Payne Hackenbracht & Sullivan

Summary Judgment

As the granting of a motion for summary judgment would be dispositive of the issues in this appeal, the Board will carefully consider the matter to determine whether there exist genuine issues of material fact, and whether the record before the Board is adequate to decide the dispute. As stated by this Board in Valley Construction Co., ENG BCA No. 6007, 93-3 BCA p 26,171, at p. 130,210:

Summary judgment, or partial summary judgment, is available when no genuine issue of material fact is present and the moving party is entitled to judgment as a matter of law. Mingus Constructors, Inc' v. United States, 812 F.2d 1387 (Fed. Cir. 1987). A material fact is one which the Board must necessarily determine to decide a case. Therefore, a grant of summary judgment is proper in circumstances which the Board need not function as an arbiter of facts or of a particular fact. Cable Electric Products, Inc. v, Genmark, Inc., 770 F.2d 1015 (Fed. Cir. 1985), Landmover , ENG BCA No. 5656, September 14, 1990. [91-1 BCA p 23,3171

The Board further noted at p. 130,212:

In a motion for summary judgment, the moving party has the burden of establishing that a genuine issue of material fact does not exist on the limited issue of entitlement and that it is entitled to judgment as a matter of law. Mingus Constructors. Inc. v. United States, supra. See, also, Hill Brothers Constr. Co., Inc., ENG BCA No. 5686, 90-3 BCA p 23,276; Carter Constr. Co., Inc., ENG BCA Nos. 5496, 5497, 90-1 BCA p 22,521; and, Henry Claterbos Co. LJ-VL, ENG BCA No. 5300, 87-3 BCA p 20,146.

In deciding a motion to dismiss, we view the pleadings and record in the light most favorable to the opposing party and resolve doubts in its favor. To dismiss on a basis averred by the movant, we must conclude that the opposing party could not prevail as a matter of law. Thomas S. Rhoades and Stephen L. Schluneger, ENG BCA No. 6097, 95-1 BCA T 27,375. It is the role of the Board to determine whether genuine triable issues of material fact remain, for which Appellant should be given the opportunity of an evidentiary hearing. Anderson v. Liberty Lobby Inc., 477 U.S. 242 (1986).

Federal Rule of Civil Procedure 56 provides guidance on the matter of summary judgment, and indicates that the Board should examine "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits" to determine whether there exists a genuine issue of material fact. It is the determination of the Board, not the parties, that controls as to whether a genuine issue of material fact exists. See BART Associates, Inc., EBCA No. 9406176, 95-2 BCA 27,763.