the counter party for the owner or properties of the new york state housing agency which is a state agency it's not a federal agency was this different from the original yes it is different riginal happen trucks were between the owners and hud directly directly there was an intervening statute the marist statute of one thousand nine hundred seven multifamily assisted housing reform act one of the purposes of that statute section five eleven and twelve was to permit hud to delegate certain of its administration functions to state agencies and that's what happened here and one of the provisions allowed hud to offer renewal contracts under section five twenty four a one under such terms as hu deems appropriate before using before that statute the contract always had to be between directly with i don't know in all cases but i know that the contract in this case was directly with hud so there was an original contract for nine hundred seventy eight to two thousand and eight a thirty year term there was a new contract enter into short term bridge contracts in two thousand and two thousand and ten full twenty year renewals in two thousand and eleven in between then you had this mar statute different legal structure also in the middle you had the one nine hundred ninety four amendments to the housing act which lowered the rate of an well then increases so in the park properties one litigation earlier litigation in the  federal claims the court found that those one thousand nine hundred four amendments that slow the rate of red increases of constituted a breach of the original happen transported an award of money damages which was entered into twenty fourteen plaintiffs theory and which largely doctored by the trial court was that hud was a contract the renewal contract should have been reformed to be the rent that would have been in existence had there been no breach of the original hap contract the problem with that theory is that first the trial court in the park properties one litigation did not order any change to the terms of the original happen tracht all it did was order money damages  a voluntary renewal there is no causation even if it's rent is lower than it would have been but for the original breach of the original contract solution the new contract you voluntarily entered into these renewal contracts and therefore claims that i'm just going to renew i'm just going to reform the renewal contract i'm not even going to reach the issue of whether there was direct into entering into the renewal contracts which would be a defense to our motion to dismiss on the grounds that the renewal was voluntary the court didn't even reach that question all the court did was simply reform or or damages for breach of the scribes various when the points of the opinion so didn't reach that question it should have had to reach that question but contributions contract between hud in the state agency so if the state agency fails to meet its obligations the owner of hud put out its discretion could step in to cure the fault but does not create any direct privity between hu america that's not also not the case those cases say that for the united states to have previous contract must assume direct unavoidable liability language in those decisions what is not done that here is done quite the opposite well the trial court's reasoning to distinguish that pretty the problem is that neither of them are a statute nor the regulations say anything about the public housing agency being able to initiate the contract and that would not make sense as a result since he'd be in a position of a state housing agency again that's not to the public housing agency initiating the process so that reasoning from the trial court was in error the same language in five twenty four e one says that hu court relied on paragraph four eight two of the renewal contract that said if that is the contract administrator it may designate a public housing agency to fill those functions and the  was the contract and the straighter risley under the original contract but the renewal contract even though it's called a renewal is a new contract as defined in second or a section five twelfth's of section twelve and one of those terms in this the contracts that even if the court were to find jurisdiction fine privity trial court's decision regarding bridge was also an area the foundation of that was the principle that the because there was an award of damages for the original contract that the but for rent for that needs a carry over to the new a contract and there is no basis for that second paragraph five b of the rule contracts explicitly rejects any rent term from the prior contract as being a political furthermore there was no modification of the r been a mutual mistake as to and if an existing fact at the time those contracts rendered there was no stipulation there was no final judgment as to what the poor rent levels would have been all there was that the plaintiffs point to as a two thousand and six decision finding summary judgment as to liability in the park properties one litigation as to the original contract by definition that wasn't a final decision did not set forth any but for rent level did not apply to any and correct there are stew components to them the damages component one is the baseline level of rent that's wrong even if you assume that the trial court was correct that the baseline levels from the prior original hap contract should have carried over there too high because mara in places caps on the original rent for renewals under five twenty four a which is what they did in the real world would be a market rate the but four levels would have been above market that's too high for rules under five twenty four b with plenty of say they would have been in the but for world there's a cap it's on the budget for the unit for the building the problem is point it's never submitted any evidence as to what the budget was for the building  about commonplace legal issues like privity or mutual mistake but the reality is exactly the opposite this is a tremendously important case and it's not just because of the number of dollars at issue at stake in this case is the very reason for the existence of the united states court of federal claims and from this court's oversight of the court of federal claims can hardly get away with simply ignoring binding orders of the court of federal a later date hot imposed on my clients yes under duress were no contracts that blatantly violated that two thousand and six order specifically those renewal contracts used as the preexisting rance numbers that hard calculated using the to argue that those adjustments are not required for the current contracts it issued hud disregarded a court order from the court of federal claims in two thousand and six and senior judge smith set things right he did so in an exercise  federal claims powers in equity incidental to a claim for money damages which goes all the way back to oliver wendell holmes and that's where this case begins and ends now remarkably our justice department in its opening brief now in its opening argument has some very strongly worded cases that involve situations like you care to be contracts that are similar to the wind the renewal contract here cases like counts and some of the other cases contract would not exist but for the existence of the previous contract and in that previous contract there's undisputed privity between hard and my clients this litigation would not exist you're saying that  even though there were different parties in the previous contract you're saying because this was you were new will contract the fruity from the previous contract flowed into this one without question and that's just the beginning the next part is our brief on pages of twenty eight thirty in the read brief but the statutes authorize only the secretary of housing and urban development to execute the contracts at forty two u s c fourteen thirty seven after the secretary is authorized to enter into such contracts second there's regulations that speak on this point twenty four c f r coro two point five eight says that couldn't will offer to renew project based assistance third the terms of the contract there's multiple terms of the contract itself that speak to this if the p if a ph a breach is the contract haud will step in and correct that the fall off a section for a two of the contract that's one thirty seven in who signs on which dotted along we don't look at there's a signature block and it says this we look at the nature of the relationship between the parties and that's spelled out by hordes active role in governing these contracts for which you do not even need to look at the facts as a matter of law based on the statutes the regulations and the contract are provisions that i've cited hard has pretty with the this is a straightforward case and senior just sniff expected that the quantification of the damages would be straightforward as well so senior just smith ordered the parties to stipulate as to the amount of damages we tried  is on the hook and heart knows it and this is in flux budgets and this is the very foundation of the section eight housing program which is the very foundation for how low income people get housing in this country you know that there's a guarantee from hud that hud is there to make sure that these people can stay in housing but isn't that is that directed to such situations where in your words hud would be on the hook if something happen  you know and who knows what could happen in this case or in many many other similar cases understand that we're here today because these clients park property and valentine had the wherewithal to get spammed what hard was doing their work outlets off the property owners in the same situation who just folded and gave in to whatever hurt wanted because they didn't have the wherewithal to to withstand this so i believe that's important too to keep in mind as well understand that the issues that my honorable adversary is discussing concerning mutual mistake breach  of federal claims cancer do things like issue an injunction but the ability of a court of federal claims to reform a contract incidental to a claim for money damages is well established and we go through that in our brief and it goes all the way back to oliver wendell holmes i'm happy to discuss issues regarding damages senior judge smith wanted to straightforward mathematical let's talk about united states versus milliken imprinting from one thousand no six by oliver wendell holmes jr that's from the united states supreme court held that the predecessor ports to the court of federal claims as to trial jurisdiction had jurisdiction in equity and could of our read brief and that case was held at the court of federal claims that its predecessor courts have always possess the power to assert jurisdiction over claims which sounds in equity but which are claims for money damages against the government rather than a claim for non monetary relief thus the court has relied on reformation of contract as the basis for a money judgment properly before the court at that time because seen judge smith and never asked us for straightforward mathematical calculation of damages i feel we need to address two of those arguments right off the bat first the government attempted to argue that these were no contracts were under section five twenty four be one of merit it's on disputed that these projects were not answered by the mortgage insured by hood under the national housing act and that means of these projects are not eligible multifamily housing projects under section five twelve to see of morrow the only way they can be treated as such is if the plaintiffs requested that and they never did so they could only be renewed these were no a contracts could only be renewed as exception projects under section five twenty once again because these are exceptional projects on tamara got a regular we've got a section of our five twenty four g three a which explicitly includes debt service in the us in the case of exception projects senior judge smith justly enforced against todd the orders of the court of federal claims that hud disregarded abraham lincoln's vision of justice against the government in favor of citizens with flyers not only the of federal claims issues orders but also that the government obeys and be banned by these orders there's no question the senior judge smith acted properly when he forced against hud court orders that hud chose to ignore  liability that's why aung paragraph eleven says that in the event of the default by the public housing agency hud shall take any action hud determines necessary for the continuation of housing assistance payments to the owner in stepping into the contract administrator they can also act by just giving more money to the state agency it doesn't say how hud would take action what it they're talking about are reformations for mutual mistake for existing fact under the which is this corps recognized under geralyn powerful up yes you can do that for mutual mistake that's not what happened here this isn't any mutual mistake everyone knew what the rent being offered was there wasn't any mistake as to what the offer was or why it was being made so mutual mistake a fact doesn't apply here this if anything this would be mutual as would be implied in law contract if that's what basis the court system was supposed to breach of contract or recognition for mutual mistake and a case implied in law is not within the court's jurisdiction plaintiff's claim a way that you can't waive subject matter jurisdiction of course and we are again interpreted court