Croskey v. United States

26 Cl. Ct. 685, 1992 U.S. Claims LEXIS 397, 1992 WL 207018
CourtUnited States Court of Claims
DecidedAugust 27, 1992
DocketNo. 90-3841C
StatusPublished

This text of 26 Cl. Ct. 685 (Croskey v. United States) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Croskey v. United States, 26 Cl. Ct. 685, 1992 U.S. Claims LEXIS 397, 1992 WL 207018 (cc 1992).

Opinion

ORDER

REGINALD W. GIBSON, Judge.

This civilian pay case is before the court on the March 6, 1992 Plaintiff’s Motion To Compel Production Of Documents pursuant to the Rules of the United States Claims Court (RUSCC) 37(a). For reasons hereinafter expressed, we deny plaintiff's motion in part and order defendant to file all such remaining requested documents in camera.

BACKGROUND

Ms. Croskey seeks money damages arising out a series of incidents which culminated in her being removed from her position with the Department of the Army on May 28, 1982. Her complaint is based on the Tucker Act, 28 U.S.C. § 1491; the Back Pay Act, 5 U.S.C. § 5596; the False Claims Act, 28 U.S.C. § 2514; and violations of the First Amendment and the Due Process Clause of the Fifth Amendment. In short, [686]*686plaintiff’s claim arises out of the Army’s termination of her probationary position as a library technician at the Geissen Military Community (“G.M.C.”), Geissen, Germany. Ms. Croskey claims that she was wrongfully terminated for her role as a “whistle-blower.” Plaintiff was permitted to amend her complaint twice (i.e., April 4, 1991 and October 9, 1991) in response to the government’s motion to dismiss for lack of subject matter jurisdiction. On November 15, 1991, defendant filed a motion to dismiss Ms. Croskey’s second amended complaint for lack of subject matter jurisdiction. A decision on this motion is presently pending before this court.

On March 28, 1991, plaintiff served upon the defendant a motion to produce certain documents. The defendant, on April 17, 1991, filed a motion to stay discovery to await our decision on the pending motion to dismiss. On May 17, 1991, we denied the defendant’s motion to stay discovery. As a condition of this denial, we ordered the plaintiff to file a supplemental request for production of documents, delineating specifically which documents she already had in her possession and which ones were legitimately sought. Ms. Croskey subsequently filed a supplemental request for documents on or about May 29, 1991. Following thereon (June 27, 1991), the court ordered defendant to produce all documents encompassed by plaintiff’s supplemental request. In response, on September 5, 1991, defendant filed a motion for a protective order respecting privileged and irrelevant documents. On October 17, 1991, the court granted defendant’s motion with respect to privileged documents which were to be filed in camera; however, non-privileged documents were required to be produced. 24 Cl.Ct. 420. In response thereto, on December 16, 1991, defendant filed all deemed privileged documents in camera and produced to plaintiff certain non-privileged documents.

If the motion to dismiss is denied, we will examine all documents in camera to determine the validity of defendant’s claim of privilege. We will then cause to be produced the non-privileged relevant documents to the plaintiff. If the defendant’s motion to dismiss is granted, we will then, of course, return all documents to the defendant.

On January 3, 1992, plaintiff, evidently dissatisfied with the defendant’s response to the October 17, 1991 order, served upon the defendant a second supplemental motion to produce documents, which essentially sought the production of the same documents as were sought in the original supplemental motion.1 Thereafter, on February 14, 1992, defendant responded to the plaintiff’s second supplemental request with the same objections and claims of privilege it had raised regarding the initial request. In addition, defendant produced additional non-privileged documents in response to plaintiff’s requests.2

Plaintiff strenuously contends that the defendant has failed to be responsive to the permissible discovery requests. In fact, she argues that the defendant’s evasive tactics have caused her unwarranted delay in that the defendant is using its privilege claims to sabotage her case. Plaintiff further contends that all of the above documents are properly discoverable because they are “relevant to the money/fraud matters involved in this action.” Accordingly, plaintiff asks the court by her motion of March 6, 1992, to compel the discovery of her six requests within seven days, and to [687]*687enter a default judgment against the government if it fails to comply.

Conversely, defendant argues with equal force that it has given Ms. Croskey all of the relevant, non-privileged documents in its possession, and also has submitted all of the documents under claim of privilege to the court in camera. Consequently, it is defendant’s position that it has fully complied with the court’s order of October 17, 1991. With respect to Request No. 3, defendant maintains that the plaintiff’s request for production was not a proper request for documents under RUSCC 34. Request No. 4, according to defendant, is too broad and overly burdensome, and cannot be discovered under RUSCC 26(b). Defendant also argues that, contrary to RUSCC 37, the plaintiff did not give reasonable notice to the government before the motion was filed. Finally, defendant contends that plaintiff ignored the RUSCC Appendix G requirement that the party moving to compel discovery must first consult with the opposing party in a good faith attempt to resolve the dispute. Defendant asks the court, therefore, to deny plaintiff’s motion in its entirety.

DISCUSSION

In said motion, plaintiff makes the following six requests with respect to which she avers defendant “has refused production of these documents”:

Request No. 1—Plaintiff seeks to discover complete job descriptions of the positions of library technician, librarian, and Freedom of Information Officer.

Request No. 2—Plaintiff seeks to discover the “Complete Fifth Corps Inspector General’s Investigative Report of March, 1984” and the Office of Special Counsel’s (OSC) Investigative Report of 1988, from p. 44 to the end.

Request No. 3—Ms. Croskey seeks to compel the production of the last-known addresses and telephone numbers of Amelia Little, Vera Pied, and Denise Charlebois-Kessler.

Request No. 4—Plaintiff requests sample copies of compensatory time forms and any internal directives or local policy directives that have been used in the G.M.C.

Request No. 5—Plaintiff requests any documents within Geissen’s Civilian Personnel Office (CPO), which give the “Table of Penalties” and any internal policy directives concerning these documents.

Request No. 6—Ms. Croskey seeks in this request to compel discovery of various operational reports on the libraries and recreational centers in the G.M.C.

Plaintiff contends that said documents are needed “[i]n order to properly prepare and present her claim against the defendant.” The court understands and reads the quoted language to aver that said documents are sought to establish plaintiff’s substantive “claim,” i.e., the claim on the merits, and not for any other purpose.

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Related

Herbert v. Lando
441 U.S. 153 (Supreme Court, 1979)
United States v. Fausto
484 U.S. 439 (Supreme Court, 1988)
The United States v. Patrick J. Connolly
716 F.2d 882 (Federal Circuit, 1983)
Croskey v. United States
24 Cl. Ct. 420 (Court of Claims, 1991)

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Bluebook (online)
26 Cl. Ct. 685, 1992 U.S. Claims LEXIS 397, 1992 WL 207018, Counsel Stack Legal Research, https://law.counselstack.com/opinion/croskey-v-united-states-cc-1992.