Carrington Gardens Associates v. United States , 49 F. App'x 427 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
CARRINGTON GARDENS ASSOCIATES, 
Plaintiff-Appellant,
v.
UNITED STATES OF AMERICA,
Defendant-Appellee,  No. 01-1495
and
UNITED STATES TRUSTEE,
Trustee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Rebecca B. Smith, District Judge.
(CA-00-584-2, BK-98-2071-S)
Argued: September 24, 2002
Decided: October 25, 2002
Before WILLIAMS, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Gregory Lane Sandler, EPSTEIN & SANDLER, P.C.,
Norfolk, Virginia, for Appellant. Gregory David Stefan, Assistant
United States Attorney, UNITED STATES ATTORNEY’S OFFICE,
Norfolk, Virginia, for Appellee. ON BRIEF: Paul J. McNulty, United
2 CARRINGTON GARDENS ASSOC. v. UNITED STATES
States Attorney, UNITED STATES ATTORNEY’S OFFICE, Nor-
folk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Carrington Gardens Associates (Carrington) appeals from the dis-
trict court’s decision affirming the bankruptcy court’s grant of sum-
mary judgment in favor of the United States of America through the
Secretary of Housing and Urban Development (HUD). After Carring-
ton filed for bankruptcy relief pursuant to Chapter 11 of the Bank-
ruptcy Code, it filed a breach of contract action against HUD in the
bankruptcy court based on HUD’s refusals to grant rent increases and
access to Carrington’s reserve account. The bankruptcy court deter-
mined that some of Carrington’s claims were time-barred by the six-
year statute of limitations, 28 U.S.C.A. § 2401(a) (West 1994), and
that HUD did not breach the contract regarding the remaining claims
because Carrington had first breached the contract, and thus, because
the contract was in default, HUD did not have to comply with its
remaining executory promises. In re Carrington Gardens Assoc., 248
B.R. 752 (Bankr. E.D. Va. 2000). On appeal, the district court
affirmed the bankruptcy court in all respects. Carrington Gardens
Assoc. v. United States, 258 B.R. 622 (E.D. Va. 2001). Carrington
argues on appeal that both courts erred in their characterization of its
claims that they found time-barred, which made them only appear to
have occurred six years prior to the filing of their suit, and erred
regarding the remaining claims in determining that Carrington first
breached the contract at issue. If the district court had considered the
totality of the circumstances, Carrington argues, Carrington’s one
technical breach would be insufficient to allow HUD to deny it neces-
sary rent increases and access to its reserve account. Unpersuaded, we
affirm.
CARRINGTON GARDENS ASSOC. v. UNITED STATES 3
I.
Since May 15, 1985, Carrington has operated a low-income apart-
ment project in Richmond, Virginia. To finance the operation of the
apartment project, Carrington entered into a regulatory agreement
with HUD pursuant to Section 236 of the National Housing Act, 12
U.S.C.A. § 1715z-1 (West 2001) (the 236 Agreement), wherein Car-
rington assumed a nonrecourse, secured loan with an independent
mortgagor, which HUD agreed to insure (the 236 Loan). The 236
Agreement regulated the rents that Carrington was permitted to
charge and required compliance with HUD’s regulations. Upon
default, HUD could accelerate the mortgage, proceed with foreclo-
sure, collect the rents, and take possession of the project.
Carrington also entered into a Housing Assistance Payments (HAP)
contract with HUD, wherein HUD agreed to subsidize roughly half
of the rental units upon Carrington’s compliance with HUD’s housing
regulations. As part of those regulations, HUD requires Carrington to
submit a request to increase rent or obtain other funding. HUD then
evaluates whether Carrington is in compliance with its regulations
and contractual agreements and determines if the increase is finan-
cially justified based on Carrington’s financial statements for the proj-
ect.
On February 28, 1989, Carrington obtained a nonrecourse, secured
loan with an independent mortgage company pursuant to Section 241
of the National Housing Act, codified at 12 U.S.C.A. § 1715z-6 (West
2001) (the 241 Loan), which HUD insured, based on a regulatory
agreement that Carrington executed with HUD (the 241 Agreement).
The 241 Agreement reiterated that HUD regulated the rents that Car-
rington was permitted to charge and required compliance with HUD’s
regulations. As with the 236 Agreement and Loan, upon default,
HUD could accelerate the mortgage, proceed with foreclosure, collect
the rents, and take possession of the project.
The 241 Loan was made to finance capital improvements, and its
funds were to be disbursed as the construction proceeded in accor-
dance with the percentage completed. The capital improvements were
specified in a construction contract that was part of the 241 Loan,
which stated that no changes to the construction contract could be
4 CARRINGTON GARDENS ASSOC. v. UNITED STATES
made without HUD’s prior approval and that the loan must remain in
balance (i.e., the undistributed loan balance must equal or exceed the
costs of completion). The 241 Loan would go into default if Carring-
ton abandoned the project, ceased work, failed to complete the con-
struction in accordance with the contract, or made changes to the
contract without HUD’s approval.
After Carrington declared that most of the construction project was
complete, HUD determined, through two inspectors, that the percent-
age of the work that Carrington had declared was complete was not,
in fact, complete, that construction deviated from the construction
contract, and that funds were used for projects for which they were
not permitted. Therefore, in April 1990, HUD declined to allow fur-
ther advances from the 241 Loan until the construction project’s com-
pletion was brought back into balance with the 241 Loan schedule.
Efforts to resolve the problems were unsuccessful. Carrington later
defaulted on the 241 Loan, which remained in default from 1991
onwards. On April 8 and 20, 1992, HUD reminded Carrington, by let-
ter, that no funds were available under the 241 Loan because it was
in default. HUD audited Carrington in 1992 to determine if the project
was being operated in accordance with the 236 Agreement and
HUD’s regulations. HUD issued its report on June 22, 1992, for the
time period between January 1, 1989, to September 30, 1991. HUD
made twenty-eight adverse findings, which it presented to Carrington.
By 1995, Carrington had cleared all but four of HUD’s audit find-
ings. On October 26, 1995, HUD issued a supplemental audit report,
which contained the following four violations of the 236 Agreement,
which Carrington has failed to clear and which Carrington does not
dispute:1 (1) Carrington overpaid payroll costs to an independent
management agency; (2) Carrington improperly used project operat-
ing funds for capital improvements; (3) Carrington did not provide
sufficient documentation to support the costs paid out of the project
funds; and (4) Carrington’s owners improperly withdrew money from
1
Although Carrington does not dispute these violations, Carrington
believes that HUD, in essence, forced it to violate the 236 Agreement by
failing to clear the adverse audit reports in response to information that
it submitted and by denying necessary rent increases and access to the
reserve account.
CARRINGTON GARDENS ASSOC. v. UNITED STATES 5
the reserve account to fund operating deficiencies. Based on the sup-
plemental audit report violations of the 236 Agreement, HUD
declared the 236 Loan in default.
Between 1992 and 1997, Carrington requested five rent increases,
which HUD denied based on the 236 Loan and 241 Loan defaults,
Carrington’s failure to maintain sufficient funds in the reserve
account, as required by the 236 Agreement and HUD’s regulations,
and the uncleared audit findings. Carrington also made several
requests between October 1992 and October 1995 for releases of
funds from its reserve account. HUD denied these requests on the
same bases. The project thus deteriorated because Carrington believed
that it deserved rent increases and access to its reserve account before
making any changes while HUD required that Carrington remedy its
financial problems first.
Finally, HUD advised Carrington on October 12, 1995, that the
entire balance on the 241 Loan was due and that HUD would proceed
with foreclosure because the 241 Loan had remained in default since
1991. In October 1996, HUD proceeded with foreclosure because
Carrington was $59,475.19 delinquent on the 236 Loan, was
$179,803.37 delinquent on the 241 Loan, failed to provide financial
statements, and otherwise failed to maintain the property. HUD set a
foreclosure sale for December 12, 1997. To stay the foreclosure pro-
ceeding, Carrington filed for bankruptcy on December 9, 1997, and
then instituted the current action against HUD for breach of contract
due to HUD’s refusals to grant rent increases and access to the reserve
account.
II.
Carrington first argues that the district court erred in holding that
its pre-1995 breach of contract claims based on HUD’s refusals to
grant rent increases and releases of funds from its reserve account
were dependent on its 241 loan default and thus barred by the relevant
statute of limitations. Carrington asserts that HUD’s breaches are
independent of the 241 default because Carrington was not harmed
until HUD declined its requests. HUD responds that the contract does
not require it to grant rent increases and, furthermore, its decisions not
to grant the requested rent increases and access to the reserve account
6 CARRINGTON GARDENS ASSOC. v. UNITED STATES
were based on Carrington’s default of the 241 Loan, which occurred
six years prior to Carrington instituting this lawsuit. We review grants
of summary judgment de novo. Higgins v. E.I. DuPont de Nemours
& Co., 863 F.2d 1162, 1167 (4th Cir. 1988).
A claim accrues for purposes of the statute of limitations "when all
the events have occurred which fix the liability of the Government
and entitle the claimant to institute an action." Brown Park Estates-
Fairfield Development Co. v. United States, 127 F.3d 1449, 1455
(Fed. Cir. 1997) (quoting Brighton Village Assocs. v. United States,
52 F.3d 1056, 1060 (Fed. Cir. 1995)). Here, HUD determined that the
241 Loan was in default on or before April 8, 1992.2 On the strength
of that determination, HUD denied each of Carrington’s subsequent
requests for rent increases and access to the reserve account. Carring-
ton sought in each request to have HUD reconsider the 241 Loan
default determination. Thus, as the district court correctly determined,
the claims Carrington asserted in its adversary action in the bank-
ruptcy court, which were filed on May 6, 1998, were based on an
event — HUD’s determination that the 241 Loan was in default —
that had occurred and fixed the Government’s liability, if any, more
than six years before, rendering them barred by the statute of limita-
tions. See 28 U.S.C.A. § 2401(a) ("[E]very civil action commenced
against the United States shall be barred unless the complaint is filed
within six years after the right of action first accrues."); cf. Minidoka
Irrigation Dist. v. Dep’t of Interior, 154 F.3d 924, 926 (9th Cir. 1998)
("[T]he statute of limitations began to run upon the date of repudia-
tion. As the latest possible date of repudiation is 1985, if the contract
was repudiated, the six-year statute of limitations has run and all of
MID’s claims are time-barred.").
The district court also determined that Carrington’s claims do not
fall within the "continuing claim" doctrine. The "continuing claim"
doctrine applies when a plaintiff’s claims are "inherently susceptible
to being broken down into a series of independent and distinct events
or wrongs, each having its own associated damages." Brown Parks
Estates, 127 F.3d at 1456. Where a plaintiff’s alleged continuing vio-
2
The 236 Loan default occurred after October 1995. Thus, any refusals
to permit Carrington’s requested rent increases or access to its reserve
account before October 1995, were due to the 241 Loan default.
CARRINGTON GARDENS ASSOC. v. UNITED STATES 7
lations are "merely damages resulting from the single earlier alleged
violation," id. at 1457, there is not a series of independent, distinct
wrongs. Because Carrington’s claims all stem from HUD’s determi-
nation that the 241 Loan was in default, Carrington’s claims are not
susceptible to being broken down into separate, distinct events. More-
over, the "continuing claim" doctrine does not apply when Congress
has "deliberately given an administrative body the function of decid-
ing all or part of the claimant’s entitlement." Friedman v. United
States, 310 F.2d 381, 385 (Ct. Cl. 1962) (en banc). Instead, the action
accrues "as a whole" at the time of the agency decision. Id. at 387.
Here, Congress has committed to HUD the determination of loan
defaults and rent increase requests and has enumerated the various
factors and considerations that HUD must use to determine when to
declare a loan in default, grant rent increase requests, and find regula-
tory violations. See Christopher Village, Ltd. P’ship v. Retsinas, 190
F.3d 310, 315, 315 (5th Cir. 1999) (noting that HUD must "delicately
balance" various competing factors and considerations in determining
rent increase requests); United States v. Winthrop Towers, 628 F.2d
1028, 1036 (7th Cir. 1980) (stating that HUD must make "highly dis-
cretionary" decisions in the course of administering loans it insures).
The district court further determined that the statute of limitations
was not tolled by application of the "inherently unknowable" doctrine.
Carrington argues that it could not foresee that HUD would deny
future requests for rent increases and access to the reserve account
based on the 241 Loan default. The district court properly disposed
of this contention because it is always reasonably foreseeable that an
aggrieved party will refuse to perform a contract after it has
announced that the other party has already breached. See Entines v.
United States, 39 Fed. Cl. 673, 680 (1997) (holding that the claim
must be "unknowable by its very essence" for it to fall within the "in-
herently unknowable" doctrine), aff’d, 185 F.3d 881 (Fed. Cir. 1999)
(unpublished).
III.
HUD’s refusals to permit Carrington’s requested rent increases and
access to the reserve account after the supplemental audit report on
October 26, 1995, were based on breaches of the 236 Agreement and
were thus not barred by the statute of limitations. Nonetheless, the
8 CARRINGTON GARDENS ASSOC. v. UNITED STATES
bankruptcy court granted, and the district court affirmed, summary
judgment in favor of HUD because the 236 Loan was delinquent. Car-
rington does not dispute that the 236 Loan was delinquent, but it
argues that one technical breach, especially when caused by HUD’s
bad acts, should not be sufficient to allow HUD to deny rent increases
or access to its reserve account.
The district court properly affirmed the grant of summary judgment
in HUD’s favor because Carrington’s admitted misuse of the reserve
account alone is a sufficient reason to deny rent increases, as a matter
of law, especially in light of the deference granted to administrative
agencies in the exercise of their discretion. See Christopher Village,
190 F.3d at 315, 317 ("[B]ecause Congress committed to HUD full
discretion in determining whether to grant or deny a rent increase
request, the decision on the amount of any increase is unreviewable.
. . . [Furthermore,] HUD [can] refuse to provide financial assistance
to an owner that has misappropriated funds, mismanaged the prop-
erty, taken a profit instead of maintaining the property, or been negli-
gent in its management in some other regard.").
IV.
Having had the benefit of oral argument and having carefully con-
sidered the parties’ briefs, the records from the courts below, and the
relevant legal authority, we conclude that the bankruptcy and district
courts correctly resolved the issues before them. See In re Carrington
Gardens Assoc., 248 B.R. 752 (Bankr. E.D. Va. 2000); Carrington
Gardens Assoc. v. United States, 258 B.R. 622 (E.D. Va. 2001). Find-
ing no error, we affirm.
AFFIRMED