Here’s the cert petition asking the Supreme Court to review the Federal Circuit’s decision in CCA Associates v. United States, a case we’ve been following since it was being argued in the Court of Federal Claims. The CFC found a taking, but the Federal Circuit reversed, and then denied en banc review.
Here are the Questions Presented:
Pursuant to a regulatory agreement with the Department of Housing and Urban Development (“HUD”), Petitioner agreed to maintain and operate an apartment complex as low-income housing for as long as a government-insured, 40-year mortgage on the property remained outstanding. The transaction documents entered into among Petitioner, HUD, and the lender provided Petitioner with the express right to prepay this government-insured mortgage after 20 years and thereby regain complete control of the property. In response to concerns that owners would prepay their government-insured mortgages and cease providing low-income housing, Congress outlawed prepayment. Against that background, the questions presented are:
1. Whether the Emergency Low Income Housing Preservation Act of 1987 and the Low-Income Housing Preservation and Resident Homeownership Act of 1990 effected a taking of Petitioner’s property without just compensation in violation of the Fifth Amendment of the Constitution because the legislation required Petitioner to house qualifying tenants for a period of years and otherwise unfairly compelled Petitioner, rather than the public as a whole, to bear the societal cost of low-income housing.
2. Whether the government breached its contractual obligations to Petitioner when it outlawed prepayment because the prepayment right formed part of the overall agreement among Petitioner, HUD, and the lender.
The petition argues that the Federal Circuit’s decision conflicts with Loretto and Kaiser Aetna, the two cases establishing that a regulation requiring a property owner to open his land to a physical occupation by third parties is a taking. The Supreme Court certainly casts a jaded eye on regulations that do so, but has also found ways around that reasoning when the property owner has voluntarily opened his property for commercial use. We’ll see if that rationale holds here.
Here’s the Court’s docket report.
Petition for a Writ of Certiorari, CCA Associates v. United States, No. 11-1352 (filed May 8, 2012)