Opinion for the Court filed by Circuit Judge SENTELLE.
In this reparation proceeding under the Perishable Agricultural Commodities Act of 1930 (“Act”), 7 U.S.C. §§ 499a et seq., Frito-Lay, Inc. (“Frito-Lay” or “appellant”) appeals from the District Court’s grant of summary judgment in favor of Barton Wil-loughby (“Willoughby” or “appellee”). The case was originally before the Secretary of Agriculture, who granted appellee’s request for an order of reparation of $84,-825.83. The Act makes appealable the Secretary’s reparation orders and sets out the conditions for such appеals. It provides, inter alia, that “[sjuch suit in the district court shall be a trial de novo and shall proceed in all respects like other civil suits for damages, except that the findings of fact and order or orders of the Secretary shall be prima-facie evidence of the facts therein stated.” 7 U.S.C. § 499g(c) (1982).
This appeal presents an unusual application of Federal Rule of Civil Procedure 56 and requires this Court to consider whether summary judgment is appropriate under the Act when the District Court has before it the Secretary’s decision in which are made factual findings adverse to the non-movant, and when the nonmovant submits no supporting materials in opposing the motion.
Because we find that appellee adequately supported its motion and that appellant failed to oppose it properly, we answer the question in the affirmative, and affirm the District Court’s grant of summary judgment.
I. Background
The evidence before the Secretary was as follows: Appellant Frito-Lay, a potato buyer and chip maker, and аppellee, a first-time potato grower, were parties to a written contract made in 1982 whereby appellee was to deliver to appellant 25,000 hundredweight of potatoes in three installments in June, 1983. Appearing in prominent type among the contract’s terms was the following provision: “All potatoes shipped under this contract guaranteed ... to Frito-Lay’s satisfaction upon arrival. Frito-Lay reserves the option of not accepting deliveries which do not meet the [agrеed] shipping schedules.” Joint Appendix (“J.A.”) at Al. There were at least three conversations between appellee and two Frito-Lay employees, Messrs. Willingham and Anderson, concerning the parties’ performances. Ap-pellee claims that Frito-Lay orally agreed to accept appellee’s entire crop at dates other than those specified in the contract, initially because appellee requested delay, but later because Frito-Lay itself preferred to take performance later. Frito-Lay’s employees deny any such oral agreements.
After Frito-Lay issued a purchase order on June 30, 1983, appellee tendered 9,000 hundredweight of potatoes, $6,681.60 of which were accepted. Appellant’s stated reason for refusing tender of the rest was their unsatisfactory quality. No other tender was attempted.
Secretary’s Decision
Appellee filed a complaint before the Secretary of Agriculture on March 6, 1984, arguing that appellant (a licensed dealer, merchant, or broker under the Act) orally agreed to modify the contract and that appellant was obligated to pay the contract price (less mitigated damages) because it had breached the contract and thereby engaged in unfair conduct in violation of section 2 of the Act. 7 U.S.C. § 499b. Appellant counterclaimed for recovery of an asserted overpayment for the potatoes it accepted.
*1031 A Judicial Officer held hearings on April 16 and 17, аnd, following an amendment of appellee’s complaint, on September 19, 1985. By order dated May 14, 1986, the Judicial Officer ruled in appellee’s favor and ordered appellant to pay as reparation $84,825.83, plus attorney’s fees and interest. In reaching his decision, the Officer made numerous findings of fact favorable to appellee, among them that appellant’s employees were agents capable of binding Frito-Lay; appellee was willing and able to make its first delivery on time, but when he requested an extension so as to allow maturation of his entire crop, Frito-Lay’s employees agreed; when appellee eventually became ready to perform in full, appellant’s employees asked to delay delivery, and thereafter continued to represent to appellee that Frito-Lay was interested in purchasing the entire crop; appellee’s crop began to overripen and deteriorate in the ground, whereupon appellee tendered eighteen loads of potatoes, four of which were rejected by appellant.
According to the Judicial Officer, the critical issues presented were whether the written contract was varied by conduct, or, alternatively, whether by their conduct the parties created an entirely separate contract. He ruled that because the Alabama statute of frauds, Ala.Code § 7-2-201, was merely procedural, it precluded enforcement of an oral contract as a remedy, but did not prevent the Secretary from “look[ing] at the facts standing behind an oral modification to a written contract to determine whether there has been a breach.” J.A. at F13. Unaware “of any holding which precludes an integrated written contract subject to the statute of frauds from being modified by subsequent oral agreement,” J.A. at F15, the Officer resolved that “the contract need not be strictly construed, but can be varied by the conduct of the parties.” J.A. at F5. Based on his finding that appellant had in fact represented to appellee that it would accept late delivery, the Judicial Officer concluded that appellant had waived its right to receive the shipments on the dates specified in the contract, and by refusing tender, was the first material breacher. Accordingly, he entered judgment against appellant, and ordered reparation of $84,825.83, attorney’s fees, and interest thereon.
District Court Decision
As provided by the Act, Frito-Lay appealed to the United States District Cоurt, challenging both the Secretary’s factual findings and its application of law to the facts as found. Pursuant to cross-motions for summary judgment, the District Court dismissed the appeal and affirmed the Secretary’s order.
After reviewing the facts as found by the Secretary and examining the statute of frauds, the District Court rejected appellant’s claim that the statute precluded waiver. The Court concluded as did the Secretary that the statute “does not bar a conclusion that Frito-Lay ... waived its right to refuse any deliveries not made on [the specified] dates.” Memorandum Opinion (“Mem.Op.”) at 5 (March 30, 1987) (J.A. at M5). The Court also rejected appellant’s argument that the distinct delivery dates specified made the contract divisible, and, therefore, any waiver should operate divisi-bly, saying the argument was “not well-taken.” Id. at 6 (J.A. at M6). Accordingly, appellant’s motion was denied. Appellant has not preserved its statute of frauds arguments in the present appeal, and consequently we have no occasion to pаss on them.
In considering appellee’s cross-motion, the Court noted that under the Act, the Secretary’s findings of fact constitute “the prima facie case” for purposes of appeal, “unless it is overcome by evidence submitted by the petitioner.” Id. at 3 (J.A. at M3). The Court thrice noted that appellant had not stated any facts to negate the Secretary’s findings, and “accordingly adopt[ed] the Secretary’s findings of fact.” Id. Thus, because the District Court found no error in the Secretary’s application of the Alabama statute of frauds and because “[t]he parties have not presented any factual evidence,” id., the Court granted appel-lee’s motion for summary judgment. This appeal ensued.
*1032 II. Analysis
The gravamen of appellant’s challenge is the District Court’s asserted failure to recognize that “[t]he dispute about who said what is material and precludes summary judgment.” Br. for Appellant at 6. Moreover, the District Court was powerless to “decide what witness was telling the truth on summary judgment.” Id. Instead, “[a]s in any trial de novo,” appеllant argues, “the district court should have made a ‘fresh determination of the facts and issues.’ ” Id. at 7 (citation omitted). Thus, the Court “should have listened to the pivotal witnesses ... [, i]t should have listened to Mr. Willoughby’s version ... [and, i]t should have listened to what Frito-Lay’s employees said_ Only then could the district court determine de novo whether the written contract was modified or waived in any respect.” Id. at 7-8.
Federal Rule of Civil Procedure 56(c) provides for summary judgment when the materials offered in support of and in opposition to the motion “show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Ordinarily, a dispute over who said what — such as the one here — precludes summary adjudication. This particular case is complicated by the unusual nature of the underlying statute, which provides for de novo review by the District Court of the Secretary’s decision and simultaneously establishes the Secretary’s findings of fact as prima facie evidence on appeal.
A. Duty of Appellee as Moving Party
The Supreme Court made clear in
Celotex Corp. v. Catrett,
Of course, in the
Celotex
case, the nonmoving party was to bear the ultimate burden of proof at trial, while, in the present case, the moving party (Willoughby) faced the ultimate burden of proof. Nonetheless, we conclude that the
Celotex
principle applies where a silent nonmoving party is to bear an
initial burden of production
at trial. Here, the statutory requirement that the Secretary’s order be treated as “prima-facie evidence of the facts therein stated” placed upon Frito-Lay an initial burden of producing sufficient evidеnce at trial to rebut the Secretary’s findings. 7 U.S.C. § 499g(c);
see Consolidated Citrus Co. v. Goldstein,
In the present case, appellee faced the burden of proving a violation of section 2 of the Act. 7 U.S.C. § 499b. We hold that *1033 he properly discharged his duty as moving party when, armed with the prima facie value of the Secretary’s decision, he alerted the Court to the absence of evidence to support appellant’s case. In the critical portion of his moving papers, appellee noted that:
Frito-Lay has not submitted any affidavits or other evidence to show that there is a factual dispute. The findings of fact of the Judicial Officer of the Secretary of Agriculture are prima facie evidence of the facts stated therein.... It is clear in those findings of fact that oral modifications had been entered into by the parties .... In the absence of any affidavit or other evidence from Frito-Lay, these findings of fact are not the subject of genuine dispute.
Willoughby’s Reply Memorandum in Support of His Motion for Summary Judgment at 2 (citations omitted); see also J.A. at K29 (appellee’s counsel responding to Court’s query regarding the possibility of a triable issue over whether there was an oral agreement: “there’s been absolutely no evidence submitted, anything, affidavits or anything, which would indicate that therе they’re [sic] going to be able to rebut the prima facie finding of a modification by the Secretary”).
Effect of the Secretary’s Findings of Fact
The District Court was clearly of the opinion that unless rebutted by specific evidence, the Secretary’s findings of fact were not to be disturbed. It stated that “[i]n general, courts find that the prima facie case established by the Secretary’s findings and order prevails, unless it is overcome by evidence submitted by the petitioner.” Mem.Op. at 3 (J.A. at M3) (citing
Consolidated Citrus Co. v. Goldstein,
B. Appellant’s Duty to Respond
Specific Facts
Once the movant has discharged his duty, the onus shifts to the nonmovant, and, once it has, the need to respond with specific facts is well established. In addition to the clear language of Rule 56(e), which itself mandates that the nonmovant “set forth specific facts” in its opposition, the Supreme Court has unambiguously declared that the nonmoving party must “go beyond the pleadings and by [its] own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’ ”
Celotex,
Federal Rule 56 is supplemented by Local Rule 108, which requires that the non-movant provide the District Court a “concise statement of genuine issues setting *1034 forth all material facts as to which it is contended there exists a genuine issue necessary to be litigated, which shall include references to the pаrts of the record relied on to support the statement.” Local Rules of the United States District Court for the District of Columbia, 108(h) (1986).
Appellant submitted such a statement and listed the following as “material facts ... in dispute”:
1. Whether there were any oral modifications of the January 11, 1983 written contract.
2. Whether Mr. Willoughby knew that Frito-Lay could not take all his potatoes because he had missed the shipping dates specified in the written contract.
3. Whether Frito-Lay waived its option to refuse late shipments.
4. Whether Mr. Willоughby was responsible for requesting a written release to sell to others.
5. Whether deliveries accepted after the week of June 27, 1983 were part of the written contract between Frito-Lay and Barton Willoughby.
Frito-Lay’s Statement of Material Facts Which Are In Dispute, Br. for Appellee at appendix. Appellee persuasively argues that items 1, 3, 4, and 5 are not matters of fact, and that item 2, while a question of fact, is not material. While we are inclined to agree that appellant failed to state facts, we are even more convinced that it failed to state them with the requisite specificity and support them with appropriate references to the record before the District Court.
These obligations cannot be met by “mere allegation or denial[ ],” but instead, require a showing by “affirmative evidence.”
Anderson v. Liberty Lobby,
We similarly reject appellant’s claim that the “district court should have examined the entire record when considering Mr. Wil-loughby’s summary judgment motion.” Br. for Appellant at 11 n. 4. Appellant’s failure to designate and reference triable facts was, in light of the language of Rule 56(c) and governing precedent, fatal to its opposition.
Cf. Thompson v. Evening Star Newspaper Co.,
*1035 Type of Evidence
Throughout the course of this litigation, and despite the clear teaching of Celotex on this point, appellant has labored under the mistaken belief that unless the moving party introduces affidavits in support of its motion for summary judgment, the non-moving party bears no burden to introduce evidence to oppose the motion. 1 At the hearing of thе motions, for example, appellant argued that “Willoughby has not filed any affidavits in this case and, obviously, we didn’t have an obligation to file any counteraffidavits.” J.A. at K32. Likewise, in petitioning the trial court to reconsider its decision, appellant stated that “[s]ince Mr. Willoughby did not present new or additional evidence supporting its motion for summary judgment, Frito-Lay did not have to submit additional evidence opposing the motion.” Frito-Lay’s Memorandum of Points & Authorities in Support of Its Motion To Reconsider at 4. (“If Mr. Willoughby had submittеd an affidavit, Frito-Lay certainly would have submitted evidence opposing the affidavit.” Id. at n. 2.) Likewise, appellant argues here as it argued below that it had the right to rest on its pleadings, which it points out “challenged all the factual and legal determinations made by the Secretary_” Br. for Appellant at 9 (citing J.A. at 12). (Appellant’s Petition for Consideration before the District Court stated that the Secretary’s “factual findings are not supported by the evidence.” J.A. at 12.)
According to the Supreme Court in
Celotex,
“the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails 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.”
Appellant alternatively argues that “a party opposing a motion for summary judgment can reference and rely on sworn testimony, certified transcripts or similar materials to show a material dispute.” Reply Br. for Appellant at 4 (citing
International Distrib.,
The latter three are easily dismissed. As for appellant’s own motion, far from “referring] to and incorporat[ing]” the factual disputes, the motion argues that there are, for purposes of that motion, no facts in dispute. Likewise, the appended transcript of Willoughby’s testimony before the Secretary fails to evidence dispute. Indeed, if anything, appellee’s testimony actually
supports
the grant of summary judgment in that it indicates that oral agreements were reached. As for the evidence attached to appellant’s motion to reconsider, it is well established that the obli
*1036
gation of this Court is to look at the record before the District Court at the time it granted the motion, not at some later point.
Catrett v. Johns-Manville Sales Corp.,
Reliance on the Secretary’s Decision
By statute, the record before the District Court consisted of the Secretary’s Decision and Order and the pleadings filed before the Secretary. 7 U.S.C. § 499g(c). Appellant argues that the Secretary’s decision— which “leaves no doubt there was a factual dispute between the parties” — is in and of itself sufficient to demonstrate a triable issue. Certainly if appellant had offered the District Court the sworn testimony which prompted the stray comment in the Secretary’s decision, the task of that court and this would have been a different one. But appellant did not. As we have said before in reviewing summary judgment, “[o]ur sole and limited task is to assess with care the record before the District Court at the time it granted [the motion].”
Catrett,
III. Conclusion
Considering as we must the state of the record before the District Court at the time of the motion, we find it to be bereft of any genuine issue of material fact within the meaning of Rule 56 and, therefore, we affirm.
Notes
. We note that at no time during these proceedings, including the two briefs submitted before this Court, has appellant discussed or cited the Celotex decision.