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United States Court of Appeals, Federal Circuit.

SALINE ASSOCIATES NO. 1 LIMITED PARTNERSHIP, St. Clair West Limited Partnership, Stockbridge Associates Limited Partnership, Plaintiffs-Appellants v. UNITED STATES, Defendant-Appellee


Decided: September 03, 2019

Before Newman, Lourie, and Stoll, Circuit Judges. Jeff Howard Eckland, Mark Blando, Esq., Attorney, Vince Reuter, Esq., Attorney, Lara Sandberg, Esq., Attorney, Eckland & Blando LLP, Minneapolis, MN, William Lewis Roberts, Attorney, Faegre Baker Daniels LLP, Minneapolis, MN, for Plaintiffs-Appellants Matthew Paul Roche, Trial Attorney, Department of Justice, Commercial Litigation Branch, Civil Division, Washington, DC, for Defendant-Appellee


Saline Associates No. 1 Limited Partnership, St. Clair West Limited Partnership, and Stockbridge Associates Limited Partnership filed a petition for panel rehearing.

The United States separately moved for the court to reissue its opinion as precedential.

Upon consideration thereof,

It Is Ordered That:

(1) The petition for panel rehearing is denied; concurring opinion filed by Circuit Judge Stoll.

(2) The motion to reissue as precedential is denied.

(3) The mandate of the court will issue on September 10, 2019.

I concur in the denial of the petition for panel rehearing. This case asked us to decide whether Saline ever converted the government’s anticipatory repudiation to a breach under Franconia Associates v. United States, 536 U.S. 129, 122 S.Ct. 1993, 153 L.Ed.2d 132 (2002) and, if so, whether its suit was timely. The facts of the case drive the resolution of this question. More than six years prior to filing suit, Saline entered a legally binding contract to sell its property to Union Street. In doing so, Saline effected a material change in position in reliance on the government’s actions—Saline states that the sales price accounted for the prepayment restrictions imposed by the Emergency Low Income Housing Preservation Act of 1987 (codified at 42 U.S.C. § 1472(c)), and it was at the time of contracting that it realized the economic impact of the government’s repudiation. Accordingly, regard-less of whether Franconia leaves open the possibility of converting the government’s anticipatory repudiation to breach by making a material change in position, and regardless of the exact contours of Michigan state law, the opinion correctly rules that any material change occurred more than six years prior to Saline’s suit.

That dooms both Saline’s contract claim and its takings claim, which Saline concedes accrued, if at all, at the same time. See Appellant’s Br. 41. The Court of Federal Claims thus correctly ruled that Saline’s claims are barred by the Tucker Act’s six-year statute of limitations.

Per Curiam.

Opinion concurring in the denial of the petition for panel rehearing filed by Circuit Judge Stoll.

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