1,450 · 30% Manehpwis de Koura, I want to start my presentation today, with just a brief review of the statue, at least I'd like to get to get the acronyms straight. The statue that Wootz-Upenauza has ellipop is the emergency low-income housing preservation act of 1987. That's the two-year more torturing, contemporary emergency more torturing. We've had a lot of these cases. I'm betting that we all know the acronyms from Wootz-Upenau. Can I jump right to the heart of something that's concerning me? Do you mind if I do it? I'd like to jump right to the heart of something. I understand that I understood your briefs as saying our decision in Siena-ga-Aunt that says the sovereign acts doctrine is not applied with these exact statues or to control here. Yes, that was made in the context of taking. But I didn't understand and did you understand from the government any justification for why Siena-ga-Aunt ought not to apply in this context? That's our whole argument. That's what I thought. I mean, I just wanted to make sure that we're missing out on something. Now we've been sure out through certain five minutes for a rebuttal. That's our entire argument in one sense. Okay, well let me ask you one other thing. Because this is something that really concerns me
. If I do agree with you on the breach of contract claim and say Siena-ga-Aunt doesn't insulate the government's acts, you know, that's clear. No sovereign acts apply here. No insulation. So if I agree with you, then you would receive recovery under breach of contract. But you would no longer get recovery under takings because you can't double dip. You can't get it twice, right? We don't expect it to go away. Okay, I just want to make sure that so you are agreeing if we were to find in favor of you on the breach of contract, then you agree that we should not similarly breach out and do takings. Well, yes, I agree we should not double dip. Yes. Now, but at the point of outcome, Siena-ga-Aunt, which is a most unusual case, it is really a comprehensive analysis of not only the takings by and there, but a large group of the takings by and the interesting part is in so far as quantum is concerned, is that the court in Siena-ga-Aunt took the findings and the conclusions on quantum from Siena-ga-3, which was a decision on a breach of contract, was not a takings decision, but might say a quantum decision on a breach. In the court said, well, that's adequate for us to use in determining the just compensation of the takings. Let me put it this way. I guess I'm, if I can put the analogy properly, it is my old high school geometry, which is things equal to the same things are equal to each other. So maybe you're saying we don't need to remand because we already know what damages are and the takings context and it'll apply the same
. Yes, you're all right. In fact, let's say the basic methodology for determining quantum is to put the victim back into the same position that he wouldn't have been in if there had been no event. I say no event, no contract breach or no taking, either one. And that's the same. The difference and the damage under the contract breach, is again the same. It is as the corn and cn28 said, the court calls it loss promise. Actually, I guess you call it foregone lost rental income. It is the difference between the rental income that we actually got. By being held for six years, six additional years under the HUD regime that controlled rents versus the rentals that couldn't have gotten had we could have been permitted to exit the program and turn the contract into a market permit. No matter which we wouldn't have gotten, the market would have been a recognition of the additional expense to might have been incurred to put the property and shape it to get the higher rate. Yes, you're right. But that, I've taken, to be spread over the remaining life of the property not just over the six or eight-year period. Yes. I would think so, Your Honor, and that would give you much less than what under the quantum part of the taking part of the trial for its decision would be much lower
. So that's the one thing I was wondering, if you're not giving something up when you told me that the damages under taking is the damages under a brief ought to equate, under reach ought to equate, because it seems to me you might be able to recover more under the breach of contract than you would have under taking. So don't you still want us to remain this to have them realize it? I assume you're honor that in all probability we should be remained. I would like, however, the court to reuse some of the basic documents, one of which is the question of time in this case. And we respect the takings versus the breach. We are now in our, let's say, we filed within 96, C. Edgar filed in 95. Who was about interest? I'm not talking about interest. I'm talking about how do you determine the present value of it? And we think that we should get the present value of the damage, even though you could figure it on past numbers. Trial judge on the other hand said, no, this goes from 91 to 97. We wanted present value to determine that so 97. He said no, we put it all back to 91. He didn't address this with the growing breach, because he found no breach, because he didn't have the benefit of our CNH at the decision at the time we did decision. So I'm wondering if you're being this and let him have a first shot to determine these factual matters about what the date's ought to be. I don't think you know why we're going to come out on it, and you don't like it, but he hasn't really ruled on those yet
. Probably. Probably, you're on it. At least he's rolled on it, or he's given that sentiment with respect to the takings. I think also, well, I think I should say the rest will rebutt. Because I think it's rather, we had contract. There is no privity case here to government concedes privity. Our contract was breached, whereas in those other situations where they were not, other cases, there's a takings. Now, one more thing I would like to point out is, of course, an interesting fact. I keep asking myself the same question. Must we prove that we are more than just one project and one point of making a breached plan? First, I don't think that we have to, but it's obvious the statute, which intended to cover both breaches and taking the two elements, the insured mortgage versus the mortgage health. I cited it in our reply, on page six in the footnote, a study done by HUD. The study done by HUD is that if I might state not a casual thing at all, it was a part of it. Large effort done by most of the agencies of government on housing, stunned in 1973, 1974 timeframe, and HUD's conclusion was, which respect to 21D3's program, that within the front of 10 years, 30% of the projects could fail, which means that maybe 30% of these would go to for closure, maybe they would suffer the same kinds of problems we do. Of course, that's the first 10 years, times that congressional action took place just before this 20 years, how much for 20 years? The insured scrap weight in 30% that gets an awful lot of problems
. I don't know how many projects they're all of these cases of life. I don't much care. Thank you, Mr. Cranger. Mr. Insert. And here, honor, may it please the Court, the Court should conclude that the trial for properly rejected the plaintiff's contract and taking's court. What I'd like to do here, honor, is go directly into sand and gardens, it does not address or resolve the sovereign act question and for two reasons. The first is, by the terms of CNGA, it does not resolve anything beyond the four corners of that decision. Becoming into that decision, that would reach a contract for it. The government made it as the court. Council, in your brief, you're telling me that CNGA Gardens is irrelevant to our decision making. You're relevant. I mean, come on, you know what, standard relevance is, right? Absolutely
. You want to stand by it? Is there relevant for our decision making? They've been looking at these exact statutes and make specific and concrete findings about the statutes. You're on it to be said that it is relevant and it all benefits the government's position. But if you can, I'll be happy to explain you, honor. The sovereign act doctrine asks the question whether a statute was targeted at a specific contracting partner or whether it's more general statute. And again, I don't understand anything about that. What standard of gardens is, is it's a case by people who are affected by that statute who did not have a contract with the government. They are living proof that the statute, the plaintiffs complaint about, was not targeted at them. The people that it didn't address the breach of contract because those people weren't in favor of the government. But what it really addressed was the sovereign acts defense, which applies equally, actually, no cases that suggest the sovereign acts defense ought to apply differently in a breach of contract case than it ought to apply in a takings case. You're on it. The sovereign acts defense is one that says that a statute, the sovereign acts defense is a defense for a breach of contract law. And it's under the sovereign act defense. Basically, what happens is the government says, the court says the government's contractor is different than the government as legislator and sovereign. And so we will not hold the government's contractor responsible for the actions of the government as legislator
. The defense against that, because of that, the government is able to assert impossibility. What about the other guy who is fighting press women? It certainly supports rights and values for what's written in this thing. What the court said, because of the government's limited argument, there are a number of caveats in CNNA. For heated, the court said, and I just like to read one of them. It says regarding future cases, to the extent that the government can demonstrate affirmative errors through the reference to additional evidence and clause in arguments in future cases, in which claims make the same arguments, this opinion should not be understood to bar future courts from also considering that evidence in those arguments. And that's just one of the caveats. And that can be found at least put in a 31. But if there's caveats like that, throughout the opinion. What is the point of the phrase, whether as holding victim or just general observations, what if anything that the court and CNN God say about the nature of this strategy? What's the state of law or is not a strategy for general applications? It didn't address the sovereign acts of defense. So it did not make that specific conclusion. But what you can read it in is, because it's being applied to plaintiffs who are not contractual privity, it then basically says it is a contractual, it is a statute that affects people whether or not they have are in privity of contract with the government. Thus, under the Yankee Atomic position, which said, let's look at who's affected by the statute. Let's see, are they the same people that are in privity of contract with the government? Council, just once again, put it up 30 when you read to me. Just occurred to me, that's entirely in the discussion of the pen central factors that the government limited itself and said that in the context of these pen central factors, we're not meaning to say everything that you say here ought to apply in our area or case, and we leave you in the door open
. That wasn't in the context of the discussion of the sovereign acts defense at all. Was it that put it up? You're out of the thrust of CNN 8 was, it was not a contract. So it was not, it was not a sovereign acts defense discussion. The whole fact that what the plaintiffs cite CNN 8.4 is that, I mean, ultimately what the court held was that there was a taking based on the pen central factors. So in saying that, it is saying basically everything of import and value in the decision is subject to the government raising the argument. Mr. Vincent, can I just look at Fraser 2 from CNN 8? Yes, your honor. As you point out, the question is often targeting, whether he expressed the targeted, under sovereign acts, under sovereign acts, doctor. And here's what CNN 8 says, in act number two statutes. If I could set the packet, the page I'd follow along. I'm a 13, 34, 35. Thank you, Your Honor. In act number two statutes, directly and intentionally aggravated the contracts
. The effect on the contracts is therefore not merely a consequential, where Congress's action has the effect of keeping the contract of what goes on, but that directly and intentionally targeting language isn't that exactly what you're saying we should not. Your honor, if the government had been found to be in contract with Purdue with CNN, then absolutely. But the fact that we weren't, what this demonstrates is this. What Congress and the Supreme Court and the WinStar in plurality and what Yankee Tomic says is, we want to know, is the government trying to aggravate its own contracts, not any contracts, its own contracts. If it's effective, people outside of its own contracting partners, in substantially or significantly, then we know that it's not going after its own contracts. And that's the point. CNN 8 stands to the point if anything that the government wasn't going after its own contracts, because it wasn't imprivity with these people. Now maybe you could say, okay, well, we can talk about what we were just taking. But this doesn't, this is undermined, it's the point that sovereign act isn't available for contract effects. And it under Yankee Tomic, what he had was a fair and clear examination of whether whether it was focused on the contracting partners or not. And that is something that Senator Gartens can't address because he didn't consider that, because there was no privy. And this court is seeing four different plaintiffs regarding the 221-236 programs. The Green Bride case, the Enigre Garden was a chance for men at a Hancock. Over 350 plaintiffs
. In those cases, this is the only one with a certain privy of contract. That means based on just the cases this court is seeing, we know almost explicitly, the people being affected were not contracting partners. That means under the sovereign act stock, we, the Congress, was not targeting its contracting partners. That's the question that the Supreme Court acts in Winstorm. This is what the plurality says. Where substantial partners. This is an extraction obvious in a broad Greek, yes sir. Designed to deal with a nationwide problem, this is a real inquiry. House explicitly, there's a government have to be attempting in that statute to reach its own contracts to make the sovereign act in alphabetical. But if anyone looked at the passage from CNLA, they could, so it's greater that it seems to suggest that the court was saying it's sufficiently specific in this situation that the sovereign act stock would dozen at all. This is not pretty much what, no, no, no, you're on it because the court was saying intentionally, that we gave you the contracts? The contracts of people, even if that's true, which we obviously, we disagree, but even if that's true of the, the finished descendant charter, contracts of people, it was not imprimidly. That, the only reason the government's imprimidly with plaintiffs is because they're, they're loaned, was defaulted on the insurance was paid and they came back to the government. That was a consequence. It was an intentional contracting partner. And so the language that you read as, however harsh it is, it doesn't go to the sovereign act stock, this is what the Supreme Court said. Where substantial part of the impact of the government's action, rain-reinperformance impossible, falls on its own contractual obligations, this fence will be unavailable. That's not the case here. It's a court of voting people's conditions. That's the WinStar case at 898. That's not the case here. This is the reverse where it's substantially falls on people that we can talk about at taking. But it's not falling on the substantially on the people who were contractual privates. In fact, that's the whole question. The court also said this. The generality required, because they're looking for public and general contract statues. The generality required, almost always be met, where, as in the end, the contractual action, there's upon the government's contract, as if there's upon all similar contracts between citizens. That's this case. If there's on plaintiff's contract, as if there's on all these other plaintiffs, however you may think that they were wrong, if you talk about that under the case, we're not wrong as contracting partners of the government
. And so the language that you read as, however harsh it is, it doesn't go to the sovereign act stock, this is what the Supreme Court said. Where substantial part of the impact of the government's action, rain-reinperformance impossible, falls on its own contractual obligations, this fence will be unavailable. That's not the case here. It's a court of voting people's conditions. That's the WinStar case at 898. That's not the case here. This is the reverse where it's substantially falls on people that we can talk about at taking. But it's not falling on the substantially on the people who were contractual privates. In fact, that's the whole question. The court also said this. The generality required, because they're looking for public and general contract statues. The generality required, almost always be met, where, as in the end, the contractual action, there's upon the government's contract, as if there's upon all similar contracts between citizens. That's this case. If there's on plaintiff's contract, as if there's on all these other plaintiffs, however you may think that they were wrong, if you talk about that under the case, we're not wrong as contracting partners of the government. So if the trial court did this analysis, it looked both at the nature of the contract, the statue itself, and at who is affected. And it explains, you know, doesn't your position basically involve, rather, tricky to allow, which is to whatever extent, you prevail in your claim that this is a stack of broad, general application that will also suggest that the policies of the taking rule would be served by making the population as a whole paying for. Well, you're on, that would take us to our taking to the taking's analysis. And what the trial court found was that the plaintiff simply didn't establish the necessary element of economic impact. And this court has repeatedly said, economic impact, other three problems, is the most important. But the trial court did. What you found out was how much there's some, because you know, of course, there's some economic impact in the zone of the application of the stack. Absolutely. Our own expert found around 8%, and I think that court adjusted that up to 10%. And of course, there's how much of an economic impact must have been in a temporal or a tangent's case. We have never seen a case in our own. I've never found one of them in my work on these cases, where an economic impact, about 50% was sufficient to find a taking of the pen central factors. And what this court has said in merit trends was that you need serious financial loss. This court has rejected in the past taking claims of even 75 to 92%
. So if the trial court did this analysis, it looked both at the nature of the contract, the statue itself, and at who is affected. And it explains, you know, doesn't your position basically involve, rather, tricky to allow, which is to whatever extent, you prevail in your claim that this is a stack of broad, general application that will also suggest that the policies of the taking rule would be served by making the population as a whole paying for. Well, you're on, that would take us to our taking to the taking's analysis. And what the trial court found was that the plaintiff simply didn't establish the necessary element of economic impact. And this court has repeatedly said, economic impact, other three problems, is the most important. But the trial court did. What you found out was how much there's some, because you know, of course, there's some economic impact in the zone of the application of the stack. Absolutely. Our own expert found around 8%, and I think that court adjusted that up to 10%. And of course, there's how much of an economic impact must have been in a temporal or a tangent's case. We have never seen a case in our own. I've never found one of them in my work on these cases, where an economic impact, about 50% was sufficient to find a taking of the pen central factors. And what this court has said in merit trends was that you need serious financial loss. This court has rejected in the past taking claims of even 75 to 92%. I've not enough economic impact. You can see a pile of fuels for that. Well, what you would usually say is that even a temporary taking case, there has to be a very substantial economic loss. In the first English case, the Supreme Court said we don't look at differently temporary and permanent taking. If the court was to establish a different look at them differently to determine whether there's been a taking or what. Well, in that... I mean, they're not the same, obviously. But, John, if you were to establish a different test for economic impact for a temporary taking and for a permanent one, what you would do is this. You'd be saying, well, we're going to make it easier if it's a temporary taking than a permanent. And if you did that, you first of all, you created an incentive for the government not to end the taking even though it doesn't need it anymore. Because by ending it, it's getting itself up to an easier standard. While continuing it, it gets the more serious standard that's been established for many years
. I've not enough economic impact. You can see a pile of fuels for that. Well, what you would usually say is that even a temporary taking case, there has to be a very substantial economic loss. In the first English case, the Supreme Court said we don't look at differently temporary and permanent taking. If the court was to establish a different look at them differently to determine whether there's been a taking or what. Well, in that... I mean, they're not the same, obviously. But, John, if you were to establish a different test for economic impact for a temporary taking and for a permanent one, what you would do is this. You'd be saying, well, we're going to make it easier if it's a temporary taking than a permanent. And if you did that, you first of all, you created an incentive for the government not to end the taking even though it doesn't need it anymore. Because by ending it, it's getting itself up to an easier standard. While continuing it, it gets the more serious standard that's been established for many years. But also, you basically say that people who are subject to permanent taking look, if it had only been temporary, you got an easier standard. There's no reason in the law that a government should be subject to when something is temporary to be more likely to find a taking. So, you're not saying there's no reason in the law that you're subject to looking at it from the other point of view. There's no reason why the individual who's property is that the matter is property to benefit itself. Well, I believe that they should be paid if they can establish the case. What I'm saying, Your Honor, is that you shouldn't have a difference standard for temporary permanent. Because by setting up that duality, what you're saying is that for some reason, being effective for four years is somehow worse and subject to a lower standard than being effective forever. And that just logically economically, that doesn't... Well, no, no. The funerals difference between the all and being having all of this property at this technical age, or merely having the value of the property and just diminishing during a certain period when the temporary taking is effect. But again, I don't think this would be necessary. One thing that seems to me, if I say effective today, I'm taking your automobile, and you can't use it anymore, it would be another thing that seems to me
. But also, you basically say that people who are subject to permanent taking look, if it had only been temporary, you got an easier standard. There's no reason in the law that a government should be subject to when something is temporary to be more likely to find a taking. So, you're not saying there's no reason in the law that you're subject to looking at it from the other point of view. There's no reason why the individual who's property is that the matter is property to benefit itself. Well, I believe that they should be paid if they can establish the case. What I'm saying, Your Honor, is that you shouldn't have a difference standard for temporary permanent. Because by setting up that duality, what you're saying is that for some reason, being effective for four years is somehow worse and subject to a lower standard than being effective forever. And that just logically economically, that doesn't... Well, no, no. The funerals difference between the all and being having all of this property at this technical age, or merely having the value of the property and just diminishing during a certain period when the temporary taking is effect. But again, I don't think this would be necessary. One thing that seems to me, if I say effective today, I'm taking your automobile, and you can't use it anymore, it would be another thing that seems to me. If I said effective today, I'm taking your automobile for a year, and you can't use it for a year, but after a year, you know what it is that you have with. And if the company does not fight the same thing, then the impact on you is quite different. Well, but Your Honor, they are the same thing in the sense that the government, but first of all, Your Honor, the Jewish scribes is a physical take. And what we have here is an alleged regulatory. So what we're talking about is the government say, we're going to regulate your permanent inversions, we're going to regulate you for a year. The whole idea is we need a consistent test to say, look, is that regulation does it amount to a taking? And so by kind of putting your finger on the scale for the temporary taking, you say, well, the temporary taking is done, but largely there's no reason. If the regulation is only lasted for a year, then it's listed. Why was that worse than if the regulations continued on indefinitely? There's no real reason to think of this. I'm not sure about that. I just want to ask you one quick question, which is, what should we do with damages in this case? If I disagree with you on the breach of contract? So what should we do? Should you remain in this and let the district court or law court, should say, redo this whole damages calculation? No, Your Honor, the plaintiffs, as part of their taking claim, alleged lost profits is one measure of economic impact. That was what they described. They presented it to the court. They had an expert, the court reviewed it, addressed it, and found, I believe, $640,000 under that element. That would be the measure of damage under a breach of contract claim
. If I said effective today, I'm taking your automobile for a year, and you can't use it for a year, but after a year, you know what it is that you have with. And if the company does not fight the same thing, then the impact on you is quite different. Well, but Your Honor, they are the same thing in the sense that the government, but first of all, Your Honor, the Jewish scribes is a physical take. And what we have here is an alleged regulatory. So what we're talking about is the government say, we're going to regulate your permanent inversions, we're going to regulate you for a year. The whole idea is we need a consistent test to say, look, is that regulation does it amount to a taking? And so by kind of putting your finger on the scale for the temporary taking, you say, well, the temporary taking is done, but largely there's no reason. If the regulation is only lasted for a year, then it's listed. Why was that worse than if the regulations continued on indefinitely? There's no real reason to think of this. I'm not sure about that. I just want to ask you one quick question, which is, what should we do with damages in this case? If I disagree with you on the breach of contract? So what should we do? Should you remain in this and let the district court or law court, should say, redo this whole damages calculation? No, Your Honor, the plaintiffs, as part of their taking claim, alleged lost profits is one measure of economic impact. That was what they described. They presented it to the court. They had an expert, the court reviewed it, addressed it, and found, I believe, $640,000 under that element. That would be the measure of damage under a breach of contract claim. They would not be entitled to obviously to interest, and that was the, you know, they have not properly or substantially challenged that number. They made some challenges to it, but I don't believe that they stand. So if the court should find a chance to raise those other items, then that person that we would be the measure of damage. Thank you, Mr. Pinsch. Oh, but, Your Honor, may I ask you one thing? We do have other breach of contract defenses that have not been raised, and I want to make sure we can be safe. So in that, for that, we would ask for a remand. We did not get a chance to raise certain defenses that arose after the Supreme Court's decision in Franconia. I don't know if the court's familiar with Franconia, but basically it established the framework for thinking about when the statute of connotation was. That case came out after the trial court's decision here. And based on that case, we have a defensive no-reacher contract that we would ask for a remand on that. So the short answer I guess your honor is, we wouldn't ask for a remand on that, but on that issue. Mr. Cramer? We have almost five minutes
. They would not be entitled to obviously to interest, and that was the, you know, they have not properly or substantially challenged that number. They made some challenges to it, but I don't believe that they stand. So if the court should find a chance to raise those other items, then that person that we would be the measure of damage. Thank you, Mr. Pinsch. Oh, but, Your Honor, may I ask you one thing? We do have other breach of contract defenses that have not been raised, and I want to make sure we can be safe. So in that, for that, we would ask for a remand. We did not get a chance to raise certain defenses that arose after the Supreme Court's decision in Franconia. I don't know if the court's familiar with Franconia, but basically it established the framework for thinking about when the statute of connotation was. That case came out after the trial court's decision here. And based on that case, we have a defensive no-reacher contract that we would ask for a remand on that. So the short answer I guess your honor is, we wouldn't ask for a remand on that, but on that issue. Mr. Cramer? We have almost five minutes. Do we need to remand in light of Franconia as the government has suggested preventive defenses for breach of contract? I think that we would be amenable to that, Your Honor. Answering some of Mr. Pinsch's arguments, very briefly, it seems to me, he tries to slice the C-N-A-D case up too much into discrete parts and not take the whole thing. We have relied on both the methodologies and the court statement as to the way to arrive properly to arrive at the amount of compensation. I think the distinction that the defendant tries to raise with respect to the thrust and meaning of the statute is wholly improper. It's obvious that Congress a intended to cover both groups. It didn't say how many there were in each group. We have shown, for example, that the regulatory agreement covers both situations. The regulatory agreement also covers not only the time when the mortgage is insured, it covers the time when the commissioner is the holder of the move. How many foreclosions there are or how many cases there are before the court? I do not know the exact number. I hear now a recent case said there were almost 800 projects. That may very well be. I think that, in the gardener's, I think the problem with my case is that we are a single project. The other problem is I had a group of investors that were most tenacious
. Do we need to remand in light of Franconia as the government has suggested preventive defenses for breach of contract? I think that we would be amenable to that, Your Honor. Answering some of Mr. Pinsch's arguments, very briefly, it seems to me, he tries to slice the C-N-A-D case up too much into discrete parts and not take the whole thing. We have relied on both the methodologies and the court statement as to the way to arrive properly to arrive at the amount of compensation. I think the distinction that the defendant tries to raise with respect to the thrust and meaning of the statute is wholly improper. It's obvious that Congress a intended to cover both groups. It didn't say how many there were in each group. We have shown, for example, that the regulatory agreement covers both situations. The regulatory agreement also covers not only the time when the mortgage is insured, it covers the time when the commissioner is the holder of the move. How many foreclosions there are or how many cases there are before the court? I do not know the exact number. I hear now a recent case said there were almost 800 projects. That may very well be. I think that, in the gardener's, I think the problem with my case is that we are a single project. The other problem is I had a group of investors that were most tenacious. This context, as you can see from the facts, almost from the very beginning, the project ran into financial trouble. The rents didn't cover all the expenses and the mortgage. We got to additionally when the mortgage was transferred to Ginny Medi. Right away, on the day the mortgage began, we started to run into problems and we had work out agreements with Ginny Medi. Until in 1977 the mortgage fell into the fall. Ginny made the turn to mortgage over to HUD presumably for foreclosure. At the same time the partners decided to remove the management, bring in a new manager, make a new investment and invest it over $200,000 more. In 1977, $300,000. Then go on. HUD decided, yes, we'll hold the mortgage, we'll make the mortgage and continue on. We act. My clients continue and again they ran into problems even with new management. In 1985 it fell into default again. Again the partners said rather than let it go, they put in more money
. This context, as you can see from the facts, almost from the very beginning, the project ran into financial trouble. The rents didn't cover all the expenses and the mortgage. We got to additionally when the mortgage was transferred to Ginny Medi. Right away, on the day the mortgage began, we started to run into problems and we had work out agreements with Ginny Medi. Until in 1977 the mortgage fell into the fall. Ginny made the turn to mortgage over to HUD presumably for foreclosure. At the same time the partners decided to remove the management, bring in a new manager, make a new investment and invest it over $200,000 more. In 1977, $300,000. Then go on. HUD decided, yes, we'll hold the mortgage, we'll make the mortgage and continue on. We act. My clients continue and again they ran into problems even with new management. In 1985 it fell into default again. Again the partners said rather than let it go, they put in more money. The mortgage current is just about the time of the payoff when there are 20 years to come. I think it seems to me that the commerce has intended all of this program to be frozen. None of the projects were to be let go unless they could meet the specific criteria in the statute. I want to argue those because they've been conceived. Thank you.
1,450 · 30% Manehpwis de Koura, I want to start my presentation today, with just a brief review of the statue, at least I'd like to get to get the acronyms straight. The statue that Wootz-Upenauza has ellipop is the emergency low-income housing preservation act of 1987. That's the two-year more torturing, contemporary emergency more torturing. We've had a lot of these cases. I'm betting that we all know the acronyms from Wootz-Upenau. Can I jump right to the heart of something that's concerning me? Do you mind if I do it? I'd like to jump right to the heart of something. I understand that I understood your briefs as saying our decision in Siena-ga-Aunt that says the sovereign acts doctrine is not applied with these exact statues or to control here. Yes, that was made in the context of taking. But I didn't understand and did you understand from the government any justification for why Siena-ga-Aunt ought not to apply in this context? That's our whole argument. That's what I thought. I mean, I just wanted to make sure that we're missing out on something. Now we've been sure out through certain five minutes for a rebuttal. That's our entire argument in one sense. Okay, well let me ask you one other thing. Because this is something that really concerns me. If I do agree with you on the breach of contract claim and say Siena-ga-Aunt doesn't insulate the government's acts, you know, that's clear. No sovereign acts apply here. No insulation. So if I agree with you, then you would receive recovery under breach of contract. But you would no longer get recovery under takings because you can't double dip. You can't get it twice, right? We don't expect it to go away. Okay, I just want to make sure that so you are agreeing if we were to find in favor of you on the breach of contract, then you agree that we should not similarly breach out and do takings. Well, yes, I agree we should not double dip. Yes. Now, but at the point of outcome, Siena-ga-Aunt, which is a most unusual case, it is really a comprehensive analysis of not only the takings by and there, but a large group of the takings by and the interesting part is in so far as quantum is concerned, is that the court in Siena-ga-Aunt took the findings and the conclusions on quantum from Siena-ga-3, which was a decision on a breach of contract, was not a takings decision, but might say a quantum decision on a breach. In the court said, well, that's adequate for us to use in determining the just compensation of the takings. Let me put it this way. I guess I'm, if I can put the analogy properly, it is my old high school geometry, which is things equal to the same things are equal to each other. So maybe you're saying we don't need to remand because we already know what damages are and the takings context and it'll apply the same. Yes, you're all right. In fact, let's say the basic methodology for determining quantum is to put the victim back into the same position that he wouldn't have been in if there had been no event. I say no event, no contract breach or no taking, either one. And that's the same. The difference and the damage under the contract breach, is again the same. It is as the corn and cn28 said, the court calls it loss promise. Actually, I guess you call it foregone lost rental income. It is the difference between the rental income that we actually got. By being held for six years, six additional years under the HUD regime that controlled rents versus the rentals that couldn't have gotten had we could have been permitted to exit the program and turn the contract into a market permit. No matter which we wouldn't have gotten, the market would have been a recognition of the additional expense to might have been incurred to put the property and shape it to get the higher rate. Yes, you're right. But that, I've taken, to be spread over the remaining life of the property not just over the six or eight-year period. Yes. I would think so, Your Honor, and that would give you much less than what under the quantum part of the taking part of the trial for its decision would be much lower. So that's the one thing I was wondering, if you're not giving something up when you told me that the damages under taking is the damages under a brief ought to equate, under reach ought to equate, because it seems to me you might be able to recover more under the breach of contract than you would have under taking. So don't you still want us to remain this to have them realize it? I assume you're honor that in all probability we should be remained. I would like, however, the court to reuse some of the basic documents, one of which is the question of time in this case. And we respect the takings versus the breach. We are now in our, let's say, we filed within 96, C. Edgar filed in 95. Who was about interest? I'm not talking about interest. I'm talking about how do you determine the present value of it? And we think that we should get the present value of the damage, even though you could figure it on past numbers. Trial judge on the other hand said, no, this goes from 91 to 97. We wanted present value to determine that so 97. He said no, we put it all back to 91. He didn't address this with the growing breach, because he found no breach, because he didn't have the benefit of our CNH at the decision at the time we did decision. So I'm wondering if you're being this and let him have a first shot to determine these factual matters about what the date's ought to be. I don't think you know why we're going to come out on it, and you don't like it, but he hasn't really ruled on those yet. Probably. Probably, you're on it. At least he's rolled on it, or he's given that sentiment with respect to the takings. I think also, well, I think I should say the rest will rebutt. Because I think it's rather, we had contract. There is no privity case here to government concedes privity. Our contract was breached, whereas in those other situations where they were not, other cases, there's a takings. Now, one more thing I would like to point out is, of course, an interesting fact. I keep asking myself the same question. Must we prove that we are more than just one project and one point of making a breached plan? First, I don't think that we have to, but it's obvious the statute, which intended to cover both breaches and taking the two elements, the insured mortgage versus the mortgage health. I cited it in our reply, on page six in the footnote, a study done by HUD. The study done by HUD is that if I might state not a casual thing at all, it was a part of it. Large effort done by most of the agencies of government on housing, stunned in 1973, 1974 timeframe, and HUD's conclusion was, which respect to 21D3's program, that within the front of 10 years, 30% of the projects could fail, which means that maybe 30% of these would go to for closure, maybe they would suffer the same kinds of problems we do. Of course, that's the first 10 years, times that congressional action took place just before this 20 years, how much for 20 years? The insured scrap weight in 30% that gets an awful lot of problems. I don't know how many projects they're all of these cases of life. I don't much care. Thank you, Mr. Cranger. Mr. Insert. And here, honor, may it please the Court, the Court should conclude that the trial for properly rejected the plaintiff's contract and taking's court. What I'd like to do here, honor, is go directly into sand and gardens, it does not address or resolve the sovereign act question and for two reasons. The first is, by the terms of CNGA, it does not resolve anything beyond the four corners of that decision. Becoming into that decision, that would reach a contract for it. The government made it as the court. Council, in your brief, you're telling me that CNGA Gardens is irrelevant to our decision making. You're relevant. I mean, come on, you know what, standard relevance is, right? Absolutely. You want to stand by it? Is there relevant for our decision making? They've been looking at these exact statutes and make specific and concrete findings about the statutes. You're on it to be said that it is relevant and it all benefits the government's position. But if you can, I'll be happy to explain you, honor. The sovereign act doctrine asks the question whether a statute was targeted at a specific contracting partner or whether it's more general statute. And again, I don't understand anything about that. What standard of gardens is, is it's a case by people who are affected by that statute who did not have a contract with the government. They are living proof that the statute, the plaintiffs complaint about, was not targeted at them. The people that it didn't address the breach of contract because those people weren't in favor of the government. But what it really addressed was the sovereign acts defense, which applies equally, actually, no cases that suggest the sovereign acts defense ought to apply differently in a breach of contract case than it ought to apply in a takings case. You're on it. The sovereign acts defense is one that says that a statute, the sovereign acts defense is a defense for a breach of contract law. And it's under the sovereign act defense. Basically, what happens is the government says, the court says the government's contractor is different than the government as legislator and sovereign. And so we will not hold the government's contractor responsible for the actions of the government as legislator. The defense against that, because of that, the government is able to assert impossibility. What about the other guy who is fighting press women? It certainly supports rights and values for what's written in this thing. What the court said, because of the government's limited argument, there are a number of caveats in CNNA. For heated, the court said, and I just like to read one of them. It says regarding future cases, to the extent that the government can demonstrate affirmative errors through the reference to additional evidence and clause in arguments in future cases, in which claims make the same arguments, this opinion should not be understood to bar future courts from also considering that evidence in those arguments. And that's just one of the caveats. And that can be found at least put in a 31. But if there's caveats like that, throughout the opinion. What is the point of the phrase, whether as holding victim or just general observations, what if anything that the court and CNN God say about the nature of this strategy? What's the state of law or is not a strategy for general applications? It didn't address the sovereign acts of defense. So it did not make that specific conclusion. But what you can read it in is, because it's being applied to plaintiffs who are not contractual privity, it then basically says it is a contractual, it is a statute that affects people whether or not they have are in privity of contract with the government. Thus, under the Yankee Atomic position, which said, let's look at who's affected by the statute. Let's see, are they the same people that are in privity of contract with the government? Council, just once again, put it up 30 when you read to me. Just occurred to me, that's entirely in the discussion of the pen central factors that the government limited itself and said that in the context of these pen central factors, we're not meaning to say everything that you say here ought to apply in our area or case, and we leave you in the door open. That wasn't in the context of the discussion of the sovereign acts defense at all. Was it that put it up? You're out of the thrust of CNN 8 was, it was not a contract. So it was not, it was not a sovereign acts defense discussion. The whole fact that what the plaintiffs cite CNN 8.4 is that, I mean, ultimately what the court held was that there was a taking based on the pen central factors. So in saying that, it is saying basically everything of import and value in the decision is subject to the government raising the argument. Mr. Vincent, can I just look at Fraser 2 from CNN 8? Yes, your honor. As you point out, the question is often targeting, whether he expressed the targeted, under sovereign acts, under sovereign acts, doctor. And here's what CNN 8 says, in act number two statutes. If I could set the packet, the page I'd follow along. I'm a 13, 34, 35. Thank you, Your Honor. In act number two statutes, directly and intentionally aggravated the contracts. The effect on the contracts is therefore not merely a consequential, where Congress's action has the effect of keeping the contract of what goes on, but that directly and intentionally targeting language isn't that exactly what you're saying we should not. Your honor, if the government had been found to be in contract with Purdue with CNN, then absolutely. But the fact that we weren't, what this demonstrates is this. What Congress and the Supreme Court and the WinStar in plurality and what Yankee Tomic says is, we want to know, is the government trying to aggravate its own contracts, not any contracts, its own contracts. If it's effective, people outside of its own contracting partners, in substantially or significantly, then we know that it's not going after its own contracts. And that's the point. CNN 8 stands to the point if anything that the government wasn't going after its own contracts, because it wasn't imprivity with these people. Now maybe you could say, okay, well, we can talk about what we were just taking. But this doesn't, this is undermined, it's the point that sovereign act isn't available for contract effects. And it under Yankee Tomic, what he had was a fair and clear examination of whether whether it was focused on the contracting partners or not. And that is something that Senator Gartens can't address because he didn't consider that, because there was no privy. And this court is seeing four different plaintiffs regarding the 221-236 programs. The Green Bride case, the Enigre Garden was a chance for men at a Hancock. Over 350 plaintiffs. In those cases, this is the only one with a certain privy of contract. That means based on just the cases this court is seeing, we know almost explicitly, the people being affected were not contracting partners. That means under the sovereign act stock, we, the Congress, was not targeting its contracting partners. That's the question that the Supreme Court acts in Winstorm. This is what the plurality says. Where substantial partners. This is an extraction obvious in a broad Greek, yes sir. Designed to deal with a nationwide problem, this is a real inquiry. House explicitly, there's a government have to be attempting in that statute to reach its own contracts to make the sovereign act in alphabetical. But if anyone looked at the passage from CNLA, they could, so it's greater that it seems to suggest that the court was saying it's sufficiently specific in this situation that the sovereign act stock would dozen at all. This is not pretty much what, no, no, no, you're on it because the court was saying intentionally, that we gave you the contracts? The contracts of people, even if that's true, which we obviously, we disagree, but even if that's true of the, the finished descendant charter, contracts of people, it was not imprimidly. That, the only reason the government's imprimidly with plaintiffs is because they're, they're loaned, was defaulted on the insurance was paid and they came back to the government. That was a consequence. It was an intentional contracting partner. And so the language that you read as, however harsh it is, it doesn't go to the sovereign act stock, this is what the Supreme Court said. Where substantial part of the impact of the government's action, rain-reinperformance impossible, falls on its own contractual obligations, this fence will be unavailable. That's not the case here. It's a court of voting people's conditions. That's the WinStar case at 898. That's not the case here. This is the reverse where it's substantially falls on people that we can talk about at taking. But it's not falling on the substantially on the people who were contractual privates. In fact, that's the whole question. The court also said this. The generality required, because they're looking for public and general contract statues. The generality required, almost always be met, where, as in the end, the contractual action, there's upon the government's contract, as if there's upon all similar contracts between citizens. That's this case. If there's on plaintiff's contract, as if there's on all these other plaintiffs, however you may think that they were wrong, if you talk about that under the case, we're not wrong as contracting partners of the government. So if the trial court did this analysis, it looked both at the nature of the contract, the statue itself, and at who is affected. And it explains, you know, doesn't your position basically involve, rather, tricky to allow, which is to whatever extent, you prevail in your claim that this is a stack of broad, general application that will also suggest that the policies of the taking rule would be served by making the population as a whole paying for. Well, you're on, that would take us to our taking to the taking's analysis. And what the trial court found was that the plaintiff simply didn't establish the necessary element of economic impact. And this court has repeatedly said, economic impact, other three problems, is the most important. But the trial court did. What you found out was how much there's some, because you know, of course, there's some economic impact in the zone of the application of the stack. Absolutely. Our own expert found around 8%, and I think that court adjusted that up to 10%. And of course, there's how much of an economic impact must have been in a temporal or a tangent's case. We have never seen a case in our own. I've never found one of them in my work on these cases, where an economic impact, about 50% was sufficient to find a taking of the pen central factors. And what this court has said in merit trends was that you need serious financial loss. This court has rejected in the past taking claims of even 75 to 92%. I've not enough economic impact. You can see a pile of fuels for that. Well, what you would usually say is that even a temporary taking case, there has to be a very substantial economic loss. In the first English case, the Supreme Court said we don't look at differently temporary and permanent taking. If the court was to establish a different look at them differently to determine whether there's been a taking or what. Well, in that... I mean, they're not the same, obviously. But, John, if you were to establish a different test for economic impact for a temporary taking and for a permanent one, what you would do is this. You'd be saying, well, we're going to make it easier if it's a temporary taking than a permanent. And if you did that, you first of all, you created an incentive for the government not to end the taking even though it doesn't need it anymore. Because by ending it, it's getting itself up to an easier standard. While continuing it, it gets the more serious standard that's been established for many years. But also, you basically say that people who are subject to permanent taking look, if it had only been temporary, you got an easier standard. There's no reason in the law that a government should be subject to when something is temporary to be more likely to find a taking. So, you're not saying there's no reason in the law that you're subject to looking at it from the other point of view. There's no reason why the individual who's property is that the matter is property to benefit itself. Well, I believe that they should be paid if they can establish the case. What I'm saying, Your Honor, is that you shouldn't have a difference standard for temporary permanent. Because by setting up that duality, what you're saying is that for some reason, being effective for four years is somehow worse and subject to a lower standard than being effective forever. And that just logically economically, that doesn't... Well, no, no. The funerals difference between the all and being having all of this property at this technical age, or merely having the value of the property and just diminishing during a certain period when the temporary taking is effect. But again, I don't think this would be necessary. One thing that seems to me, if I say effective today, I'm taking your automobile, and you can't use it anymore, it would be another thing that seems to me. If I said effective today, I'm taking your automobile for a year, and you can't use it for a year, but after a year, you know what it is that you have with. And if the company does not fight the same thing, then the impact on you is quite different. Well, but Your Honor, they are the same thing in the sense that the government, but first of all, Your Honor, the Jewish scribes is a physical take. And what we have here is an alleged regulatory. So what we're talking about is the government say, we're going to regulate your permanent inversions, we're going to regulate you for a year. The whole idea is we need a consistent test to say, look, is that regulation does it amount to a taking? And so by kind of putting your finger on the scale for the temporary taking, you say, well, the temporary taking is done, but largely there's no reason. If the regulation is only lasted for a year, then it's listed. Why was that worse than if the regulations continued on indefinitely? There's no real reason to think of this. I'm not sure about that. I just want to ask you one quick question, which is, what should we do with damages in this case? If I disagree with you on the breach of contract? So what should we do? Should you remain in this and let the district court or law court, should say, redo this whole damages calculation? No, Your Honor, the plaintiffs, as part of their taking claim, alleged lost profits is one measure of economic impact. That was what they described. They presented it to the court. They had an expert, the court reviewed it, addressed it, and found, I believe, $640,000 under that element. That would be the measure of damage under a breach of contract claim. They would not be entitled to obviously to interest, and that was the, you know, they have not properly or substantially challenged that number. They made some challenges to it, but I don't believe that they stand. So if the court should find a chance to raise those other items, then that person that we would be the measure of damage. Thank you, Mr. Pinsch. Oh, but, Your Honor, may I ask you one thing? We do have other breach of contract defenses that have not been raised, and I want to make sure we can be safe. So in that, for that, we would ask for a remand. We did not get a chance to raise certain defenses that arose after the Supreme Court's decision in Franconia. I don't know if the court's familiar with Franconia, but basically it established the framework for thinking about when the statute of connotation was. That case came out after the trial court's decision here. And based on that case, we have a defensive no-reacher contract that we would ask for a remand on that. So the short answer I guess your honor is, we wouldn't ask for a remand on that, but on that issue. Mr. Cramer? We have almost five minutes. Do we need to remand in light of Franconia as the government has suggested preventive defenses for breach of contract? I think that we would be amenable to that, Your Honor. Answering some of Mr. Pinsch's arguments, very briefly, it seems to me, he tries to slice the C-N-A-D case up too much into discrete parts and not take the whole thing. We have relied on both the methodologies and the court statement as to the way to arrive properly to arrive at the amount of compensation. I think the distinction that the defendant tries to raise with respect to the thrust and meaning of the statute is wholly improper. It's obvious that Congress a intended to cover both groups. It didn't say how many there were in each group. We have shown, for example, that the regulatory agreement covers both situations. The regulatory agreement also covers not only the time when the mortgage is insured, it covers the time when the commissioner is the holder of the move. How many foreclosions there are or how many cases there are before the court? I do not know the exact number. I hear now a recent case said there were almost 800 projects. That may very well be. I think that, in the gardener's, I think the problem with my case is that we are a single project. The other problem is I had a group of investors that were most tenacious. This context, as you can see from the facts, almost from the very beginning, the project ran into financial trouble. The rents didn't cover all the expenses and the mortgage. We got to additionally when the mortgage was transferred to Ginny Medi. Right away, on the day the mortgage began, we started to run into problems and we had work out agreements with Ginny Medi. Until in 1977 the mortgage fell into the fall. Ginny made the turn to mortgage over to HUD presumably for foreclosure. At the same time the partners decided to remove the management, bring in a new manager, make a new investment and invest it over $200,000 more. In 1977, $300,000. Then go on. HUD decided, yes, we'll hold the mortgage, we'll make the mortgage and continue on. We act. My clients continue and again they ran into problems even with new management. In 1985 it fell into default again. Again the partners said rather than let it go, they put in more money. The mortgage current is just about the time of the payoff when there are 20 years to come. I think it seems to me that the commerce has intended all of this program to be frozen. None of the projects were to be let go unless they could meet the specific criteria in the statute. I want to argue those because they've been conceived. Thank you