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McNamara v. National Credit Union Association

January 16, 2002


The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge

Document Nos.: 7, 12




This Freedom of Information Act ("FOIA") matter comes before the court on the defendant's motion for summary judgment and the plaintiff's motion to dismiss without prejudice. See 5 U.S.C. § 552. The plaintiff, Neil McNamara, seeks to compel the National Credit Union Administration ("NCUA") to produce copies of "all reports relating to the investigations concerning Messrs. Verner and McNamara, and all documents created by Carolyn D. Jordan, Shearry Turpenoof, and Mark A. Treichel relating to the investigations." In its motion for summary judgment, the defendant argues that it has produced all reasonably segregable, nonexempt information that is responsive to the plaintiff's FOIA request. Having considered the pending motions and related submissions, the entire record herein, and the relevant law, the court concludes that there are no genuine issues of material fact, and that the defendant is entitled to summary judgment as a matter of law and the court denies the plaintiff's motion for dismissal without prejudice.


On February 7, 2001, the plaintiff requested by letter that the NCUA provide him with copies of all records related to an investigation of him and another NCUA employee. See id. ¶ 1. On March 9, 2001, the defendant released nine documents, totaling 25 pages, to the plaintiff in response to his request. See Salva Decl. ¶ 8. The defendant also withheld 13 documents claiming several exemptions to FOIA. See id. The plaintiff appealed the NCUA's partial release of information, and the NCUA Office of General Counsel granted his appeal in part and denied it in part. See id. ¶ 10. In partially granting the plaintiff's appeal, the NCUA released two additional documents, and withheld the remaining documents in full. See id. ¶ 11.

Unsatisfied, the plaintiff filed this complaint seeking disclosure of the remaining documents on May 5, 2001. The defendant moved for summary judgment on August 21, 2001. See Mot. for Summ. J. On September 25, 2001, the plaintiff filed a motion that did not respond to the motion for summary judgment but rather moved for a dismissal of its own complaint without prejudice. See Pl.'s Mot. for Dismissal. On November 16, 2001, because the plaintiff still had not responded to the defendant's motion for summary judgment, the court gave the plaintiff until November 26, 2001 to respond or "the court may treat the motion for summary judgment as conceded and rule accordingly." See Order dated Nov. 16, 2001. November 26 came and went without event.


A. Legal Standard for Summary Judgment

Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C. Cir. 1995). To determine which 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 (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; Anderson, 477 U.S. at 248.

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. A nonmoving party, however, must establish more than "the mere existence of a scintilla of evidence" in support of its position. See id. at 252. 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 on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. 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); Harding v. Gray, 9 F.3d 150, 154 (D.C. Cir. 1993). Rather, the nonmoving party "must come forward with specific facts" that would enable a reasonable jury to find in its favor. See Greene, 164 F.3d at 675. If the evidence "is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (internal citations omitted).

In fact, if a non-movant fails to provide with its opposition a "concise statement of genuine issues setting forth all material facts as to which it is contended there exists a genuine issue" that meets the requirements of Local Civil Rule 7.1(h), "the court may assume that facts identified by the ...

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