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The United States Court of Appeals for the Federal Circuit is not open and in session.

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God save the United States and the Commonwealth.

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Good morning, ladies and gentlemen.

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Please be seated.

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We have four cases on the calendar this morning.

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A case from the Court of Federal Claims involving the taking.

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Two patent cases, one from the Patent Office and one from the District Court.

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in a government employee case that is being submitted in the briefs and will not be argued.

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Before that, however, I understand we have a motion.

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I don't know if it will be a contested motion.

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In any event, we do have a motion, and I will ask Judge Chen to make a motion.

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Thank you, Judge Lurien.

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Good morning.

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I do have a very important motion today.

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I move the admission of Jacob Ewart

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who is a member of the Bar and in good standing with the highest courts of Virginia and the District of Columbia.

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I have knowledge of his credentials and am satisfied that he possesses the necessary qualifications.

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I know these things, Judge Lurie, because Mr. Ewart has been my clerk for the past 20 months.

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And in that time, he's been an important, stabilizing influence on sometimes chaotic chambers, and I've always appreciated that.

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gotten to know him and he came in already as a fantastic lawyer and I think he's leaving 20 months later as an even greater one.

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But much of that is due to his own abilities and character and intellect.

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I've enjoyed my time with him in terms of sharing ideas about cases in the law and I've also gotten to know

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his wife, Trish, and daughter, Vanessa.

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And I look forward to seeing them go forward in life.

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And I know that they'll always be part of my chamber's family.

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And for all these reasons, I urge that my motion be granted.

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Thank you, Judge Chen.

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Occupying the adjacent chambers, I have to say, I haven't heard of any disorder.

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So perhaps your comments are the most accurate consult with my panel.

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I'm going to concur in the result because I feel the need to speak separately.

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I feel the need to speak separately because it's very unusual for this to happen, but on multiple occasions, given that I couldn't handle my own workload, I had to reach out to Judge Chen for support, and he let me take.

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Jake actually helped me with Akamai, Don Dunner, you might be interested to know.

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After 20 versions of Akamai, I got to the point where I could no longer even read the words on the page, and I needed someone objective to come in and read it, someone who hadn't written 20 versions.

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And Jake came in and helped me tremendously.

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I think I had told Judge Shennett it would take two hours, and it took like two weeks.

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He was a great resource and then he actually drafted a recent presidential decision for me because I just needed some extra help.

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And so I mean that is very unusual for us to share.

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Judge Chen was very generous with Jake.

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It's all very unusual to share.

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My great fortune to have gotten the opportunity to work with him as well.

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So I certainly don't know him as well as Judge Chen does but I am happy to echo his support and I therefore

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agree to grant the motion.

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I think we have a unanimous panel, so the motion is granted.

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Mr. Ewart, would you stand up and take the oath on the part of court?

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Let us now proceed to the official business at hand, listed business.

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First place is Carriage House West at AL versus the United States, 2013, 51, 32, et cetera.

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Mr. Kelly.

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Thank you.

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Good morning, Your Honors.

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May I please the court?

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And again, on behalf of everyone in the courtroom, I'd like to extend our congratulations to Mr. Euler.

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Your Honors, we're here today to deal with a specific issue, whether the appellant's takings claim is rising under the Emergency Low Income Housing Preservation Act and the Low Income Housing Preservation and Resident Ownership Acts.

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We're timely asserted under the six-year statute of limitations, 28 U.S.C.

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section 2501.

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When the original complaint was filed in August 25, 1997, we believe the Court of Federal Claim aired by dismissing the appellant's claims untimely.

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after concluding that all claims under the preservation statutes accrued on the first date that the specific owners could have prepaid their mortgages if the preservation statutes had not been enacted, which was more than six years before they filed their complaints.

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Your Honor, we believe that the Court of Federal Claims here is mistaken because it disregarded binding precedent in this circuit in the Kruppel versus United States decision, and also disregarded the United States Supreme Court decision in Franconi Associates versus United States.

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both of which should have led the Court of Federal Claims to reject the prepayment eligibility date as the bright line for accrual of such limitations here.

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And not only did the lower court reject the binding and persuasive authority of the circuit.

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Well, the lower court said propel was dictum.

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So why isn't it?

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Because under either interpretation, the claim was untimely.

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Well, Your Honor, what I would say is several things.

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First of all,

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You cannot tell when the metro train is late unless you know when the metro train was supposed to arrive in the first place.

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And it's clear in reviewing, as I reviewed, CREPL, that that was what the court was trying to figure out.

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Were these claims timely?

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And so the decision with respect to when the statute of limitations began to accrue in CREPL is clearly essential to the decision.

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It's not a matter that's discussed for purposes of illustration or analogy.

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You couldn't have decided if the claims were untimely.

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unless you decided first when they were due.

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And I think that although we would argue that the matter was decisive and clearly part of a holding, I think the proof is in the fact that many of the cases subsequent to CREPL have looked at that decision as establishing when the limitations period begins to arise for a temporary taking claim such as this one.

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If it is dicta, it's very persuasive dicta, and it's very on point.

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and other courts that have looked at this matter, and specifically in connection with the temporary takings under these preservation statutes, have followed it.

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What would be the best case that you have that has held, not just said something in dicta, that a taking claim accrues at a different time than a taking claim ripens?

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Is there such a case?

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I don't know if there's a specific case that's looked at both of those issues.

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I know that there are a number of cases which have looked at the issue of ripeness and have concluded that the date upon which a claim ripens is not necessarily the same as the date upon which the statute of limitations begins to run.

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If you look at cases like the we cited in cases like the Addington case,

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from the Ninth Circuit.

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And my Spanish is not very good, but I believe it's the Associon case.

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The First Circuit case.

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Thank you.

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The First Circuit case.

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Both of these cases dealt with an issue about rightness versus limitations or acquisition.

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And what the Addington case specifically said was that what we're talking about when we talk about accrual for limitations purposes, and we were not all takings are created equal.

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There are physical takings, there are permanent takings, there are regulatory takings, and then there are temporary regulatory takings.

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And I think what the Addington case adds to the analysis is by saying that when you look at when a claim arises for a statute of limitations purposes, when it occurs for a statute of limitations purposes, what's critical is the information that's available to the person who's suffering the taking.

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What Addington said is the injury at that point has unquestionably culminated, and the issue is whether the plaintiff's learned

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or should have learned of the injury so long ago that it would no longer be fair to bring the suit.

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And that's consistent with what this court said in Preppel.

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Because in Preppel, analyzing the issue of when the statute of limitations arises, the court there said, property owners cannot sue for temporary taking until the regulatory process that began it has ended.

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This is because they would not know the extent of their damages until the government completes the temporary taking.

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So what Preppel adds

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But one of the problems I have with that argument is LIFRA wasn't enacted as a temporary taking.

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A LIFRA was, but not LIFRA, the second one.

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It was enacted, and until HOPE was passed in 1996, it wasn't a temporary taking.

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Not everything is a temporary taking.

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A LIFRA clearly was.

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By its own terms, at enactment, it was a temporary measure.

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But LIFRA was not a temporary taking.

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You had no reason to think Congress would ever change LIFRA.

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It was enacted as a permanent taking.

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And only upon hopes, enactment in 96, did it actually convert it into a temporary taking by Congress's choice to cease to apply the law of LIFRA.

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So in a scenario like that, where you could go hundreds of years from

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a statute's enactment that deprived you of a right.

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And then a hundred years later, that statutory deprivation is lifted by another statute.

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You think that's a temporary taking and the rule for statute of limitations should be?

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that you have six years after the end of the hundred, even though for a hundred years you thought it was a permanent taking, not a temporary one?

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Well, what I would say is, Your Honor, the issue of what might have been a permanent taking is interesting.

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But obviously, different rules apply to a permanent taking than apply to a temporary taking.

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And this was a temporary taking.

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By the time the plaintiffs filed their lawsuit in 1997, the HOPE Act had been enacted.

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But that doesn't make any sense, because it doesn't deal with the logic of my question.

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My question was,

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If Congress enacted LIFRA and then 100 years later withdrew it in hope, you're telling me that because they withdrew it in hope 100 years later that there's no statute of limitations bar because it converted a permanent taking into a temporary taking?

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I would assume, Your Honor, that if the plaintiffs had a claim and had the degree of information that they needed, they would take action on an otherwise permanent taking.

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based upon the information that they acquired.

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Yes, but your rule of law that any later withdrawal by Congress converts a permanent taking into a temporary taking and therefore the statute, because if this was a permanent taking we would all agree accrual would turn from the date of new or reasonably should have known, right?

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Right.

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And so your point is that a much later in time

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withdraw of a permanent taking to convert it into a temporary taking holds the statute of limitations, what could be centuries.

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Well, I would say since we, that's a hypothetical situation and clearly something like that could have happened.

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It hasn't happened yet.

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I would imagine that if the rulers, when they knew or should have known, so far as the plaintiffs in a permanent taking situation,

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who would face the realities of what the standard is for permanent taking.

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But once again, the facts of this case, and CREPL has been interpreted by subsequent cases as dealing with a situation where there was a close to the taking period.

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And under this circumstance, this happened approximately 18 months before the lawsuit was filed, a little bit less.

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The reality is that

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the courts have said, let's look at the end of that taking period to determine whether they knew or should have known, because that's the critical time period for such a taking.

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I don't think that a 100 year long period would be, I think, too long for a plaintiff to say, I didn't know something had happened to me.

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But I think that where we have a fairly narrow period of time, from 1990 until 1996 when the statute was abolished, Congress

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took this statute offline and terminated the prepayment prohibitions with some limited exceptions for a reason.

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And I think part of the reason was because lawsuits like these were being filed.

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But Congress recognized that it no longer wanted to continue what was done.

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And under those circumstances, there's no reason to go back and reconsider what is, in fact, a robust body of case law that has come out from this court.

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The C. Navy Gardens case, the Federal Circuit case from 2005,

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reached the conclusion that even in that instance, Judge Moore, some of the claims were continuing, the takings were continuing as of that point.

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And they applied CREPEL because they understood that this should be deemed to be a temporary taking.

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The court in Reed Island applied the same rule and looked at CREPEL.

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So you have a very robust body of case law that's been built up over more than 20 years, starting with CREPEL and then continuing through many other decisions by this court.

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and which uniformly line up on one side.

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And that side is that with a temporary taking such as this one, the limitations period should begin to run at the end of the regulatory action.

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And look at what's on the other side of the case.

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What is on the other side?

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What other decisions are out there?

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Well, there's the Court of Federal Claims decision below.

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There isn't any Supreme Court case that deals with temporary takings and announces a rule like Crepel.

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I believe that's correct.

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I haven't seen the Supreme Court reach a specific decision.

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But the Supreme Court has, in Brubaker, addressed as applied takings, discretionary takings, which is what this is, versus non-discretionary takings.

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And in Brubaker, it said for non-discretionary takings, the date for ripeness and accrual is the date of the enactment, the facial date.

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But that's clearly not what applies here, because this is a discretionary takings.

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So what should the date be for a discretionary takings under Brubaker?

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I think that on the one hand, Brubaker did recognize the distinction between takings claims that are facial challenges and as applied takings.

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But this was a facial challenge in that case.

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And the court really didn't have an opportunity to determine whether a claim would accrue under the statute of limitations for this sort of a claim, I would say, Your Honor.

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The court only determined in that case the claims were not right because the regulation, in fact, in that case, never went into effect.

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So I think it's factually distinguishable in terms of the situation.

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This would be perhaps a situation as to if HUD had never actually put into operation the prepayment prohibitions.

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But I believe, as I understand what happened in Brubaker,

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It's factually distinguishable because the alleged regulation that had been challenged never actually took effect there.

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I don't think it's... Mr. Kelly, you wanted to save some time for rebuttal when you were into that period?

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Yes, I would, Your Honor.

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I didn't see the light was on.

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I appreciate the Court's time today.

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All right.

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Mr. Dinsley.

[00:16:56] Speaker 00:
Thank you, Your Honor.

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May it please the Court?

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The court should hold that the language in Crepple relied on by the plaintiffs is dicta and non-binding, and the approach suggested by Crepple is unworkable, which is why it was rejected by subsequent court decisions.

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And I'd like to start off with Judge Moore's 100-year problem, which actually my notes was a 40-year problem, but I think 100-year makes it even more distinct in that the rule advocated by the plaintiff says that every time a regulation is passed, every time a statute is changed,

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it could trigger a temporary taking that was 100 years in the making, and which is the exact opposite of what the statute of limitations is trying to do, which says gather your information and go forward with your case as quickly as possible.

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And if you look at it, it creates a problem both for the property owners, it creates a trap for the government, and it creates a burden on the court.

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For property owners, when a statute is passed and they don't know whether it's temporary or permanent,

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they should bring the action right at that point.

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And they should bring permanent action, as Judge Moore suggested.

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They should make it a permanent taking claim.

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And if somehow the permanent taking was truncated, then they can amend and add a temporary taking claim.

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If the case goes through and the statute hasn't been changed or amended, it goes through as a permanent taking, and that's how it's evaluated.

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One of the difficulties I have, despite the logic of what you're explaining, is CREPEL.

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I can't undo precedent of our court.

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I understand your claim that it's dicta.

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However, the language of what you call dicta sounds a lot like a holding to me.

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Thus, property owners cannot sue for a temporary taking until the regulatory process that began it has ended.

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I don't know if we have issued this sort of command, and it has, in fact, been followed by court of federal claims cases, not necessarily our own cases, but court of federal claims cases.

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And it has not really been significantly called into question by our own cases.

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What does that mean for a property owner who supposedly, suppose they waited in reliance because of this?

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Suppose, because this language, property owners cannot sue

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for a temporary taking until the regulatory process that began it has ended.

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What if it truly is a temporary taking, like illifera versus lifera?

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When illifera was enacted, it was expressed that it was temporary in nature.

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In that case, if a person waited until the end of the regulatory taking and CREPL was the standard, the law at issue, would it really be fair to fault them in light of this language in CREPL?

[00:19:53] Speaker 00:
Your honor, so there's a number of things there.

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So I'm going to try to hit them all.

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I'll start with the question that you began with.

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What the court said, what the CREPL court started with, they identified what the question was.

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The question here is whether all events occurred to fix the alleged liability of the government six years before the claimant's 1991 takings claim.

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That's at page 631.

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So that's the question.

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And it turned out, because the taking began in 76 and ended at 84,

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Every fact, every part of the temporary taking was more than six years before the time.

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So the answer to that question is yes, they were all fixed.

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It didn't matter.

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It was irrelevant whether the court started counting at the beginning or the ending.

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And in fact, if the court had reached the completely different, the reverse decision, it wouldn't have affected the outcome.

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That's how we know it's dicta.

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What this court has said about dicta is a dicta is, quote, a statement that is

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unnecessary to the decision in the case and therefore not presidential.

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And that would be, I agree Judge Moore, that they use the language of a holding, but it was in the nature of dicta.

[00:20:57] Speaker 00:
And this court has explained, again, and this is in the Coast Steel case, because statements made in dicta do not implicate the substantive holding of the case, they cannot be considered binding authority.

[00:21:09] Speaker 03:
Well, there's several different kinds of dicta, right?

[00:21:13] Speaker 03:
There's dicta moreover.

[00:21:16] Speaker 03:
Whenever the court says moreover, pretty much everything that comes afterwards is a good candidate for being alleged to be dicta.

[00:21:24] Speaker 03:
You know, and that's, that's, that's a clear case.

[00:21:26] Speaker 03:
Those are, those are easy cases.

[00:21:28] Speaker 03:
The court said, we also would have held.

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These are easy cases for dicta.

[00:21:33] Speaker 03:
This is a harder case because the language of the holding clearly establishes what it think is, it thinks it's making is a rule about claim accrual.

[00:21:45] Speaker 03:
Your argument is it didn't need to go that far because under either rule, this particular case would have come out the same way.

[00:21:55] Speaker 03:
I'm not positive that converts this holding into dicta is what I'm struggling with.

[00:22:01] Speaker 00:
I would say respectfully, Your Honor, it is not for the court itself who is issuing an order or a decision to determine whether it's dicta.

[00:22:09] Speaker 00:
It's for the subsequent court that comes along and views it in the scope of what they're doing.

[00:22:13] Speaker 00:
And so what this court has done.

[00:22:14] Speaker 00:
in a series of opinions, in the Bass decision, in the Caldwell decision, and ultimately in the Navajo Nation decision, this court has considered this issue and has not relied on CREPEL.

[00:22:25] Speaker 00:
So in Bass, the court considered whether they have to wait for the end of the taking period, which is what CREPEL says.

[00:22:30] Speaker 00:
And what Bass said is, whoa, whoa, no, you don't have to wait for the end of the taking period.

[00:22:34] Speaker 00:
What this court said in Navajo Nation, where it was teed up a hundred percent, where the plaintiffs were- Come out.

[00:22:40] Speaker 03:
But us saying you don't have to wait till the end?

[00:22:43] Speaker 03:
is not the same thing as saying you have to bring it earlier, which is what you're saying, because I mean, look at all these awful nuclear waste cases that I have to deal with because they keep getting brought every six years because the statute of limitations requires you to bring your damages every six years in series.

[00:23:02] Speaker 03:
And so we get

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We're going to be getting these things until 2048 is my understanding.

[00:23:07] Speaker 03:
Until the nuclear waste is no longer nuclear, Your Honor.

[00:23:11] Speaker 03:
Right.

[00:23:11] Speaker 03:
Well, then I don't even know what it is.

[00:23:13] Speaker 03:
But you see the point is that, obviously, in a case like Bass, it's possible if the temporary taking is going to be of a long duration, you want to allow them to seek compensation at an interim point and then seek it again six years later or whatever else.

[00:23:29] Speaker 03:
So I don't see Bass

[00:23:33] Speaker 00:
dissing CREPEL.

[00:23:34] Speaker 00:
No, it was a step back, but Navajo Nation, where CREPEL was teed up, it was argued by the plaintiff, it was rejected by the court, and in rejecting it, the plaintiffs lost... Tell me the best language, and I have Navajo here, what is it, where's the best language where you think it rejected CREPEL?

[00:23:51] Speaker 00:
Okay, so first of all, the plaintiffs cited, they argued that... Did the court cite CREPEL?

[00:23:56] Speaker 00:
I'm sorry, what?

[00:23:57] Speaker 00:
The Navajo Nation decisions.

[00:23:59] Speaker 00:
Yes, it did.

[00:24:00] Speaker 00:
Yes, it did, Your Honor.

[00:24:01] Speaker 00:
So what happened is the alleged taking in Navajo Nation began in 1966.

[00:24:09] Speaker 00:
It was unarguably a regulatory taking.

[00:24:13] Speaker 00:
And at the latest, it began in 1980.

[00:24:16] Speaker 00:
And it ended in 1984.

[00:24:19] Speaker 00:
And what this court said was, and the plaintiffs argued a series of

[00:24:26] Speaker 00:
of ways that their claim was timely.

[00:24:29] Speaker 00:
And what this court explained was that our precedent requires that temporary reversible takings must be analyzed in the same constitutional framework applied to permanent irreversible takings.

[00:24:41] Speaker 00:
And then the court went on to say, this court has previously rejected the notion that the cessation of a regulation is a necessary condition to liability of the United States for a temporary regulatory takings claim.

[00:24:52] Speaker 00:
And it rejected the plaintiff's claim.

[00:24:53] Speaker 00:
They were kept out of court.

[00:24:55] Speaker 00:
based on if CREPL had applied, if they had done what the plaintiffs are asking, those plaintiffs would have not been pushed out of court.

[00:25:02] Speaker 00:
CREPL was cited basically in a C also for basically a different proposition for the idea that

[00:25:09] Speaker 00:
A case must be right before you can bring it.

[00:25:12] Speaker 00:
But there's no way that Navajo Nation can be read as it is written, and that was not dicta, as written without taking crepul to mean that... Do you think Navajo Nation implicitly declared the clear holding in crepul dicta?

[00:25:30] Speaker 00:
I think it would have to.

[00:25:31] Speaker 00:
And in answer to your honor's question, if the plaintiffs in Navajo Nation had relied on crepul,

[00:25:36] Speaker 00:
The court basically says you have to bring your case as early as you can bring your case.

[00:25:40] Speaker 00:
And that takes me back.

[00:25:41] Speaker 03:
If it's not, if you are correct and if it is not, we're not bound by Crepel, don't you agree under Brubaker, the time vis-a-vis a discretionary holding, a discretionary takings accrues or turns right

[00:26:03] Speaker 03:
is not the date of enactment of the statute, for example, which would be the day LIFRA was enacted.

[00:26:08] Speaker 03:
It's the day that the agency took action that actually deprived your property of rights.

[00:26:14] Speaker 00:
Plaintiffs are allowed to bring a facial takings claim if they wish.

[00:26:17] Speaker 00:
These are as applied takings claims.

[00:26:20] Speaker 00:
So nobody's arguing here, at least not anymore, that the date that the statutes were enacted is the date.

[00:26:27] Speaker 00:
The question about when it's applied to these plaintiffs, these plaintiffs have themselves pled

[00:26:32] Speaker 00:
that it was applied to them at the time that they could have offered the money and first prepaid.

[00:26:38] Speaker 00:
In their complaint, they said that the taking began on that date.

[00:26:42] Speaker 00:
So it could be argued that they, and we have in other instances, argued that they should have gone through the application process and sought permission to prepay.

[00:26:51] Speaker 00:
And if that was rejected, then these claims wouldn't even be right because they never sought that.

[00:26:55] Speaker 00:
But these plaintiffs have argued that that was their date.

[00:26:59] Speaker 00:
We're not challenging that on this appeal in this court.

[00:27:01] Speaker 00:
So that is the date.

[00:27:03] Speaker 04:
Does the government agree that these claims are ripe?

[00:27:06] Speaker 00:
These claims, we are not challenging the ripeness, Your Honor.

[00:27:08] Speaker 00:
There is an argument that we made in an earlier iteration that was not so successful in the Anaheim case.

[00:27:17] Speaker 00:
So we're not raising that claim.

[00:27:19] Speaker 00:
We are agreeing with the plaintiffs.

[00:27:21] Speaker 00:
These claims ripened.

[00:27:22] Speaker 00:
on the date that they could initially prepay.

[00:27:25] Speaker 04:
Because it would have been futile for them to apply for the exception to the rule.

[00:27:30] Speaker 00:
That's what they've argued.

[00:27:31] Speaker 04:
That's the basis for why you're conceding it.

[00:27:36] Speaker 00:
Yes, Your Honor.

[00:27:38] Speaker 00:
We are not challenging the fact.

[00:27:40] Speaker 00:
They have asserted that it would have been futile.

[00:27:41] Speaker 00:
We are not challenging that fact on this appeal.

[00:27:44] Speaker 00:
And so that is why the date starts from there.

[00:27:48] Speaker 03:
And so just to be clear, because on page 11 of your brief, which you don't need to pull out right now, but on page 11 of your brief, you indicate that because they argue it's futile, this claim had to have been brought on the day they could prepay.

[00:28:03] Speaker 03:
You're arguing that under the facts of this case.

[00:28:05] Speaker 03:
And I just want to make sure that I'm right about that and that you're not stating that the Kreppel rule should be replaced with a rule that

[00:28:15] Speaker 03:
statute of limitations begins on the day you could have prepaid necessarily, because that would contradict Brubaker for an as applied notion.

[00:28:22] Speaker 00:
It should be the date that the statute applied to you.

[00:28:25] Speaker 00:
I'll give you an example.

[00:28:27] Speaker 00:
Say somebody six months before they could prepay, they went and tried to prepay maybe early and they were told, look, you'll never prepay.

[00:28:34] Speaker 00:
That could have started earlier.

[00:28:36] Speaker 00:
If they had gone through the process

[00:28:37] Speaker 00:
taking them two years to go through the process, and then they got a final no, then that could have been the date.

[00:28:45] Speaker 00:
But based on their allegation, which we are not challenging, that it would have been futile under these circumstances, their first opportunity to prepay is the date when it runs.

[00:28:54] Speaker 03:
But the one other caveat I want to bring up just to make sure that we're on the same page is when it comes to futility,

[00:29:01] Speaker 03:
Right?

[00:29:02] Speaker 03:
Suppose it wasn't futile on the day they could have prepaid.

[00:29:06] Speaker 03:
Suppose that the agency began by granting lots of prepayments, but then had a change of heart for some reason and started to deny all future prepayments at some point in time, such that the futility idea really didn't kick in on the day they could have prepaid, but kicked in a few years later.

[00:29:23] Speaker 00:
It's an interesting... I would suggest, Your Honor, that if at the beginning

[00:29:30] Speaker 00:
it did not appear futile, the proper thing for them to do when their date goes, when their date comes up, if it did not appear futile, the proper action would have been for them to go ahead and go through the process.

[00:29:43] Speaker 00:
And if at some point it's like, forget it, nobody's getting through and it's understood that it's futile, then that would trigger it even if they didn't have a final decision.

[00:29:52] Speaker 00:
That could trigger it.

[00:29:54] Speaker 00:
But of course, there's no contention here.

[00:29:57] Speaker 00:
Here it is understood.

[00:30:00] Speaker 03:
Everybody says the futility date is the day these things became out.

[00:30:03] Speaker 00:
For this case, yes, it is, Your Honor.

[00:30:05] Speaker 03:
But you understand my factual scenario, so I'm seeking to avoid bright line rules in an as-applied universe.

[00:30:13] Speaker 03:
Because in an as-applied universe, under Brubaker, it seems to me the date could be different for every person.

[00:30:19] Speaker 00:
It could be, especially if everybody in an as-applied universe, let's say it's not futile.

[00:30:24] Speaker 00:
Everybody goes through this process, and everybody gets a no at different times or a yes, and then they're off.

[00:30:30] Speaker 00:
and a no at different times, then it would start when they got the no.

[00:30:33] Speaker 00:
So yes, an as applied universe can provide two different neighbors with different results.

[00:30:40] Speaker 00:
Here, in fact, one of the problems with the way the plaintiffs argue CREPEL is you've got two neighbors, they could have tremendously different results.

[00:30:48] Speaker 00:
Because one of them could look at a statute and say, I'm going to sue now under permanent taking claim.

[00:30:54] Speaker 00:
And the other one say, you know, some days Congress might change this, I'm going to wait.

[00:30:58] Speaker 00:
And so the first one could be litigated, resolved as a permanent taking.

[00:31:01] Speaker 00:
The other one, maybe they guessed wrong.

[00:31:03] Speaker 00:
And so it was never a temporary taking.

[00:31:06] Speaker 00:
So they've lost their claim entirely.

[00:31:07] Speaker 00:
Or maybe they guessed right, but it was 50 years.

[00:31:10] Speaker 00:
And it's a completely different analysis based on the 50 year looking back.

[00:31:13] Speaker 00:
So what the plaintiffs are arguing is it could have a different result for different neighbors.

[00:31:18] Speaker 00:
It also is unfair for the government in that every time the government passes any regulation or statute, it has to face the possibility

[00:31:25] Speaker 04:
that even one that gives property back to plaintiffs could face a takings claim.

[00:31:38] Speaker 04:
Well, and then it was litigated as a permanent taking, the damages was calculated as permanent takings, and that was all wrapped up before the HOPE Act passed.

[00:31:48] Speaker 00:
It would keep the money.

[00:31:49] Speaker 04:
Okay.

[00:31:50] Speaker 04:
The government wouldn't try to claw some of that back because now what had been always understood as a permanent taking was actually just a temporary taking?

[00:31:59] Speaker 00:
If it had gone to final judgment, Your Honor, it's final.

[00:32:02] Speaker 00:
In fact, I think that the plaintiff's theory invites the reverse.

[00:32:06] Speaker 00:
At the end of the temporary taking, if everything is still in play, and maybe we've given out money on a permanent taking theory, but if everything is reopened at the end of the temporary taking period, it would seem fair that if we're going to be paying out money, we should also be able to pull back money that we paid on a permanent take.

[00:32:23] Speaker 00:
That's not the way it should be.

[00:32:24] Speaker 00:
It should be, you bring your claim.

[00:32:27] Speaker 00:
If the government doesn't change the statute or whatever before your claim is finished, then that is the way you get compensated.

[00:32:33] Speaker 03:
I have one last question, if you don't mind.

[00:32:35] Speaker 03:
Regulatory takings are much more difficult, obviously, to contend with than physical takings for everyone because of the test that includes the nature and extent of the interference with the right, the reasonable investment expectations.

[00:32:53] Speaker 03:
In Penn Central, the Supreme Court expressly recognized in footnote 36, and the government conceded in that case at oral argument,

[00:33:00] Speaker 03:
that if a pellet can demonstrate changed circumstances, that could matter.

[00:33:05] Speaker 03:
Like suppose in the beginning, when you first enacted prepayment, that this was not even a viable candidate for flipping the condos or charging higher rents or something like that, such that they didn't have an interest in prepaying, that there wasn't a taking at that point.

[00:33:20] Speaker 03:
But it really became a taking later because the economy changed in a way that really suddenly

[00:33:25] Speaker 03:
resulted in a pretty significant diminution of value for them, a diminution that wasn't present on the day of LIFRA, but became present as applied in application over time.

[00:33:36] Speaker 03:
Changing circumstances would always open the door, wouldn't it, to reconsideration?

[00:33:42] Speaker 00:
Respectfully, Your Honor, if the things that change are the statute of regulation, yes.

[00:33:46] Speaker 00:
If the facts on the ground change, then they need to bring their claim

[00:33:52] Speaker 00:
within the six years.

[00:33:53] Speaker 00:
So with respect to the example that you gave, at the time that they were denied the right to prepay, presumably at that point, from the perspective of that point, it's a permanent taking.

[00:34:05] Speaker 00:
And they're viewing it will never be able to prepay.

[00:34:08] Speaker 00:
And they would have to look at, OK, what's the expected burden at that time of losing the right to prepay?

[00:34:14] Speaker 00:
And maybe they decide it's not such a big burden, so we're not going to bring it.

[00:34:18] Speaker 00:
And it is, under Penn Central, it is a balancing test.

[00:34:21] Speaker 00:
And maybe at that point, it doesn't look like much of an imposition.

[00:34:26] Speaker 00:
But what they should be doing at that time is projecting, and there are experts who I have seen project, well, in five years it might get better and then better and better.

[00:34:35] Speaker 00:
And sometimes it's bound by the imagination of the expert, but they could say,

[00:34:41] Speaker 00:
there is a possibility it will do this.

[00:34:43] Speaker 00:
And that's what an expert is employed at to do at that time is, what is the potential range of possible economic impact?

[00:34:52] Speaker 00:
But yes, they need to do it from the time that the regulation is put in place.

[00:34:57] Speaker 00:
And in fact, Your Honor, separate from statute of limitations, they would need to do that anyways, because that is the time of the landscape.

[00:35:03] Speaker 02:
Thank you, Mr. Dinser.

[00:35:04] Speaker 00:
I think we have you.

[00:35:05] Speaker 00:
Thank you, Your Honor.

[00:35:05] Speaker 00:
Thank you for the extra time.

[00:35:06] Speaker 00:
I appreciate it.

[00:35:07] Speaker 02:
Mr. Kelly has some response time.

[00:35:12] Speaker 02:
Take five minutes if you need it.

[00:35:14] Speaker 01:
Well, thank you, Your Honor.

[00:35:16] Speaker 01:
Hopefully I'll be able to be as brief and on point as possible.

[00:35:20] Speaker 01:
With respect to the question that was posed during the opening segment, with respect to the difference between permanent and temporary takings, my colleague, Mr. Whitaker, pointed out that in our reply brief on page 21, we cite to the Seenegger Gardens 10 decision, final decision of this court in Seenegger Gardens case,

[00:35:42] Speaker 01:
where the court stated there that according to the Penn Central test is the same whether the regulation is permanent or temporary in nature, although in the latter situation that is a temporary taking, the court must carefully consider the duration of the restriction on the economic impact prong.

[00:35:57] Speaker 01:
So there is a distinction that this court has drawn between the two, and duration does become a particular question with respect to a temporary taking that wouldn't apply in a permanent taking situation.

[00:36:10] Speaker 01:
The Governance Council indicated the statute of limitations should force people to go forward with cases as soon as possible.

[00:36:19] Speaker 01:
And I think that's really, in essence, the beauty of the Crepple decision and it's consistent with the Supreme Court's decision in Franconia where they talk about the practical considerations of how you apply the statute of limitations.

[00:36:31] Speaker 01:
Because what Crepple does is extend the jurisprudence of Penn Central and its progeny

[00:36:40] Speaker 01:
with respect to those factors, the nature of the taking that's involved, the economic impact, and the interference with the owner's expectations.

[00:36:48] Speaker 01:
Krebel takes that and says, well, what is fair to say to a person who is the potential victim of a taking with respect to when you have to come to court and do something about it?

[00:36:59] Speaker 01:
And Freikonir clearly says, you don't want them to have to come to court as soon as that taking might occur.

[00:37:05] Speaker 01:
It seems like that's what Alder Terris was thinking about.

[00:37:08] Speaker 01:
and perhaps this court's decision in Franconia, we're looking for bright lines as well.

[00:37:13] Speaker 01:
But what Franconia tells us and what CREPL tells us is that that's not right.

[00:37:18] Speaker 01:
Under the Penn Central test, it may be that the degree of interference with an owner's rights is not so extreme at the beginning of the regulatory taking period to put them in a position where they knew or should have known that it was time to bring a lawsuit.

[00:37:33] Speaker 01:
And you certainly don't want to force thousands, in this instance, tens of thousands of owners around the country

[00:37:38] Speaker 01:
to go to the Court of Federal Claims and file taking claims.

[00:37:41] Speaker 01:
As soon as the door opened, as soon as the impact occurred, it's far better to wait to see whether that impact was profound enough for them to decide that they had a legitimate claim.

[00:37:54] Speaker 01:
The appellants here did.

[00:37:55] Speaker 01:
They felt that the imposition of the prepayment statutes was sufficient to require them to bring their action.

[00:38:02] Speaker 01:
But that was something that they were able to make a decision about to discern later, not at the opening.

[00:38:07] Speaker 01:
And the court does not want, in fact, and Franconia tells us that we should not, encourage people to rush to the court for the hope of preserving their claims for fear that if they don't, they'll lose them.

[00:38:21] Speaker 01:
There was a discussion in the Bass case, and I think that really all of the Bass case does is make it clear that you don't have to wait until the end of the regulatory taking period.

[00:38:33] Speaker 01:
to bring a claim, but that does not mean that you should be required to come at the beginning of the taking period to file a claim.

[00:38:40] Speaker 01:
I think that's a fairly limited holding.

[00:38:43] Speaker 01:
I don't think the Navajo Nation overrules CREPL.

[00:38:47] Speaker 01:
It would be a very strange decision indeed for a case that cites to the very proposition we're citing to here, to somehow read that as overruling a decision that it's citing to.

[00:39:01] Speaker 01:
All the Navajo Nation said

[00:39:03] Speaker 01:
was, again, that you don't have to wait until the end of the taken period to bring a claim.

[00:39:09] Speaker 01:
I think that the other portion of this analysis that needs to be added, the other guidance that Franconia gives to us, is that

[00:39:20] Speaker 01:
just as the court concluded there that the mere enactment of a LIPA didn't trigger the limitations period for those claims, the mere beginning of the regulatory period should not be deemed to trigger the limitations for the regulatory taking claim that's asserted here.

[00:39:40] Speaker 01:
And Franconia recognized that

[00:39:42] Speaker 01:
This was not a right.

[00:39:44] Speaker 01:
The prepayment language in the mortgage notes was not a right that had to be invoked on a specific day.

[00:39:52] Speaker 01:
You could prepay on that prepayment eligibility date or any date thereafter.

[00:39:57] Speaker 01:
And again, consistent with the way in which those statutes were written and what Franconia said about them, Franconia recognized that this was a string of payment opportunities.

[00:40:07] Speaker 01:
And to say that the limitations period begins to block the entire claim

[00:40:12] Speaker 01:
because it's measured from the beginning of the limitations, excuse me, from the beginning of the regulatory action, mistakes what the court in Franconia said.

[00:40:25] Speaker 01:
So I'd conclude simply by reminding the court that in fact there is a robust and cogent and complete and concise and consistent line of cases from this court that stretch back to the preble decision.

[00:40:37] Speaker 01:
and that the court, we hope, will simply decide that that is the right rule and that there really is no better rule.

[00:40:43] Speaker 01:
There's no alternative.

[00:40:44] Speaker 01:
The court should not leap into a legal void and overturn what is, in fact, the solid rule in this case.

[00:40:51] Speaker 02:
Thank you, Mr. Kelly.

[00:40:52] Speaker 02:
We'll take the case under advisement.

[00:40:53] Speaker 01:
Thank you.