33 Fed. Cl. 24 | Fed. Cl. | 1995
OPINION ON RECONSIDERATION
This case is before the court on defendant’s motion to dismiss for lack of subject matter jurisdiction or, in the alternative, for failure to state a claim for which relief can be granted. Oral argument on the-motion was held on November 8, 1994. For the reasons set forth below, the court now grants defendant’s motion on all counts except plaintiffs’ regulatory taking claim, which must be tried.
During the 1950s and 1960s, Congress enacted legislation to encourage private developers to construct, own and manage housing projects for low and moderate-income families. To implement the legislation, Congress authorized first the Federal Housing Administration and later the Department of Housing and Urban Development (“HUD” or “the agency”)
Housing developers also received financial incentives along with mortgage insurance, under either of two programs. The first, referred to as “Section 221,” provided for below-market mortgage rates. Pub.L. 83-560, 68 Stat. 590, 597 (1954), amended by Pub.L. 87-70, 75 Stat. 149 (1961). Developers who obtained mortgages after 1968, however, were subject to a new provision enacted that year known as “Section 236.” Developers who participated in Section 236 received market-rate mortgages with an interest subsidy. Pub.L. 90-448, 82 Stat. 498, 499 (1968). In either case, developers were expected to pass these financial benefits on to their tenants in the form of lower rents. Id.
Typically, when a developer received a HUD-insured mortgage under one of these programs, the developer signed a long-term deed of trust note
Clauses in the HUD-endorsed notes, which were printed on forms approved by the agency, prohibited prepayment of the mortgages before 20 years from the date of endorsement, except under certain conditions which included HUD approval of the prepayment. However, the notes further stated that, after making payments for 20 years, owners could prepay their mortgages in full without prior HUD approval. These provisions made clear that prepayment of the mortgages would effectively terminate the regulatory agreements as well as the affordability restrictions.
By the late 1980s, Congress became concerned that a large number of owners might take advantage of the prepayment clauses within a short period of time, thus drastically reducing the supply of low-income rental housing throughout the country. See S.Rep. No. 316, 101st Cong., 2d Sess. 105, reprinted in 1990 U.S.Code Cong. & Admin.News 5763, 5867. Congress enacted two pieces of legislation to directly counter the threat of massive prepayments. The first bill, the Emergency Low Income Housing Preservation Act (“ELIHPA”) was enacted in 1987. Pub.L. 100-242, 101 Stat. 1877 (reprinted as amended at 12 U.S.C.A. § 1715l (note) (West 1989)). It effectively placed a two-year moratorium on prepayments in order to give Congress “breathing room” with which to devise a permanent solution. Id. at § 221(b). While it did not prohibit prepayments altogether, ELIHPA did require owners to apply to HUD for permission to prepay. Id. at § 222. ELIHPA authorized HUD to approve a prepayment only after making written findings that the prepayment would have minimal effects on the existing tenants, the local low-income housing market in general, and the local housing market for minorities. Id. at § 225.
Under LIHPRHA whether a developer wishes to prepay the mortgage or to apply for incentives, the same procedures apply. The process is begun when a property owner files a Notice of Intent (“N.O.I.”) with HUD, “in the form and manner” prescribed by the agency, with copies to be sent to state and local housing authorities, mortgagees and tenants. 12 U.S.C. § 4102. The property must then be appraised by two independent appraisers to determine its “preservation value,” which in turn becomes a basis for any incentives which are ultimately offered to the owners. 12 U.S.C. § 4108, see also §§ 4104(a) and 4110(d). Within nine months after receiving an N.O.I. (or six months if the N.O.I. proposes to terminate affordability restrictions), HUD must send the owner a report containing the results of the appraisals and other information which is necessary for the owner to proceed. 12 U.S.C. § 4106. The owner must then, within six months, file a Plan of Action (“P.O.A”) with HUD indieating whether the owner wishes to prepay the mortgage (terminating the affordability restrictions), extend the affordability restrictions by requesting incentives, or sell the property to a buyer who will agree to maintain the affordability restrictions. 12 U.S.C. § 4107.
HUD must approve or disapprove a P.O.A. within 180 days of filing, provided the P.O.A. is not deficient. 12 U.S.C. § 4115(b). If a P.O.A. requesting incentives is approved after the 180 days have passed, LIHPRHA requires that the incentives be retroactive to 180 days after the filing of the P.O.A. 12 U.S.C. § 4115(c). To ensure the timeliness of HUD’s P.O.A. approval process, LIHPRHA allows an owner to seek relief in federal district court if HUD does not approve the P.O.A within the statutory time limit. Id.
In order to put these new incentive programs into effect, LIHPRHA required HUD to publish proposed regulations no later than 90 days after the date LIHPRHA was enacted, November 28, 1990. Interim or final rules were to be issued no later than 45 days after that. Pub.L. 101-625 at § 604(d) (Nov. 28, 1990), reprinted at 12 U.S.C.A § 4101 (note) (West Supp.1994). Based strictly on that schedule, according to plaintiffs, interim or final rules should have been published by
Contentions of the Parties
The plaintiffs
In addition, plaintiffs have made two separate claims alleging that they have suffered a taking without just compensation in violation of the Fifth Amendment. In the first instance, plaintiffs believe that HUD’s delay in implementing the LIHPRHA regulations amounted to a taking because the delay effectively denied them the ability to obtain the financial benefits which LIHPRHA had authorized. According to their interpretation of the legislation and its history, Congress intended the incentive programs to be compensation for the regulatory taking of plaintiffs’ right to prepay their mortgages. By delaying implementation of the program, thus, plaintiffs argue that HUD has perpetrated a taking without just compensation, which taking Congress had sought to avoid.
The basis of plaintiffs’ second taking claim is that the LIHPRHA legislation itself, by restricting plaintiffs’ prepayment rights, effected a regulatory taking of plaintiffs’ interests in real property.
With respect to plaintiffs’ first claim based on HUD’s delays and plaintiffs’ alleged injuries due to those delays, defendant argues for dismissal based either on lack of subject matter jurisdiction or failure to state a claim for which relief can be granted because LIHPRHA does not authorize the retroactive payments which plaintiffs seek. Defendant further argues that plaintiffs have misconstrued the legislative history of LIHPRHA and that Congress never intended the incentives to be “just compensation.”
As for plaintiffs’ first (temporary) taking claim, concerning the effect of HUD’s delay in implementing LIHPRHA, defendant argues that HUD’s alleged actions or inactions cannot constitute a “taking” of a property right within the meaning of the Fifth Amendment. At best, defendant argues, HUD’s delays constitute unlawful actions which sound in tort, thus they fall outside the purview of the Tucker Act.
Finally, defendant argues that plaintiffs’ second (regulatory) taking claim should be dismissed as unripe for adjudication. Even if plaintiffs’ claim is ripe, however, defendant contends that no compensable taking occurred when Congress passed the mortgage prepayment restrictions contained in LIHPRHA because the prepayment restrictions were a regulatory measure taken to prevent injury to the public. Furthermore, defendant argues that mortgage prepayment is not a cognizable property right and that plaintiffs’ regulatory taking claim otherwise fails to meet the appropriate criteria for a regulatory taking as set forth in case law.
DISCUSSION
A. Exhaustion of Administrative Remedies.
In support of its jurisdictional argument, defendant relies on Thetford Properties IV Ltd. Partnership v. HUD, 907 F.2d 445 (4th Cir.1990), a case which involved some of the plaintiffs in this case. In Thetford, the plaintiffs filed suit challenging the constitutionality of ELIHPA’s constraints on their prepayment rights. The United States Court of Appeals for the Fourth Circuit affirmed a district court’s order that the case be dismissed for plaintiffs’ failure to exhaust administrative remedies, stating, “both the statute and the implementing regulations make clear that, under certain circumstances, HUD has the authority to grant [plaintiffs] the ultimate economic relief that they seek— prepayment and withdrawal from the program.” 907 F.2d at 448.
In the present case, as in Thetford, the government argues that the suit should be dismissed for lack of jurisdiction because the plaintiffs have failed to exhaust their administrative remedies, since HUD still retains limited authority to approve a prepayment, if requested. This case is distinguishable from Thetford, however, to the extent that the plaintiffs here do not wish to prepay
With regard to plaintiffs’ regulatory taking claim, the question of whether administrative exhaustion should be required is less clear. Defendant appears to be correct in arguing that HUD retains limited authority under LIHPRHA to approve a prepayment proposal. See 12 U.S.C. §§ 4108 and 4114. In Cienega Gardens v. United States, 33 Fed.Cl. 196 (1995), this court considered this same question with respect to similarly situated plaintiffs and concluded that a property owner’s taking claim based on the ELIHPA/LIHPRHA prepayment restrictions may not be ripe as long as there is a realistic possibility that HUD might approve a particular owner’s prepayment plan and as long as HUD has not yet appiwed or disapproved such a plan. The court decided, however, that the factual record before the court was inadequate for the purpose of determining ripeness and set that matter for trial. There is no reason the court should reach a different conclusion with respect to the plaintiffs in the present action. Accordingly, trial is necessary to determine whether plaintiffs’ regulatory taking claim is ripe.
B. Statutory Claim.
The Tucker Act provides jurisdiction in this court for non-tort monetary claims against the United States, founded either upon the Constitution, a statute, a regulation, or an express or implied contract right against the United States. 28 U.S.C. § 1491. For a complaint to meet this standard, plaintiffs “must find a substantive right in the Constitution, an act of Congress or an executive department regulation on which to base” their claim. Dehne v. United States, 970 F.2d 890, 893 (Fed.Cir.1992) (citations omitted).
The Tucker Act is a jurisdictional statute; it does not create substantive rights which are enforceable against the United States for money damages. United States v. Testan, 424 U.S. 392, 398, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976). The Tucker Act grants jurisdiction only when an independent substantive right for money damages exists. Thus, in the present case, plaintiffs must show that the statute upon which their cause of action is based creates a substantive right, either affirmatively or by a breach of the statute, to payment of monetary damages from the United States.
As this court’s predecessor stated in Mitchell v. United States, a money-mandating statute, regulation or order does not have to expressly provide for relief in this court in order for a plaintiff to bring suit under the Tucker Act. 229 Ct.Cl. 1, 4, 664 F.2d 265, 268 (1981). “Classic instances of legislation directing compensation, and therefore grounding suit in this court, are the statutes providing for military and civilian pay and allowances (which have not, of course, themselves mentioned suit or the right to sue).” Id. (Footnote omitted.)
As discussed earlier, the injury which plaintiffs allege they have suffered is based on a violation of LIHPRHA § 604(d), by which Congress set a timetable for HUD to first propose and then promulgate final rules to implement the incentive programs authorized by the legislation. Because HUD failed to comply with the statutory timetable, plaintiffs argue, property owners were involuntarily delayed in exercising their right to seek the incentives authorized by LIHPRHA. Defendant does not deny that HUD,
Section 4115, at subsection (b), sets a time limit of 180 days for HUD to approve a non-deficient P.O.A. Any incentives or assistance offered pursuant to an approved P.O.A. are retroactive to 180 days after filing whenever HUD’s approval is delayed past that time. Id. at (c). But the statute makes no provision for retroactivity in connection with the rulemaking timetables set forth at LIHPRHA § 604(d). If plaintiffs are correct in arguing that Congress intended to create a liability on the part of HUD for fading to issue regulations according to the § 604(d) timetable, that liability is not expressed in the statute. If such a liability exists, it must be inferred.
Plaintiffs have not identified any precedent in which private parties have been awarded money damages under the Tucker Act based upon a holding that a federal agency had failed to implement a money-mandating act of Congress in a timely manner. Plaintiffs rely primarily on Mitchell, which they believe is sufficiently analogous to the present case. In Mitchell, the plaintiffs were a group of Indian tribes who filed suit alleging that the government had breached fiduciary duties in its unprofitable management of Indian-owned lands. 229 Ct.Cl. at 2, 664 F.2d at 265. In holding for the plaintiffs, the court surveyed various federal statutes which established a fiduciary relationship between the Indian tribes, who owned the lands at issue, and the Department of the Interior (“Interior”), which had been directed by those statutes to manage and control the lands for the financial benefit of the tribes. For example, in analyzing one such statute, 25 U.S.C. § 466, in light of the Tucker Act’s money-mandating principle, the court concluded that Interior had been given fiduciary responsibilities for which “pecuniary remedies are commonly available in our general law.” Without such a remedy, the court said, “the Indians could lose substantial elements of their own property without anything to deter the federal officials ... from violating the governing directives, and without any compensation for that past loss.” 229 Ct.Cl. at 11-12, 664 F.2d at 272.
As plaintiffs correctly point out, the United States Court of Claims in Mitchell established that Congress had, through several statutes entrusting the Indians’ property to Interior, created a cause of action by implication. The cause of action was implied because Congress imposed upon Interior such duties with respect to the Indians’ property that a breach of those duties could be remedied only by compensatory damages — hence the applicability of the Tucker Act. Id. Plaintiffs, however, have failed to articulate why they believe the present case is analogous to Mitchell in any way beyond the mere fact that the plaintiffs in both cases premise their claims on implied causes of action.
Although defendant has not briefed the court on the applicability of Mitchell to the present case, the court nonetheless finds the two cases to be factually distinguishable in important ways. In Mitchell, the statutes at issue had effectively created a form of trust arrangement," under which Interior was given a trustee-like power to control and manage lands for the sole purpose of providing reve
Furthermore, the nature of the mandate which Congress imposed upon Interior in Mitchell was much less ambiguous than the one allegedly imposed upon HUD in this case. In Mitchell, the Court of Claims found that Congress, through 25 U.S.C. § 466, had required Interior not merely to manage the Indians’ forestland but specifically to manage it “on the principle of sustained yield management ... ‘to assure that the Indian forests [would] be permanently productive [and] yield continuous revenue to the tribes.’ ” 229 Ct.Cl. at 11, 664 at F.2d 272, quoting 78 Cong.Rec. 11730 (1934). In the present suit, plaintiffs have identified the major financial incentive available to them under LIHPRHA — the eight percent annual authorized return, 12 U.S.C. § 4104(a)
By seeking such a remedy, plaintiffs are apparently asking the court to infer that Congress intended the incentives under LIHPRHA to be available as soon as regulations implementing the legislation were in effect, regardless of whether HUD was first able to conduct the audits that were supposed to provide the basis for those incentives. A more reasonable interpretation of the statute, however, is that Congress intended the incentives to be available to property owners only after the owners had taken the steps of filing N.O.I.’s and allowing their properties to undergo an independent appraisal process that was intended to be fair both to owners and to the government. Granted, those steps could not be taken by the plaintiffs until HUD had issued rules describing the appropriate procedures, and HUD did not issue those rules until a year after it should have done so under the timetable in § 604(d); the court, however, cannot consequently infer
Aside from Mitchell, plaintiffs have drawn the court’s attention to the legislative history of LIHPRHA to support their position that the legislation is “money-mandating.” Plaintiffs believe that Congress established LIHPRHA’s incentives to serve as “just compensation” for the statutory abridgement of their contractual right to prepay their mortgages after 20 years. Plaintiffs characterize that abridgement as a “taking” within the meaning of the Fifth Amendment to the Constitution and, accordingly, view the incentives as compensation for that taking.
In support of this theory, plaintiffs point to several statements made by Congressmen and Senators in committee hearings and on the floor of their chambers expressing concern for either ELIHPA’s or LIHPRHA’s restrictions on prepayment rights. These public statements of legislators, plaintiffs argue, demonstrated that Congress as a body considered the legislation as effectuating a “taking” within the meaning of the Fifth Amendment and intended to provide compensation for that taking. For example, plaintiffs highlight the statement Senator Howell Heflin made on September 27, 1990, which reads in part:
[T]he very notion of unilaterally abrogating a contract, which has been adhered to by one party for 20 years, flies in the face of the law. I am opposed to it, except in the most extreme circumstances. And when such circumstances arise, that party whose rights are denied must be fully compensated.
* * * * * *
The housing bill which is currently in conference will soon address this issue of compensation. The House-passed version contains a fair, equitable compensation clause which received broad bipartisan support. If, and only if, it is deemed necessary to abrogate these contracts — and I reiterate my opposition to so doing — I urge adoption of the House-passed prepayment provisions.
136 Cong.Rec. S14091 (daily ed. Sept. 27, 1990).
To a certain extent, the court can accept plaintiffs’ reading of such statements as Senator Heflin’s as. evidence that at least some members of Congress were concerned that certain rights of property owners were at risk of being taken away by legislation which was under consideration at the time. Furthermore, it is logical to conclude that Congress provided the incentives as a means of making forbearance of prepayment more attractive to owners, while at the same time Congress was making actual prepayment more difficult.
When there is a conflict between portions of legislative history and the words of a statute, the words of a statute represent the constitutionally approved method of communication, and it would require “unequivocal evidence” of legislative purpose as reflected in the legislative history to override the ordinary meaning of the statute. “Reliance on legislative history in divining the intent of Congress is ... a step to be taken cautiously.” Dept. of Air Force v. Rose, 425 U.S. 352, 388-89, 96*35 S.Ct. 1592, 1611-12, 48 L.Ed.2d 11 (1976) (Blackmun, J., dissenting).
See also Piper v. Chris-Craft Indus. Inc., 430 U.S. 1, 26, 97 S.Ct. 926, 941-42, 51 L.Ed.2d 124 (1977); Sharp v. United States, 27 Fed.Cl. 52, 61 (1992), aff'd, 14 F.3d 583 (1993). Moreover, isolated statements of legislators, whether made in committee hearings or in floor debates, are rarely persuasive when trying to determine the intent of Congress as a whole. See, e.g., Thompson v. Thompson, 484 U.S. 174, 191-92, 108 S.Ct. 513, 522-23, 98 L.Ed.2d 512 (1988) (Scalia, J., concurring).
The report issued by the conference committee when final legislation is prepared for House and Senate approval is a somewhat better resource for determining the meaning Congress intended a statute to have. See Texas State Comm’n for the Blind, 6 Cl.Ct. 730, 740 (1984). As an expression of congressional intent, of course, conference reports, like the reports issued by the committees which drafted the original bills, remain suspect because they are “crafted by [congressional] staff, not necessarily read by legislators, and are subject to packing via influence of interest groups and other legislative insiders.” Sharp, 27 Fed.Cl. at 62 (citations omitted). Nonetheless, even if the court reads the portions of the LIHPRHA conference report in the light most favorable to plaintiffs, the court finds no statements therein to support plaintiffs’ contention that Congress believed it was “taking” plaintiffs’ property rights (in the Fifth Amendment sense) in exchange for the authorized incentives. For example, the conference report states:
[A] consensus has finally emerged on how best to strike the balance among the interests of owners, the tenants and the communities most affected by the consequences of prepayment. The fundamental principle of [ELIHPA] was that the housing should be preserved for its intended beneficiaries and that owners should be guaranteed a fair and reasonable return on their investment through new incentives.
House Conf.Rep. 101-943, 101st Cong., 2d Sess., at 458, reprinted at 1990 U.S.Code Cong. & Admin.News 6070, 6163.
As defendant correctly argues, the above language suggests not so much that Congress believed it was taking away property rights, but rather that Congress was trying to provide owners with attractive alternatives to exercising prepayment options. The court thus finds no solid foundation in the legislative history for plaintiffs’ assertion that Congress clearly intended the incentives to be just compensation for a taking of property in the Fifth Amendment sense.
More importantly, even if plaintiffs are correct in their belief that Congress consciously undertook to provide compensation for what it perceived was a taking of plaintiffs’ property rights, the court remains unpersuaded that such an undertaking on Congress’s part implicitly gave rise to a liability on HUD’s part with respect to LIHPRHA § 604(d), whose timetable remains the statutory basis for plaintiffs’ first claim. In Mitchell, the court’s theory was that the government, by statute, had assumed fiduciary duties with respect to the plaintiffs in that case and that such duties were customarily enforceable with lawsuits for money damages. Since the court has already demonstrated that no fiduciary duties analogous to those in Mitchell apply to HUD in the present case, it would remain to be determined whether some other theory of liability could be invoked to require retroactive incentive payments by HUD for its failure to implement the incentive programs within the time limits set forth by Congress. Plaintiffs, regrettably, have not articulated such theory, and the court is likewise unable to do so.
C. Temporary Taking Claim.
Although plaintiffs have described their previous claim for money damages based on HUD’s rulemaking delays as “about 97 percent” of their case, Tr. at 23, in their complaint plaintiffs have alternatively characterized HUD’s delays as a taking without just compensation in violation of the Fifth Amendment.
Plaintiffs premise their theory that HUD’s delayed implementation- of LIHPRHA constituted a taking on the notion that Congress intended the incentives authorized by LIHPRHA to be compensation for the taking of plaintiffs’ prepayment rights, illustrated by their interpretation of the legislative history discussed earlier. Defendant, as before, disputes the notion that Congress’s action with respect to plaintiffs’ prepayment rights constituted a Fifth Amendment taking, and both parties have exhaustively briefed the court on the issue of whether LIHPRHA was a taking of plaintiffs contract or property rights.
In prior cases, the court has considered whether administrative foot-dragging can constitute a taking within the meaning of the Fifth Amendment. Courts sometimes refer to such cases as “temporary takings.” See, e.g., Dufau v. United States, 22 Cl.Ct. 156, 163 (1990), aff'd, 940 F.2d 677 (Fed.Cir.1991); 1902 Atlantic Ltd. v. United States, 26 Cl.Ct. 575, 581 (1992). Each of these eases acknowledged the United States Supreme Court doctrine that governmental actions which temporarily deny owners the use of their property must be justly compensated under the Fifth and Fourteenth Amendments. First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, 318, 107 S.Ct. 2378, 2387-88, 96 L.Ed.2d 250 (1987); see also Agins v. Tiburon, 447 U.S. 255, 263, n. 9, 100 S.Ct. 2138, 2143, n. 9, 65 L.Ed.2d 106 (1980); Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 204, 105 S.Ct. 3108, 3125-26, 87 L.Ed.2d 126 (1985).
In order to prevail on a temporary taking claim, a plaintiff must show that substantially all economic use of its property was denied during the period in question.
In Dufau, the court applied these teachings to a claim that a 16-month delay by the Army Corps of Engineers in processing an application for a permit to fill wetlands amounted to a “temporary taking” which required just compensation. 22 Cl.Ct. at 162-64. Applying Agins, however, the court found no basis for holding that the 16-month delay was unreasonable or extraordinary. The court noted, moreover, that during much of the time the permit was allegedly delayed, the parties were actively engaged in negotiations concerning mitigation of the proposed loss of wetlands. Id. at 163-64. Furthermore, there was no evidence in the record that the Corps of Engineers had acted in bad faith in processing the application. Id. at 164. Accord Tabb Lakes, Inc. v. United States, 26 Cl.Ct. 1334, 1353-54 (1992), aff'd, 10 F.3d 796 (Fed.Cir.1993). Similarly, in 1902 Atlantic, the court considered whether a delay by the Corps of Engineers in reviewing another permit application could be viewed as a temporary taking, but the court concluded that “the Government cannot be charged with the delay necessary to complete the review process.” 26 Cl.Ct. at 581.
Determining what length of time constitutes an “unreasonable” or “extraordinary” delay involves considerations which are, admittedly, subjective. In a discussion at oral argument concerning the year-long delay between the statutory deadline for issuing regulations and the date when HUD finally issued them, the court asked plaintiffs’ counsel what length of time he would have considered reasonable under the circumstances. Counsel offered that “a month or two late [or] three months later” would have been reasonable, but that a year was unreasonable. Tr. at 25. As in the Dufau ease, however, plaintiffs have made no representations that HUD’s rulemaking machinery was not operating during that year to produce the final regulations as expeditiously as possible, nor have plaintiffs represented that any responsible officials at HUD have acted in bad faith. As in 1902 Atlantic, furthermore, the government cannot be charged with the costs which HUD’s delay imposed upon plaintiffs without some showing by plaintiffs that the delay was not necessary. 26 Cl.Ct. at 581.
Plaintiffs have also failed to represent that they lost substantially all economic use of their properties during the year in question — a showing which is required under Dufau and 1902 Atlantic. In fact, the economic status of plaintiffs’ properties remained the same as before LIHPRHA was enacted: plaintiffs continued to own the properties and to receive rents from tenants just as they had done since the properties were built and just as they do now. The “loss” which plaintiffs allegedly sustained was only the delayed ability to earn the higher authorized annual return under 12 U.S.C. § 4104. While such a loss may be quantifiable, it does not constitute a loss of all economic use of the properties because plaintiffs continued to earn revenues from their investments at the same rates they had always enjoyed. Consequently, having failed to establish either that they lost economic use of their property during the year in question or that they incurred losses due to unnecessary delays on HUD’s part, plaintiffs have failed to show that they suffered a temporary taking at the hands of HUD.
Finally, assuming that LIHPRHA’s original § 604(d) timetable was mandatory with respect to HUD, the agency’s inability to comply with that timetable may be viewed as essentially an illegal act rather than merely an unreasonable or extraordinary act. It is well settled law, however, that illegal acts of government officials cannot, by themselves, give rise to a taking which is adjudicable under the Tucker Act. “Challenges to the propriety of government action sound in tort.” Montego Bay Imports, Ltd. v. United States, 10 Cl.Ct. 806, 809 (1986); Shaw v. United States, 8 Cl.Ct. 796, 799 (1985). The Tucker Act gives this court no jurisdiction over actions which sound in tort. 28 U.S.C. § 1491(a)(1). See also, e.g., Florida Rock Industries, Inc. v. United States, 791 F.2d 893, 898 (Fed.Cir.1986), cert. den. 479 U.S. 1053, 107 S.Ct. 926, 93 L.Ed.2d 978 (1987); and B & F Trawlers, Inc. v. United States, 27 Fed.Cl. 299, 303 (1992).
D. Regulatory Taking.
Plaintiffs’ final taking claim is based not on HUD’s delays, but rather the legislation itself. Plaintiffs claim that LIHPRHA’s prepayment restrictions constitute a regulatory taking of private property without just compensation. As discussed earlier, in Cienega the court — viewing ELIHPA as well as LIHPRHA — considered whether the prepayment restrictions effected a regulatory taking. The court concluded that before determining whether a compensable regulatory taking occurred it would be necessary to resolve material factual issues concerning ripeness, liability and damages. For the purposes of analyzing the prepayment restrictions as a regulatory taking in the present suit, the position of the instant plaintiffs is identical to that of the plaintiffs in Cienega
CONCLUSION
For the foregoing reasons, the court grants defendant’s motion for dismissal for failure to state a claim for which this court can grant relief on all counts except plaintiffs’ regulatory taking claim.
IT' IS SO ORDERED.
. On January 9, 1995, the court issued an Opinion and entered a Judgment dismissing this case. That judgment was vacated by a separate order on March 27, 1995.
. In 1965, the Federal Housing Administration, headed by the Federal Housing Commissioner, was subsumed into the newly established Department of Housing and Urban Development. See 24 C.F.R. §§ 200.1-200.4 (1994).
. This opinion, for the sake of convenience, uses the terms "mortgage" and "deed of trust note" interchangeably, although the court is aware of their distinctions, which are rooted in state law. See Black's Law Dictionary at 373 (West 1979).
. The text of § 225(a), which is specifically applicable to prepayment, reads in part as follows:
*28 The Secretary may approve a plan of action that involves termination of the low income affordability restrictions only upon a written finding that—
(1) implementation of the plan of action will not materially increase economic hardship for current tenants ... or involuntarily displace current tenants (except for good cause) where comparable and affordable housing is not readily available, determined without regard to the availability of Federal housing assistance that would address any such hardship or involuntary displacement; and
(2) (A) the supply of vacant, comparable housing is sufficient to ensure that such prepayment will not materially affect—
(i) the availability of decent, safe and sanitary housing affordable to lower income and very low-income families or persons in the area that the housing could reasonably be expected to serve.
(ii) the ability of lower income and very low-income families or persons to find affordable, decent, safe, and sanitary housing near employment opportunities; or
(iii) the housing opportunities of minorities in the community within which the housing is located____
These limitations on HUD's discretion to approve prepayments have essentially been preserved at 12 U.S.C. § 4108.
. The incentives authorized by LIHPRHA include authorization to increase ceilings on rents, an increase in the authorized annual rate of return from participating properties, financing of capital improvements, and equity loans, among other things. 12 U.S.C. § 4109.
. LIHPRHA was passed upon the expiration of ELIHPA. Under § 203(a) of ELIHPA, the prepayment restrictions were to expire two years after its enactment, or February 5, 1990. 12 U.S.C. § 1715l (note, § 203(a)). ELIHPA’s expiration date was extended three times, the last time until November 30, 1990, or the date of the enactment of LIHPRHA, whichever was earlier. Pub.L. No. 101-494 at § 2. Congress eventually passed LIHPRHA on November 28, 1990.
. In addition to Anaheim Gardens (a limited partnership in Lomita, CA), the plaintiffs are: Araspark Associates (a limited partnership in Palo Alto, CA); Stefi and Joseph R. Biafora (Reseda, CA); Cedar Gardens Associates (a partnership in San Francisco, CA); Centennial Park Annex (Reno, NV); Florin I, Ltd. (a limited partnership in Pebble Beach, CA); Florin II, Ltd. (a limited partnership in Pebble Beach, CA); Hill-view Townhouses, Ltd. (Grand Rapids, MI); Hill-view Townhouses, Inc. (Grand Rapids, MI); Priscilla Lai-Fong Hsi and Peter Hwei-Yang Hsi (d/b/a General Partners of Waipahu Tower, Honolulu, HI); Indian Head Manor Limited Partnership I (Bethesda, MD); Jewel Lake Villa Two (a limited partnership in Honolulu, HI); Denise A. and Earl W. Kellenbeck (d/b/a Victorian Aims Apartments in Grants Pass, OR); Norman M. Kronick and Louis Dulien (d/b/a Halawa View Apartments, a general partnership in Honolulu, HI); Metro West Limited (a limited partnership in Palo Alto, CA); Millwood Associates Limited Partnership (Bethesda, MD); Napa Park Apartments (a limited partnership in Bethesda, MD); Ontario Townhouses (a limited partnership in Bethesda, MD); The Palomar Apartments (a limited partnership in San Diego, CA); Rock Creek Terrace Limited Partnership (Bethesda, MD); Sierra Vista One (a limited partnership in Palo Alto, CA); Silverlake Village (a limited partnership in Richmond, VA); Thetford Properties III, Limited Partnership (Richmond, VA); Thetford Properties IV, Limited Partnership (Richmond, VA); Frances T. and J. Derrick V. Ward (Novato, CA); Washington Plaza Apartments, Ltd. (San Diego, CA); James W.Y. Wong (Honolulu, HI); Janey S. Wong (Honolulu, HI); William H. Zenklusen (San Lorenzo, CA); 185-225 Parkhill Corp. (Staten Island, NY); 620 Su Casa Por Cortez (a general partnership in Palo Alto, CA); 825 San Tomas Apartments (a limited partnership in Palo Alto, CA); 5324 Foothill Apartments (general partnership in Palo Alto, CA).
. Some of the plaintiffs in this case filed a separate action challenging the constitutionality of ELIHPA’s constraints on their prepayment rights in Thetford Properties IV Ltd. Partnership v. HUD, 907 F.2d 445 (4th Cir.1990). The United States Court of Appeals for the Fourth Circuit affirmed a district court’s order that the case be dismissed for plaintiffs’ failure to exhaust administrative remedies, stating, "both the statute and the implementing regulations make clear that, under certain circumstances, HUD has the authority to grant [plaintiffs] the ultimate economic relief that they seek — prepayment and withdrawal from the program.” 907 F.2d at 448.
In the present case, as in Thetford Properties, defendant has argued that the suit should be dismissed for lack of jurisdiction because the plaintiffs have failed to exhaust their administrative remedies, since HUD still retains limited authority to approve a prepayment, if requested. This case is distinguishable from Thetford Properties, however, because plaintiffs here do not wish to prepay their mortgages and withdraw from the Section 221 and Section 236 programs; rather, they wish only to be compensated for HUD’s delays in implementing the new legislation. The N.O.I./P.O.A. procedures, which the court in Thetford Properties identified as the administrative procedures which must be exhausted if the plaintiffs in that case wished to prepay, are therefore inapplicable in this case since such procedures do not lead to retroactive compensation for HUD’s delays. The court has previously held that exhaustion is not required when pursuit of administrative remedies would be futile. See, e.g., Conant v. United States, 12 Cl.Ct. 689, 693 (1987). As defendant has failed to identify an administrative avenue by which plaintiffs could obtain compensation for HUD's delays, the court must conclude that exhaustion would be futile in this case.
. As of November 1, 1994, 36 out of the 39 housing projects involved in this case have received the information required from the Secretary under 12 U.S.C. § 4106 in response to their N.O.I.’s. Of the 36 projects which received information from the Secretary, 24 have filed a P.O.A. as required by 12 U.S.C. § 4107. Of those 24, HUD has approved eight plans.
. In their first amended complaint, at paragraphs 30-34, plaintiffs complain of several alleged delays by HUD in processing their applications for incentives, apparently in violation of the deadlines established by LIHPRHA. At oral argument, however, plaintiffs’ counsel dropped these contentions, saying, ”[t]he processing is going pretty well. HUD has its act in order by and large, and they are meeting the six-month schedule or coming close. And that is not what we are here to complain about.” Transcript ("Tr.”) at 31.
. In their briefs, the parties disagree as to whether the judicial review available under § 4115 may be sought in this court. Defendant argues that the relevant portion of § 4115, "An owner may bring an action in the appropriate Federal district court to enforce this subsection,” establishes an exclusive district court action, precluding jurisdiction in this court. Plaintiffs argue, in response, that the use of the word “may” indicates a permissive district court remedy which does not preclude a § 4115 action from being brought in this court. However, because plaintiffs in the present action do not seek a review of an adverse or untimely determination by HUD with respect to a P.O.A., it is not necessary for the court, in this action, to resolve the controversy as to the exclusivity of § 4115's district court remedy.
. Prior to the enactment of LIHPRHA, the annual authorized return for the same properties was six percent of the mortgagor’s initial equity investment, as determined by HUD. See 24 C.F.R. §§ 221.532(a) and 236.50 (1994). That rate of return remains effective under current law until owners have received approval of a P.O.A. filed pursuant to LIHPRHA.
. In addition to the statements of Congressmen and Senators which plaintiffs cite, there are other indications in the legislative record which, though not dispositive, do suggest that some members of Congress viewed the provision of incentives as a form of compensation to the owners for the restrictions imposed on prepayment. See, e.g., S.Rep. 101-316 at 112, reprinted in 1990 U.S.Code Cong. & Admin.News at 5874: "[T]he 8 percent return is a fair and reasonable exchange for an owner’s agreement to retain the low-income character of the housing for its remaining useful life.”
. Beyond failing to articulate a theory of recovery, plaintiffs’ statements identifying the damages they have .sustained are also underdeveloped. In their brief in opposition to defendant’s second motion to dismiss, at 16, plaintiffs discuss Cedar Gardens Associates, one of the plaintiffs in this case. Under its original deed of trust note, Cedar Gardens was eligible to prepay on April 13, 1991, at which time the regulations implementing LIHPRHA should have been in effect under LIHPRHA § 604(d). After pursuing the incentives in accordance with the regulations that were finally issued in 1992, Cedar Gardens was notified by HUD in early 1994 that its preservation equity was $2,728,985, and its annual authorized return, at eight percent, was $218,-319. Because of HUD’s year-long delay in writing the regulations, plaintiffs argue that Cedar
. This result does not appear to be affected by the Federal Circuit's recent opinions holding that, in the context of regulatory takings, plaintiffs may prevail by showing that a regulatory imposition effected only a partial loss of economically viable use of their property, as opposed to a loss of all economically viable use. See Florida Rock Indus. Inc. v. United States, 18 F.3d 1560, 1570 (1994) and Loveladies Harbor, Inc. v. United States, 28 F.3d 1171, 1180 (1994).
The flexible approach applied by the Federal Circuit in evaluating a loss in value in regulatory takings cases is unnecessary in this instance because plaintiffs have not asserted that HUD's rulemaking delays resulted in a loss of properly value — temporary or otherwise. Instead, the losses alleged by plaintiffs are solely the unrealized incentives which they would have been due had HUD issued regulations in a timely manner.
. The court’s opinion in Cienega also addresses defendant’s arguments regarding whether mortgage prepayment is a property right and whether prepayment restrictions can be considered an exercise of "police power” designed to prevent injury to the public welfare.
