
    No. 436-74.
    October 21, 1976
    Howard J. Steen
    
      Maurice F. Biddle, attorney of record for plaintiff.
    
      Julie P. Dubich, with whom was Assistant Attorney General Bex E. Lee, for defendant
   Pleading and practice; reference of procedural motions.— On October 21, 1976 the court entered the following order.

Before SkeltON, Judge, Presiding, Nichols and Kashiwa, Judges.

“Plaintiff requests prompt review (Pule 53 (c) (2)), of a trial judge’s interlocutory order. The plaintiff challenges the constitutional validity of a non-judicial punishment meted out to him under purported authority of Article 16, U.C.M.J. The trial judge in a pretrial conference memorandum said the evidence, which he held inadmissible, related only to plaintiff’s version of the incidents that resulted in the Article 15 punishment. It is apparent that the trial judge had in mind the limitations on the subject matter jurisdiction of this court, stated in United States v. Augenblick, 393 U.S. 348 (1969), and its progeny, e.g., Artis v. United States, 205 Ct. Cl. 732, 506 F. 2d 1387 (1974). The trial judge has not given the statement referred to in Rule 53 (c) (2) (i), nor does the plaintiff show an irreparable injury nor a manifest waste of resources within the intent of Rule 53 (c) (2) (ii). On the contrary, such a waste of resources would occur if the court attempted a ruling on the thin record now before it. Our denial is, of course, without prejudice to further moves by plaintiff, as e. g., by offer of proof at the trial, to make more specific the nature of the evidence he proposes to offer.

“Upon the record, the request for review, and defendant’s response thereto, but without oral argument, it is

“ordered, that the request for review aforesaid is denied.”  