response relied on HUD's processing of their initial Section 801
applications as proof that the proper materials had been filed.
In the last sentence of plaintiffs' response they turn to the
issue of the vouchers, stating that "[t]o the extent that HUD
asserts that the Plaintiffs' applications were incomplete, the
Plaintiffs maintain they did not receive notice from HUD of the
final components of the Section 801 process or a list of
specific documents needed to complete the Plaintiffs' Section
In their second response, plaintiffs abandoned their attempt
to blame their failure to submit the vouchers on a lack of
notice, and made the vague and equivocal statement that "to the
best of the recollection of their managing general partner, all
necessary paperwork required by the referenced documents was
submitted to HUD." As in their first response, the plaintiffs
avoid making a specific and direct statement on the voucher
issue, instead referring to "all necessary paperwork". The
response does not specify the basis of Mr. Godley's
recollection; it does not indicate that Mr. Godley filed the
vouchers himself, or has personal knowledge that someone else
filed them. In Mr. Godley's own declaration in support of
plaintiffs' motion for summary judgment, he again evaded the
issue of the vouchers, stating only that as to the filing of the
vouchers, "I refer to the statement made in the Plaintiffs'
Supplemental Response to Defendants' First Set of
Not only do plaintiffs demonstrate a reluctance to
affirmatively state that the vouchers were filed, they failed to
avail themselves of the opportunity to depose Ms. Elliott. They
did not attempt to impeach her, or provide specific evidence to
contradict her statement. In Bias v. Advantage Int'l, Inc.
905 F.2d 1558 (D.C. Cir. 1990), the contested issue was whether the
decedent had used illegal drugs in the past. Defendant provided
specific evidence of the decedent's drug use through affidavits
of people who had seen him use drugs on specific occasions. The
plaintiffs submitted affidavits of people who knew the decedent
very well over a long period of time, who attested that he had
not used drugs. Upholding the trial court's grant of summary
judgment for the defendant, the court found that the generalized
evidence could not overcome the defendant's specific evidence.
Further, the court emphasized the plaintiffs' failure to make
any effort to impeach the testimony of the defendant's
witnesses, or to counter that evidence with specific evidence of
their own. Id. at 1561-62; see also Williams v. Kolb,
145 F.2d 344 (D.C. Cir. 1944) (general allegations are not sufficient
to raise an issue of fact where the movant has supplied detailed
and specific evidence). Here, plaintiffs have been confronted
with the same type of specific evidence, including evidence that
Mr. Godley made a conscious choice not to file the vouchers. Mr.
Godley is the person in the best position to contradict that
evidence, yet he has not denied that allegation, or definitively
stated his personal knowledge that the vouchers were filed by
Ms. Elliott or by anyone else.
In keeping with their decision not to support the allegation
in their complaint that the vouchers were filed, plaintiffs now
contend that the submission of the vouchers is not a material
issue. In their opposition to HUD's motion for summary judgment
plaintiffs do not devote much time to the issue, stating only
that "while their managing partner believed, to the best of his
recollection, that all paperwork required by HUD was submitted
to HUD . . . they have been unable to locate any such
documents." Similarly, in their own motion for summary judgment,
plaintiffs merely state that "there appears to be a dispute
among the parties concerning whether the Owners submitted
vouchers" before moving on to assert that the dispute "is
If the plaintiffs' evidence is "merely colorable, or is not
significantly probative, summary judgment may be granted."
Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 250,
106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). HUD has presented specific
evidence, and in order to avoid summary judgment the plaintiffs
must "cast more than metaphysical doubt on the credibility of
the testimony." In Doe v. Gates, 981 F.2d 1316 (D.C. Cir.
1993), an employee of the Central Intelligence Agency (CIA)
alleged that he had been fired as a result of a policy against
homosexuals. The CIA provided evidence that Doe had been fired
for a different reason, while Doe submitted an affidavit that
two CIA officers had told him that his homosexual activities
violated CIA regulations. The Doe court found that this "vague
paragraph" in the plaintiff's affidavit was insufficient; direct
and specific evidence was required to avoid summary judgment.
The court emphasized that Doe had failed to submit further
evidence despite having time and opportunity to do so. See Id.
at 1323. In this case, the plaintiffs have failed to provide
specific evidence despite having had the opportunity to do so.
The plaintiffs have failed to submit more than "colorable"
evidence in support of their initial claim that they did submit
the required vouchers. The Court is well aware of the need to
avoid making credibility judgments or weighing the evidence.
However, "[w]here the record taken as a whole could not lead a
rational trier of fact to find for the nonmoving party, there is
no genuine issue for trial." Matsushita Electrical Industrial
Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348,
89 L.Ed.2d 538 (1986) (citation and internal quotation omitted).
The Supreme Court has made it clear that summary judgment is "an
integral part of the Federal Rules," and should not be
disfavored or avoided. In this case, there is insufficient
evidence for a rational trier of fact to find that plaintiffs
filed the vouchers.
ii. HUD's Obligations In Light of the Fact That Vouchers
Were Not Filed
Plaintiffs argue that even if the vouchers were never filed,
it was arbitrary and capricious, and an abuse of discretion, for
HUD not to waive its requirement that applicants for the Section
801 payment file vouchers. HUD counters that the APA does not
provide a cause of action to force an agency to take a
discretionary action such as waiving its own requirements. The
Court finds it unnecessary to reach that issue, because HUD's
failure to pay the plaintiffs was neither arbitrary and
capricious nor an abuse of discretion.