Burke, Kenneth M. v. Gould, William B.

RANDOLPH, Circuit Judge,

dissenting in part:

Counsel: “In the book of nature, my Lords, it is written — ”

Lord Chief Justice Ellenborough: “Will you have the goodness to mention the page, Sir, if you please?”

3 John Lord Campbell, The Lives of the Chief Justices of England 239 (1858).

Burke never mentioned the page, or any pages, of the record in his “Statement of Material Facts in Dispute,” filed in response to the NLRB’s motion for summary judgment. For that reason, I would affirm the judgment of the district court in its entirety. The decision of the majority disregards the governing rules, fills in the blanks for Burke, and thereby lays a trap not only for our district judges but also for all parties who move for summary judgment. The new and unprecedented course thus set for our circuit is a course other circuits have wisely shunned. Worse, it is a course directly at odds with the law of this circuit.

A rule of the district court requires non-moving parties to provide the district court and opposing counsel with “a separate concise statement of genuine issues setting forth all material facts as to which it is contended there exists a genuine issue necessary to be litigated, which shall include references to the parts of the record relied on to support the statement.” Rule 56.1, Rules of the United States District Court for the DistriCt of Columbia (italics added). This is a straightforward rule, easy to understand and easy to follow. Burke flagrantly violated it. He dumped nearly two hundred pages of material into the record, large portions of which contained information that would be inadmissible at trial and thus had no proper function in opposing summary judgment. See William W. SCHWARZER ET AL., THE ANALYSIS AND DECISION of Summary Judgment Motions 50 (1991). His “Statement of Material Facts in Dispute” consisted of seven short paragraphs generally repeating the allegations in his complaint and containing no references to any evidence on file with the court.

By proceeding in this manner, in violation of Local Rule 56.1, Burke also violated Rule 56 of the Federal Rules of Civil Procedure. Rule 56(e) requires the nonmov-ing party to “designate ‘specific facts showing that there is a genuine issue for trial.’ ” Celotex Corp. v. Catrett, 477 U.S. 317, 324 , 106 S.Ct. 2548, 2553 , 91 L.Ed.2d 265 (1986) (quoting Fed. R. Crv. P. 56(e)). There was a time in the Fifth Circuit when the nonmoving party’s failure to designate “specific facts” was not fatal. If the record contained — in the language of Rule 56(c) — “depositions, answers to interrogatories, and admissions” and “affidavits” *524 showing the existence of material facts in genuine dispute, it was the district court’s responsibility to ferret the evidence out, upon pain of reversal. See Higgenbotham v. Ochsner Found. Hosp., 607 F.2d 653, 656-57 (5th Cir.1979); Keiser v. Coliseum Props., Inc., 614 F.2d 406, 410-11 (5th Cir.1980). This is basically the position the majority stakes out in our case. Rule 56(c), we are told, requires district judges to consider all these items in determining whether to grant summary judgment, even if the nonmovant cited none of them in his statement of material facts in dispute. Maj. op. at 519-20. The Fifth Circuit has now seen the error of its approach and has overruled Higgenbotham and Keiser. See Skotak v. Tenneco Resins, Inc., 953 F.2d 909 , 916 n. 8 (5th Cir.1992). As the Seventh Circuit pointed out in L.S. Heath & Son v. AT&T Info. Sys., Inc., 9 F.3d 561, 567 (1993), that line of older Fifth Circuit cases was “in tension with the Supreme Court’s more recent summary judgment jurisprudence” in Celotex, 477 U.S. at 324 , 106 S.Ct. at 2553 ; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-57 , 106 S.Ct. 2505, 2514-15 , 91 L.Ed.2d 202 (1986); and Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 , 106 S.Ct. 1348, 1355-56 , 89 L.Ed.2d 538 (1986). Today, in the Fifth and Seventh Circuits, the nonmoving party must cite to the evidence in order for that evidence to be considered part of the summary judgment record. L.S. Heath & Son, 9 F.3d at 567 . That is the law in other circuits as well. Id. (citing InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir.1989)); see also Guarino v. Brookfield Township Trs., 980 F.2d 399 , 405 (6th Cir.1992); Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir.1998). Until today, it had also been the law of this circuit.

In Frito-Lay, Inc. v. Willoughby, 863 F.2d 1029, 1033 (D.C.Cir.1988), we held that Rule 56 required the nonmoving party to cite evidence and rejected the idea that “ ‘the entire record in the case must be searched and found bereft of a genuine issue of material fact before summary judgment may be properly entered,’ ” quoting Nissho-Iwai Am. Corp. v. Kline, 845 F.2d 1300, 1307 (5th Cir.1988). As here, the nonmovant in Frito-Lay had submitted a statement of material facts in dispute in token compliance with Rule 56 and the local rule'.- But the statement made no reference to the evidence, a defect we held “fatal” to the opposition to summary judgment. 863 F.2d at 1034 .

If we followed Frito-Lay, as every panel of the court must, see LaShawn A. v. Barry, 87 F.3d 1389, 1395 (D.C.Cir.1996) (en banc), Burke’s violation of Rule 56 and Local Rule 56.1 should also have been fatal. The majority claims that Frito-Lay does not control this case because it dealt solely with the nonmovant’s failure “to introduce Rule 56(c) materials in accordance with the teachings of Anderson and Celo-tex.” Maj. op. at 519. There is no such teaching. To be sure, a nonmovant may not defeat a summary judgment motion by resting on mere allegations or pleadings. See Anderson, 477 U.S. at 256 , 106 S.Ct. at 2514 ; Celotex, 477 U.S. at 324 , 106 S.Ct. at 2553 . But neither Anderson nor Celotex requires nonmovants to introduce Rule 56(c) materials in order to avoid summary judgment. Rather, when appropriate, the nonmovant “may simply demonstrate to the court that the record on the motion contains sufficient specific facts to establish the existence of a genuine issue,” such as by pointing out to the court that the movant ignored or mischaracterized relevant evidence already in the record. SchwarzeR et al., supra, at 47; see also Isquith v. Middle S. Utils., Inc., 847 F.2d 186 , 198-99 (5th Cir.1988) (holding that a nonmovant responding to a motion for summary judgment need not proffer its own evidence but may point to evidence already on file). Thus, the nonmovant’s *525 mistake in Frito-Lay was not in failing to submit Rule 56(c) materials, as the majority supposes. Rather, the nonmovant’s mistake — a fatal one — was its failure to point the district court to material facts “with the requisite specificity and [to] support them with appropriate references to the record before the district court.” Frito-Lay, 863 F.2d at 1034 . Burke made the same error and it should have the same consequence.

The majority excuses Burke’s failure to point to specific facts and his noncompliance with the local rule on the basis that the district judge could, and did, waive the local rule, by which the majority means that the court did not specifically invoke the rule against Burke. I have several responses. In the first place, the district court had no authority to waive Rule 56. In the second, I do not believe it had the authority to relieve Burke of the local rule. Neither rule is simply for the benefit of the district court, although that is certainly part of it. See, e.g., Twist v. Meese, 854 F.2d 1421, 1425 (D.C.Cir.1988) (“[A] district court judge should not be obliged to sift through hundreds of pages of depositions, affidavits, and interrogatories in order to make his own analysis and determination of what may, or may not, be a genuine issue of material disputed fact.”). The moving party too is entitled to a concise statement of the material facts the opponent thinks are contested. Otherwise, it would be handicapped in trying to meet the opposing contentions. Local Rule 56.1 and “Rule 56 must be construed with due regard not only for the rights of persons asserting claims and defenses that are adequately based in fact to have those claims and defenses tried to a jury, but also for the rights of persons opposing such claims and defenses to demonstrate in the manner provided by the Rule, prior to trial, that the claims and defenses have no factual basis.” Celotex, 477 U.S. at 327 , 106 S.Ct. at 2555 . It is true that several cases such as Gardels v. CIA, 637 F.2d 770, 773 (D.C.Cir.1980), say that a district court may ignore the moving party’s failure to comply, a point we recently repeated in Cleveland County Ass’n for Gov’t by the People v. Cleveland County Bd. of Comm’rs, 142 F.3d 468 , 475 n. 12 (D.C.Cir.1998). But these cases did not hold that a district court may excuse a violation by a nonmoving party, on whom the burdens are considerably different. See Celotex, 477 U.S. at 324 , 106 S.Ct. at 2553 . To so hold would be to contradict our decision in Frito-Lay. Nothing in our description of the district court’s opinion in Frito-Lay indicated that the district court had invoked the local rule in granting summary judgment, yet we affirmed on the ground that the nonmovant violated Rule 56 and the local rule by failing to provide a statement containing citations to the record.

In any event, the fact that the district court attempted to search the record despite Burke’s noncomphance with Local Rule 56.1 should not obscure the reality of this case: it was Burke’s inadequate Rule 56.1 statement (not error on the part of the district court) that caused certain facts to go undiscovered. Burke bore the burden of pointing out any material facts to the district court. Having failed to do so, he should not be permitted to make another attempt. See Tarpley v. Greene, 684 F.2d 1 , 7 n. 16 (D.C.Cir.1982). “Rules is rules,” as the saying goes, Bartlett J. Whiting, Modern Proverbs and Proverbial Sayings 541 (1989).

The majority’s bewildering treatment of the local rule and Rule 56 will have consequences for litigants, for district court judges and for our court. The majority begins by proclaiming that we have “long upheld strict compliance.” In the next breath it propounds an exception, stating that only “egregious” violations of the rule matter. Maj. op. at 517-18. The two *526 statements cannot stand together. This is not an instance in which the exception proves the rule. The majority’s exception destroys the rule. The majority also fails to explain how its new regime will function when a district court simply grants summary judgment without an opinion, as district judges are entitled to do. See Fed. R.CivP. 52(a). In such cases the district court will not have expressly invoked Local Rule 56.1 and thus, according to my colleagues, neither can we, which means that we will have to wade through the record ourselves to determine whether there is evidence to show genuine issues. I side with the Fifth Circuit that it is not our duty to do so. See Forsyth v. Barr, 19 F.3d 1527, 1536 (5th Cir.1994); see also Guarino, 980 F.2d at 406 (“The free-ranging search for supporting facts is a task for which attorneys in the case are equipped and for which courts generally are not.”). We review summary judgments de novo, placing ourselves in the position of the district court when it decides whether to grant the motion. See Adler, 144 F.3d at 671-72 ; but see Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir.2001). De novo review means that the district court’s opinion (if it rendered one) drops out. See Liberty Lobby, Inc. v. Rees, 852 F.2d 595, 598 (D.C.Cir.1988). To me, it makes no sense to hold, as the majority does, that if the district court disregards Local Rule 56.1, we must do the same. We are not concerned here with a district court ruling admitting or excluding evidence. Contrast General Electric Co. v. Joiner, 522 U.S. 136, 143 , 118 S.Ct. 512, 517-18 , 139 L.Ed.2d 508 (1997). As our opinion in Frito-Lay indicates, the local rule represents an interpretation of Rule 56(e)’s requirement that the nonmoving party “set forth specific facts showing that there is a genuine issue for trial.” I would therefore hold that if a nonmoving party fails to comply with Rule 56 and Local Rule 56.1, as Burke did in this case, the nonmoving party loses whenever the movant’s submission, considered alone, shows that there is no genuine issue for trial and that it is entitled to judgment as a matter of law.