                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                           OCT 19 2000
                              FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    WILLIAM H. PAYNE,

                  Plaintiff-Appellant,

    v.                                                    No. 00-2019
                                                   (D.C. No. CIV-97-266-SC)
    NATIONAL SECURITY AGENCY,                              (D. N.M.)

                  Defendant-Appellee.


                              ORDER AND JUDGMENT          *




Before TACHA , EBEL , and LUCERO , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination

of this appeal.    See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       Plaintiff-appellant William H. Payne appeals from the district court’s order

granting summary judgment on his complaint pursuant to the Freedom of

Information Act (FOIA), 5 U.S.C. § 552, to defendant-appellee National Security

Agency (NSA). Payne offers no substantive argument in opposition to the

conclusions reached by the district court on the FOIA issues. He contends only

that the district court should not have entered summary judgment because it

denied him a jury trial to which he was entitled under the Seventh Amendment to

the United States Constitution and Fed. R. Civ. P. 38. We affirm.

       Assuming without deciding that the Seventh Amendment entitled Payne to a

jury trial on his FOIA claim, the district court did not deny him that right by

entering summary judgment against him. It is well-settled that the Seventh

Amendment is not violated by proper entry of summary judgment, because such a

ruling means that no triable issue exists to be submitted to a jury.    See City of

Chanute v. Williams Natural Gas Co.       , 955 F.2d 641, 657 (10th Cir. 1992) (citing

Fidelity & Deposit Co. v. United States     , 187 U.S. 315, 319-20 (1902)),   overruled

on other grounds by Systemcare, Inc. v. Wang Lab. Corp.         , 117 F.3d 1137, 1145

(10th Cir. 1997); see also In re TMI Litig. , 193 F.3d 613, 725 (3d Cir. 1999),

cert. denied , 120 S. Ct. 2238 (2000).

       Payne raises no argument on the merits to show that the district court’s

entry of summary judgment was improper. We will not attempt to fashion


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arguments for Payne.   1
                           See Drake v. City of Fort Collins   , 927 F.2d 1156, 1159

(10th Cir. 1991) (“Despite the liberal construction afforded pro se pleadings, the

court will not construct arguments or theories for the plaintiff in the absence of

any discussion of those issues”).

      Accordingly, the judgment of the United States District Court for the

District of New Mexico is AFFIRMED.



                                                        Entered for the Court



                                                        David M. Ebel
                                                        Circuit Judge




1
       Payne also includes an allegation that he was entitled to a jury trial under
Fed. R. Civ. P. 38. Rule 38, however, simply states that Seventh Amendment or
statutory rights to jury trial shall be preserved in the federal courts. The entry of
summary judgment here infringed neither such right.

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