Free Notice of Additional Authority - District Court of Federal Claims - federal

Case 1:04-cv-00805-CFL

Document 31

Filed 06/03/2005

Page 1 of 2

IN THE UNITED STATES COURT OF FEDERAL CLAIMS STATESMAN II APARTMENTS, INC., et al., Plaintiffs, v. THE UNITED STATES, Defendant. ) ) ) ) Nos. 04-805C, 04-806C (consolidated) ) ) (Judge Lettow) ) ) )

DEFENDANT'S MOTION FOR LEAVE TO FILE NOTICE OF SUPPLEMENTAL AUTHORITY AND NOTICE OF SUPPLEMENTAL AUTHORITY Defendant, the United States, respectfully requests leave of this Court to file a notice of supplemental authority relevant to the following issues that are the subject of the pending cross motions for summary judgment submitted to the Court in this case: (1) whether the Government breached plaintiffs' Section 8 Housing Assistance Payments (HAP) contracts by publishing different annual adjustment factors (AAFs) for purposes of adjusting the rents of "turnover" and "non-turnover" units subsidized by the HAP contracts and (2) whether HUD Notice 95-12 breached plaintiffs' HAP contracts insofar as it provides, with respect to annual rent adjustments, that a "material difference" between the rents of assisted and comparable unassisted units exists where a contract rent resulting from a AAF-based rent adjustment would exceed the sum of the comparable unassisted rent and the amount of any difference between the rents of assisted and comparable unassisted units that existed with respect to the initial contract rents. See "Defendant's Reply to Plaintiffs' Opposition to Defendant's Motion for Summary Judgment and defendant's Opposition to Plaintiffs' Cross-Motion for Summary Judgment Upon Liability Issues" dated February 4, 2005, at 1-2.

Case 1:04-cv-00805-CFL

Document 31

Filed 06/03/2005

Page 2 of 2

The supplemental authority is Cuyahoga Metropolitan Housing Authority v. United States, Nos. 01-46C, 01-251C, 01-416C (June 2, 2005), a copy of which is appended to this motion. In that decision, the court held that the provision of 42 U.S.C. § 1437f(c)(2)(A) (1994) which requires that AAFs be reduced by one-percent in the case of non-turnover units did not breach, or result in a breach of the plaintiffs' HAP contracts, see id., at 10, and that, where the initial differences to be preserved in rent adjustments are not de minimis or nonexistent, the view of material difference reflected in HUD Notice 95-12 is reasonable and not inconsistent with the plaintiffs' HAP contracts. See id., at 19-25. The court in Cuyahoga also declined to apply the doctrine of judicial estoppel against the Government with respect to the view of material difference reflected in HUD Notice 95-12. See id., at 25-35. Respectfully submitted, PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director s/John E. Kosloske JOHN E. KOSLOSKE Senior Trial Counsel Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 1100 L Street, N.W., Room 8012 Washington, D.C. 20530 Tele: (202) 307-0282 (FAX)(202) 514-8624 Attorneys for Defendant JUNE 3, 2005

OF COUNSEL: C. ALLEN VILLAFUERTE Trial Attorney Office of General Counsel Department of Housing and Urban Development Washington, DC