                     NOTE: This disposition is nonprecedential.


United States Court of Appeals for the Federal Circuit
                                     2007-5094

                                CCA ASSOCIATES,

                                                    Plaintiff-Appellee,

                                         v.

                                 UNITED STATES,

                                                    Defendant-Appellant.


     Elliot E. Polebaum, Fried, Frank, Harris, Shriver & Jacobson, LLP, of
Washington, DC, argued for plaintiff-appellee.

       Kenneth D. Woodrow, Trial Attorney, Commercial Litigation Branch, Civil
Division, United States Department of Justice, of Washington, DC, argued for
defendant-appellant. With him on the brief were Jeffrey S. Bucholtz, Acting Assistant
Attorney General, Jeanne E. Davidson, Director, and Brian M. Simkin, Assistant
Director. Of counsel was Elliot J. Clark, Jr., Deputy General Counsel for Litigation,
Office of General Counsel, Defense Commissary Agency, of Fort Lee, Virginia.

Appealed from: United States Court of Federal Claims

Judge Charles F. Lettow
                           NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit

                                        2007-5094

                                   CCA ASSOCIATES,

                                                              Plaintiff-Appellee,

                                             v.

                                    UNITED STATES,

                                                              Defendant-Appellant.


Appeal from the United States Court of Federal Claims in case no. 97-CV-334, Judge
Charles F. Lettow.

                          ___________________________

                          DECIDED: July 21, 2008
                          ___________________________


Before DYK, PROST, and MOORE, Circuit Judges.

PER CURIAM.

      This is another case involving a regulatory takings claim arising out of the

enactment of the Emergency Low Income Housing Preservation Act of 1987, Pub. L.

No. 100-242, tit. II, 101 Stat. 1877 (1988) ("ELIHPA") and the Low-Income Housing

Preservation and Resident Homeownership Act of 1990, Pub. L. No. 101-625, tit. VI,

104 Stat. 4249 (1990) (codified at 12 U.S.C. §§ 4101-4124) ("LIHPRHA") (collectively

“the Preservation Statutes”).   Defendant-Appellant United States (“the government”)

appeals from a final judgment of the Court of Federal Claims, finding that Plaintiff-

Appellee CCA Associates (“CCA”) suffered a temporary taking and awarding CCA just
compensation. CCA Assocs. v. United States, 75 Fed. Cl. 170, 206 (2007). We affirm-

in-part, vacate-in-part, and remand.

       We most recently addressed these issues in Cienega Gardens v. United States,

503 F.3d 1266 (Fed. Cir. 2007) (“Cienega X”). That decision, which issued after the

decision of the Court of Federal Claims in this case and the submission of the

government’s opening brief, addressed arguments that are in many respects identical to

those presented here.

       As a panel of this court, we are obligated to follow our earlier decision in Cienega

X. However, notwithstanding Cienega X, the government argues that CCA’s takings

claims are not ripe because CCA did not apply for permission to prepay the loan, or,

alternatively, that it did not apply for either of the two other benefits available under the

Preservation Statutes—the use agreement option and the sale option.

       We find that there is no distinction between the government’s contention here

that CCA’s claim is not ripe, and the contention made in Cienega X, which we rejected.

Just as applying for permission to prepay was shown in Cienega X to be futile and

therefore not necessary for ripeness, so too here the Court of Federal Claims did not err

in finding that an application to prepay would be futile and that the takings claim was

ripe. In Cienega X, we also rejected the argument that an owner must pursue other

statutory options in order to achieve ripeness, holding that “the ripeness doctrine does

not require the owners to apply for voluntary incentives such as the sale option that they

did not wish to pursue.” Id. at 1275 n.9. We therefore affirm the Court of Federal

Claims’ determination that CCA’s takings claim is ripe.




2007-5094                                 2
       CCA urges that we not follow Cienega X, and that the Court of Federal Claims’

conclusion that a taking occurred should be affirmed. We disagree. On the merits of

the takings analysis, Cienega X requires that we vacate the judgment here and remand

for further consideration in accordance with Cienega X. Here, as in Cienega X, the

Court of Federal Claims “should allow both sides to supplement the record with

additional relevant evidence if they wish to do so.” Id. at 1291.

             AFFIRMED-IN-PART, VACATED-IN-PART, AND REMANDED

No costs.




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