SUPPLEMENTAL OPINION AND ORDER ON MOTION FOR JUDGMENT ON PLEADINGS TO DISMISS FOR LACK OF JURISDICTION AND PLENARY OPINION ON MOTION TO DISMISS ON MERITS
Issues involving the timeliness of the complaint in this case have been bandied about
Pending before the court after argument are defendant’s supplemental briefs in support of dismissal of the takings claims set forth in Count II of plaintiffs’ complaint for failure to state a claim upon which relief can be granted. During supplemental briefing, both parties also availed themselves of the opportunity to reargue the jurisdictional statute of limitations issue raised in defendant’s first dispositive motion filed on November 16, 2006, and addressed in the court’s May 18, 2007 opinion, Tamerlane, Ltd. v. United States,
BACKGROUND
A detailed recitation of the procedural history of this case is set forth in light of the complicated arguments (and re-argument) affecting all four plaintiffs, each presenting unique factual contexts. Familiarity with the background and facts described in the May 18, 2007 opinion is presumed; discussion of facts relevant to the pending issues follows.
On June 22, 2005, plaintiffs Park Terrace Limited (“Park Terrace”), Park Terrace East Limited (“Park Terrace East”), Mullica West Limited (“Mullica”), and Tamerlane, Limited (“Tamerlane”) (collectively, “plaintiffs”) filed a complaint asserting breach of contract and takings claims. The complaint recites that all four plaintiffs entered into loan contracts with the Government through the Farmers Home Administration (“FmHA”) to provide low- to moderate-income housing. These loans were entered into pursuant to sections 515 and 521 of the Housing Act of 1949, Pub.L. No. 81-171, 63 Stat. 413 (codified as amended at 42 U.S.C. §§ 1485, 1490a (2000)) (“Section 515 loan” and “Section 521 loan”), which obligated borrowers to operate the properties according to FmHA regulations in exchange for favorable loan terms. The loans at issue consist of those entered into prior to December 21, 1979 (“pre-1979 loans”), which contained contractual provisions allowing borrower termination by prepayment at any time, and loans entered into after December 21, 1979 (“post>-1979 loans”), which allow prepayment at any time, but restrict the property to use as low-income housing for a minimum period of twenty years from the date of loan origination.
Plaintiffs’ complaint alleges that enactment and implementation of the Emergency Low Income Housing Preservation Act of 1987, Pub.L. No. 100-242, 101 Stat. 1815, 1877
shall make reasonable efforts to enter into an agreement with the borrower under which the borrower will make a binding commitment to extend the low income use of the assisted housing and related facilities involved for not less than the 20-year period beginning on the date on which the agreement is executed.
42 U.S.C. § 1472(c)(4)(A); see also Franco-nia,
Plaintiffs’ complaint represents that Tamerlane entered into a post-1979 loan contract for rental housing with FmHA and made a “formal request to prepay ... in December 2000, after the twenty-year use restriction period expired. Thereafter, in the face of actual or constructive denial of the request to prepay, Tamerlane accepted ‘incentives’ in the form of government approval to get 41 million in conventional financing____” Compl. filed June 22, 2005,1Í 11.1.
Park Terrace East entered into a post-1979 loan contract with FmHA as to which the twenty-year restriction on prepayment expired in 2000. Id. U 11.3. The record does not contain any showing that Park Terrace East sought to prepay, accepted incentives, or obligated itself to any additional use-restriction period.
Park Terrace entered into pre-1979 unrestricted fifty-year loan contracts for rental housing with FmHA and, in or about 1992, upon being informed that “FmHA would never approve prepayment,” accepted “incentives” and obligated itself to a twenty-year use-restriction period to keep the property within the program. Id. 1Í 11.2.
Mullica entered into pre-1979 unrestricted loan contracts and, in 1991, upon being informed that “FmHA would never approve the prepayment,” accepted “incentives” and obligated itself to a twenty-year use-restriction period to keep the property within the program. Id. 1111.4.
Defendant’s answer, filed on September 21, 2005, asserted that the contract claims of Park Terrace and Mullica (also, “responding plaintiffs”) are time-barred by the applicable statute of limitations and that the contract claims of Park Terrace, Tamerlane, and Mul-lica are subject to the defense of accord and satisfaction. Defendant also argued that all four plaintiffs’ takings claims in Count II fail to state a claim upon which relief can be granted.
On November 9, 2005, the parties filed a Joint Preliminary Status Report wherein plaintiffs sought commencement of settle
On December 28, 2005, the parties filed a Joint Motion To Stay Proceedings pending settlement negotiations, which was granted on January 3, 2006. On March 15, 2006, the parties filed a Joint Status Report seeking to continue the stay of proceedings and indicating that, although not a part of the omnibus settlement proceedings before another judge of the court, a pattern or template for settlement may emerge from those discussions that would prove helpful to the settlement of plaintiffs’ claims.
The parties submitted a Joint Status Report on August 17, 2006, detailing problems with the advancement of settlement discussions. Plaintiffs requested that the court refer the case to the omnibus judge. Defendant acquiesced in this request as to damages calculations, but requested that the jurisdictional statute of limitations issue affecting Park Terrace and Mullica preliminarily be resolved by motion. Defendant intended to file such a motion on or before September 25, 2006. Plaintiffs expressed that any delay in referring the case to the omnibus judge would serve no useful purpose, as they anticipated that the statute of limitations defense would turn on disputed issues of fact that could not be resolved on motion, but would be suitable for discussion in ADR proceedings. Alternatively, plaintiffs requested that the court establish a pre-trial schedule for the entire case.
On October 10, 2006, defendant filed a motion to the lift the stay for the limited purpose of allowing the filing of a dispositive motion. Defendant advised that “the motion would seek dismissal of the claims of plaintiffs Park Terrace Limited and Mullica West Limited based upon the statute of limitations.” Def.’s Mot. filed Oct. 10, 2006, at 2. Defendant noted that “[t]he motion would also seek dismissal of Count Two of the complaint (alleging [a] taking of property without just compensation) as to all plaintiffs, for failure to state a claim upon which relief can be granted.” Id. In their October 26, 2006 response, plaintiffs opposed defendant’s motion to lift the stay on this limited issue as “unfair” and requested that the court either submit the entire case to the omnibus proceeding or lift the stay fully to allow discovery to proceed under a case management order, thereby avoiding “fragmentation” and “duplicative” efforts. Pis.’ Br. filed Oct. 26, 2006, at 2. In its reply filed on November 9, 2006, defendant eluded the charge of “unfairness” by pointing out that plaintiffs are free to request a full lifting of the stay to file their own dispositive motions. Defendant also rejoined that fragmentation and duplication could be avoided by severing plaintiffs’ claims, as it considered that the four plaintiffs had been joined improperly. Defendant reiterated its intention to file a dispositive motion and demurred regarding settlement, representing that it would not be a willing party to settlement negotiations. See Def.’s Br. filed Nov. 9, 2006, at 2 (“[Ujnder the rules of this Court, ‘ADR is voluntary. A party’s good-faith determination that ADR is not appropriate in a particular case should be respected by other parties and by the court.’ ” (quoting RCFC Appendix H, K 3(a))). An order entered on November 15, 2006, stating that “[ajfter review of the briefs, the court deems that the jurisdictional issues only should be addressed.” Order entered Nov. 15, 2006. The court further ordered that “[t]he stay in this matter is lifted for all purposes, and defendant shall file its disposi-tive .motion by November 30, 2006.” Id.
On November 16, 2006, defendant filed Defendant’s Motion for Judgment on the Pleadings[] Dismissing the Claims of Park Terrace Limited and Mullica West Limited, arguing that both Park Terrace’s and Mulli-ca’s claims accrued upon their requests to prepay their loans in 1992 and 1991, respectively, beyond the six-year statute of limita
The court issued its order and opinion on defendant’s dispositive motion on May 18, 2007. Tamerlane,
On June 5, 2007, defendant filed its supplemental brief in support of dismissal for failure to state a claim upon which relief can be granted. Defendant submitted that the court had “analyzed, but did not expressly decide, whether the claims of plaintiffs [Park Terrace] and [Mullica] were barred by the statute of limitations.” Def.’s Br. filed June 5, 2007, at 1. Defendant disputed the existence of any viable claims that could be maintained beyond the accrual of the breaches, which the court determined to have occurred in 1993 and 1991. Regarding all four plaintiffs’ Count II takings claims, defendant urged that, because plaintiffs’ rights to prepay arise solely out of their contracts with the Government, their complaint fails to state takings claims upon which relief can be granted.
On June 6, 2007, Park Terrace and Mullica filed a motion to strike a portion of defen
Park Terrace and Mullica, on June 15, 2007, submitted their supplemental brief responding to defendant’s putatively improper re-argument and requesting that the court “reexamine its position concerning that portion of the Order to the extent it decided the issue unfavorably to Responding Plaintiffs.” Pis.’ Br. filed June 15, 2007, at 1 & n. 2. Park Terrace and Mullica reiterated a plea for discovery if the court were inclined to consider matters beyond the pleadings in making its ruling. Park Terrace and Mullica advanced that discovery could vindicate their position on the jurisdictional bar to their primary-period claims by confirming that the prepayment requests merely were formalistic. The brief also argued that takings claims could be maintained concurrently with plaintiffs’ contract claims.
The court requested on June 15, 2007, a response from defendant regarding Park Terrace and Mullica’s request for discovery in aid of opposing summary judgment. See Order entered June 15, 2007. On June 20, 2007, defendant opposed any discovery, chiding responding plaintiffs for delaying until their supplemental brief any request for discovery on the jurisdictional issue. On June 25, 2007, the court ordered limited discovery, to be completed by August 20, 2007.
On August 15, 2007, the parties filed a Joint Status Report. Park Terrace and Mul-lica contended that documents produced in discovery supported their arguments—rejected by the May 18, 2007 opinion—that the statute of limitations did not begin to run on their primary-period claims until the lawsuit was filed. Responding plaintiffs requested that the court set a further briefing schedule on the jurisdictional issue. On October 23, 2007, after a status conference covering all parties, an order entered setting a supplemental briefing schedule on both the jurisdictional issue and the motion to dismiss Count II, as well as a date for argument.
On November 15, 2007, in accordance with the briefing schedule set in the October 24, 2007 order, Park Terrace and Mullica filed them supplemental jurisdictional brief responding to defendant’s first dispositive motion on the statute of limitations issue, addressed in the May 18, 2007 opinion; this brief also responded on behalf of all four plaintiffs to defendant’s motion to dismiss plaintiffs’ Count II takings claims. On December 6, 2007, defendant filed its supplemental responsive brief, addressing all of Park Terrace and Mullica’s arguments regarding accrual of their primary-period claims, alternative claims as to the extended period, and the takings claims of all four plaintiffs. The argument held on December 14, 2007, was open to all issues that counsel wanted to discuss.
The parties have availed themselves of the opportunity to re-address arguments that the court ruled on in the May 18, 2007 opinion. See Tamerlane,
I. Standard of review
1. Motion for judgment on pleadings
Defendant’s November 16, 2006 dispositive motion seeks judgment on the pleadings in its favor pursuant to RCFC 12(c). RCFC 12(c) provides: “After the pleadings are closed, but within such time as not to delay the trial, any party may move for judgment on the pleadings.” Matters outside the pleadings are presented by defendant. Thus, because “matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in RCFC 56, and all parties shall be given reasonable opportunity to present all material made pertinent.” RCFC 12(c); see also Colvin Cattle Co. v. United States,
Under Rule 56(c) “[sjummary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.” Brubaker Amusement Co.,
If the nonmoving party produces sufficient evidence to raise a question as to the outcome of the case, the motion for summary judgment should be denied. “The moving party in a summary judgment motion has the burden to show ‘that there is an absence of evidence to support the non-moving party’s case[.]’ ” Crown Operations Int’l v. Solutia Inc.,
2. Motion to dismiss for failure to state a claim
Defendant seeks dismissal of all four plaintiffs’ Count II takings claims for failure to state a claim upon which relief can be granted. The court’s task is not to determine whether a plaintiff will ultimately prevail, but “ ‘whether the claimant is entitled to offer evidence to support the claims.’ ” Chapman Law Firm Co. v. Greenleaf Constr. Co.,
3. Statute of limitations as a jurisdictional requirement
Prior to the Supreme Court’s recent confirmation in John R. Sand & Gravel v. United States, — U.S. —,
II. Park Terrace and Mullica’s primary-period claims
The May 18, 2007 opinion determined that Park Terrace’s and Mullica’s claims for breach of contract pursuant to the anticipatory repudiation effected by ELIHPA were barred by the six-year statute of limitations. See Tamerlane,
Park Terrace and Mullica ignore the court’s caveat in its May 18, 2007 opinion: “That plaintiffs now claim that the letters were not intended as prepayment requests is immaterial.” Tamerlane,
Franconia construed the right that borrowers possessed as an “absolute prepayment right” guaranteed by the loan contracts. Franconia,
The Supreme Court judged the impact of ELIHPA “[as conveying] an announcement by the Government that it would not perform as represented in the promissory notes if and when, at some point in the future petitioners attempted to prepay their mortgages;” as such, the statute constituted a repudiation rather than an immediate breach. Implicit in, and necessary to, this conclusion is the corresponding understanding that the provisions of ELIHPA constitute a repudiation of borrowers’ unfettered and absolute rights to prepayment because the statute is a “ ‘statement [by the Government] of intention not to perform except on conditions which go beyond the contract.’” Id. at 143,
Given the Supreme Court’s carefully delineated assessment of ELIHPA’s effect, responding plaintiffs argue inconsistently that ELIHPA repudiated their contractual prepayment rights, while the Government’s implementation of the provisions of ELIHPA in 1993 and 1991 by offering Park Terrace and Mullica incentive loans is not a breach and accrual. As the Supreme Court explained,
*734 ELIHPA’s implementing regulations establish a process by which the FmHA addresses prepayment requests. Under those procedures, the FmHA first “develops] an incentive offer,” making a “reasonable effort ... to enter into an agreement with the borrower to maintain the housing for low-income use that takes into consideration the economic loss the borrower may suffer by foregoing [sic] prepayment.” 7 C.F.R. § 1965.210 (2002).
Because FmHA responded to Park Terrace’s and Mullica’s requests to prepay by acting upon ELIHPA’s mandate to offer incentives in the face of Park Terrace’s and Mullica’s absolute and unfettered rights to prepay, the Government dishonored its performance obligation to accept prepayment and thus committed a breach. As these actions were the dishonor that ELIHPA—as a repudiation—contemplated, Park Terrace’s and Mullica’s breach claims accrued at least by 1993 and 1991 when FmHA and responding plaintiffs entered into incentive-loan transactions. “In these circumstances the statute of limitations began to run on Mulli-ca’s claims as to the twenty-year restrictions period on or before June 18, 1991, when Mullica entered into an equity loan with FmHA. The statute of limitations began to run for Park Terrace as to the twenty-year restriction period on or before July 16, 1993, when Park Terrace entered into its equity loan with FmHA.” Tamerlane,
III. Park Terrace’s and Mullica’s alternative claims for the extended period
The May 18, 2007 opinion contemplated that Park Terrace and Mullica may maintain claims for “unvested” prepayment rights for the extended period following the incentive-loan use-restriction periods, despite the bar to their primary-period claims. Id. at 523. Challenging this characterization of the prepayment rights as contrary to the holding of Franconia, defendant was allowed to reopen this issue in supplemental briefing. The court addresses all the parties’ arguments.
Park Terrace and Mullica’s contention that claims may be asserted for the extended period disputes defendant’s characterization that the statute of limitations was triggered for all time. Park Terrace and Mullica thus assert: “[Assuming arguendo there was a meaningful demand and the claim accrued by virtue thereof, the bar of the statute should only extend to the end of the restriction period because demand for prepayment was putatively ‘refused’ only to the extent that the owner accepted a restriction on the use of the property as part of the equity loan transaction.” Pis.’ Br. filed June 15, 2007, at 7. Park Terrace and Mullica’s argument distills to an assertion that, if a breach accrued at all, it was only a breach for the twenty-year use-restriction period agreed to as part of the incentive-loan transactions, and thus the statute of limitations should only apply to bar their claims for that twenty-year use-restriction period, and not beyond. Responding plaintiffs’ argument relies on the proposition that “it is the imposition of the restriction which acts as the denial.” Id. at 8.
Defendant disagrees with responding plaintiffs’ characterization of the “nonperformance” that triggered accrual of plaintiffs’ claims:
[I]t was the refusal to allow prepayment at the time of the requests to prepay—not the imposition of the 20-year restrictive use provisions of the equity loans—that constituted the denial [of] plaintiffs’ prepayment requests and the non-perform-*736 anee upon which the plaintiffs’ claim of liability is based____ The Government’s refusal to accept prepayment and the parties’ transaction of the equity loans were separate events.
Def.’s Br. filed Dec. 6, 2007, at 10-11. Defendant also highlights Franconia’s holding that “the statute of limitations governing claims for breach of the right to prepay a Section 515 loan begins to run either at the time of an actual breach, such as a rejection of an actual attempt to prepay, or earlier, if the borrower elects to treat Congress’ alleged repudiation of this right as a present breach.” Def.’s Br. filed June 5, 2007, at 4. Thus, defendant asserts, “[t]he right of election does not extend past an actual breach.” Id. Defendant also argues that Park Terrace’s and Mullica’s claims do not qualify as “continuing claim[s] for accrual purposes,” id. (citing Ariadne,
Defendant’s characterization of the denial as constituting a refusal to perform the Government’s obligation is correct. The court holds that the Government committed a breach—and, consequently, that the claims accrued—when FmHA refused to accept prepayment in the face of the borrowers’ unfettered and absolute right to prepay. It is of no moment whether the refusal came by means of an outright denial accompanied by no offer of incentives or by an offer of incentives to induce an agreement to further restrict the use of the property. Because the right to prepay was absolute, any conditioning of the corresponding obligation to accept prepayment, unfettered, constituted a breach by the Government of its obligation and duty to perform. The imposition of the use-restriction period as part of the incentive-loan transaction did not constitute the Government’s denial and breach; rather, any compromise of the absolute right to prepay, such as the offer of incentives as an “in lieu of’ prepayment transaction, caused the breach to accrue.
If Park Terrace and Mullica are to argue successfully that claims survive beyond the breach accrual and subsequent running of the six-year statute of limitations, they must do so pursuant to the continuing claims doctrine. The Federal Circuit has allowed the “continuing claims doctrine ... to save later arising claims even if the statute of limitations has lapsed for earlier events.” Ariadne,
In Ariadne the Federal Circuit addressed the applicability of the continuing claims doctrine in the context of a case coming under the rule of United States v. Winstar Corp.,
Here, Ariadne seeks compensation for repudiation of a contract that promised continuing performance into the future. There was a single repudiation by which the government made clear its intent to reject the terms of the contracts. Each subsequent denial of the use of supervisory goodwill does not give rise to a separate cause of action. Rather, the government’s continued refusal to allow the use of supervisory goodwill flows from its original repudiation. Because Ariadne’s claim does not involve a series of distinct events, each giving rise to an independent cause of ac*737 tion, the continuing claims doctrine does not act to preserve its claim.
Ariadne,
Park Terrace and Mullica similarly are unable to invoke the continuing claims doctrine to postpone the accrual of their claims. While Park Terrace and Mullica seek compensation for a contractual right that promised performance into the future (the honor of their absolute right to prepay their loans at any time), a single repudiation made clear the Government’s intent to dishonor the terms of the contract. Any subsequent or continuing denial by the Government of responding plaintiffs’ rights to prepay their loans and exit the program pursuant to ELIHPA does not give rise to a new cause of action, but flows from the Government’s original repudiation and later breach occurring in 1993 and 1991. As these subsequent and/or continuing refusals are not distinct events, they cannot come within the continuing claims doctrine. The Government’s liability was fixed upon its failure to perform in the face of responding plaintiffs’ unfettered and absolute rights to prepay their loans. This accrual occurred no later than 1993 and 1991, more than six years prior to the filing of this suit. Park Terrace and Mullica therefore cannot assert claims for the extended period beyond which the breach claims accrued.
IV. Plaintiffs’ takings claims
Defendant seeks dismissal of the takings claims of all four plaintiffs pleaded in Count II of the complaint. Disputing plaintiffs’ characterization of the rights at issue as a taking of their housing projects, defendant argues that plaintiffs’ prepayment rights were “based strictly upon the terms of the promissory notes, and [are] thus [ ] contract right[s].” Def.’s Br. filed June 5, 2007, at 7. The Government’s refusal to accept prepayment and honor plaintiffs’ contract rights, according to defendant, constituted a breach, not a taking. Defendant cites the decisions of the Court of Federal Claims in the remand of Franconia,
Plaintiffs counter that “[a] claim under the takings clause may be available when alternative contract rights are not.” Pis.’ Br. filed June 15, 2007, at 10. Plaintiffs submit that the Government was not acting in its proprietary capacity in enacting ELIHPA, as Congress sought “to ensure an adequate supply of low income housing for the public benefit—the very essence of the exercise of sovereign powers of eminent domain for public use.” Id. Ultimately, plaintiffs submit that they may maintain
an alternative takings claim ... based, not on the refusal to allow prepayment, but on the transaction in which the Government sought to extinguish the rights of Responding Plaintiffs to vindicate their harm by bootstrapping on to the equity loan process a set of “application” documents which would later be relied on to foreclose the unborn breach of contract claims.
Id. at 11. Plaintiffs’ position distills to the following proposition: the Government effected a taking of plaintiffs’ choses in action by requiring, as part of the incentive-loan application process, the selfsame acts that would constitute an accrual of the breach claims now foreclosed by application of the statute of limitations.
The court evaluates whether a takings claim has been stated under a two-part test. First, the court must determine whether plaintiffs have established a property interest for purposes of the Fifth Amendment. Colvin Cattle Co.,
Plaintiffs undeniably possess a contract right that constitutes an established property interest. See Cienega Gardens v. United States,
The argument that Congress acted in a sovereign capacity in enacting ELIHPA, rather than in a proprietary capacity, has not been upheld. See, e.g., Franconia,
Regarding plaintiffs’ novel assertion of an “alternative takings claim,” defendant correctly notes that, even if such claim could be based on these facts, it would be barred as beyond the six-year statute of limitations. The accrual of any such claims would have occurred at the time of the equity loan transactions in 1993 and 1991. Moreover, the bilateral nature of the equity loan transactions undercuts plaintiffs’ position. It is not the Government’s action that “foreclose[d] the unborn breach of contract claims.” Pis.’ Br. filed June 15, 2007, at 11. The breach of contract claims were born of plaintiffs’ actions in seeking to prepay and the Government’s corresponding failure to honor its performance obligation to accept prepayment in the face of plaintiffs’ unfettered and absolute prepayment rights. It was plaintiffs’ inaction in failing to sue on their claims for breach of contract any time within six years after these events took place that extinguished plaintiffs’ breach of contract claims. No taking lies upon these facts.
CONCLUSION
Accordingly, based on the foregoing, IT IS ORDERED, as follows:
1. Defendant’s Motion for Judgment on the Pleadings[] Dismissing the Claims of Park Terrace Limited and Mullica West Limited is granted based on this opinion and the May 18, 2007 opinion insofar as it is relied upon herein. Pursuant to RCFC 54(b), there being no just reason for delay, the Clerk of the Court shall enter judgment dismissing the complaint as to plaintiffs Park Terrace Limited and Mullica West Limited without prejudice for lack of subject matter jurisdiction.
3. The Motion of Plaintiffs, Park Terrace Limited and Mullica West Limited, To Strike, in Part, Defendant’s Supplemental Brief in Support of Dismissal for Violation of Order Dated May 18,2007, is denied.
Notes
. Accordingly, Park Terrace Limited and Mullica West Limited’s June 6, 2007 motion to strike, in part, defendant’s supplemental brief for improper re-argument of issues decided by the May 18, 2007 opinion is denied.
. In addition to the facts found in Tamerlane,
. A detailed recitation of the enactment and legislative history of these statutes can be found in Franconia,
. [B]y requiring the plaintiffs to house low-income tenants and to accept new low-income tenants, the Government has (i) conscripted plaintiffs’ properties for public use; (ii) physically invaded or authorized others to physically invade plaintiffs’ properties; and (iii) deprived plaintiffs of their distinct investment-backed expectations with regard to their properties, all without providing any just compensation.
Compl. filed June 22, 2005, 1140.
. In a footnote, defendant observed:
In our Motion to Lift Stay for Purpose of Allowing Filing and Adjudication of Dispositive Motion, we stated that we would also seek dismissal of Count Two of the complaint (alleging a taking of property without just compensation) as to all plaintiffs, for failure to state a claim upon which relief can be granted. In its November 15, 2006 Order, the Court lifted the stay for all purposes, but also stated that the Court "deem[ed] that the jurisdictional issues only should be addressed.” For this reason, the present motion is limited to the statute of limitations issue, which is jurisdictional. We reserve the right to file a separate dispositive motion concerning the merits of Count Two, and any other non-jurisdictional issues, at a later time.
Def.'s Br. filed Nov. 16, 2006, at 1 n. 1.
. As to Tamerlane and Park Terrace East, the plaintiffs not affected by defendant's jurisdictional dispositive motion, the court ordered defendant (after agreement by counsel at the status conference) to make available the methodology employed in the omnibus settlement. Tamerlane and Park Terrace East were ordered to notify the court by November 30, 2007, whether the cases would proceed to settlement or, alternatively. whether Tamerlane and Park Terrace East would file a motion for partial summary judgment on liability. The order also set a briefing schedule in the event that plaintiffs filed a motion for partial summary judgment. Cross-motions for summary judgment on the issue of liability pertaining to plaintiffs Tamerlane and Park Terrace East currently are pending and will be resolved by a separate opinion.
. Defendant succinctly stated the relevance of the incentive-loan transactions on responding plaintiffs’ claims in one of its post-May 18, 2007 briefs:
This is not to say that the equity loans are entirely irrelevant. The significance of the equity loans is this: The Government's offer of equity loans was an acknowledgment of receipt of plaintiffs’ prepayment requests and an indication that the Government was not allowing plaintiffs to prepay. Plaintiffs’ acceptance of equity loans was an indication that their prepayment requests were neither withdrawn pri- or to denial nor intended as mere tentative inquiries. The restrictive use provisions of the equity loans preclude plaintiffs from arguing that they were still awaiting acceptance of their prepayment requests after receiving the equity loans, since prepayment would only terminate the restrictions under their Section 515 loans, not the independent restrictions under their equity loans. Nothing about the equity loans, however, made the denial of plaintiffs’ prepayment requests any more limited than if there had been no equity loans at all.
Def.’s Br. filed Dec. 6, 2007, at 11 n. 3.
. The Conley standard, abrogated by Bell Atlantic, stated “that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley,
. While not argued in any of Park Terrace or Mullica’s post-May 18, 2007 supplemental briefs, nor their earlier briefs in response to defendant’s dispositive motion, responding plaintiffs, at the December 14, 2007 oral argument, implored the court to address whether the Government’s response to Park Terrace’s prepayment application constituted a "final denial." See Transcript of Proceedings, Tamerlane, Ltd. v. United States, No. 05-677C, at 22-23 (Fed.Cl. Dec. 14, 2007). The May 18, 2007 opinion discussed in detail the Government’s denial of Mullica’s prepayment application in addressing responding plaintiffs' assertion that no final and unequivocal denial occurred as to Mullica. See Tamerlane,