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Case 1:01-cv-00046-FMA

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS CUYAHOGA METROPOLITAN HOUSING AUTHORITY, Plaintiff, v. UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) )

No. 01-46C, 01-251C, 01-416C (Judge Allegra)

DEFENDANT'S ANSWER AND AFFIRMATIVE DEFENSES TO AMENDED COMPLAINT (CASE NO. 01-416C) For its answer to the amended complaint, defendant admits, denies, and alleges as follows: 1. The allegations contained in paragraph 1 constitute

conclusions of law to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 2. The allegations contained in the first paragraph 2

constitute conclusions of law to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 2a. The allegations contained in the second paragraph 2 constitute conclusions of law to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 3. The allegations contained in paragraph 3 constitute

conclusions of law to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 4. Admits.

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5. 6. 7.

Admits. Admits. Admits the allegations contained in paragraph 7 to the

extent supported by the contract cited, which is the best evidence of its contents; otherwise denies the allegations contained in paragraph 7. 8. Admits the allegations contained in paragraph 8 to the

extent supported by the contract cited, which is the best evidence of its contents; otherwise denies the allegations contained in paragraph 8. 9. Admits the allegations contained in paragraph 9 to the

extent supported by the contract cited, which is the best evidence of its contents; otherwise denies the allegations contained in paragraph 9. 10. The allegations contained in paragraph 10 constitute

conclusions of law to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 11. Admits the allegations contained in paragraph 11 to the

extent supported by the contract cited, which is the best evidence of its contents; otherwise denies the allegations contained in paragraph 11. 12. Admits the allegations contained in paragraph 12 to the

extent supported by the contract cited, which is the best

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evidence of its contents; otherwise denies the allegations contained in paragraph 12. 13. Admits the allegation contained in paragraph 13 to the

extent supported by the contract cited, which is the best evidence of its contents; otherwise denies the allegations contained in paragraph 13. 14. Admits the allegations contained in paragraph 14 to the

extent supported by the published factors cited, which are the best evidence of their contents; otherwise denies the allegations contained in paragraph 14. 15. Admits the allegations contained in paragraph 15 to the

extent supported by the contract cited, which is the best evidence of its contents; otherwise asserts that the allegations contained in paragraph 15 constitute conclusions of law to which no answer is required; to the extent they constitute allegations of fact, they are denied. 16. The allegations contained in paragraph 16 constitute

conclusions of law to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 17. The reference in paragraph 17 to plaintiff's alleged

compliance with the contract is a conclusion of law to which no answer is required; admits the allegations contained in paragraph 17 that the United States Department of Housing and Urban Development ("HUD") has denied retroactive rent adjustments for

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the year 1995, and the years 1997 through 1999; denies the allegations contained in paragraph 17 that HUD has refused to make retroactive rent adjustments for the year 1996, and the years 2000 and 2001; the remaining allegations contained in paragraph 17 are conclusions of law to which no answer is required; to the extent they constitute allegations of fact, they are denied. 18. 19. 20. Denied. Denied. Denies that plaintiff is entitled to the relief set

forth in the "Wherefore" and "In addition" paragraphs immediately following paragraph 19, or to any relief whatsoever. 21. Denies each and every allegation not previously

admitted or otherwise qualified.

FIRST AFFIRMATIVE DEFENSE 22. Plaintiff's claims for rent adjustments are barred by

operation of 42 U.S.C.A. § 1437f(c)(2)(A) (West Supp. 2000), by the doctrines of legal impossibility and unmistakability. WHEREFORE, defendant requests that the Court enter judgment in its favor, order that the complaint be dismissed, and grant defendant such other and further relief as the Court may deem just and proper.

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Respectfully submitted, PETER D. KEISLER Assistant Attorney General

DAVID M. COHEN Director s/ Harold D. Lester, Jr. HAROLD D. LESTER, JR. Assistant Director s/ Andrew P. Averbach ANDREW P. AVERBACH Trial Attorney Commercial Litigation Branch Civil Division U.S. Department of Justice Attn: Classification Unit 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Telephone: (202) 307-0290 Facsimile: (202) 514-8624

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CHARLES W. WILLIAMS Office of the Assistant General Counsel U.S. Department of Housing and Urban Development OF COUNSEL Attorneys for Defendant October 17, 2003

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CERTIFICATE OF SERVICE

I hereby certify that on October 17, 2003, a copy of the foregoing DEFENDANT'S ANSWER AND AFFIRMATIVE DEFENSES TO AMENDED COMPLAINT (CASE NO. 01-416C) was filed electronically. I understand that notice of this filing will be sent by all parties by operation of the Court's electronic filing system. Parties may access this filing through the Court's system. s/ Andrew P. Averbach Andrew P. Averbach