Independence Park Apartments v. United States

59 Fed. Cl. 765, 2004 U.S. Claims LEXIS 56, 2004 WL 578388
CourtUnited States Court of Federal Claims
DecidedMarch 23, 2004
DocketNo. 94-1A-C
StatusPublished
Cited by3 cases

This text of 59 Fed. Cl. 765 (Independence Park Apartments v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Independence Park Apartments v. United States, 59 Fed. Cl. 765, 2004 U.S. Claims LEXIS 56, 2004 WL 578388 (uscfc 2004).

Opinion

OPINION AND ORDER

LETTOW, Judge.

This case is an offshoot of Cienega Gardens v. United States, 331 F.3d 1319 (Fed. Cir.2003) (“Cienega VIII”), which originally involved contractual and takings claims arising with federally supported low-income housing projects. The case is now pending before the Court on its third remand from the Federal Circuit. At this juncture, the contractual claims have been elided, and the takings claims are the subject of renewed discovery as the parties and the Court prepare for a trial to adjust a judgment that was ordered reinstated in Cienega VIII. The dispute now before the Court concerns the arrangements and schedule for deposing the claimants’ only expert witness, Dr. Richard Peiser, a professor at Harvard University. On March 10, 2004, plaintiffs filed, by leave of the Court, a motion for a protective order regarding Dr. Peiser. On that same day, the government filed an opposition and request for expedited consideration. A hearing addressing the motion and the parties’ arguments respecting the deposition of Dr. Peiser was conducted on March 11, 2004. At that hearing, the government requested extended time to depose Dr. Peiser beyond that presumptively allowable under the applicable rule.1 For the reasons set forth below, plaintiffs’ motion for a protective order is granted in part and denied in part, and the government’s oral request for extended time is granted in part and denied in part.2

PROCEDURAL BACKGROUND

A truncated recitation of the long and tortuous history of this case provides context for the discovery dispute. The plaintiffs are four entities that were selected as “model plaintiffs” for purposes of trial and case administration in Cienega Gardens v. United States, No. 91-1-C (“Cienega”). All plaintiffs in Cienega were owners of low-income housing units who filed suit seeking redress in connection with the passage of the Emergency Low Income Housing Preservation Act of 1987, Pub.L. No. 100-242, tit. II, 101 Stat. 1877 (1988) (codified at 12 U.S.C. § 1715Ü note), and the Low-Income Housing Preservation and Resident Homeownership Act of 1990, Pub.L. No. 101-625, tit. VI, 104 Stat. 4249 (1990) (codified in scattered sections of Title 12 of the U.S.Code, including 12 U.S.C. §§ 4101-4124), which nullified plaintiffs’ option to prepay their federally subsidized mortgages after 20 years, thus barring them from removing the regulatory restrictions on rental and use of their property. See Cienega VIII, 331 F.3d at 1323. The plaintiffs’ original complaint in Cienega encompassed claims based on a breach-of-contract theory as well as on categorical and regulatory takings under the Fifth Amendment. Id. at 1324. In 1997, Judge Robinson of this Court conducted a trial on the model plaintiffs’ breach-of-eontract claims and ruled in favor of those plaintiffs, awarding $3,061,107 in damages. Cienega Gardens v. United States, 38 Fed.Cl. 64 (1997) (“Cienega III”). On appeal, the Federal Circuit reversed this Court’s breach-of-contraet judgment, ruling that the plaintiffs lacked privity of contract with the government. Cienega Gardens v. United States, 194 F.3d 1231 (Fed.Cir.1998) (“Cienega IV”).

On remand, Judge Hodges of this Court dismissed plaintiffs’ takings claims. Cienega Gardens v. United States, 46 Fed.Cl. 506 [767]*767(2000) (“Cienega V”). On appeal of that ruling, the Federal Circuit held that the regulatory takings claims were ripe for adjudication and further remanded the matter to this Court. Cienega Gardens v. United States, 265 F.3d 1237 (Fed.Cir.2001) (“Cienega VI”). On the second remand, Judge Hodges granted summary judgment to the government, ruling that the plaintiffs did not have vested property rights and that, if any taking had occurred, it could not have been a compensa-ble taking as a matter of law. Cienega Gardens v. United States, No. 94-1C (Fed.Cl. Jan. 8, 2002) (order granting summary judgment).

The Federal Circuit overturned that grant of summary judgment on appeal in Cienega VIII. In doing so, the Federal Circuit ruled that the Cienega plaintiffs did hold vested property rights and were not legally barred from potential recovery. Cienega VIII, 331 F.3d at 1353-55. Additionally, as to the four model plaintiffs, the Court of Appeals held that the record justified a finding that those plaintiffs, whose claims had already been ventilated at trial, had suffered a compensa-ble, temporary, regulatory taking. Id. at 1353. Respecting those plaintiffs, the court ordered that “the original damages judgment entered in Cienega [after the trial on a breach-of-contract theory in 1997] be reinstated in the amount awarded therein for each of the four Model Plaintiffs.” Id. In its mandate to this Court regarding the reinstatement of the model plaintiffs’ damages award, the Federal Circuit directed that “[o]n remand, the trial court may adjust the original damages award reinstated by this court if it is shown by either party not to compensate accurately for the regulatory taking, and may also determine whether interest is or is not due.” Cienega, Judgment and Mandate (Fed.Cir. Nov. 5, 2003). Regarding the thirty-eight plaintiffs who were not model plaintiffs, the court held that sufficient evidence did not exist on the record to conduct an analysis of their takings claims under the regulatory takings principles set out in Penn Central Transp. Co. v. New York City, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978), and it remanded those claims for development of an appropriate factual record. Cienega VIII, 331 F.3d at 1353-54.

On January 23, 2004, the parties in Ciene-ga proposed a schedule for proceedings pursuant to which discovery regarding any potential adjustment of the reinstated model plaintiffs’ damages award would commence on that same day and close on April 16, 2004. In the proposal, the parties provided for an exchange of affirmative expert reports and rebuttal expert reports. Status conferences addressing the schedule for discovery and trial on the issues remanded to this Court by the Federal Circuit were held on January 14 and 28, 2004. The Court adopted basic elements of the parties’ proposed schedule in its Order of January 29, 2004, and scheduled a trial to commence on May 3, 2004. Additionally, in light of the Federal Circuit’s instructions on remand, this Court invoked RCFC 21 (last sentence) and ordered the claims of the four model plaintiffs severed from those of the other 38 Cienega plaintiffs. The instant case, Independence Park Apartments, et al. v. United States, No. 94-1A-C, was established to proceed independently from the original Cienega case. Importantly for the instant motion, because the Federal Circuit’s mandate in Cienega VIII orders the original judgment in Cienega

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Boston Edison Co. v. United States
75 Fed. Cl. 557 (Federal Claims, 2007)
Cienega Gardens v. United States
62 Fed. Cl. 28 (Federal Claims, 2004)
Globe Savings Bank v. United States
61 Fed. Cl. 91 (Federal Claims, 2004)

Cite This Page — Counsel Stack

Bluebook (online)
59 Fed. Cl. 765, 2004 U.S. Claims LEXIS 56, 2004 WL 578388, Counsel Stack Legal Research, https://law.counselstack.com/opinion/independence-park-apartments-v-united-states-uscfc-2004.