 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued October 20, 2016           Decided December 9, 2016

                       No. 14-7197

                WINSTON & STRAWN, LLP,
                      APPELLEE

                             v.

                  JAMES P. MCLEAN, JR.,
                      APPELLANT


        Appeal from the United States District Court
                for the District of Columbia
                    (No. 1:13-cv-00524)


    Michael Skopets, appointed by the court, argued the
cause as amicus curiae in support of appellant. With him on
the briefs were Anthony F. Shelley and Brian A. Hill,
appointed by the court.

    James P. McLean, Jr., pro se, filed the briefs for
appellant.

    Paul J. Maloney argued the cause and filed the brief for
appellee Winston & Strawn, LLP

   Before: WILKINS, Circuit Judge, and EDWARDS and
WILLIAMS, Senior Circuit Judges.
                               2
   Opinion for the Court filed by Senior Circuit Judge
EDWARDS.

     EDWARDS, Senior Circuit Judge: The Federal Rules of
Civil Procedure state that the District Court “shall grant
summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
However, under its Local Rules, the District Court has
discretion to treat a motion “as conceded” if the nonmoving
party fails to timely file an opposition to the motion. D.D.C.
Local R. 7(b). This appeal concerns the interplay between
Federal Rule of Civil Procedure 56 and the District Court’s
Local Rule 7(b).

     In April of 2013, Appellee Winston & Strawn, LLP
(“Appellee” or “Winston & Strawn”) filed a lawsuit against
James P. McLean, Jr. (“Appellant” or “McLean”) in the
District Court. On July 28, 2014, Appellee filed a motion for
summary judgment. The District Court informed Appellant
that he was required to respond by August 18, 2014, and
advised him that if he did not the court might treat the motion
as conceded. He mailed his response to the District Court on
August 18, but it did not arrive until August 20. On August
19, the court, relying solely on Local Rule 7(b), granted
Appellee’s motion for summary judgment “as conceded.” The
District Court thereafter denied Appellant’s motions for
reconsideration. Appellant, acting pro se, filed a timely notice
of appeal on December 11, 2014. This court subsequently
appointed Miller & Chevalier amicus curiae to present
arguments on behalf of McLean.

    Under the Federal Rules of Civil Procedure, a motion for
summary judgment cannot be “conceded” for want of
opposition. “The burden is always on the movant to
                               3
demonstrate why summary judgment is warranted. The
nonmoving party’s failure to oppose summary judgment does
not shift that burden.” Grimes v. District of Columbia, 794
F.3d 83, 97 (D.C. Cir. 2015) (Griffith, J., concurring). The
District Court “must always determine for itself whether the
record and any undisputed material facts justify granting
summary judgment.” Id. (citing Fed. R. Civ. P. 56(e)(3)). In
this case, the District Court relied solely on Local Rule 7(b) in
granting summary judgment for Appellee “as conceded.”
There is nothing to indicate that the District Court considered
whether Appellee’s assertions warranted judgment under Rule
56. We therefore reverse and remand the case to the District
Court so that it may reconsider Appellee’s motion for
summary judgment in adherence with the applicable Federal
Rules of Civil Procedure.

                       I.   Background

    As noted above, Appellee filed a lawsuit against
Appellant in April 2013. It moved for summary judgment on
July 28, 2014. The District Court issued an order advising
Appellant of the motion, informing him of his obligations,
and warning him that the court might treat the motion as
conceded if he failed to respond by August 18, 2014. On
August 18, McLean e-mailed his opposition to counsel for
Winston & Strawn, and mailed it to the District Court. His
opposition did not reach the court until August 20, however,
and so was not deemed filed until two days after the
prescribed deadline.

    On August 19, the District Court sua sponte issued an
order granting Winston & Strawn’s motion for summary
judgment “as conceded as to” McLean. Appendix of Amicus
Curiae (“App.”) 18. The order did not analyze any of the
substance of Winston & Strawn’s motion for summary
                               4
judgment, nor did it purport to apply the standards of Rule 56.
Instead, the order focused solely on McLean’s failure to file a
timely response as the basis for summary judgment against
him.

     Between August 28 and November 13, 2014, McLean
filed, and the District Court denied, via minute orders, three
motions for reconsideration. In these orders, the court
reiterated that it had granted Appellee’s motion “as
conceded.” App. 20–23.

     On appeal, amicus curiae, on behalf of Appellant and
whose arguments we will hereinafter attribute to Appellant,
principally argues that the District Court’s order granting
summary judgment to Appellee should be reversed because
the court failed to follow the standards set forth in Federal
Rule of Civil Procedure 56. In particular, Appellant contends
that the District Court’s reliance solely on Local Rule 7(b)
cannot be squared with Rules 56(a) and 56(e). Appellant also
argues that the District Court abused its discretion in granting
summary judgment as a sanction for his late filing, because
this was an excessive punishment and exceeded the court’s
authority. Finally, Appellant argues that because his late filing
was “excusable neglect,” the District Court abused its
discretion in denying his motions for reconsideration.

     We agree with Appellant that, contrary to Rule 56, the
District Court erred in granting summary judgment without
determining whether Appellee’s assertions warranted
judgment. A court must always engage in the analysis
required by Rule 56 before acting on a motion for summary
judgment. Because the District Court did not purport to do
this in granting Appellee’s motion, we reverse and remand
this case for further consideration. Our holding on this point is
                               5
dispositive, so it is unnecessary for us to address Appellant’s
remaining claims.

                         II. Analysis

A. Standard of Review

     We review de novo the legal question of whether the
District Court improperly applied Local Rule 7(b) in place of
the standards prescribed by Federal Rule of Civil Procedure
56. See Texas v. United States, 798 F.3d 1108, 1113 (D.C.
Cir. 2015) (“A district court abuses its discretion if it did not
apply the correct legal standard . . . or if it misapprehended
the underlying substantive law. We examine any such legal
questions de novo.” (internal quotation marks and citation
omitted; ellipsis in original)).

B. Under Rule 56, Motions for Summary Judgment May
   Not Be Granted “As Conceded” for Want of Opposition

     It is undisputed that the District Court is authorized to
promulgate local rules. Fed. R. Civ. P. 83(a)(1). However,
these rules “must be consistent with the Federal Rules of Civil
Procedure.” Cohen v. Bd. of Trustees of the Univ. of D.C., 819
F.3d 476, 481 (D.C. Cir. 2016) (citing Fed. R. Civ. P.
83(a)(1)). The Federal Rules are “as binding as any statute
duly enacted by Congress, and federal courts have no more
discretion to disregard the . . . mandate [of a Federal Rule]
than they do to disregard constitutional or statutory
provisions.” Bank of Nova Scotia v. United States, 487 U.S.
250, 255 (1988) (stating that “a federal court may not invoke
supervisory power to circumvent” the dictates of a Federal
Rule of Criminal Procedure, id. at 254).
                               6
    Local Rule 7(b) cannot be squared with Federal Rule of
Civil Procedure 56. The Local Rule states that:

    Within 14 days of the date of service [of a motion]
    or at such other time as the Court may direct, an
    opposing party shall serve and file a memorandum
    of points and authorities in opposition to the
    motion. If such a memorandum is not filed within
    the prescribed time, the Court may treat the motion
    as conceded.

D.D.C. Local R. 7(b) (emphasis added). As is clear from its
terms, this rule allows the District Court to treat an unopposed
motion for summary judgment as conceded. But this cannot
be so because of the demands of Rules 56(a) and 56(e).

     Rule 56(a) is clear in saying that a court may only enter
summary judgment if “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). “[A] party seeking
summary judgment always bears the initial responsibility of
informing the district court of the basis for its motion, and
identifying those portions of [the record] which it believes
demonstrate the absence of a genuine issue of material fact.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). And then
“a district court must always determine for itself whether the
record and any undisputed material facts justify granting
summary judgment.” Grimes, 794 F.3d at 95 (citation
omitted). These standards cannot be satisfied if, as allowed by
Local Rule 7(b), the District Court simply grants judgment
“as conceded” when the nonmoving party fails to meet a
deadline.

     Furthermore, Local Rule 7(b) is entirely inconsistent with
the commands of Rule 56(e). The Federal Rule states that:
                               7

    If a party fails . . . to properly address another
    party’s assertion of fact as required by Rule 56(c),
    the court may:

           (1) give an opportunity to properly support or
               address the fact;

           (2) consider the fact undisputed for purposes
               of the motion;

           (3) grant summary judgment if the motion
               and supporting materials—including the
               facts considered undisputed—show that
               the movant is entitled to it; or

           (4) issue any other appropriate order.

Fed. R. Civ. P. 56(e). The rule does not in any way endorse an
approach pursuant to which the District Court may grant
judgment “as conceded” simply because a nonmoving party
fails to respond.

     Rule 56(e)(1) empowers the District Court to “give a
party who has failed to address a summary judgment
movant’s assertion of fact ‘an opportunity to properly support
or address’ the fact.” Grimes, 794 F.3d at 92 (quoting Fed. R.
Civ. P. 56(e)(1)). Moreover, “[t]he 2010 Advisory
Committee[’s] Note to Rule 56(e) states that ‘afford[ing] an
opportunity to properly support or address [a] fact’ is ‘[i]n
many circumstances . . . the court's preferred first step.’” Id.
(ellipsis in original).

     The rule also allows the District Court to “consider [a]
fact undisputed” if it has not been properly supported or
                                8
addressed as required by Rule 56(c). Fed. R. Civ. P. 56(e)(2).
“Indeed, for the evidentiary burden that Rule 56(c) places on
nonmovant plaintiffs to function, a court must be able to
evaluate an inadequately supported assertion of material fact
and deem it not materially disputed, such that summary
judgment is warranted in whole or in part.” Grimes, 794 F.3d
at 92. However, as the rule makes clear, judgment is granted
only after the District Court satisfies itself that the record and
any undisputed material facts justify granting summary
judgment. Fed. R. Civ. P. 56(e)(3).

     What is crucially important here is that Rule 56(e)(3)
plainly states that the District Court may enter summary
judgment only if, after fully considering the merits of the
motion, it finds that it is warranted. There is no room for a
judgment “as conceded” as contemplated by Local Rule 7(b).

     Appellee argues that the court’s decision in FDIC v.
Bender, 127 F.3d 58 (D.C. Cir. 1997), requires us to affirm
the judgment of the District Court in this case. We disagree.
In Bender, we held that “it was not an abuse of discretion for
the district court, pursuant to [the predecessor to Local Rule
7(b)], to treat the [movant's] motion for summary judgment as
conceded.” Id. at 68. However, the decision in Bender has
been displaced by the substantive revisions to Rule 56 that
were adopted in 2010. The 2010 Advisory Committee’s Note
to Rule 56 makes it plain that Local Rule 7(b) can no longer
coexist with Rule 56. The Note says, inter alia, that:

    Subdivision (a) . . . adds a new direction that the
    court should state on the record the reasons for
    granting or denying [a motion for summary
    judgment].
       ....
                              9
    [S]ummary judgment cannot be granted by default
    even if there is a complete failure to respond to the
    motion, much less when an attempted response fails
    to comply with Rule 56(c) requirements. Nor should
    it be denied by default even if the movant
    completely fails to reply to a nonmovant’s response.
       ....

    Subdivision (e)(3) recognizes that the court may
    grant summary judgment only if the motion and
    supporting     materials—including      the   facts
    considered undisputed under subdivision (e)(2)—
    show that the movant is entitled to it. Considering
    some facts undisputed does not of itself allow
    summary judgment. If there is a proper response or
    reply as to some facts, the court cannot grant
    summary judgment without determining whether
    those facts can be genuinely disputed. Once the
    court has determined the set of facts—both those it
    has chosen to consider undisputed for want of a
    proper response or reply and any that cannot be
    genuinely disputed despite a procedurally proper
    response or reply—it must determine the legal
    consequences of these facts and permissible
    inferences from them.
Fed. R. Civ. P. 56 Advisory Committee’s Note to 2010
Amendment. In light of these amendments to Rule 56, our
decision in Bender is of no moment here because it does not
address the current version of Rule 56. And as we have
explained, under the current version of Rule 56 a motion for
summary judgment cannot be deemed “conceded” for want of
opposition.
                               10
C. Other Matters Regarding the Scope of this Decision

     Lest there be any confusion regarding our judgment in
this case, there are three other matters that warrant comment.

     First, we want to make it clear that nothing in this
opinion is meant to address the scope or legality of Local
Rule 7(h). That rule appears to be coterminous with Federal
Rule 56(e)(2), but we offer no opinion on this point. The
District Court in this case relied solely on Local Rule 7(b), not
7(h), so our decision is limited to the issues raised by Local
Rule 7(b). We also want to make it clear that nothing in this
opinion is meant to address the applicability of Local Rule
7(b) to motions other than motions for summary judgment.

     Second, there is nothing in the record to indicate that
Appellee acted inappropriately in seeking summary judgment,
and we do not mean to suggest otherwise. Nor do we mean to
suggest that the District Court failed to scrutinize the motion
for summary judgment and the supporting papers filed by
Appellee. We simply hold that a District Court must
determine for itself that there is no genuine dispute as to any
material fact and that the movant is entitled to judgment as a
matter of law, and then “should state on the record the reasons
for granting or denying the motion.” Fed. R. Civ. P. 56(a).
That did not happen here. All that we know from the record in
this case is that the District Court relied solely on Local Rule
7(b) in granting summary judgment for Appellee “as
conceded.”

     Finally, Appellee’s counsel suggested that because we
review summary judgments de novo, we can decide on our
own whether the motion should be granted in this case. We
decline the invitation. Given the nature of this case, it would
be imprudent for us to act without allowing the District Court
                              11
to decide the matters in dispute in the first instance. Rule
56(e) gives the District Court a number of options to weigh.
The trial judge, who has overseen the litigation, is in the best
position at this point to consider these options and decide
whether Appellant, who was acting pro se, should be given an
opportunity to respond to Appellee’s motion for summary
judgment after missing the deadline by only two days.

                       III. Conclusion

    For the reasons stated above, we reverse the grant of
summary judgment and remand the case for further
consideration.
