Case 1:11-cv-00408-ABJ Document 103

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ UNITED WESTERN BANK, ) ) Plaintiff, ) v. ) C.A. No. 11-cv-408 (ABJ) ) OFFICE OF THE COMPTROLLER OF ) THE CURRENCY, et al. ) ) Defendants. ) DEFENDANTS OPPOSITION TO PLAINTIFFS MOTION TO STRIKE Defendants Office of the Comptroller of the Currency and Comptroller Thomas J. Curry (collectively OCC) submit this opposition to Plaintiffs Motion to Strike the Defendants Statement of Facts with References to the Administrative Record. Plaintiffs motion is premised on an interpretation of Local Civil Rule 7(h) (LCvR) which is neither mandated by the language of the rule nor by the actual application of the rule in similar cases. Local Civil Rule 7(h) guides the parties regarding the briefing of motions for summary judgment pursuant to Federal Rule of Civil Procedure 56.1 The first part of the Local Rule articulates the obligations of the parties and the manner in which such motions are briefed: Each motion for summary judgment shall be accompanied by a statement of material facts as to which the moving party contends there is no genuine issue, which shall include references to the parts of the record relied on to support the statement. An opposition to such a motion shall be accompanied by a separate
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Local Rule 7(h) assists the district court to maintain docket control and to decide motions for summary judgment efficiently and effectively. Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner, 101 F.3d 145, 150 (D.C. Cir. 1996) (referring to the former LCvR 108(h)). The rule puts the onus on counsel to sift through the records of their cases in order to crystallize for the Court the material facts and relevant portions of the record. Id. at 151. In 2008 the Court amended the rule to distinguish normal discovery-track cases, with the possibility of material facts being disputed, necessitating a trial, from administrative record cases, in which the Court does not conduct a trial. The 2008 revision did not relieve counsel from the requirement to submit a statement of facts with references to the administrative record. LCvR 7(h)(2).

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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. Each such motion and opposition must also contain or be accompanied by a memorandum of points and authorities and proposed order as required by LCvR 7(a), (b) and (c). In determining a motion for summary judgment, the court may assume that facts identified by the moving party in its statement of material facts are admitted, unless such a fact is controverted in the statement of genuine issues filed in opposition to the motion. LCvR 7(h)(1). The second part of the Local Rule addresses the specific circumstance of briefing a Rule 56 motion in the context of a challenge to an agency action pursuant to the Administrative Procedure Act and similar statutes: Paragraph (1) shall not apply to cases in which judicial review is based solely on the administrative record. In such cases, motions for summary judgment and oppositions thereto shall include a statement of facts with references to the administrative record. LCvR 7(h)(2). In instances where (as is the case here) a party files a motion for summary judgment where review is limited to the factual record that was before the agency, Rule 7(h)(2) eliminates the obligation under Rule 7(h)(1) for the proponent of a summary judgment motion to prepare (and the opposing partys obligation to respond to) a statement of material facts as to which the moving party contends there is no genuine issue. This is because in cases where review is based on an administrative record the court is not called upon to determine whether there is a genuine issue of material fact, but rather to test the agency action against the administrative record. See Comment to LCvR 7(h). The essence of Plaintiffs motion to strike is the contention that Rule 7(h)(2) must be read as mandating that the statement of facts with references to the administrative record required under the rule cannot be a separate document, but must be incorporated into the memorandum of 2

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points and authorities. This, they argue,2 makes it subject to LCvR 7(e), which limits a memorandum of points and authorities in support of or in opposition to a motion to not more than 45 pages. The OCC respectfully disagrees. While the language of LCvR 7(h)(2) makes it clear that a motion for summary judgment shall include a statement of facts with references to the administrative record as the OCCs submission does the rule does not preclude a proponent of a Rule 56 motion from filing a separate Statement of Facts. Plaintiff has not cited any case law that supports its interpretation of the Local Rules or that demonstrates that a separate submission is improper. Plaintiff does cite Koretoff v. Vilsack, 2012 U.S. Dist. LEXIS 5346 (D.D.C. Jan. 18, 2012) to suggest Defendants submission was improper. Pl.s Mem. at 2. Koretoff, however, did not address whether filing a separate statement of facts was improper. Rather, the objection in Koretoff concerned the extrinsic evidence outside the administrative record that plaintiff cited in the separate statement. The plaintiff submitted, inter alia, a witness declaration and approximately 300 pages of documents that were neither relied upon by the agency nor present in the administrative record of the case. See Koretoff v. Vilsack, C.A. No. 08-cv-1558 (ESH)(D.D.C.) (Documents No. 46-1 and 2, plaintiffs filing of Aug. 8, 2011). The Court properly regarded this as an ill-conceived attempt to turn an administrative record review case into one that has proceeded to summary judgment after discovery. Koretoff at *8-9, n.3. Plaintiffs reliance, see Pl.s Mem. at 2-3, upon Davis v. Pension Benefit Guaranty Corp., 815 F. Supp. 283 (D.D.C. 2011), is similarly misplaced. As was the case in Koretoff, the Davis Court did not consider Plaintiffs claim that a complete summary judgment submission must

See Plaintiffs Memorandum (Pl.s Mem) at 2. 3

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be limited to no more than 45 pages. Instead, like Koretoff, the Davis Court addressed plaintiffs improper attempt to include extra-record materials in its submission to the Court. Id. at 288-93. Plaintiffs other cases from this Court do not address the issue pertinent to this Motion. Some are not even administrative record review cases, but instead involve private litigants only. 3 See, e.g., OAO Alfa-Bank v. Ctr. for Pub. Integrity, 387 F. Supp. 2d 20 (D.D.C. 2005) (defamation lawsuit brought by Russian businessmen against various American citizens) and Canady v. Erbe Elekromedizin GmbH, 307 F. Supp. 2d 2 (D.D.C. 2004) (patent infringement case brought involving medical devices). Perhaps more to the point, a brief review of this Courts dockets in other record review cases shows that it is an entirely usual and customary practice for litigants filing motions for summary judgment in these cases to submit precisely what the OCC submitted in this case: 1) a motion for summary judgment; 2) a separate statement of facts with citations to the administrative record; and 3) a memorandum of points and authorities in support of the motion for summary judgment.4 For example, in Mingo Logan Coal Co. v. EPA, C.A. No. 10-cv-541 (ABJ) (D.D.C.) (Jackson, J.), the Court considered a challenge under the Clean Water Act to a decision by the Environmental Protection Agency (EPA) to revoke a permit granted to the company by the Army Corps of Engineers allowing discharge of fill into two streams. As with the current matter

Plaintiffs reliance upon Fed. R. App. P. 28(a)(7), see Pl.s Mem at 3, n.3, is similarly misplaced. This is not a case in the Court of Appeals.
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The Local Rules do not expressly require submission of three separate documents. A party may choose to integrate its submissions in one memorandum of points and authorities, which may be reasonable, for example, when the administrative record is short and the legal issues are few. But such a procedure is not, as Plaintiff suggests, mandated by LCvR 7(e) and (h)(2). 4

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before the Court, the case was to be decided on the basis of the administrative record that was before the agency. The plaintiff submitted a motion for summary judgment, a statement of facts, and a memorandum of points and authorities which, taken together, totaled 103 pages.5 Id. (Document No. 26, Mingo Logans filing submitted May 27, 2011). In response, defendant EPA submitted its own motion for summary judgment, a statement of facts, and memorandum of points and authorities totaling 120 pages. See Id. (Document No. 46, EPAs filing submitted July 25, 2011). The Courts memorandum opinion, reported at 2012 U.S. Dist. LEXIS 39532 (D.D.C. Mar. 23, 2012), cited the parties separately-submitted statements of facts throughout the decision. Similar examples are found when other judges dockets and decisions are reviewed. In Association of Civilian Technicians, Inc. v. United States, 601 F. Supp. 2d 146 (D.D.C. 2009), the decision rendered by the Honorable Judge Kollar-Kotelly cites to the defendants separatelysubmitted statement of fact throughout her decision. Id. at 154, n.5. The docket in that case reflects that the governments complete summary judgment submission consisted of a motion, a separate statement of facts, and a memorandum of points and authorities, and associated exhibits that totaled 233 pages. In Bean Dredging, Inc. v. United States, 699 F. Supp. 2d 118 (D.D.C. 2010), the Honorable Judge Kennedy cites from the parties separately-submitted statements of facts submitted pursuant to LCvR7(h)(2). Id. at 121 n.3. The plaintiffs complete summary
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Although Mingo Logans statement of facts was captioned as being submitted pursuant to LCvR 7(h)(1), it otherwise correctly cited to the administrative record submitted by the government to the Court. In that case, the Court entered a separate order granting the parties leave to exceed the LCvR 7(e) page limit, permitting the parties to file memoranda of points and authorities of 60 pages each, with replies limited to 30 pages. See C.A. No. 10-cv-541 (ABJ) (D.D.C.) (Minute Order of May 23, 2011). The parties total submissions thus well exceeded the 60 page limit that was imposed on their memoranda of points and authorities. 5

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judgment submission totaled 49 pages, and the defendants submission was 98 total pages. See also Kight v. United States, 2012 U.S. Dist. LEXIS 39551 (D.D.C. March 23, 2012)(Rothstein, J.) (defendant submitted a motion for summary judgment, a separate statement of facts, a separate memorandum of points and authorities, and associated exhibits totaling 71 pages).6 The OCC submitted its separate Statement of Facts to provide the Court with a roadmap to the relevant parts of a sizable administrative record in an effort to assist the Court with its review.7 Local Rule 7(h)(2) expressly requires a party to include a statement of facts with references to the administrative record in connection with motions for summary judgment and oppositions thereto. The OCC has done nothing more than comply with this requirement in a manner that comports with the language of the rule and established local practice.

Kight was an uncomplicated case with an administrative record of approximately 200

pages.
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A separate statement of facts makes sense given the size of the administrative record and the need for the OCC to both argue its motion for summary judgment and respond to plaintiffs motion for summary judgment in a single brief of 45 pages rather than 90 pages that would have been available if the summary judgment motion and opposition had been briefed separately. Compare Amended Scheduling Order of March 14, 2012 (OCC limited to 45 pages to respond to the Plaintiffs motion for summary judgment and support its own motion for summary judgment) with Local Rule 7(e) (granting 45 pages to brief or oppose a summary judgment motion). 6

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The OCC respectfully submits that the Court should deny Plaintiffs motion to strike. Date: May 29, 2012 Respectfully submitted, Julie L. Williams, Chief Counsel Daniel P. Stipano, Deputy Chief Counsel Horace G. Sneed, (MI Bar No. P33434) Director, Litigation Division Gregory F. Taylor, Assistant Director, Litigation Division DC Bar No. 417096 /s/Christopher A. Sterbenz Christopher A. Sterbenz, Counsel, Litigation Division DC Bar No. 437722 250 E Street, S.W. Washington, D.C. 20219 Telephone: (202) 927-9124 Facsimile: (202) 874-5279 christopher.sterbenz@occ.treas.gov Attorneys for Office of the Comptroller of the Currency and Comptroller Thomas J. Curry

CERTIFICATE OF SERVICE I hereby certify that on May 29, 2012, I filed the foregoing on the Courts electronic filing system. To the best of my knowledge all counsel of record will receive service thereby. /s/Christopher A. Sterbenz