Before the court is defendant’s motion to dismiss specified claims for lack of subject matter jurisdiction (“motion”), wherein defendant argues that the statute of limitations, 28 U.S.C. § 2501 (2006), bars plaintiffs from asserting takings claims with respect to eleven properties.
I. BACKGROUND
Plaintiffs owned various low-income housing projects that they developed using loans insured under programs administered by the United States Department of Housing and Urban Development (“HUD”). Pursuant to agreements into which they entered with the government, plaintiffs were entitled to prepay their mortgages after twenty years and terminate the government’s restrictions on their use of the properties. Congress, concerned that a large number of low-income housing program participants would exit HUD’s programs upon expiration of their twenty-year prepayment anniversary dates, thereby reducing the availability of low-income housing, enacted ELIHPA on February 5, 1988. ELIHPA placed a moratorium on mortgage prepayments without the consent of HUD and remained in effect until a permanent modification, LIHPRHA, was enacted on November 28, 1990. Eventually, Congress restored the right to prepay mortgages when it enacted the Housing Opportunity Program Extension Act (“HOPE Act”) on April 26,1996.
During discovery, defendant propounded interrogatories asking plaintiffs to identify the date on which they contended their takings claims ripened under ELIHPA or LIH-PRHA Over objections, plaintiffs responded that their takings claims under ELIHPA and LIHPRHA “ ‘ripened’ on the date that each of the subject properties reached its 20th anniversary from the date of HUD’s final endorsement of the property’s mortgage, or, in the ease of properties where HUD did not make a final endorsement of the mortgage because it was not required, the date that the mortgage was signed, or the date of occupancy.”
Property Name Date
Carriage House of Elkhart May 20,1991
Carriage House of Mishawaka I March 9,1991
Carriage House West I October 27,1988
Carriage House West II December 8,1989
Carnage House West III July 28,1990
Church Park Apartments February 11,1991
*794 Country Towne Apartments February 5,1988
Glenarden Woods Apartments December 30, 1989
Glenreed Apartments March 11,1990
Riverside Village Apartments September 1,1991
Willow Creek Apartments May 28,1991
Id. at 3, 5. Plaintiffs explained in their response that Country Towne Apartments was eligible to prepay its mortgage prior to the enactment of ELIHPA Therefore, plaintiffs asserted that ELIHPA effected a regulatory taking with respect to Country Towne Apartments on February 5, 1988, the date the statute was enacted.
Plaintiffs filed their original complaint in the United States Court of Federal Claims (“Court of Federal Claims”) on August 25, 1997. Based upon the dates plaintiffs provided, defendant argues that the court lacks jurisdiction over claims involving these properties because they were filed six years after the claims first accrued. As such, defendant contends that these claims are time barred. According to plaintiffs, their responses to defendant’s interrogatories merely addressed ripeness with respect to the futility doctrine, not when their regulatory takings claims accrued for statute of limitations purposes.
Of the eleven properties at issue, six— Carriage House West I, Carnage House West II, Carriage House West III, Country Towne Apartments, Glenarden Woods Apartments, and Glenreed Apartments—had twenty-year prepayment eligibility dates that occurred during the period that ELIHPA was in effect. The remaining five properties— Carriage House of Elkhart, Carriage House of Mishawaka I, Church Park Apartments, Willow Creek Apartments, and Riverside Village Apartments—had twenty-year prepayment eligibility dates that occurred during the period that LIHPRHA was in effect.
Defendant argues that plaintiffs’ claims accrued on each property’s twenty-year prepayment eligibility date. Plaintiffs, relying principally on Creppel v. United States,
II. DISCUSSION
Numerous eases have addressed the issue of claim accrual in the ELIHPA/LIHPRHA context. In Alder Terrace, Inc. v. United States,
The Federal Circuit observed that a claim accrues for purposes of 28 U.S.C. § 2501 ‘“when all the events have occurred which fix the liability of the Government and entitle the claimant to institute an action.’ ” Id. at 1377. It noted that the developer first suffered its alleged damages on January 5,1989, “when it was thereby prevented from exercising its express contractual right then to prepay.” Id.; see also id. at 1378 (“On January 5, 1989, the Developer had a vested contractual right to prepayment which was nullified by [ELIHPA].”). In other words, ELIHPA, which was in effect on January 5, 1989, “was preventing the Developer from exercising its prepayment right.” Id. at 1377. That ELIHPA was temporary or was later replaced by LIHPRHA, the Federal Circuit explained, did “not alter the fact that ... the Developer began to suffer damages
Similar determinations occurred in Celen-tano v. United States,
In the case of a project such as Beaver Brook, regarding which the 20-year anniversary fell after the enactment of ELIH-PA, a cause of action for damages for breach of contract accrued on the 20-year anniversary date. The subsequent enactment of LIHPRHA, after the 20-year anniversary payment date had passed, does not change the result. The cause of action had already accrued on the 20-year anniversary date. At that earlier point in time, the HUD loanholder suffered a potentially compensable loss, thus activating the running of the statute of limitations.
Id. at 603. Thus, the court concluded that, “[o]n May 11, 1990, plaintiff no longer had a unilateral option to prepay her mortgage. At that time, the plaintiffs rights were, at least temporarily, limited and whatever com-pensable injury plaintiff may have suffered, she suffered at that time.”
In Royal Manor, Ltd., the plaintiff signed a mortgage note authorizing prepayment of the mortgage and termination of all property restrictions beginning on April 9, 1993. The plaintiff filed suit on October 6,1998, alleging that LIHPRHA effected a taking of its contractual right to prepay the mortgage. The government moved to dismiss, arguing that the takings claim was untimely because it accrued when LIHPRHA was enacted in 1990, more than six years after the plaintiff filed suit. The court, however, disagreed, determining instead that the takings claim accrued on April 9,1993.
The court explained that the “contractual right that was allegedly taken by operation of LIHPRHA was not simply a right to prepay; it was the right to prepay on a date certain: the twentieth anniversary date.”
Although factually distinguishable, the reasoning set forth in Parkwood Associates L.P. v. United States confirms that courts look to the date on which the plaintiff was eligible to prepay its mortgage when determining when its claim accrued. In Parkwood Associates L.P., the plaintiff entered into a loan contract with the Farmers Home Administration (“FmHA”) to establish low-income rural housing projects. Unlike the mortgages at issue in this ease or the cases discussed above, the Parkwood Associates L.P. plaintiffs loan authorized prepayment at any time. In order to exercise any prepayment option, the plaintiff was required to submit to the FmHA a comprehensive set of docu-
On October 24, 2007, the plaintiff filed suit, alleging breach of contract and takings claims. The court, determining that both claims were time-barred, explained that the FmHA’s “failure to grant the 1992 requests constituted a breach, particularly because plaintiff specified a date for performance, i.e., February 3, 1993.”
In effect, the February 3, 1993 date of performance in Parkwood Associates L.P. is analogous to the twenty-year prepayment eligibility dates in Alder Terrace, Inc., Celenta-no, and Royal Manor, Ltd. These cases establish that, for purposes of determining when a claim accrues for statute of limitations purposes, courts look to the date on which the plaintiff was first eligible to prepay its mortgage. See Cienega Gardens v. United States,
Athough the Federal Circuit determined that a temporary takings claim accrued on the date the temporary taking ended in Crep-pel, the landowners’ temporary takings claim was barred by the statute of limitations regardless of whether the claim accrued at the beginning or end of the taking period. In Creppel, landowners of swamp and marshland in Louisiana sued the government for blocking a levee project that was designed by the United States Amy Corps of Engineers to control flooding. The project was modified by an order in 1976, which eliminated the land reclamation benefits of the original project. In 1984, a district court ordered the original project to proceed, but the Environmental Protection Agency (“EPA”), also in 1984, instituted proceedings to determine whether to block the project. A year later, the EPA issued a final determination permanently blocking the project, and that final determination was upheld in district court in 1986. The landowners filed temporary and permanent takings claims in the Court of Federal Claims in 1991.
The landowners’ temporary takings claim was premised on a taking that began with the 1976 order and ended when the district court upheld the EPA’s final determination in 1988. Athough the Federal Circuit observed that a property owner cannot sue for a temporary taking until the regulatory process that effectuated the taking concludes, it nevertheless explained that “ ‘all the events’ had occurred to fix the supposed liability of the Government” once the 1976 order had been issued.
The temporary taking at issue in Creppel commenced in 1976 and ended in 1984. Whether the claim accrued at the beginning or the end of the taking period was ultimately irrelevant: the landowners sued in 1991 and both dates were outside the statute of limitations period. As a result, the Federal Circuit’s discussion of when the temporary takings claim accrued was not essential to its disposition of that claim. It therefore carnes no binding effect. See Smith v. Orr,
More importantly, the Independence Park Apartments plaintiffs filed suit on January 3, 1994, over two years prior to the enactment of legislation that purportedly ended the temporary taking.
The court rejects plaintiffs’ contention that an accrual date corresponding to the date on which the properties could prepay their mortgages requires a determination that plaintiffs’ claims are ripe and that it was futile for them to prepay their mortgages ab initio. “[A]n as-applied regulatory takings claim for economic damages does not ripen until there is a definitive position regarding how the statute will apply to the particular property in question[.]” Royal Manor, Ltd.,
The court concludes that plaintiffs were required to file their takings claims within six years from the date on which them claims accrued, viz., the date on which they were eligible to prepay their mortgages for the various properties at issue. Plaintiffs filed their original complaint on August 25, 1997. Therefore, any claims involving properties with a prepayment eligibility date that occurred before August 25,1991, are untimely. Ten such properties are affected: Carriage House of Elkhart, Carriage House of Mishawaka I, Carriage House West I, Carriage House West II, Carriage House West III, Country Towne Apartments, Willow Creek Apartments, Glenarden Apartments, Glenreed Apartments, and Church Park Apartments.
III. CONCLUSION
For the reasons set forth above, plaintiffs’ claims with respect to ten of the eleven properties at issue are barred by the statute of limitations. Accordingly, defendant’s motion is GRANTED IN PART and DENIED IN PART. The clerk is directed to dismiss for lack of jurisdiction claims related to the following properties: Carriage House of Elk-hart; Carriage House of Mishawaka I; Carriage House West I; Carriage House West II; Carriage House West III; Country Towne Apartments; Willow Creek Apartments; Glenarden Apartments; Glenreed Apartments; and Church Park Apartments.
IT IS SO ORDERED.
Notes
. The eleven properties are: (1) Carriage House of Elkhart; (2) Carriage House of Mishawaka I; (3) Carriage House West I; (4) Carriage House West II; (5) Carriage House West III; (6) Church Park Apartments; (7) Country Towne Apartments; (8) Glenarden Woods Apartments; (9) Glenreed Apartments; (10) Riverside Village Apartments; and (11) Willow Creek Apartments.
. Plaintiffs objected that the interrogatories were, among other things,
based on an incorrect premise that Plaintiffs' regulatory takings claims "ripened” on a particular date at a fixed moment in time and assumes that there was a final agency decision by HUD that caused the claim to ripen. Plaintiffs assert the administrative futility exception to the ripeness doctrine; thus, a final agency decision regarding prepayment was not rendered by HUD, and Plaintiffs did not need to obtain one since doing so was futile. As a result, Plaintiffs contend that their claims ripened "as of” the date provided below.
Def.'s Ex. 2 (responding to an interrogatory concerning ELIHPA), 4 (responding to an interrogatory concerning LIHPRHA).
. Though the subsequent enactment of LIHPRHA had no effect upon when the developer's claim accrued, the Federal Circuit recognized that LIHPRHA "may have affected quantum ....” Alder Terrace, Inc.,
. Although the court was addressing the plaintiff's contract claim, it explained that its statute of limitations analysis was "equally applicable to plaintiff’s takings claim,” which was also filed more than six years after May 11, 1990, and was also untimely. Celentano,
. As noted above, Country Towne Apartments was eligible to prepay its mortgage prior to the enactment of ELIHPA. Plaintiffs contend that ELIHPA, enacted on February 5, 1988, effected a regulatory taking of this property’s ability to prepay as of that date. Def.’s Ex. 3 & n. 2.