Hubbard v. U.S.

Page 1

545 F.Supp.2d 1

Murphy M. HUBBARD, Plaintiff, v. UNITED STATES of America et al., Defendants.

Civil Action No. 07-0023 (RMU).

United States District Court, District of Columbia.

March 28, 2008.

Murphy M. Hubbard, Springfield, MO, pro se.

Dashiell Shapiro, Joseph E. Hunsader, U.S. Department of Justice, Washington, DC, for United States of America.

MEMORANDUM OPINION

GRANTING THE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND DENYING THE PLAINTIFF'S MOTION FOR VOLUNTARY DISMISSAL

RICARDO M. URBINA, District Judge.

I. INTRODUCTION

The pro se plaintiff brings suit against the United States and the Internal Revenue Service ("IRS") for allegedly wrongfully disbarring him from representing clients before the IRS. The court previously denied the plaintiffs request to enjoin the defendants from disbarring him pending the court's review of the agency's action on the merits. Prior to that ruling, the defendants filed a motion for summary judgment.

The court granted the plaintiff numerous extensions of time in which to respond to the defendants' motion. Met with silence, on February 7, 2008 the court instructed the plaintiff that his failure to respond to the defendants' motion could result in the court granting the motion as conceded. The court also set February 22, 2008 as the deadline for the plaintiff to respond to the defendants' motion. The plaintiff responded to this order not by opposing to the defendants' motion, but rather, by late-filing a motion for voluntary dismissal without prejudice to preserve by late-filing a motion for voluntary dismissal without prejudice to preserve his right to refile the case "when he will be able to fully commit his time and resources to pursing this cause of action." Because the court concludes that the plaintiff's motion does not respond to the defendants' motion, and that the defendants are entitled to judgment as a matter of law, the court grants the defendants' motion for summary judgment as conceded and denies the plaintiffs motion for voluntary dismissal.

II. BACKGROUND

The court addressed the full factual background of the case in a previous ruling. Mem. Op. (Aug. 3, 2007), 496 F.Supp.2d 194. In the interest of brevity, the court will now only offer an abridged recitation of the facts and a current recitation of the procedural background of the case.

On January 14, 2004, after receiving notice, an opportunity to respond, and an opportunity to appear at a hearing, an IRS Administrative Law Judge ("ALJ") disbarred the plaintiff from representing clients before the IRS due to his failure to file both individual and business tax returns for the years 1997, 1998, 1999 and 2000. Admin. R. ("AR") at 265-77. Following two administrative appeals, another ALJ issued a final decision affirming the disbarment. Id. at 24-30. On January 4, 2007, the plaintiff filed suit in this court to challenge his disbarment. He simultaneously moved for injunctive relief, asking the court to prevent the IRS from either disbarring the plaintiff or from issuing public notice of his disbarment pending the court's review of his underlying challenge.¹ The court denied the plaintiffs motion for injunctive relief on August 3, 2007 for failure to show a likelihood of success on the merits.

While the motion for injunctive relief was pending, the defendants filed a motion for summary judgment on April 23, 2007, asserting that substantial evidence supported the plaintiffs disbarment. The court granted the plaintiff several extensions of time to respond to the motion for summary judgment, but the plaintiff failed to meet any of those deadlines. Then, on February 7, 2008, the court issued an order fully explaining to, the plaintiff that his failure to respond could result in the court considering the matter to be conceded. Order (Feb. 7, 2008). It also directed the plaintiff that if he wished to oppose the defendants' motion, he must do so by February 22, 2008. Id. On February 25, 2008, in lieu of responding to the defendants' motion and despite the court's caution, the plaintiff moved for voluntary dismissal² of the claims without prejudice. The defendants opposed that motion on February 28, 2008. The court now addresses both the defendants' motion for summary judgment and the plaintiffs motion for voluntary dismissal.

III. ANALYSIS

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, 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 which facts are "material," a court must look to the substantive law on which each claim rests. 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. 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. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. A nonmoving party, however, must establish more than "the mere existence of a scintilla of evidence" in support of its position. Id. 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 on which that party will bear the burden of proof at trial." Celotex, ill U.S. at 322; 106 S.Ct. 2548. By pointing to the absence of evidence proffered by the nonmoving party, a moving party may succeed on summary judgment. Id.

In addition, the nonmoving party may not rely solely on allegations or conclusory statements. 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. Greene, 164 F.3d at 675. If the evidence "is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, ill U.S. at 249-50, 106 S.Ct. 2505 (internal citations omitted).

In fact, if a nonmovant 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 moving party in its statement of material facts are admitted." LCvR 7.1(h). This is because a district court's obligation in examining a Local Civil Rule 7.1(h) statement of material facts in dispute, however labeled, extends only "to a determination of whether the party opposing summary judgment has complied with the rule's plain requirements." Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner, 101 F.3d 145, 153-54 (D.C.Cir. 1996); see also securities & Exchange Comm'n v. Banner Fund Int'l, 211 F.3d 602, 616 (D.C.Cir.2000). Thus, if there is no concise statement of material facts in dispute, the court may treat the movant's statement of material facts as conceded.

Federal Rule of Civil Procedure 56(e) amplifies Local Rule 7.1(h) and provides, in relevant part:

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.

Fed.R.Civ.P. 56(e). Accordingly, a court should grant a motion for summary judgment when there is no genuine issue as to any material fact and the party is entitled to judgment as a matter of law. Jackson, 101 F.3d at 153; see also LCvR 7.1(h) (if the party files no opposition whatsoever the court may treat the motion as conceded).

B. Legal Standard for Judicial Review of Agency Actions

The APA entitles "a person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action ... to judicial review thereof." 5 U.S.C. § 702. Under the APA, a reviewing court must set aside an agency action that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Id. § 706; Tourus Records, Inc. v. Drug Enforcement Admin., 259 F.3d 731, 736 (D.C.Cir.2001). In making this inquiry, the reviewing court "must consider whether the [agency's] decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989) (internal quotations omitted). At a minimum, the agency must have considered relevant data and articulated an explanation establishing a "rational connection between the facts found and the choice made." Bowen v. Am. Hosp. Ass'n, 476 U.S. 610, 626, 106 S.Ct. 2101, 90 L.Ed.2d 584 (1986); Tourus Records, 259 F.3d at 736. An agency action usually is arbitrary or capricious if

the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to`evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.

Motor Veh....