the training were an eligible trip. See Pl.'s Response ¶ 13.
On October 13, 2000, the plaintiff filed his complaint in the
Small Claims and Conciliation Branch of the Civil Division of
the D.C. Superior Court. See Notice of Removal, Ex. A. On
November 9, 2000, the federal defendants removed the case to
this court pursuant to 28 U.S.C. § 1442(a)(1).*fn2
A. Legal Standard
Federal Rule of Civil Procedure 56(c) states that summary
judgment is appropriate when the pleadings and evidence
demonstrate that there is no genuine issue as to any material
fact and the moving party is entitled to judgment as a matter of
law. See FED.R.CIV.P. 56(c); Celotex Corp. v. Catrett,
477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Diamond
v. Atwood, 43 F.3d 1538, 1540 (D.C.Cir. 1995). To determine
what facts are "material," a court must look to the substantive
law on which each claim rests. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
A "genuine issue" is one whose resolution could establish an
element of a claim or defense and, therefore, affect the outcome
of the action. See Celotex, 477 U.S. at 322, 106 S.Ct. 2548;
Anderson, 477 U.S. at 248, 106 S.Ct. 2505.
In ruling on a motion for summary judgment, the court must
draw all justifiable inferences in the nonmoving party's favor
and accept the nonmoving party's evidence as true. See
Anderson, 477 U.S. at 255, 106 S.Ct. 2505. All evidence and the
inferences drawn therefrom must be considered in the light most
favorable to the nonmoving party. A nonmoving party, however,
must establish more than "the mere existence of a scintilla of
evidence" in support of its position. See Anderson, 477 U.S.
at 252, 106 S.Ct. 2505. To prevail on a motion for summary
judgment, the moving party must show that the nonmoving party
"fail[ed] to make a showing sufficient to establish the
existence of an element essential to that party's case, and in
which that party will bear the ultimate burden of proof at
trial." See Celotex, 477 U.S. at 325, 106 S.Ct. 2548. By
pointing to the absence of evidence proffered by the nonmoving
party, a moving party may succeed on summary judgment. See id.
In addition, the nonmoving party may not rely solely on
allegations or conclusory statements. See Greene v. Dalton,
164 F.3d 671, 674 (D.C.Cir. 1999). Rather, the nonmoving party
"must come forward with specific facts" that would enable a
reasonable jury to find in its favor. See id. If the evidence
"is merely colorable, or is not significantly probative, summary
judgment may be granted." Anderson, 477 U.S. at 249-50, 106
S.Ct. 2505 (internal citations omitted).
B. The Custom Argument
Because the plaintiff claims that agency custom guided his
decision to take the trip to Las Vegas without prior written
approval, he has raised a genuine issue of material fact.
Although the plaintiff and defendants agree on the official
procedure for receiving TOP grants, if the plaintiff can show he
reasonably relied on the predominant agency procedure, he will
introduced an element that can affect the outcome of the action.
See Celotex, 477 U.S. at 322, 106 S.Ct. 2548. The D.C. Circuit
has explained the custom argument as follows:
[T]he lack of administrative exercise imposes on [an]
agency some obligation to protect the parties before
it, where possible, from the consequences of their
reliance upon its earlier practice . . . abrupt
changes in discretionary agency practice or
interpretation require some degree of notice, if
possible, when the change threatens to penalize
parties for reasonable reliance on the prior
Eastern Carolinas Broad. Co. v. Federal Communications Comm'n,
762 F.2d 95, 101 (D.C.Cir. 1985); see also Briscoe v. Kusper,
435 F.2d 1046, 1055 (7th Cir. 1970) (holding that an agency may
be bound by its own established custom and practice as well as
by its formal regulations).
In sum, at this point, the court denies as premature the
defendants' motion for summary judgment. To survive a future
motion for summary judgment, the plaintiff will have to raise
genuine issues of material fact about: (1) whether he relied on
a grant-money procedure that was sufficiently settled and
customary within HUD; and (2) whether his reliance on that
procedure was reasonable in light of the notice he received.
Because the plaintiff must be given the opportunity to obtain
discovery, the court denies as premature the defendants' motion
for summary judgment.
For all these reasons, the court denies without prejudice the
defendants' motion for summary judgment. An Order directing the
parties in a fashion consistent with this Memorandum Opinion is
separately and contemporaneously issued this 2nd day of April,