housing.”
CCA, 667 F.3d at 1242.
Many developers were induced by the development pro-
gram to purchase properties and develop low-income
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ANAHEIM GARDENS, L.P. v. UNITED STATES 5

housing. Id. But Congress later grew concerned that too
many developers would exercise the prepayment option
and exit the program, which would cause a shortage of low-
income housing. Id. at 1242–43. To address that concern,
between 1988 and 1990, Congress enacted the Preserva-
tion Statutes, which effectively eliminated the prepayment
option and prevented the developers from converting their
properties to market rate housing. Id.; see 12 U.S.C. § 4101.
In 1996, however, Congress enacted the Housing Oppor-
tunity Program Extension Act of 1996, Pub. L. No. 104-120,
110 Stat. 834 (1996) (“HOPE Act”), which restored prepay-
ment rights to the developers that had remained in the pro-
gram.
II
The six FWPs are developers who owned properties
that were developed subject to the development program
under the 1961 amendments to the National Housing Act.
The six FWPs can be broken down into three categories
based on the timing of their purchases and their later deci-
sions with respect to the Preservation Statutes prior to the
enactment of the HOPE Act.
The first category consists of four FWPs—Buckman,
Chauncy, Cedar, and Silverlake—that fit two criteria:
(1) they owned their properties before the enactment of the
Preservation Statutes; and (2) they sold their properties af-
ter the enactment of the Preservation Statutes in conform-
ance with the sale requirements of LIHPRHA. See 12
U.S.C. §§ 4102, 4103, 4110. The LIHPRHA sale require-
ments included a requirement that the owners sell the
property at the “highest and best use of the property” to
organizations that would agree to preserve the rent re-
strictions. See Cienega X, 503 F.3d at 1272 (quoting §§
4103(b)(2), 4110). The statute and regulations established
a procedure to determine the sale price based on a third-
party appraisal of the property’s value. Cienega X, 503
F.3d at 1273 n.3; 24 C.F.R. §§ 248.111(j), 248.131(b).
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6 ANAHEIM GARDENS, L.P. v. UNITED STATES

The second category consists of Rock Creek, which
owned its property prior to the enactment of the Preserva-
tion Statutes but chose not to sell its property after the en-
actment of the Preservation Statutes. Instead, Rock Creek
elected to remain in the low-income housing program by
entering into a “use agreement” with HUD. Decision, 140
Fed. Cl. at 80–81. The use agreement provided Rock Creek
with financial incentives in exchange for Rock Creek’s
agreement to abide by the low-income housing restrictions
“for the remaining useful life” of the property. Id.;
Cienega X, 503 F.3d at 1273 (quoting 12 U.S.C. § 4112)
(footnote omitted).
The third category consists of Su Casa, which is differ-
ent from the other five FWPs in one important respect: Su
Casa did not own its property prior to the enactment of the
Preservation Statutes. Rather, Su Casa purchased its
property from the original owner in July 1991, which was
after the enactment of LIHPRHA but before HUD promul-
gated its regulations for implementing the Preservation
Statutes. Su Casa subsequently sold its property pursuant
to the LIHPRHA sale requirements.
III
Each of the FWPs filed suit in the Claims Court alleg-
ing a regulatory taking under the Fifth Amendment’s “just
compensation” clause. After the close of discovery, the gov-
ernment moved for summary judgment. The Claims Court
evaluated the government’s motion under the three-factor
test set forth in Penn Central Transportation Co. v. City of
New York, 438 U.S. 104 (1978). The Penn Central test con-
siders: (1) the economic impact of the regulation on the
claimant; (2) the extent to which the regulation has inter-
fered with reasonable distinct investment-backed expecta-
tions; and (3) the character of the governmental action. Id.
at 124.
The Claims Court first considered Su Casa’s evidence
of investment-backed expectations. Su Casa presented a
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ANAHEIM GARDENS, L.P. v. UNITED STATES 7

declaration and deposition testimony from one of its gen-
eral partners regarding its expectations based on its con-
tract rights that it would be able to prepay the mortgage at
or after the prepayment date. See J.A. 386–96, 3298–301.
The Claims Court determined, however, that because the
Preservation Statutes eliminated the prepayment option
prior to Su Casa’s purchase of the property, Su Casa “could
not possess reasonable investment-backed expectations in
a mortgage prepayment right.” Decision, 140 Fed. Cl. at
77. The court then granted summary judgment against Su
Casa because the complete lack of evidence of reasonable
investment-backed expectations was sufficient to dispose
of Su Casa’s takings claim. Id. at 79.
For the remaining FWPs, the court considered their ev-
idence with respect to each of the three factors in the Penn
Central test. The court concluded that both the character
of the governmental action and the investment-backed ex-
pectations weighed against disposing of the FWPs’ takings
claims on summary judgment. Id. at 87, 88. Regarding the
economic impact factor, however, the court found that the
FWPs “have not pointed to evidence sufficient to prevail on
the economic impact prong of the Penn Central analysis.”
Id. at 89. Thus, the court granted summary judgment in
favor of the government.
The Claims Court entered separate final judgments in
favor of the government with respect to each of the FWPs’
individual cases. The FWPs timely appealed. We have ju-
risdiction under 28 U.S.C. § 1295(a)(3).
DISCUSSION
We review de novo the Claims Court’s summary judg-
ment decision that the FWPs did not suffer a taking. Bia-
fora v. United States, 773 F.3d 1326, 1330 (Fed. Cir. 2014)
(citing McGuire v. United States, 707 F.3d 1351, 1357 (Fed.
Cir. 2013)). Summary judgment is appropriate when there
is no genuine issue of material fact and the moving party
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8 ANAHEIM GARDENS, L.P. v. UNITED STATES

is entitled to judgment as a matter of law. R. Ct. Fed. Cl.
56(a).
I
We begin, as the Claims Court did, with Su Casa. Su
Casa argues that the court erred as a matter of law by find-
ing, as a per se rule, that Su Casa lacked reasonable invest-
ment-backed expectations because it purchased its
property after the enactment of the Preservation Statutes.
Su Casa further argues that there are genuine issues of
material fact regarding Su Casa’s understanding of its con-
tract rights in view of the alleged uncertainty about how
the Preservation Statutes would later apply at the prepay-
ment date.
The government responds that the Claims Court did
not create a per se rule, but rather determined that Su Casa
could not meet its difficult burden to establish reasonable
investment-backed expectations. The government argues
that the Claims Court properly relied on the undisputed
fact that Su Casa was a sophisticated investor that bought
its property knowing that the Preservation Statutes had
already eliminated the prepayment option.
We agree with the government. The governmental ac-
tion in this case is the enactment of the Preservation Stat-
utes. Su Casa purchased its property in an arms-length
transaction after it already knew that the Preservation
Statutes had eliminated the prepayment option that previ-
ously existed under the 1961 amendments to the National
Housing Act. While the HUD regulations had not yet gone
into effect at the time of the transaction, the Preservation
Statutes themselves were sufficiently detailed to remove
any reasonable expectation that Su Casa could have had
that it would have the option to prepay its mortgage and
convert its property from low-income housing to a market-
rate rental property. See 12 U.S.C. § 4101 et seq.
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ANAHEIM GARDENS, L.P. v. UNITED STATES 9

Su Casa’s reliance on Palazzolo v. Rhode Island, 533
U.S. 606 (2001), is inapposite. In Palazzolo, the Supreme
Court held that “[a] blanket rule that purchasers with no-
tice have no compensation right when a claim becomes ripe
is too blunt an instrument to accord with the duty to com-
pensate for what is taken.” Id. at 628. But the Court
acknowledged in Palazzolo that it had “no occasion to con-
sider the precise circumstances when a legislative enact-
ment can be deemed a background principle of state law or
whether those circumstances are present here.” Id. at 629.
Thus, because the petitioner’s Penn Central claim was not
barred per se, the Supreme Court remanded for the state
court to consider whether the claimant—to whom title had
transferred by operation of law rather than by purchase—
could prove that he had reasonable investment-backed ex-
pectations regarding his development rights. Id. Here, un-
like in Palazzolo, the Claims Court did have occasion to
consider whether Su Casa could prove reasonable invest-
ment-backed expectations in view of the timing of its pur-
chase and its knowledge about the Preservation Statutes.
The Claims Court determined, not as a per se rule but ra-
ther as an evidentiary failure, that Su Casa lacked suffi-
cient evidence to prevail at trial.
The Supreme Court’s decision in Murr v. Wisconsin,
137 S. Ct. 1933 (2017), is more instructive. There, the
Court confirmed that “[a] reasonable restriction that pre-
dates a landowner’s acquisition . . . can be one of the objec-
tive factors that most landowners would reasonably
consider in forming fair expectations about their property.”
Id. at 1945 (citing Palazzolo, 533 U.S. at 627). The Court
held that the prior passage of the relevant state law “in-
form[ed] the reasonable expectation” that the property
owners had with respect to their property. Id. at 1948.
Likewise, here, the prior passage of the Preservation Stat-
utes informs the question whether Su Casa could have ex-
pected when it invested in its property that it would later
be able to prepay the mortgage.
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10 ANAHEIM GARDENS, L.P. v. UNITED STATES

What emerges from the case law is a flexible principle
that, while “[a] valid takings claim will not evaporate just
because a purchaser took title after the law was enacted,”
Murr, 137 S. Ct. at 1945 (citing Palazzolo, 533 U.S. at 627),
the timing of the purchase and knowledge of the purchaser
are relevant considerations in determining whether a pur-
chaser had reasonable investment-backed expectations
with which the government’s regulatory action interfered.
See Norman v. United States, 429 F.3d 1081, 1092–93 (Fed.
Cir. 2005) (holding that “it is particularly difficult to estab-
lish a reasonable investment-backed expectation” if the
property was acquired after the alleged regulatory re-
striction); Loveladies Harbor v. United States, 28 F.3d
1171, 1177,(Fed. Cir. 1994), (collecting cases) (noting that
the investment-backed expectations factor of the Penn Cen-
tral test is “a way of limiting takings recoveries to owners
who could demonstrate that they bought their property in
reliance on a state of affairs that did not include the chal-
lenged regulatory regime”), abrogated on other grounds by
Bass Enterprises Prod. Co. v. United States, 381 F.3d 1360,
1369–70 (Fed. Cir. 2004). The Claims Court in this case
abided by that principle when it considered the evidentiary
support for Su Casa’s claim despite the undisputed mate-
rial fact that Su Casa was a sophisticated investor that
purchased its property with knowledge about the effects of
the Preservation Statutes. J.A. 3298–301 (testimony of one
of Su Casa’s general partners). We agree with the Claims
Court that there is no genuine dispute regarding Su Casa’s
inability to prove that it purchased the property with an
expectation that it would later be able to prepay the mort-
gage.
In the context of the Penn Central balancing test, the
complete absence of reasonable distinct investment-backed
expectations can weigh sufficiently heavily to be disposi-
tive of a takings claim. See Ruckelshaus v. Monsanto Co.,
467 U.S. 986, 1005 (1984); Good v. United States, 189 F.3d
1355, 1363 (Fed. Cir. 1999); Golden Pac. Bancorp v. United
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ANAHEIM GARDENS, L.P. v. UNITED STATES 11

States, 15 F.3d 1066, 1074 (Fed. Cir. 1994). Here, because
a sophisticated investor voluntarily purchased its property
with knowledge that it had no prepayment option, the com-
plete lack of investment-backed expectations overwhelm-
ingly outweighs the other Penn Central factors. We
therefore agree that summary judgment in favor of the gov-
ernment on Su Casa’s takings claim is appropriate.
II
We next turn to the Claims Court’s determination that
the remaining FWPs have not provided evidence sufficient
to prevail on the economic impact factor in the Penn Cen-
tral analysis. The Claims Court noted that the FWPs’ only
evidence of economic injury was founded on the methodol-
ogy of their expert witness, Dr. William W. Wade. Decision,
140 Fed. Cl. at 89. The court granted summary judgment
after finding Dr. Wade’s entire analysis to be nonprobative
of the Preservations Statutes’ economic impact on the
FWPs.
Dr. Wade’s expert report contains more than 200 pages
of opinions regarding the severe economic impact of the
Preservation Statutes on the FWPs. In the executive sum-
mary of his report, Dr. Wade gave a general explanation of
his analysis, and specifically why it focused on the lost
rental income that the FWPs suffered due to the Preserva-
tion Statutes:
From an economic point of view, denial of the own-
ers’ opportunity to increase their rents to market
levels is the issue in this litigation. The re-
strictions imposed upon the use of the properties
limited the owners’ intangible property right: rent-
ing apartments on their properties at market rents.
Where income losses are the issue, standard eco-
nomic practice begins with measuring the cash
flows with and without the loss-causing disruption
within a discounted cash flow model (DCF). Just
compensation and the Penn Central economic
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12 ANAHEIM GARDENS, L.P. v. UNITED STATES

prongs are evaluated by the change in income from
the rental businesses . . . .
The reported financial cash flows of the property
owners are discounted to the present value
amounts at the prepayment dates. Losses are de-
termined as the difference in the [net present value
or] NPV of the projected lost opportunity to prepay
and convert the properties to market rentals less
the actual outcome imposed by LIHPRHA. In other
words, losses are calculated as the difference be-
tween what the owners received as a result of their
LIHPRHA process and what they would have
earned, if they had been allowed to prepay.
Whether the losses frustrate Penn Central’s [dis-
tinct investment-backed expectations] is evaluated
by comparison of the Net Present Value (NPV) of
cash flows for each property benchmarked to
[transfer preservation equity or] TPE.
J.A. 3810–11. Consistent with that explanation, Dr.
Wade provided the following equation to determine the
economic loss suffered by the FWPs as a result of the
Preservation Statutes:

J.A. 3811. To calculate the percentage reduction in net
present value, Dr. Wade divided the calculated eco-
nomic loss by the net present value of the lost market
conversion opportunity. See J.A. 3812–22.
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ANAHEIM GARDENS, L.P. v. UNITED STATES 13

Despite Dr. Wade’s opinions, the Claims Court found
that Dr. Wade’s analysis was nonprobative of economic im-
pact under Penn Central. First, the court found that Dr.
Wade’s lost income analysis was nonprobative because he
was required to analyze and compare fair market values.
Decision, 140 Fed. Cl. at 89 (“[FWPs] have not established
the fair market value (FMV) of the FWPs’ properties at the
time of the taking, for either the scenario where the mort-
gage prepayment right was unrestricted, or the scenario
where the mortgage prepayment right was restricted by
LIHPRHA.”). And second, the court found that “Dr. Wade’s
methodology is unsound because it is inconsistent with
binding precedent,” in particular relating to “the parcel as
a whole concept” and “economic loss severity measures.”
Id. at 89–91. We address the Claims Court’s findings in
turn, as well as the government’s proposed alternative
ground for affirmance based on Dr. Wade’s use of data that
post-dated the alleged taking.
A
The Claims Court concluded, as a matter of law, that a
comparison of fair market values was the only permissible
methodology for measuring economic impact in this case.
From the start of its analysis, the Claims Court strictly ad-
hered to the following asserted proposition of law:
When a real estate parcel has been permanently af-
fected by a regulatory taking, the measure of eco-
nomic injury is the difference between the fair
market value of the property, without the re-
striction imposed by the government action, and
the fair market value of the property, with the re-
striction imposed by the government action, both
measured at the time of the taking.
Decision, 140 Fed. Cl. at 80 (citing Forest Props., Inc. v.
United States, 177 F.3d 1360, 1367 (Fed. Cir. 1999); Fla.
Rock Indus., Inc. v. United States, 18 F.3d 1560, 1567 (Fed.
Cir. 1994))The Claims Court repeatedly confirmed its
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14 ANAHEIM GARDENS, L.P. v. UNITED STATES

reliance on that proposition. See, e.g., id. at 82 (“First, the
court determines the difference in the fair market value of
the property, without and with the restriction, both meas-
ured at the time of the taking.” (citing Colony Cove Props.
LLC v. City of Carson, 888 F.3d 445, 451 (9th Cir. 2018));
id. at 83 (“[I]ts evidence of economic injury must allow the
court to first determine the difference in fair market value
caused by the Preservation Statutes . . . .”); id. at 86 (“To
determine the economic injury, if any, suffered by these
plaintiffs, the first step is to determine the difference in fair
market value caused by the Preservation Statutes.”).
For that proposition of law, the Claims Court cited this
court’s decision in Forest Properties, 177 F.3d at 1367,
which in turn cited our earlier decisions in Loveladies, 28
F.3d at 1178, and Florida Rock, 18 F.3d at 1567. In each
of those cases, this court did in fact determine that the ap-
propriate measure of economic impact, under the factual
circumstances, was the “change . . . in the fair market
value caused by the regulatory imposition.” See Fla. Rock,
18 F.3d at 1567. We do not, however, interpret those cases
to mean that change in fair market value is the only per-
missible way to measure economic impact in every case.
Indeed, the government conceded during oral argument
that such a sweeping rule is not legally supported:
[Court:] Where is the holding that only fair market
value is probative evidence?
[Government:] I don’t think that what the court has
held is that only fair market value is probative ev-
idence.
Oral Arg. at 19:44, http://oralarguments.cafc.uscourts.gov/
default.aspx?fl=2019-1277.mp3.
We are guided by the Supreme Court’s cautions against
rigidity in this area of the law. See Ark. Game & Fish
Comm’n v. United States, 568 U.S. 23, 31–32 (2012) (“[N]o
magic formula enables a court to judge, in every case,
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ANAHEIM GARDENS, L.P. v. UNITED STATES 15

whether a given government interference with property is
a taking. . . . [M]ost takings claims turn on situation-spe-
cific factual inquiries.”). To that end, it is clear that courts
must have flexibility to determine in each individual case
how to most accurately measure the economic value of
what a takings claimant actually lost due to the govern-
mental action. See Hodel v. Va. Surface Mining & Recla-
mation Ass’n, 452 U.S. 264, 295 (1981) (“These ‘ad hoc,
factual inquiries’ must be conducted with respect to specific
property, and the particular estimates of economic impact
and ultimate valuation relevant in the unique circum-
stances.” (quoting Kaiser Aetna v. United States, 444 U.S.
164, 175 (1979)).
In the context of the very Preservation Statutes that
are at issue in this case, this court has previously outlined
two possible approaches to measuring the economic impact
suffered by property owners who were deprived of their
prepayment options. Cienega X, 503 F.3d at 1282.
(1) In the first approach, “a comparison could be made
between the market value of the property with and
without the restrictions on the date that the re-
striction began (the change in value approach).” Id.
(2) The second approach is to “compare the lost net in-
come due to the restriction (discounted to the pre-
sent value at the date the restriction was imposed)
with the total net income without the restriction
over the entire useful life of the property (again dis-
counted to present value).” Id.
The court in Cienega X emphasized that “[n]either ap-
proach appears to be inherently better than the other.” Id.
Yet, in this case, the Claims Court concluded that only the
first of Cienega X’s two approaches—i.e., the change in
value approach—was permissible for the FWPs. Decision,
140 Fed. Cl. at 80. We conclude that the Claims Court
erred in that respect.
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16 ANAHEIM GARDENS, L.P. v. UNITED STATES

The Claims Court placed significant emphasis on its
finding that the takings in this case are in the nature of
“permanent” takings rather than “temporary” takings. See
id. at 79–86. And, to be clear, Cienega X did begin its en-
dorsement of its two possible approaches by noting that it
was “in a temporary taking situation.” Cienega X, 503 F.3d
at 1282 (citing Rose Acre Farms Inc. v. United States, 373
F.3d 1177, 1188 (Fed. Cir. 2004)). But Cienega X also con-
cluded that “in a temporary regulatory takings analysis
context the impact on the value of the property as a whole
is an important consideration, just as it is in the context of
a permanent regulatory taking.” Id. at 1281.
We recognize that the distinction between temporary
and permanent takings can affect the economic impact
analysis. See, e.g., CCA, 667 F.3d at 1246 (considering the
temporary takings claims of developers who retained their
properties and had their prepayment options restored by
the HOPE Act); Cienega X, 503 F.3d at 1287–88 (discussing
need to consider duration of regulation’s effect on plaintiffs
when assessing takings claims and noting differences in ef-
fective duration of LIHPRHA legislation between HOPE
Act and LIHPRHA use agreement plaintiffs). But we see
no meaningful reason why the distinction between tempo-
rary and permanent takings should affect which method is
appropriate to measure economic impact in any given
case—i.e., the choice of which equation to use in the first
place. Regardless whether a taking is permanent or tem-
porary in nature, there is no one-size-fits-all method for
measuring the economic impact of a governmental action.
See Hodel, 452 U.S. at 295.
In this case, the properties at issue were income-pro-
ducing properties. The value of each property to its respec-
tive owner derived, not from any inherent objective “fair
market value” of the land or the fixtures on the property,
but rather from the property’s ability to generate a future
stream of rental income as of the prepayment date. See
J.A. 3810 (Dr. Wade’s qualitative description of what the
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ANAHEIM GARDENS, L.P. v. UNITED STATES 17

FWPs lost due to the Preservation Statutes). The FWPs
have consistently argued that lost future rental income, ra-
ther than fair market value, is the appropriate measure of
economic impact because that is what the government ac-
tually took from them. The FWPs’ position is that a change
in fair market value approach would not accurately ac-
count for the fact that the governmental action targeted
their “going business concerns.” See Appellants Br. 226.
We agree with the FWPs that, consistent with the sec-
ond approach in Cienega X, they may attempt to prove the
economic impact of the Preservation Statutes on their
property interests by demonstrating their lost opportunity
to earn market-rate rental income after prepaying their
mortgages. That is what Dr. Wade did in his expert report.
Dr. Wade first determined FWPs’ “lost net income due to
the restriction,” Cienega X, 503 F.3d at 1282, by taking the
net present value of the FWPs’ future rental income with-
out the Preservation Statutes and subtracting it by the ac-
tual income that each FWP earned from the sale of its
property (or, in the case of Rock Creek, the low-income
housing rental income earned under its LIHPRHA use
agreement). J.A. 3810–22. Dr. Wade then “compare[d] the
lost net income due to the restriction . . . with the total net
income without the restriction,” Cienega X, 503 F.3d at
1282, by dividing the lost net income by the net present
value of the future rental income. J.A. 3810–22. Thus, Dr.
Wade’s approach was in accordance, at least broadly speak-
ing, with a method for measuring economic impact that
this court has expressly endorsed.
The Claims Court never wavered from its initial con-
clusion that the one, and only one, way that Dr. Wade was
allowed to measure economic loss in this case was by com-
paring fair market values. That initial conclusion resulted
in, what the FWPs’ counsel accurately termed, “a series of
cascading errors” that led to the court’s finding that Dr.
Wade’s entire expert report was nonprobative. Oral Arg.
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18 ANAHEIM GARDENS, L.P. v. UNITED STATES

at 38:20. That erroneous finding cannot support the court’s
grant of summary judgment.
B
Next, we turn to the Claims Court’s conclusion that Dr.
Wade’s analysis contained two additional flaws that were
contrary to binding precedent and thus rendered his opin-
ions nonprobative. Decision, 140 Fed. Cl. at 92 (“Dr.
Wade’s methodology is not probative as to economic injury,
or the severity of economic injury.”). The Claims Court
characterized the two flaws as (1) the “parcel as a whole”
concept and (2) economic loss severity measures. See id. at
90–91. We address each of those alleged flaws in turn.
1
The Claims Court concluded that “Dr. Wade’s approach
is inconsistent with the parcel as a whole teaching of
Cienega X.” Id. at 91; Cienega X, 503 F.3d at 1280 (“[T]he
correct approach is to consider the ‘parcel as a whole.’”) (cit-
ing Concrete Pipe & Prod. of Cal., Inc. v. Constr. Laborers
Pension Tr. for S. Cal., 508 U.S. 602, 643–44 (1993)). The
court took issue, in particular, with Dr. Wade’s statement
that the economic impact was “benchmarked . . . to the
owners’ equity at stake.” Decision, at 91 (quoting Plaintiffs’
Appendix at 253, Anaheim Gardens v. United States, 140
Fed. Cl. 72 (2018) (No. 1:93-cv-00655), ECF No. 441-4). The
court raised two concerns with that benchmarking ap-
proach.
The Claims Court’s first concern with Dr. Wade’s
benchmarking was that he supposedly “substitute[d] the
owner’s equity portion of the entire property for the parcel
as a whole.” Decision, 140 Fed. Cl. at 91. The government,
in its brief, similarly accuses Dr. Wade of using the equity
as the denominator of his equation. See Appellee Br. 16.
But the Claims Court and the government appear to have
misunderstood Dr. Wade’s analysis. Dr. Wade used a net
present value as the denominator of his equation, with “net
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ANAHEIM GARDENS, L.P. v. UNITED STATES 19

present value” representing “present value” of future cash
flows subtracted by “equity.” Thus, not only did Dr. Wade
not substitute the equity for the parcel as a whole in the
denominator, he actually subtracted the equity out of the
denominator. Dr. Wade’s report explains that he used net
present value because it “provides absolute measures of the
dollar amounts at stake in the litigation.” J.A. 3811. While
we are not in position to decide whether Dr. Wade’s deci-
sion to use net present values was sound under principles
of economics, we do not agree with the Claims Court that
his approach failed to consider the parcel as a whole.
The Claims Court’s second concern with Dr. Wade’s
benchmarking was that he reduced the denominator in his
equation and thus inflated the economic impact. Decision,
140 Fed. Cl. at 91. But every choice by an expert to use one
input over another will necessarily increase or decrease the
final number. The mere fact that Dr. Wade used a lower
denominator and thus calculated a higher loss percentage
does not, in itself, mean that his calculations were incorrect
or improper. Again, questions remain as to whether Dr.
Wade’s methodology was consistent with principles of eco-
nomics and whether his explanation for using that ap-
proach is credible. But those are not questions that we can
resolve on appeal, nor are they questions that the Claims
Court should resolve on summary judgment. Rather, the
Claims Court should consider the admissibility of Dr.
Wade’s expert analysis under the Federal Rules of Evi-
dence and, at trial, evaluate his credibility and persuasive-
ness when he explains why he used net present values.
Finally, even if the Claims Court were to conclude that
Dr. Wade’s decision to subtract equity was problematic—a
conclusion that the court cannot have yet reached—we note
that Dr. Wade’s expert report is likely still probative of eco-
nomic impact. To illustrate, Dr. Wade presented an eco-
nomic loss equation and used net present values as inputs
to that equation. The economic loss equation itself appears
to be unchallenged, but the Claims Court has suggested
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20 ANAHEIM GARDENS, L.P. v. UNITED STATES

that perhaps Dr. Wade should have used present values as
inputs. Either way, Dr. Wade’s report includes both sets of
possible inputs because before he calculated the net pre-
sent values, he had to first determine the present values of
the future income streams at the prepayment date for each
of the properties. See, e.g., J.A. 3897 (calculating the pre-
sent value for Cedar Gardens at the prepayment date to be
$6,810,385). Thus, Dr. Wade’s expert report provides the
relevant equation and all possible inputs for that equation.
Ultimately, the Claims Court’s concerns about Dr.
Wade’s benchmarking do not support a grant of summary
judgment. There are evidentiary issues that the Claims
Court has not yet considered as well as genuine issues of
fact regarding Dr. Wade’s decision to use net present val-
ues in his calculations. On the record presented, we do not
agree with the Claims Court that Dr. Wade’s benchmark-
ing approach renders his opinions entirely nonprobative of
economic impact.
2
The Claims Court also concluded that Dr. Wade’s opin-
ions about economic severity were illogical and unhelpful,
mostly because they resulted in calculated losses that were
larger than the appraisal values that determined the sale
price under LIHPRHA. See Decision, 140 Fed. Cl. at 91–
92. For that conclusion, the court cited Cienega X, where
this court took issue with a damages award that was higher
than the appraised value of the property. Cienega X, 503
F.3d at 1282 n.13 (“A determination that damages exceed
the value of the property should be indicative that the
method of computing damages is flawed.”).
As this court stated in Cienega X, “[l]ogically speaking,
the government cannot take more than what the plaintiffs
actually possess.” Id. But that footnoted statement was in
the context of a post-trial damages award that exceeded the
amount of an unchallenged appraisal. Id. Here, in con-
trast, the FWPs do not concede that the appraisal values
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ANAHEIM GARDENS, L.P. v. UNITED STATES 21

accurately represent the value of the properties they actu-
ally possessed. Thus, our dictum in Cienega X does not pre-
clude a finding in this case that the actual economic loss
suffered by the FWPs could have been larger than the ap-
praisal values of their properties.
The Claims Court explicitly acknowledged that Dr.
Wade disputed the accuracy of the appraisals. Decision
140 Fed. Cl. at 90 n.12 (citing Dr. Wade’s expert report).
And the court recognized that Dr. Wade’s methodology
could be justified “if he persuasively explained why the
LIHPRHA FMV appraisal[s] grossly undervalue[] [the
properties].” Id. at 92. The court simply did not find his
explanation “persuasive.” See id. But the persuasiveness
of an expert’s explanation is not an issue to be weighed by
the court on summary judgment. See Jay v. Sec’y of Dep’t
of Health & Human Servs., 998 F.2d 979, 982 (Fed. Cir.
1993) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986)).
The government argues that Dr. Wade has not pre-
sented an alternative fair market value and has only ar-
gued that the process cannot yield a fair market value at
all. Oral Arg. at 32:15. Regardless, Dr. Wade’s expert re-
port sets forth his opinion that the appraisal values did not
accurately reflect the full values of the properties. See De-
cision, 140 Fed. Cl. at 90 n.12. Moreover, the FWPs have
clearly asserted their position that the appraisals are poor
proxies for the actual losses that they suffered in this case.
See, e.g., Oral Arg. at 39:05. At the very least, because
there is no dispute that “the fair market value of income-
producing property reflects and includes the value of in-
come that might be realized from the property,” Decision,
140 Fed. Cl. at 80 (citing First Fed. Lincoln Bank v. United
States, 518 F.3d 1308, 1317 (Fed. Cir. 2008)), Dr. Wade’s
opinions regarding lost income inherently reflect his view
that the appraisals did not accurately account for the value
of the income-producing properties in this case.
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22 ANAHEIM GARDENS, L.P. v. UNITED STATES

For the foregoing reasons, we do not agree with the
Claims Court that Dr. Wade’s calculation of losses greater
than the appraisal values is necessarily illogical and un-
helpful. Because there are unresolved fact questions re-
garding the accuracy of the appraisals and the proper
measure of the FWPs’ losses, the economic severity issue
does not support the Claims Court’s grant of summary
judgment.
C
Lastly, we address the government’s proposed alterna-
tive ground for affirmance on the basis that Dr. Wade used
data that post-dated the alleged taking. The government
argues that Dr. Wade should have restricted his analysis
to the data that were available to the parties (i.e., the de-
velopers and the government) at the date of the taking,
which in this case is the prepayment date for each of the
properties. The government cites the “settled principle in
takings law that the proper date for valuing the property
allegedly taken . . . is the date on which the taking alleg-
edly occurred.” Appellee Br. 20 (citing Supreme Court and
Federal Circuit precedent).
The FWPs respond that the law requires that the fu-
ture values of their losses be discounted to the relevant pre-
payment date for each property, which is what Dr. Wade
did. Reply Br. 15–16. They argue that, not only are ex post
data allowed to be used in measuring economic impact,
they are in fact the best measure to ensure that FWPs re-
ceive compensation for the full extent of the takings. Id. at
16–17.
We agree with the FWPs. We do not find a basis in the
law to categorically favor the use of outdated ex ante fore-
casts or projections over verifiable real-world ex post data.
While ex ante data may be preferable in some cases for pol-
icy reasons (e.g., to avoid “post hoc fluctuations,” see Appel-
lee Br. 22), the Claims Court must decide based on the facts
and circumstances at issue whether this is such a case. As
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ANAHEIM GARDENS, L.P. v. UNITED STATES 23

the Claims Court did not reach that issue and we cannot
decide it in the first instance on appeal, we reject the gov-
ernment’s proposed alternative ground for affirmance
based on Dr. Wade’s use of ex post data.
CONCLUSION
For the foregoing reasons, we affirm the Claims Court’s
grant of summary judgment with respect to Su Casa. With
respect to the remaining FWPs, we vacate the Claims
Court’s grant of summary judgment and remand for fur-
ther proceedings.
AFFIRMED-IN-PART, VACATED-IN-PART, AND
REMANDED