DocketNumber: No. 514-79C
Citation Numbers: 227 Ct. Cl. 589
Judges: Bennett, Kunzig, Nichols
Filed Date: 3/17/1981
Status: Precedential
Modified Date: 11/23/2022
This is a request by plaintiff for review of an order by Trial Judge Wiese in which he allows defendant’s motion requesting denial of plaintiffs motion for leave to file interrogatories. Plaintiff invokes Rule 53(c)(2). Since the trial judge has not certified as subsection (i) contemplates, the request must meet the standards prescribed in subsection (ii). This he plainly fails to do.
The claim is for back pay by a civilian employee and he had a full evidentiary hearing before the Merit Systems Protection Board on May 1, 1980, this case being then under suspension. Defendant says it will shortly move for summary judgment on the administrative record. Plaintiff, now represented by counsel, acted pro se before the board. Counsel says on plaintiffs behalf that plaintiff did not get into the record all he should have; therefore, the administrative record will be found incomplete. Counsel does not say, however, what he expects to prove by the interrogatories that the record will not contain.
In cases that arose before the effective date of the Civil Service Reform Act, of which this is one, we do not consider
In view of these circumstances, a decision by a trial judge to postpone discovery to allow a dispositive motion to be made and decided, is regarded as routine, well within his discretion. He is not required to apply a different rule merely because a plaintiff was not represented by counsel at the administrative level. This court declines to examine the administrative record to see if it is as deficient as plaintiff says, nor will we pass on defendant’s defenses before we know what they are. Defendant, of course, takes the risk of denial of its motion on the ground of possible issues of fact, which issues might be shown to be nonexistent upon full discovery.
Accordingly, the request for review is denied