United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 2, 2007 Decided November 16, 2007
No. 06-5167
LEONARD E. DUNNING,
APPELLANT
v.
PAUL A. QUANDER, DIRECTOR, COURT SERVICES AND
OFFENDER SUPERVISION AGENCY,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 03cv01980)
David A. Branch argued the cause and filed the brief for
appellant.
Beverly M. Russell, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Jeffrey A. Taylor,
U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.
Before: SENTELLE and TATEL, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed PER CURIAM.
2
PER CURIAM: In this employment discrimination case,
appellant Leonard E. Dunning claims that the Court Services
and Offender Supervision Agency discriminated against him on
the basis of age and retaliated against him for filing an age
discrimination complaint. Specifically, he claims that the
Agency denied him a community supervision officer position
because he was older than the position’s stated age limit of
thirty-seven. While admitting that he exceeds the age limit,
Dunning disputes its applicability. He also claims that after he
filed an administrative age discrimination complaint, the Agency
retaliated by denying him a lead drug-testing technician
position. The Agency subsequently denied him a second lead
drug-testing technician position, which Dunning claims was also
based on age and in retaliation for his complaint.
The Agency moved for summary judgment supported by
nine affidavits, including several from Agency officials involved
in the selection process. Responding to the Agency’s motion,
Dunning submitted no affidavits of his own. Instead, he filed a
motion under Federal Rule of Civil Procedure 56(f), pursuant to
which courts may allow discovery “[s]hould it appear from the
affidavits of a party opposing the motion [for summary
judgment] that the party cannot for reasons stated present by
affidavit facts essential to justify the party’s opposition.” FED.
R. CIV. P. 56(f). In his Rule 56(f) affidavit, Dunning claimed
that in order to oppose the Agency’s motion for summary
judgment, he needed to (1) “obtain[] written discovery and
tak[e] depositions of the deciding officials,” and (2) “obtain
discovery on the selection” of one of the lead drug-testing
technician positions. The district court denied the Rule 56(f)
motion, explaining that Dunning had failed to “state with
sufficient particularity why he could not, absent discovery,
present by affidavit facts essential to justify his opposition.”
Dunning v. Quander, 468 F. Supp. 2d 23, 28 n.5 (D.D.C. 2006).
3
The court then granted summary judgment in favor of the
Agency.
On appeal, Dunning challenges both rulings. We review the
district court’s denial of the Rule 56(f) motion for abuse of
discretion and its grant of summary judgment de novo. Khan v.
Parsons Global Servs., Ltd., 428 F.3d 1079, 1082 (D.C. Cir.
2005).
As to the Rule 56(f) motion, Dunning relies on Chappell-
Johnson v. Powell, 440 F.3d 484 (D.C. Cir. 2006), in which we
reversed the denial of a Rule 56(f) motion in an employment
discrimination case. There, the district court had denied the
Rule 56(f) motion because it believed that plaintiff had to
establish that someone outside her protected class ultimately
filled the contested position. Given that she failed to allege that
the position had been filled, the court found that the plaintiff
would be unable to prevail as a matter of law regardless of what
discovery might reveal. Finding this legally erroneous, we
explained that to establish a prima facie case a plaintiff need not
show “that the employer filled the sought-after position with a
person outside the plaintiff’s protected class.” Id. at 488.
Because a district court “abuses its discretion when it makes an
error of law,” we reversed the denial of the Rule 56(f) motion.
Id. at 487 (quoting Koon v. United States, 518 U.S. 81, 100
(1996)). In this case, Dunning points to no legal error by the
district court. Instead, he asserts only that he needs discovery to
respond to the Agency’s motion for summary judgment.
This issue is therefore controlled by Strang v. U.S. Arms
Control & Disarmament Agency, 864 F.2d 859 (D.C. Cir. 1989),
in which we found no abuse of discretion in the denial of a Rule
56(f) motion because the plaintiff had failed to provide reasons
“why discovery was necessary.” Id. at 861. “Without some
reason to question the veracity of affiants,” we explained,
4
“[plaintiff]’s desire to ‘test and elaborate’ affiants’ testimony
falls short; her plea is too vague to require the district court to
defer or deny dispositive action.” Id.
Dunning has likewise failed to provide any persuasive
reason for needing discovery. He argues that discovery is
necessary “to determine if there was a legitimate reason for [the
Agency affiant’s] alleged concerns” about Dunning that
disqualified him from these positions, but he gives no reason for
questioning those affiants. Appellant’s Opening Br. 15. Instead,
Dunning seeks to rebut the Agency’s assertion that he was
denied the positions because of his “honesty and veracity,”
“conduct towards management,” and “behavior that did not make
him well suited for a leadership position.” But as we said in
Strang, “[w]ithout some reason to question the veracity of
affiants, [plaintiff]’s desire to ‘test and elaborate’ affiants’
testimony falls short.” 864 F.2d at 861.
Dunning also argues that he needs discovery regarding his
claim that he was denied the community supervision officer
position because of his age. In his Rule 56(f) affidavit, however,
Dunning never mentioned the community supervision officer
position; he asked only about the two lead drug-testing
technician positions. At oral argument, Dunning’s counsel
pointed to a statement in his memorandum in opposition to the
summary judgment motion before the district court that refers to
the community supervision officer position. In that
memorandum, Dunning stated that he “ha[d] not had an
opportunity, through discovery, to gather sufficient information
on the policy and practice of the agency on restricting applicants
based on their age.” Even if this statement, made outside the
Rule 56(f) affidavit, was sufficient to present the issue to the
district court, we think the court acted within its discretion in
denying discovery. Exactly why Dunning needs discovery on
the Agency’s age restriction policy is unclear. Although he
5
claims he needs it to challenge the very existence of the age
restriction policy, the Agency’s vacancy announcement for the
community supervision officer position expressly included the
age limit, and federal law authorizes the use of age limits for law
enforcement positions. 5 U.S.C. § 3307(d); Stewart v. Smith,
673 F.2d 485, 493-94 (D.C. Cir. 1982) (noting that Congress
intended to give agencies flexibility to set maximum age limits
for law enforcement positions).
At oral argument, Dunning’s counsel said discovery on the
policy was needed to show that despite exceeding the age limit,
Dunning should have been grandfathered into the position
because he was already in a law enforcement position at the time
he applied. In an affidavit, however, the Agency’s deputy
associate director of human resources explained that while
applicants had been grandfathered in when their current positions
were converted to federal law enforcement positions, an
applicant could not be grandfathered into a new law enforcement
position without satisfying the age requirement. Because
Dunning offers no reason to “question the veracity of [this]
affiant[],” no further discovery is required. Strang, 864 F.2d at
861.
Finally, Dunning says he needs discovery on the age policy
to challenge the Agency’s need or justification for the age
restriction generally. But Dunning never raised this issue in the
district court, so it is waived. See Jankovic v. Int’l Crisis Group,
494 F.3d 1080, 1086 (D.C. Cir. 2007) (finding an issue waived
because party failed to raise it before district court).
Because the district court acted within its discretion in
denying Dunning’s Rule 56(f) request, we are left with nothing
more than the Agency’s uncontested motion for summary
judgment. Summary judgment is proper where the evidence is
6
“so one-sided that one party must prevail as a matter of law.”
Twist v. Meese, 854 F.2d 1421, 1428 (D.C. Cir. 1988) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)).
Because the Agency’s affidavits support summary judgment, we
affirm.
So ordered.