Free Stipulation of Dismissal - District Court of Federal Claims - federal

Case 1:94-cv-00001-CFL

Document 285

Filed 07/18/2008

Page 1 of 2

IN THE UNITED STATES COURT OF FEDERAL CLAIMS ARGONAUT APARTMENTS et al., Plaintiffs,
) ) ) ) ) ) ) ) )

UNITED STATES, Defendant.

Nos. 94-10011; 94-10012; 94-10014; 94-10015; 9410016; 94-10017; 94-10018; 94-10019; 94-10021; 94-10022; 94-10023; 94-10024; 94-10025; 94-10026; 94-10027; 94-10028; 94-10050; 94-10060; 94-10070; 94-10080; 94-10090; 94-10031; 94-10032 (consolidated) Judge Lettow

PARTIES' STIPULATION TO VOLUNTARY DISMISSAL Pursuant to Rule 41(a)(1) of the Rules of the United States Court of Federal Claims, the parties stipulate to the dismissal of this action, with prejudice, and with both parties to bear their own fees, expenses and costs. The settlement agreement, executed in the matter on May 29, 2008, is attached hereto. Respectfully submitted,

s/ Everett C. Johnson, Jr. Everett C. Johnson, Jr. LATHAM & WATKINS LLP 555 11th Street, NW Suite 1000 Washington, D.C. 20004 Tel: (202) 637-2200 Attorneys for Plaintiffs

s/ Gregory G. Katsas Gregory G. Katsas Assistant Attorney General s/ Jeanne E. Davidson Jeanne E. Davidson Director s/ Kenneth M. Dintzer Kenneth M. Dintzer Assistant Director Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 1100 L Street, N.W., Rm. 8012 Washington, D.C. 20530 Tel: (202) 307-0282 Attorneys for Defendant

July 18, 2008

Case 1:94-cv-00001-CFL

Document 285

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Page 2 of 2

CERTIFICATE OF FILING I hereby certify that on the 18th of July, 2008, a copy of the foregoing "PARTIES' STIPULATION TO VOLUNTARY DISMISSAL" was filed electronically. I understand that notice of this filing will be sent to all parties by operation of the Court's electronic filing system. Parties may access this filing through the Court's system.

/s Rebecca S. Giltner Rebecca S. Giltner

Case 1:94-cv-00001-CFL

Document 285-2

Filed 07/18/2008

Page 1 of 12

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

CIENEGA GARDENS APTS., et a!.,

Plaintiffs,
v.

THE UNITED

STATES,
Defendant.

) ) ) ) ) ) ) ) )

No.94-i

(Judge Lettow)

SETTLEMENT AGREEMENT

For the purpose of disposing of plaintiffs'

claims, without
on

any further judicial

proceedings

and without

constituting

an

admission of liability follows:

the part of any party, and for

no

other purpose, the

parties stipulate

and agree

as

This Settlement

Agreement
Park

relates to all claims in the

following cases:

a.

b.
c.

Apartments, et al. v. United States, No. 94-10001 Blossom Hill Apartments v. United States, No. 94-100 13 Cienega Gardens Apartments, et al. v. United States, No. 94-0000 1 Independence
Del Amo Gardens
v.

d.
e.

United States, No. 94-10004
v.

Las Lomas Gardens

f.
g. h.

Skyline

United States, No. 94-10009 View Gardens v. United States, No. 94-10029

i.

Village Commons v. United States, No. 94-10002 Covina West Apartments v. United States, No. 94-10003 Del Vista Village v. United States, No. 94-10005
DeSoto Gardens
v.

Claremont

j.
k. 1.
m.

United States, No. 94-10006
v.
v.

Kittridge Kittridge

Gardens I

Gardens II

United States, No. 94-10007 United States, No. 94-10008
v.

Oxford Park

Apartments
v. v.

United States, No. 94-100 10

n.

Parthenia Townhomes Pioneer Gardens
Puente Park

United States, No. 94-10020

o.

p. q.
r. s.

United States, No. 94-10030 Apartments v. United States, No. 94-10040

t.
u. v. w.
x.

Argonnaut Apartments v. United States, No. 94-10011 Beck Park Apartments v. United States, No. 94-10012 Casa San Pablo v. United States, No. 94-100 14 Central Park Apartments v. United States, No. 94-10015 Drebmoor Apartments v. United States, No. 94-10016 Fairview Green Apartments v. United States, No. 94-100 17 Genessee Park Apartments v. United States, No. 94-100 18 Grace & Laughter Apartments v. United States, No. 94-10019

Case 1:94-cv-00001-CFL

Document 285-2

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y.
z.

aa.

United States, No. 94-1002 1 Hollywood Apartments v. United States, No. 94-10022 Hollywood Plaza v. United States, No. 94-10023
Green Hotel
v.

Knickerbocker

bb.
cc.

Kings Canyon Apartments v. United States, No. 94-10024 Lawrence Road Apartments v. United States, No. 94-10025
Livermore Gardens
Palo Alto Gardens Placita Garden Park
v.

dd.
ee.

United States, No. 94-10026

v.

United States, No. 94-10027

ff.
gg.

hh. ii.

jj.
kk. 11.
mm.

Apartments v. United States, No. 94-10028 Rayen Apartments v. United States, No. 94-1005 0 Reseda Park Apartments v. United States, No. 94-10060 Roscoe Park Apartments v. United States, No. 94-10070 San Jose Gardens v. United States, No. 94-10080 Sunland Park Apartments v. United States, No. 94-10090
Villa Fontana
v.
v.

United States, No. 94-1003 1 United States, No. 94-10032
42 separate LP

Village

Green

which includes all claims

brought by the following

partnerships:

a.

b.
c.

d.
e.

f. g. h.

h~dependence Park Apartments, Pico Plaza Apartments, LP Sherman Park Apartments, GP St. Andrews Gardens, LP Blossom Hill Apartments, LP Cienega Gardens, LP Del Amo Gardens, LP
Las Lomas

Gardens, LP
GP

i.

Skyline

View Gardens, LP

j.
k.

Claremont
Del

Covina West

1.
m. n. o.

Village Commons, Apartments, LP Vista Village, GP
Gardens One, LP Gardens Two, LP

DeSoto Gardens, GP

Kittridge Kittridge

p.

q.
r.

Oxford Park, LP Parthenia Townhouses, GP
Pioneer Gardens, LP
Puente Park

s.

t.
u. v. w. x.

y.
z.

aa.

Apartments, GP Argonaut Apartments, LP Beck Park Apartments, LP Casa San Pablo, LP Central Park Apartments, LP Drehmoor Apartments, LP Fairview Green Apartments, LP Genesee Park Apartments, LP Grace & Laughter Apartments, LP
2

Case 1:94-cv-00001-CFL

Document 285-2

Filed 07/18/2008

Page 3 of 12

bb.
cc.

Green Hotel, LP

dd.
ee.

ff.
gg. hh.

ii.

jj.
kk. 11.
mm.
`in.

Hollywood Knickerbocker Apartments, Hollywood Plaza, LP Kings Canyon Apartments, LP Lawrence Road Apartments, LP Livermore Gardens, LP Palo Alto Gardens, LP Placita Garden Apartments, GP Rayen Park Apartments, GP Reseda Park Apartments, GP Roscoe Park Apartments, GP
San Jose Gardens, LP Sunland Park Apartments, LP Villa Fontana, LP

LP

00.

pp. 2.

Village Green,

LP

Plaintiffs in each of the

cases

set forth in

paragraph
by the

one are

developers
Housing

who

constructed apartment Administration

buildings
or

with

private

loans insured

Federal

("FHA"

"I{UD") pursuant

to

section

221(d)(3)

or

section 236 of the National

Housing Act,
insured

12 U.S.C.

§ 1715l(d)(3). Generally,
a

HUD

required developers

to

stay in the

housing

program for 40 years, unless

developer prepaid

the subsidized mortgage after owned

20 years and exited the program. Plaintiffs

are

separate partnerships and each

owns or

one

apartment building.
3.
In the

1980s, it became clear that large numbers of apartment building
mortgages and
to terminate their

owners

might attempt
section

to prepay their HUD-insured

participation

in the

221(d)(3)
Housing

and section 236 programs.

Accordingly, Congress
12 U.S.C.

enacted the

Emergency Low
and,

Income

Preservation Act of 1987

("ELIHPA"),

§

17151 note,

subsequently,

the Low Income

Housing

and Resident

Homeownership

Act of 1990

("LIHPRHA"),

12 U.S.C.

§

4101 ~i ~ which restricted the

ability of program participants
use

to

prepay their mortgages and, the

consequently,

terminate the low-income

restrictions

imposed

on

properties.
3

Case 1:94-cv-00001-CFL

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4.

Subsequent
one

to the enactment of ELJHPA and

LIHPRHA, the plaintiffs in the

cases

listed in

paragraph

filed suit in the United States Court of Federal Claims,

raising

a

variety of

claims, including but
the prepayment

not limited to the breach of contract and the

taking

of property,

including

right,

without just

compensation,

under the Fifth Amendment to the United

States Constitution.

5.

In 1995 and

1996, the Court of Federal Claims granted summary judgment in

favor of the

plaintiffs
their

on

their breach of contract claims, but denied their motion for summary claims. The Court dismissed their administrative law claims for lack

judgment

on

takings

ofjurisdiction. Cienega Gardens
United States 37 Fed. Cl. 79
6.

v.

United States 33 Fed. Cl. 196

(1995); Cienega

Gardens

v.

(1996).
the

Subsequently,

parties

selected four model

plaintiffs (Sherman Park Apartments,
and Pico Plaza

Apartments, Independence

Park

Apartments,

St. Andrews Garden

Apartments, collectively "model plaintiffs")
breach of contract claims.

for the purposes of resolving

damages

upon the

7.

After

trial,

on

April 29, 1997,

the Court awarded the model

plaintiffs
v.

approximately $3.1
Fed. Cl. 64

million in breach of contract

damages. Cienega

Gardens

United States 38

(1997).
On December 7, 1998, the Court of Appeals for the Federal Circuit vacated and

8.

remanded the case,
HUD.

holding that no privity of contract
v.

existed between the model Cir.

plaintiffs

and

Cienega
9.

Gardens

United States 194 F.3d 1231

(Fed.

1998).

On

remand, the Court granted

summary judgment in favor of the Government

upon the

ground

that the model

plaintiffs' takings

claims

were

not

ripe. Cienega

Gardens

v.

United States 46 Fed. Cl. 506

(2000).
4

Case 1:94-cv-00001-CFL

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Page 5 of 12

10.

On

September 18, 2001,

the Court of Appeals affirmed the dismissal of the model

plaintiffs'

p.~ ~

takings claims,
Gardens

but held that their

regulatory takings (Fed.

claims

were

ripe

for

adjudication. Cienega
11.

v.

United States 265 F.3d 1237

Cir.

2001).
a

Subsequently,

on

June 12, 2003, the Court of Appeals reversed

grant of

summary judgment to the Government with

respect

to the model

plaintiffs' taking claims,
of the model

holding

that

Congress

had effected

a

compensable regulatory taking

plaintiffs'
As to the 38

property. Cienega Gardens

v.

United States 331 F.3d 1319, 1353

(Fed. Cir. 2003).

plaintiffs

for whom

no

trial record

existed,

the Court remanded for

development

of the facts. As

to the model

plaintiffs,

the Court ordered that the

original $3.1 damages
for the

earlier awarded

on

their

contract claims be reinstated

as

just compensation
due.

taking, subject

to reconsideration

as

to

the proper
12.

measure

ofjust compensation

Upon remand,
Gardens

the Court of Federal Claims severed the model

plaintiffs'
a

claims

from the

Cienega

case

and, following

a

trial, awarded the model plaintiffs
Park

combined

total of approximately $3.4 million in

compensation. Independence

Apartments

v.

United

States 61 Fed. Cl. 692 (2004).
13.

Upon appeal,

the Court of Appeals concluded that the trial court erred in

decling

to consider

the effects of the Los

Angeles

Rent Stabilization Ordinance in its calculation of

damages
Cir.

from the

taking. Independence

Park

v.

United States 449 F.3d 1235, 1238

(Fed.

2006).

The Court of Appeals also concluded that the Owners that had

signed

Use

Agreements effectively

extended their

takings
they

from 1995 until 2011 and 2012,

thereby

potentially increasing
remanded the
case

the award to which

are

entitled. j~ at 1246-48. The Court of Appeals

to the Trial Court for

a

revised calculation of damages. j~ at 1248.
then

14.

The

following

five

plaintiffs

proceeded
5

with

discovery:

Blossom Hill

Case 1:94-cv-00001-CFL

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Apartments, Cienega
View

Gardens

Apartments,

Del Amo Gardens, Las Lomas Gardens, and
Because the Court

Skyline

Apartments ("Cienega

Gardens

plaintiffs").

perceived Cienega

common

elements in the cases, the Court combined the consolidated trial of the

Gardens

plaintiffs
United

with the consolidated trial of three other

plaintiffs

on

remand from Chancellor Manor

v.

States 331 F.3d 891 (Fed. Cir. 2003).
15.

On

August 29, 2005, following
combined

a

trial

on

liability

and

damages,

the Court

produced
taken

a

dual-captioned,
contractual

opinion, concluding

that the Government had

temporarily

plaintiffs'

rights

to prepay their

mortgages. Cienega Gardens

v.

United States
to

67 Fed. Cl. 434

(2005).

The Court awarded

$30,274,570 in just compensation, plus interest,

the

Cienega

Gardens

plaintiffs.

Amen. Order for

Entry of Final J., Cienega

Gardens

v.

United

States 46 Fed. Cl. 506 (Nov. 22, 2006) (No. 94-1--C).
16. On

September 25, 2007,
and remanded the

the Court of Appeals vacated the judgment, reversed the "for
Penn Central

trial court's

holding,

cases

a new

analysis

under the correct

legal

standard."

Cienega

Gardens

v.

United States 503 F.3d 1266
the

(Fed. Cir. 2007).
filed
a

17.

On

February 22, 2008,

Cienega

Gardens
et al.

plaintiffs
v.

petition

for writ of

certiorari which remains pending. Cienega Gardens,
Feb. 22,

United States No. 07-1100

(U.S.,

2008).
The

18.

parties

entered into

negotiations designed

to resolve

amicably the
a

claims of

all 42

plaintiffs. By
as

letter from

plaintiffs'

counsel dated March

12, 2008,

copy of which is

attached

Exhibit A, the
in

plaintiffs exchange

have offered to settle the claims of all

plaintiffs

in the

cases

listed in

paragraph

one

for payment

by the United

States in the total amount of

Thirty-Seven

Million Dollars

($37,000,000) ("Settlement Amount")

inclusive of interest, with

each party to bear its

own

costs, attorney fees, and expenses. Plaintiffs will waive all attorney
6

Case 1:94-cv-00001-CFL

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Page 7 of 12

fees and costs

previously
The

awarded

or

that may have accrued in these matters.

19.

plaintiffs'

offer has been

accepted

on

behalf of the

Attorney

General and the

Solicitor General.

20.

The United States shall remit the Settlement Amount to

plaintiffs

within 60

days

of the execution of this Settlement

Agreement by wire
no

transfer

payable

to Goldrich & Kest

Industries, LLC. The United States has
payments
to individual

obligations

with respect to the distribution of

plaintiffs,

which shall be the sole

responsibility of Goldrich

& Kest

Industries, LLC.
21.

Upon payment

of the Settlement Amount, the

plaintiffs

agree to

join with

the

United States in

promptly stipulating
a

to the dismissal of these lawsuits with

prejudice.

The

parties

shall attach

copy of this settlement

agreement

to the

stipulations

of dismissal. The

plaintiffs
Gardens,

further agree
et al.

immediately to

withdraw their

petition

for writ of certiorari in

Cienega

v.

United States No. 07-1100

(U.S.,

Feb. 22,

2008).
the

22.

Upon satisfaction of the

terms set

forth in

paragraph 20,

plaintiffs release,

waive, and abandon all claims against the United States, its political subdivisions, its officers,
agents, and employees, arising
out of
or

related to the Government action involved in these cases,

regardless

of whether

they were

included in the

complaints, including
damages,
and

but not limited to any

claims for costs, expenses, attorney fees, compensatory
23.

exemplary damages.
or

This agreement is in

no

way related to

or

concerned with income

other taxes for

which the

plaintiffs

are now

liable

or

may become liable in the future

as a

result of this

agreement.
24.

The

plaintiffs

warrant and

represent that
or

no

other action

or

suits with respect to

the claims advanced in these suits is

pending

will be filed in

or

submitted to any other court,

7

Case 1:94-cv-00001-CFL

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Filed 07/18/2008

Page 8 of 12

administrative agency,
have made

or

legislative body.
or

The

plaintiffs

further warrant and represent that

they
to

no

assignment

transfer of all

or

any part of their

rights arising

out of

or

relating

the claims advanced in these suits. Should there be

now or

in the future any violation of the

warranties and

representations

set forth in this

paragraph,

any amount

paid by the United

States

pursuant

to this

agreement shall be refunded promptly by the plaintiffs, together with interest

thereon at the rates

provided

in 41 U.S.C.

§ 611, computed

from the date the United States makes

payment.
25.

This agreement is for the purpose of settling these cases, and for

no

other.

Accordingly,

this agreement shall not bind the

parties,

nor

shall it be cited

or

otherwise referred

to, in any proceedings, whether judicial
counsel for the

or

administrative in nature, in which the

parties

or

parties

have

or

may

acquire

an

interest, except

as

is necessary to effect the terms

of this agreement. 26.

Plaintiffs' counsel represents that he has been and is authorized to enter into this
behalf of the

agreement

on

plaintiffs

in the

cases

listed in

paragraph

one.

8

Case 1:94-cv-00001-CFL

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Filed 07/18/2008

Page 9 of 12

27.

This document constitutes

a

complete integration
or

of the agreement between the

parties

and

supersedes
or

any and all

prior

oral

written

representations, understandings

or

agreements among

between them.

Agreed

To:

GREGORY G. KATSAS

Acting

Assistant

Attorney

General

J

ANNE E. DAVIDSON

Director

Authorized

Representative

of the

Atton~ey

General

7~
KENNETH M. DINTZER
Latham & W~
555

Assistant Director Commercial

11th Street,

Litigation
of Justice

Branch

Suite 1000

Civil Division

Washington, DC 20004 Tele: (202) 637-2200

Department
Attn: 1100 L

Classification Unit, Rm. 8012

Street,

N.W.

Washington, D.C. 20530 Tele: (202) 307-0282

Attorneys

for Plaintiffs

Attorneys

for Defendant

Date:c27Mc2O~

Date:oZ'~M~ 02oog'

9

Case 1:94-cv-00001-CFL

Document 285-2

Filed 07/18/2008

Page 10 of 12

Exhibit A

Everett C. Johnson, Jr. +1.202.837.2260

Case 1:94-cv-00001-CFL

Document 285-2

Filed 07/18/2008 N.W., Suite 11 of 12 Page 1000 555 Eleventh Street,
Washington,
D.C. 20004-1304

everett.johnson©lw.com

Tel: ÷1.202.637.2200 Fax: +1.202.637.2201
www.lw.com

FIRM / AFFILIATE OFFICES

LAT HAM &WAT K I N S

LLP

Barcelona
Brussels

New

Jersey

New York

Cl~icago
Frankfurt

t4orttlem Virginia

Orange County
Paris

Hamburg

March 12, 2008 CONFIDENTIAL FOR SETTLEMENT PURPOSES ONLY Kenneth Dintzer, Esq. Assistant Director
U.S. Commercial

Hong Kong
London

San

Diego

San Francisco

Los

Angeles

:::IeY
Singapore

Milan
Moscow

Tokyo
Washington, D.C.

MuniCh

File No. 022956-0031

Department Litigation

of Justice
Branch

Civil Division, Classification Unit 1100 L Street, N.W., Room 8012

Washington,
Re:

D.C. 20530

Cienega Gardens

v.

United States and Related Cases

Dear Mr. Dintzer:

Pursuant to

the

plaintiffs

in

discussions, Cienega Gardens v.
our

I write to

provide

a

formal settlement
cases.

proposal

on

behalf of

United States and related

initially filed in the U.S. Court of Federal Claims, and pursuant to the terms herein, I propose to conclusively settle, release, and resolve all claims against the United States, including claims for attorneys' fees and all other fees and costs. This proposal includes the waiver of any and all attorneys' fees awarded by the U.S. Court of Appeals for the Federal Circuit. The cases are: previously
cases

On behalf of the

plaintiffs

in each of the 42 below-listed

1.
2.

Independence Park v.
Pico Plaza
v.

United States, No. 94-cv-l0001

United
v.

States,

No. 94-cv-10001

3. 4.
5.

Sherman Park

United States, No. 94-cv-10001 St. Andrews Gardens v. United States, No. 94-cv- 10001 Blossom Hill Apartments v. United States, No. 94-10013 Cienega Gardens Apartments v. United States, No. 94-cv- 1 DelAmo Gardens
v.

6.
7.

United States, No. 94-cv-10004
v.

8. 9.
10.

Las Lomas Gardens

Skyline

United States, No. 94-cv-10009 View Apartments v. United States, No. 94-cv-10029

11.
12. 13. 14. 15. 16.

Village Commons v. United States, No. 94-10002 Covina West Apartments v. United States, No. 94-cv- 10003 Del Vista Village v. United States, No. 94-cv-10005
DeSoto Gardens
v.

Claremont

United States, No. 94-cv-10006

Kittridge Gardens I v. United States, No. 94-cv- 10007 Kittridge Gardens II v. United States, No. 94-cv-1 0008 Oxford Park Apartments v. United States, No. 94-cv- 10010

Kenneth Dintzer March 12, 2008 Page 2

Case 1:94-cv-00001-CFL

Document 285-2

Filed 07/18/2008

Page 12 of 12

LATHAM&WATKI N SLIP

CONFIDENTIAL
FOR SETTLEMENT PURPOSES ONLY

17.
18. 19.
20.

Parthenia Townhouses Pioneer Gardens
v.

United States, No. 94-cv-1 0020 United States, No. 94-cv-10030
v. v.

Puente Park Apartments

United States, No. 94-cv-10040

21. 22.

Argonaut Apartments v. United States, No. 94-cv- 10011 Beck Park Apartments v. United States, No. 94-cv- 10012
Casa San Pablo
v.

United States, No. 94-cv-10014

23.
24.

Central Park Apartments v. United States, No. 94-cv-10015 Drehmoor Apartments v. United States, No. 94-cv-10016

25.
26. 27.
28. 29.

30. 31. 32.

33..
34.
35.
36.

37.

38.
39.
40.

41.

42.
I

Apartments v. United States, No. 94-cv- 10017 Genesee Park Apartments v. United States, No. 94-cv- 10018 Grace & Laughter Apartments v. United States, No. 94-cv-10019 Green Hotel v. United States, No. 94-cv-10021 Hollywood Knickerbocker Apartments v. United States, No. 94-cv-1 0022 Hollywood Plaza v. United States, No. 94-cv-10023 Kings Canyon Apartments v. United States, No. 94-cv- 10024 Lawrence Road Apartments v. United States, No. 94-cv-10025 Livermore Gardens v. United States, No. 94-cv-10026 Palo Alto Gardens v. United States, No. 94-cv-10027 Placita Garden Apartments v. United States, No. 94-cv-10028 Rayen Park Apartments v. United States, No. 94-cv-10050 Reseda Park Apartments v. United States, No. 94-cv-10060 Roscoe Park Apartments v. United States, No. 94-cv-10070 San Jose Gardens v. United States, No. 94-cv-10080 Sunland Park Apartments v. United States, No. 94-cv-1 0090 Villa Fontana v. United States, No. 94-cv-10031 Village Green v. United States, No. 94-cv-10032

Fairview Green

am

duly

authorized

by

the

plaintiffs

in these

cases

to execute

a

settlement

on

their behalf..

Payment

to

dollars and delivered within this settlement will
me at

Goidrich & Kest Industries, LLC, in the amount of thirty-seven (37) million sixty (60) days of the U.S. Department of Justice's final approval of

satisfy

the

(202)

637-2260 if you have any

obligations of the questions.

United States. Please do not hesitate to contact

Sincerely,

~
Everett C.

(~u__-~

Johnson, Jr.

of LATHAM & WATKINS LLP

2