United States Court of Appeals for the Federal Circuit 

 2008-5071 

TAMERLANE, LIMITED, PARK TERRACE LIMITED, 

PARK TERRACE EAST LIMITED, 

and MULLICA WEST LIMITED, 

 

Plaintiffs-Appellants, 

v. 

UNITED STATES, 

 

 Defendant-Appellee. 

 H. Robert Fiebach, Cozen O’Connor, Philadelphia, Pennsylvania, argued for 

plaintiff-appellant. With him on the brief was David M. Doret. 

 Jeanne E. Davidson, Director, Commercial Litigation Branch, Civil Division, 

United States Department of Justice, of Washington, DC, argued for defendantappellee. With her on the brief were Gregory G. Katsas, Assistant Attorney General, 

Brian M. Simkin, Assistant Director, and Shalom Brilliant, Senior Trial Counsel. 

Appealed from: United States Court of Federal Claims 

Judge Christine O.C. Miller 

 
United States Court of Appeals for the Federal Circuit 

2008-5071 

TAMERLANE, LIMITED, PARK TERRACE LIMITED, 

PARK TERRACE EAST LIMITED, 

and MULLICA WEST LIMITED, 

 Plaintiffs-Appellants, 

v. 

UNITED STATES, 

 Defendant-Appellee. 

Appeal from the United States Court of Federal Claims in 

05-CV-677, Judge Christine O.C. Miller. 

__________________________ 

DECIDED: December 22, 2008 

__________________________ 

Before MICHEL, Chief Judge, LINN, Circuit Judge, and WARE, District Judge.* 

WARE, District Judge. 

In 2005, Appellants Park Terrace Limited (“Park Terrace”) and Mullica West 

Limited (“Mullica”) filed this lawsuit against the United States alleging, inter alia, that the 

government had breached loan contracts between itself and the parties. Appellants 

appeal from a final judgment of the United States Court of Federal Claims dismissing 

the lawsuit on the ground that the claims accrued in 1991 and 1992 and are, therefore, 

 *

 Honorable James Ware, District Judge, United States District Court for the 

Northern District of California, sitting by designation.
barred by the six-year statute of limitations of the Tucker Act. Tamerlane, Ltd. v. United 

States, 80 Fed. Cl. 724 (2008). We affirm. 

I. BACKGROUND 

A. Factual Background

1. Mullica and Park Terrace Loans 

 Sections 515 and 521 of the Housing Act of 19491

 provide for loans from the 

Farmers Home Administration of the United States Department of Agriculture (“FmHA”) 

to further the government’s interest in providing rental housing for low and moderate 

income persons. See Franconia Assocs. v. United States, 536 U.S. 129, 134 (2002). 

The loans have favorable interest rates and payment terms. Under the terms of the 

loans, borrowers agree to preserve the property developed with the FmHA funds for the 

use and occupancy of low to moderate income tenants “so long as the loan obligations 

remain unsatisfied.” Id. The promissory notes associated with the loans contain 

provisions, however, allowing borrowers to prepay the loans at any time, after which 

they are free to charge market rate rents. 

On May 31, 1977, and on November 30, 1977, Appellant Mullica2

 entered into 

FmHA loan contracts totaling over $3 million. The loans have a forty-year maturity 

period, and are due in 2017. The loan contracts contain the commitment to preserve 

the property developed with the FmHA funds for the use and occupancy of low and 

moderate income tenants for the life of the loan but permit Mullica to prepay the loans 

“at any time at the option of Borrower.” 

 1

 76 Stat. 671, 82 Stat. 551, codified as amended, 42 U.S.C. §§ 1485, 

1490a. 

2

 Mullica is a New Jersey limited partnership that used its FmHA loans for a 

168-unit rental property. 

2008-5071 2 
 On July 28, 1978, Appellant Park Terrace3

 entered into loan contracts with 

FmHA, which permitted Park Terrace to take out two loans in the amounts of $850,000 

and $125,000. Final payments on the loans are due on July 28, 2028. The contracts 

contain a commitment by Park Terrace to restrict use of the rental property and “related 

facilities for eligible occupants” for the life of the loan but expressly permit Park Terrace 

to prepay the loan “at any time at the option of the Borrower.” 

2. Passage of ELIHPA and HCDA 

 In the years after these and many other similar loans were made pursuant to 

sections 515 and 521 of the Housing Act, Congress became concerned that increasing 

numbers of the loans were being prepaid, thus decreasing the available amount of 

housing for low-to-moderate income occupants. See Franconia, 536 U.S. at 135-36. In 

light of these concerns, Congress passed the Emergency Low Income Housing and 

Preservation Act of 1987 (“ELIHPA”)4 and the Housing and Community Development 

Act of 1992 (“HCDA”).5 ELIHPA “amend[s] the Housing Act of 1949 to impose 

permanent restrictions upon prepayment of § 515 mortgages entered into before 

December 21, 1979.” Id. at 136. ELIHPA mandates that before the FmHA can accept 

prepayment of a section 515 mortgage, 

the [FmHA] shall make reasonable efforts to enter into an agreement with 

the borrower under which the borrower will make a binding commitment to 

extend the low income use of the assisted housing and related facilities for 

 3

 Park Terrace is a Pennsylvania limited partnership that used its FmHA 

loans for a forty-five unit rental property. 

4

 Pub. L. No. 100-242, 101 Stat. 1877 (1988). 

5

 Pub. L. No. 102-550, 106 Stat. 3672 (codified in relevant part at 42 U.S.C. 

§ 1472(c)).

2008-5071 3 
not less than the 20-year period beginning on the date on which the 

agreement is executed. 

42 U.S.C. § 1472(c)(4)(A). 

 ELIHPA provides that “the FmHA may include incentives in such an agreement, 

including an increase in the rate of return on investment, reduction of the interest rate 

on the loan, and an additional loan to the borrower.” Franconia, 536 U.S. at 136 (citing 

42 U.S.C. § 1472(c)(4)(B)). If, however, after a “reasonable period” an agreement 

cannot be reached between the borrower and the FmHA, the borrower seeking 

prepayment must “offer to sell the assisted housing and related facilities involved to any 

qualified nonprofit organization or public agency at a fair market value.” 42 U.S.C. 

§ 1472(c)(5)(A)(i). An offer of prepayment may be accepted if such an offer to buy the 

property is not made within 180 days.6 Id. § (c)(5)(A)(ii). The regulations implementing 

ELIHPA create a process for the FmHA’s determination of prepayment requests, by 

which the FmHA “‘develops an incentive offer,’ making a ‘reasonable effort . . . to enter 

into an agreement with the borrower to maintain the housing for low-income use that 

takes into consideration the economic loss the borrower may suffer by foregoing [sic] 

prepayment.’“ Franconia, 536 U.S. at 137 (quoting 7 C.F.R. § 1965.210 (2002)). If no 

such agreement can be reached, the FmHA will proceed to make the requisite statutory 

determinations before any prepayment can be accepted. Id. 

3. Mullica and Park Terrace Prepayment Requests 

 On October 11, 1988, Mullica sent a letter to the FmHA stating, “[t]his letter will 

serve as a request to pay off the remaining mortgage balance for [Mullica West 

 6

 Under certain circumstances, not relevant to the facts of this case, the 

offer-for-sale requirement may be avoided. See 42 U.S.C. § 1472(c)(5)(G). 

2008-5071 4 
Apartments].” On March 30, 1989, the FmHA responded that, “[a]fter careful 

consideration, [the FmHA] is unable to accept your offer to prepay the loan on Mullica 

West Apartments at this time.” The letter further advised Mullica of its right to 

participate in an appeal process and of “the opportunity to review any incentives not to 

prepay.” 

 On March 14, 1991, the FmHA informed Mullica that, “[b]ased on the material 

submitted, [Mullica had] demonstrated the ability to pay [its] loan in full.” “As a result of 

this ability,” the FmHA offered Mullica an incentive loan package that required Mullica to 

sign “a restrictive-use provision obligating the housing to low and moderate income use 

for 20 years.” 

 After further correspondence, on June 18, 1991, Mullica took out an FmHA 

incentive equity loan. Mullica’s incentive loan agreement provides: 

The borrower and any successors in interest agree to use the housing for 

the purpose of housing very low-, low- and moderate-income people 

eligible for occupancy as provided in FmHA regulations then extant during 

this 20 year period beginning on the date of this mortgage instrument. . . . 

No person occupying or wishing to occupy the housing shall be required to 

vacate or be denied occupancy prior to the close of such 20 year period 

because of early repayment. 

The “20-year use restrictions” of the incentive loan obligate Mullica to maintain the 

financed housing for low-to-moderate income renters until 2011. Mullica’s incentive 

loan matures in 2036. 

On November 19, 1991, Park Terrace sent a letter to the FmHA stating, “[t]his 

letter will serve as a request to pay off the remaining mortgage balance for the [Park 

Terrace Apartments].” The FmHA responded on June 23, 1992, with a letter stating, 

“[i]n conjunction with your prepayment request, we are making you . . . a one-time offer 

2008-5071 5 
of an equity loan. . . . as an incentive to keep Park Terrace in low income housing . . . 

Any agreement entered into to accept this incentive will require you to sign a restrictiveuse provision obligating the housing to the low-moderate income program for 20 years.” 

 On July 16, 1993, after an ensuing application process, Park Terrace took out a 

new incentive equity loan in the amount of $925,000, which carried a low fixed interest 

rate. Park Terrace’s incentive loan matures in fifty years. The Park Terrace incentive 

loan agreement contains the following clause: 

The borrower and any successors in interest agree to use the housing for 

the purpose of housing low- and moderate-income people eligible for 

occupancy as provided in Section 515 of Title V of the Housing Act of 

1949 and FmHA regulations then extant during this 20 year period 

beginning the date of this mortgage. . . . No person occupying or wishing 

to occupy the housing shall be required to vacate or be denied occupancy 

prior to the close of such 20 year period because of early repayment. 

The “20-year use restrictions” of the incentive loan obligate Park Terrace to maintain the 

housing for low and moderate income renters until 2013. The Park Terrace incentive 

loan matures in 2043. 

B. Procedural History

On June 22, 2005, Park Terrace, Mullica and two other borrowers7

 filed a 

Complaint in the United States Court of Federal Claims, alleging breach of contract and 

a “takings” claim, and seeking damages for lost profits for the period ELIHPA prevented 

them from converting their properties from low-moderate income housing to market-rate 

rental housing. The Complaint alleged that, by denying Plaintiffs the opportunity to 

prepay the FmHA loans in direct violation of the express terms of their respective loan 

 7

 The original plaintiffs were Tamerlane, Ltd. and Park Terrace East, Ltd., 

as well as Park Terrace and Mullica. 

2008-5071 6 
agreements, the government, through ELIHPA, unlawfully tied Plaintiffs to the use 

restrictions contained in those agreements. 

 In its Answer, the government alleged, as an affirmative defense, that the claims 

of Park Terrace and Mullica8

 were barred by the statute of limitations contained in the 

Tucker Act.9 The government contended that the claims alleged in Mullica and Park 

Terrace’s 2005 Complaint had accrued when the FmHA denied their offers of 

prepayment in 1991 and 1992, respectively, and on that ground, the government moved 

for judgment on the pleadings. In response, Mullica and Park Terrace contended that 

(1) their prepayment requests did not trigger the statute of limitations or, alternatively, 

(2) that even if the statute was triggered and had run on the 1991 and 1992 prepayment 

offers, the statute has not extinguished any claim that they might bring for failure of the 

government to allow prepayment in the so-called “extended period,” referring to the 

period of time in the future between the end of the twenty-year use restrictions 

contained in the incentive loans and the date the original loans mature.10 

 8

 Statute of limitations was not raised as an affirmative defense as to 

Tamerlane or Park Terrace East. 

9

 The Tucker Act empowers the Court of Federal Claims “to render 

judgment upon any claim against the United States founded either upon the 

Constitution, or any Act of Congress or any regulation of an executive department, or 

upon any express or implied contract with the United States. . . .” 28 U.S.C. § 

1491(a)(1). With respect to the statute of limitations for such claims, the Act provides 

that “[e]very claim of which the United States Court of Federal Claims has jurisdiction 

shall be barred unless the petition thereon is filed within six years after such claim first 

accrues.” 28 U.S.C. § 2501. 

10 Specifically, Park Terrace’s original loan matures in 2028, but the use 

restriction contained in Park Terrace’s 1993 incentive loan ends in 2013. Mullica’s 

original loan matures in 2017, but the use restriction contained in Mullica’s 1991 

incentive loan ends in 2011. Accordingly, there is a fifteen-year gap between the end of 

Park Terrace’s use restriction and the maturity of its original loan, and a similar six-year 

2008-5071 7 
 In response to the government’s motion for judgment on the pleadings, the Court 

of Federal Claims issued the first in a series of three orders. 

1. Tamerlane I

 On May 18, 2007, the Court of Federal Claims issued an order and opinion on 

the government’s motion for judgment on the pleadings.11 Tamerlane, Ltd. v. United 

States, 76 Fed. Cl. 512 (2007) (“Tamerlane I”). Based on the holding in Franconia, the 

court found that Park Terrace and Mullica’s prepayment requests and the government’s 

subsequent offers of incentive equity loans accrued the government’s breach of the 

underlying loan agreements. Id. at 523. Accordingly, the court held that Mullica’s claim 

had accrued in 1991 and Park Terrace’s in 1992. With respect to the extended period 

claims, the court held that the claims were unaccrued as unvested prepayment rights. 

Id. 

After the Court of Federal Claims issued its order in Tamerlane I, Park Terrace 

and Mullica asked the court to reconsider the statute of limitations issue, as well as for 

permission to take documentary discovery with respect to their claims on the primary 

loan periods. The court granted those motions. 

2. Tamerlane II

 On February 29, 2008, the Court of Federal Claims issued its definitive opinion 

on Mullica and Park Terrace’s claims. Tamerlane, Ltd. v. United States, 80 Fed. Cl. 724 

(2008) (“Tamerlane II”). Since matters outside of the pleadings had been presented for 

consideration, the Court of Federal Claims treated the motion as one for summary 

 

gap between the end of Mullica’s use restriction and the maturity of its original loan. 

These are the so-called “extended periods.” 

11 In Tamerlane I, the court treated the government’s motion as one for 

summary judgment because it relied on matters outside of the pleadings. 

2008-5071 8 
judgment. The court affirmed the holding of its Tamerlane I opinion with respect to 

accrual of the statute of limitations in 1991 and 1992. Id. at 735. 

 With respect to the viability of Appellants’ claims in the so-called extended period, in 

Tamerlane II, the court found that those claims should be considered in the context of 

the continuing claims doctrine. See 80 Fed. Cl. at 735-37. The court reversed its 

earlier finding on this issue, and held that “[w]hile Park Terrace and Mullica seek 

compensation for a contractual right that promised performance into the future . . . a 

single repudiation made clear the [g]overnment’s intent to dishonor the terms of the 

contract.” Id. at 737. Accordingly, the court held that “[a]ny subsequent or continuing 

denial by the government of responding to plaintiffs’ rights to prepay their loans and exit 

the program pursuant to ELIHPA does not give rise to a new cause of action, but flows 

from the government’s original repudiation and later breach occurring in 1992 and 

1991.” Id. Thus, in reversing its Tamerlane I finding on the extended period claims, the 

court determined that these claims were also barred by the six-year statute of 

limitations.

 3. Tamerlane III

After both primary period and extended period claims were dismissed by the 

Court of Federal Claims in Tamerlane II, Park Terrace and Mullica filed a motion to 

amend judgment, solely with respect to the extended period claims. On April 3, 2008, 

the court issued its Order on Motion to Amend Judgment. Tamerlane, Ltd. v. United 

States, 81 Fed. Cl. 511 (2008) (“Tamerlane III”). The court found that Plaintiffs’ “motion 

2008-5071 9 
appear[ed] to advance claims for breach of the incentive equity loan contracts”12 and 

not just breach of the original pre-1979 loan agreements. Id. at 513. The court held 

that the parties’ “June 22, 2005 complaint is not reasonably susceptible [to] amendment 

to assert breach of contract claims with respect to the incentive equity loans, as such 

claims would appear to state separate and independent causes of action.” Id. at 513 

n.1. Accordingly, the court denied the motion to amend judgment as to the extended 

period claims. Id. at 513-14. 

 This appeal followed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3). 

II. DISCUSSION 

A. Standard of Review

 We review judgments of the Court of Federal Claims de novo with respect to 

questions of law, and for clear error with respect to findings of fact. Applegate v. United 

States, 25 F.3d 1579, 1581 (Fed. Cir. 1994); Milmark Servs., Inc. v. United States, 731 

F.2d 855, 857 (Fed. Cir. 1984). A grant of summary judgment is reviewed “for 

correctness, determining whether the matter was amenable to summary resolution and, 

if so, whether the law was correctly applied to undisputed facts.” Mass. Bay Transp. 

Auth. v. United States, 129 F.3d 1226, 1230-31 (Fed. Cir. 1997). 

B. Analysis

 Appellants contend that the Court of Federal Claims (1) erroneously determined 

the date of accrual of Appellants’ breach of contract claims, and (2) erred in failing to 

 12 In Plaintiffs’ motion to amend judgment, Plaintiffs contended that the 

court’s dismissal of their “extended period” claims “deprived [them] of a remedy for the 

breach of the second contract, which came into existence only after the putative 

demand and refusal to perform had accrued the rights to sue for the breach of the first.” 

2008-5071 10 
allow Appellants leave to amend their Complaint to add claims under the incentive loans 

for the extended period. We consider each issue in turn. 

1. Occurrence of Breach 

 Appellants contend that the Court of Federal Claims erred as a matter of law by 

misapplying the Supreme Court’s governing Franconia precedent to the transactions at 

issue in this case. According to Appellants, the Court of Federal Claims erroneously 

found that Appellants’ acceptance of the use restrictions in the incentive loans accrued 

their breach of contract claims, and, in doing so, “erroneously disregarded the textual 

limitations of the operative documents relied on by the government, as well as their pro 

forma nature and the artificiality of the process in which they were generated.” 

 In Franconia, the Supreme Court held that ELIHPA’s enactment “qualified as a 

repudiation of the parties’ bargain, not a present breach of the loan agreements.” 536 

U.S. at 133. As a consequence, “breach would occur when a borrower attempted to 

prepay, for only at that time would the [g]overnment’s responsive performance become 

due.” Id. at 143. In other words, the “time of accrual [of a claim] depends on whether 

the injured party chooses to treat the repudiation as a present breach.” Id. at 144. The 

six-year statute of limitations commences “when a borrower tenders prepayment and 

the [g]overnment then dishonors its obligation to accept the tender and release its 

control over use of the property that secured the loan.”13 Id. at 133. 

 The main thrust of Appellants’ contentions is that the Court of Federal Claims 

erred as a matter of law by misapplying Franconia’s requirement of tender of 

 13 ELIHPA can also be treated as a present breach by filing suit prior to the 

date indicated for performance. Franconia, 536 U.S. at 143. 

2008-5071 11 
prepayment and rejection by the government. In particular, Appellants take issue with 

the Court of Federal Claims’ treatment of 

the acceptance of the twenty-year use restriction as tantamount to the 

government’s rejection of a demand for performance, [when it held] that 

the [g]overnment’s offer of incentives in exchange for an agreement by 

borrowers to extend the restrictions on their properties constitutes 

precisely the breach and accrual that Franconia contemplated. 

In Franconia the Court did not define the contours of the tender and rejection that 

are sufficient to trigger the six-year statute of limitations. We now clarify whether the 

circumstances of this case were sufficient to constitute a breach under Franconia. 

a. The text of the operative documents

Appellants contend that the operative documents relied on by the Court of 

Federal Claims neither tendered prepayment nor rejected tender. The letters submitted 

to the FmHA in 1988 by Mullica and in 1991 by Park Terrace each state that “[t]his letter 

will serve as a request to pay off the remaining mortgage balance for the above 

property.” Appellants’ contention that this does not constitute “tender” within the 

meaning of Franconia relies on the definition of “tender” from Black’s Law Dictionary

1477-80 (4th ed. 1999), which states that “tender” is “an unconditional offer of money or 

performance to satisfy a debt or obligation.” Appellants also look to Williston on 

Contracts, which defines “tender” as “an unconditional offer of payment consisting of an 

actual production of a sum not less than the amount due on a particular obligation.” § 

72.27 (4th ed. 2007). Appellants assert that the 1988 and 1991 letters did not constitute 

“tender,” because they were only “requesting the right to pay” in a perfunctory manner 

and did not actually tender money or assert a demand to release the property from the 

use restrictions. 

2008-5071 12 
 Although the Supreme Court did speak in terms of “tendering payment” in 

Franconia, the Franconia decision is not authority for “tender” being satisfied only by the 

highly formalized and technical process advanced by Appellants. See 536 U.S. at 133. 

The Franconia Court also stated that “breach would occur when a borrower attempt[s] 

to prepay” and that the government’s obligation was ultimately to “accept prepayment.” 

Id. at 143. The Franconia opinion does not suggest that a physical transfer of money 

must be attempted in order to constitute a tender of payment. 

Under the terms of the original loans, Mullica and Park Terrace had an 

unconditional right to prepay the loans at any time, and the government had a 

corresponding unconditional obligation to accept prepayment. The 1988 and 1991 

letters sent by Mullica and Park Terrace to the government were clear, unconditional 

offers of prepayment sufficient to trigger a duty by the government to accept the tender 

under the terms of the pre-1979 loans. 

 In the alternative, Appellants contend that even if the letters requesting to prepay 

the loans are regarded as tenders, the government’s response letters were not 

rejections sufficient to trigger breach under Franconia. 

The government’s responses to Mullica and Park Terrace did not explicitly state 

that the offers of prepayment were “rejected.”14 However, the government did not 

 14 With respect to Mullica, the government’s initial response letter on March 

30, 1989, declared that “[a]fter careful consideration, [FmHA] is unable to accept your 

offer to prepay the loan on Mullica West Apartments at this time.” In a subsequent letter 

on March 14, 1991, the government stated: 

Based on the material submitted, it is the determination of [FmHA] that 

you have demonstrated the ability to repay your loan in full. As a result of 

this ability, FmHA is offering a package of one-time incentives so that you 

2008-5071 13 
accept those offers. Pursuant to ELIPHA, instead of accepting prepayment, the 

government offered incentive loans. ELIHPA provides that, in lieu of accepting 

prepayment, the government make “reasonable efforts to enter into an agreement with 

the borrower,” by which the borrower would be offered incentives to keep the property 

committed to low-income uses. See 42 U.S.C. § 1472(c)(4)(A)-(B). In other words, by 

offering incentive loans in response to Appellants’ requests for prepayment, the 

government necessarily rejected the tender and breached its obligation to accept 

prepayment at any time. This conclusion is reinforced in the case of Mullica, given that 

the government’s offer of incentives was preceded by a letter in which the government 

expressly declined to accept prepayment. 

The degree of formalism in communications for which Appellants advocate is 

unnecessary given Congress’ clear repudiation of the unfettered right to prepay in 

ELIPHA. When the government responded to Appellants’ requests to prepay with offers 

of incentive loans, those offers were functionally co-extensive with a rejection of 

prepayment. The Franconia decision requires no more formalism than the written 

request to prepay followed by non-acceptance of the request by the government to 

trigger the running to the statute of limitations. Although other conduct could constitute 

breach by the government, the Court of Federal Claims correctly ruled that at least by 

 

may remain in the FmHA multiple family housing loan program in order to 

extend the low income use of the housing. 

Similarly, the government responded to Park Terrace on June 23, 1992, with a letter 

stating that, “[i]n conjunction with your prepayment request, we are making you . . . a 

one-time offer of an equity loan . . . as an incentive to keep Park Terrace in low income 

housing.” 

2008-5071 14 
1991 and 1992, the dates the Appellants entered into ELIPHA incentive loans, breachtriggering rejections had occurred. 

b. The context surrounding the operative events

Relatedly, Appellants contend that the Court of Federal Claims erred by refusing 

to consider evidence concerning the context of the actions that it held had accrued the 

claims. The primary thrust of this contention is that the requests for prepayment were 

“pro forma” and were part of a “charade” designed to secure incentives in lieu of 

insistence on prepayment. In other words, Appellants contend that the prepayment 

letters were just part of a mechanical process to get incentives, and were never 

intended to declare the government in breach of the underlying loan agreements.15 

In support of this theory, Appellants cite a number of government documents that 

speak in terms of “incentives to avert prepayment” of the FmHA loans. Appellants also 

rely on FmHA Guidelines for Accepting Prepayment in Order to Ensure Tenant 

Protections, which state: 

[E]very borrower who requests to prepay, and can document the ability to 

prepay, will be offered an incentive not to do so. The size of the incentive 

will be based on whether this housing is needed by current tenants and 

other low- and moderate-income people in the market area, and on the 

loss to the borrower by remaining in the FmHA program. The size of the 

incentive may not be based on whether the borrower actually wishes to 

prepay or wishes to receive an incentive not to repay, or on whether the 

borrower is a servicing problem. 

Appellants suggest that this passage from the Guidelines evidences a “charade” 

 15 We reject this argument because it appears to rely on the subjective intent 

of the parties with respect to whether there was a “tender.” As with general contract 

principles, the subjective intent of the parties is immaterial to whether a contract has 

been breached. See Navair, Inc. v. IFR Ams., Inc., 519 F.3d 1131, 1138-39 (10th Cir. 

2008). Appellants fail to cite any authority for the proposition that the determination of 

performance or breach of a contract is based on the subjective intent of the parties.

2008-5071 15 
because of its reference to offering incentive loans under circumstances where the 

borrower might not actually wish to prepay but offers to do so in order to qualify for an 

incentive loan. Appellants are misreading the Guidelines. The cited language instructs 

that the “size” of the incentive should be independent of the motivation or payment 

history of the borrower and does not transform the process into a charade. 

Further, Appellants’ assertions that their prepayment requests and the 

government’s response letters were “mere paperwork” in the context of a charade, in 

which they never intended to call the government into breach, are undermined by the 

allegations in their own Complaint. For example, the Complaint alleges: 

But for the [g]overnment’s conduct, plaintiffs would have terminated their 

contracts by prepaying their mortgage loans. As a consequence of the 

[g]overnment’s conduct, certain of the plaintiffs have submitted 

applications for prepayment and/or an offer of “incentives” from the 

[g]overnment. The [g]overnment has in every instance refused to accept 

prepayment from plaintiffs pursuant to the provisions of their contracts. 

Those plaintiffs have been compelled to change their position to their 

detriment in reliance upon the [g]overnment’s repudiation, including 

accepting “incentives” in lieu of a sale at fair market value. 

The allegations in the Complaint suggest both that Appellants desired to prepay their 

FmHA loans and that their requests to do so were rejected by the government. The 

Complaint speaks of the incentives as a form of detrimental reliance, not as something 

Appellants sought to secure in the absence of any attendant desire to repay their loans. 

Accordingly, we affirm the Court of Federal Claims’ determination that the 

transactions underpinning Appellants’ acceptance of incentive loans triggered breach of 

the original loan agreements and commencement of the six-year statute of limitations. 

As a consequence, the six-year statute of limitations expired in 1997 for Mullica and in 

1998 for Park Terrace. 

2008-5071 16 
 2. Claims during the extended period 

Appellants alternatively contend that the Court of Federal Claims erred as a 

matter of law by misapplying Franconia to the so-called “extended period” and abused 

its discretion by not granting Appellants’ request to amend their Complaint to add 

extended period claims. Appellants’ “extended period” contention appears to involve 

two distinct periods: (1) the term of the pre-1979 loans that will remain unexpired 

following the end of the twenty-year use restrictions agreed upon by Appellants in the 

incentive loans, and (2) claims based on breach of the incentive loans themselves. 

a. Claims under the pre-1979 loans during the extended period 

As described above, the twenty-year use restriction of the incentive loan 

obligates Mullica to maintain the financed housing for low-to-moderate income renters 

until 2011. However, the incentive loan did not supplant the pre-1979 loans to Mullica 

and the restrictions are in effect until 2017. 

Similarly, the twenty-year use restriction of the incentive loan obligates Park 

Terrace to maintain the housing for low and moderate income renters until 2013. 

Concurrently, the original 1978 FmHA loans to Park Terrace are still outstanding and 

restrict use for eligible tenants until 2028. 

Appellants contend that, even if there were tender and rejection of prepayment 

when Appellants took the incentive loans, the bar of the statute of limitations should only 

extend to the end of the twenty-year restriction period because any rejection of 

prepayment occurred only to the extent of the use restriction. Appellants assert that 

new opportunities to prepay the original loans occur between 2011 and 2017 as to 

Mullica, and between 2013 and 2028 as to Park Terrance, because during those 

2008-5071 17 
periods the use restrictions will have expired, which Appellants contend necessarily 

implies a new opportunity for breach through tender and rejection. 

The Court of Federal Claims analyzed Appellants’ contention, namely, that a new 

limitations period arose for any refusal to allow prepayment, under the continuing claims 

doctrine. This doctrine applies where a plaintiff’s claim is “inherently susceptible to 

being broken down into a series of independent and distinct events or wrongs, each 

having its own associated damages.” Brown Park Estates-Fairfield Dev. Co. v. United 

States, 127 F.3d 1449, 1456 (Fed. Cir. 1997). The doctrine allows “later arising claims 

even if the statute of limitations has lapsed for earlier events.”16 Tamerlane II, 80 Fed. 

Cl. at 736 (quoting Ariadne Fin. Servs. Pty. Ltd. v. United States, 133 F.3d 874, 879 

(Fed. Cir. 1998)). The Court of Federal Claims found that the continuing claims doctrine 

was inapplicable to Appellants’ alleged “extended period” because “a single repudiation 

made clear the [g]overnment’s intent to dishonor the terms of the contract” and that 

“[a]ny subsequent or continuing denial . . . of [Appellants’] right to prepay their loans . . . 

does not give rise to a new cause of action, but flows from the [g]overnment’s original 

repudiation and later breach occurring in 1992 and 1991.” Tamerlane II, 80 Fed. Cl. at 

737. 

We find that the Court of Federal Claims correctly determined that Appellants 

have no remaining viable claim for a failure to allow prepayment of the original pre-1979 

loans in the extended period or otherwise. As Franconia held, the enactment of 

ELIHPA constituted a repudiation of Appellants’ FmHA loan agreements. Breach of 

those agreements arises upon tender of prepayment and subsequent government 

 16 Appellants themselves do not expressly rely on the “continuing claims 

doctrine.”

2008-5071 18 
rejection of that attempted prepayment. 536 U.S. at 143. Franconia in no way tied the 

breach of the original contract to the terms of a subsequent incentive contract. In this 

case, Appellants appear to improperly conflate the government’s breach of the original

loan agreements with the use restrictions that arose from the incentive loan 

agreements. That is, there is no second opportunity for breach of the original 

agreements just because the incentive agreements contain time-limited use restrictions. 

As the Court of Federal Claims correctly found, there was a single agreement that was 

breached on a single occasion, which does not allow any sort of “continuing claims” to 

be brought under the prevailing law of this Circuit.17

 b. Claims under the incentive loan agreements

 Appellants contend that the Court of Federal Claims erred in its ruling with 

respect to dismissing their claims for breach of the incentive loans during the so-called 

extended period. The claims on account of the extended period seek relief for the 

breach of the right to prepay the incentive loans after the twenty-year restriction period 

expires. 

In addressing Appellants’ contention with respect to an alleged breach of the 

incentive loans, the Court of Federal Claims clearly stated that its “opinions do not 

purport to dismiss any claims asserting breach of incentive equity loan contracts, as the 

complaint did not plead those claims.” Tamerlane III, 81 Fed. Cl. at 513 n.2. 

 17 This situation is analogous to that in Ariadne, where we were confronted 

with a plaintiff who sought compensation from the government for repudiation of a 

contract that promised continuing performance into the future. 133 F.3d at 879. In 

finding that a single statutory repudiation made clear the government’s intent to reject 

the terms of the contracts, we held that each subsequent denial of the promised 

contractual benefits did not give rise to a separate cause of action, and found that the 

continuing claims doctrine did not permit the plaintiff to obtain a second limitations 

period where the limitations period on the original breach had already expired. Id. 

2008-5071 19 
We find that the Court of Federal Claims correctly ignored Appellants’ 

contentions relating to an alleged breach of the incentive loans. Appellants’ Complaint 

does not make any allegations relating to the incentive loans.18 

Accordingly, the Court of Federal Claims’ failure to address Appellants’ extended 

period claims based on the incentive loans is affirmed. 

c. Leave to amend Appellants’ Complaint 

Finally, Appellants contend that the Court of Federal Claims erred by not 

permitting them to amend their Complaint to include claims for the extended period. 

From Appellants’ papers, however, it is not clear to which extended period they are 

referring. Treating the proposed amendment as applying to the incentive loans, the 

Court of Federal Claims found that the Complaint was “not reasonably susceptible [to] 

amendment to assert breach of contract claims with respect to the incentive equity 

loans, as such claims would appear to state separate and independent causes of 

action.” Tamerlane III, 80 Fed. Cl. at 513 n.1. 

 “The decision to grant or deny a motion for leave to amend . . . lies within the 

sound discretion of the trial court.” Insituform Techs., Inc. v. Cat Contracting, Inc., 385 

F.3d 1360, 1372 (Fed. Cir. 2004). We find that there was no abuse of discretion by the 

Court of Federal Claims in denying leave to Appellants to introduce separate and 

independent causes of action. Accordingly, the Court of Federal Claims’ denial of leave 

to amend is affirmed. 

 18 Appellants seem to misapprehend the law in this regard, as they state in 

their brief that, “[s]ince the [g]overnment will deny the right of prepayment when the 

restrictions expire in 2013 and 2011, the filing of this suit acted to accrue the 

independent breach of those rights.” There does not, however, appear to be any legal 

principle by which a plaintiff can sue for breach of contract based on a plaintiff’s 

presumption that a defendant will later breach a contract between the two parties.

2008-5071 20 
2008-5071 21 

III. CONCLUSION 

 For the aforementioned reasons, we affirm the judgment of the Court of Federal 

Claims. 

AFFIRMED