This case comes before the court on plaintiff’s motion for summary judgment, filed May 31,1973, and defendant’s cross motion for summary judgment, filed September 17, 1973. Upon consideration thereof, together with the responses, stipulations and affidavits thereto, and after oral argument, it appears that plaintiff alleges and claims that the Government’s failure to retain her as a kindergarten teacher was, under the circumstances of the case, arbitrary and capricious. The case is before the court on the issue of liability alone. The court concludes that basic factual disputes exist between the parties, most particularly with respect to whether or not the plaintiff was misled to believe she was a fully qualified employee. A further question, which cannot be resolved on the present state of the record, concerns whether there was an unreasonable delay, caused by the Government, in not informing the plaintiff that she lacked the requisite educational credits for the teaching position.
We note that this court has in the past required the parties to submit factual issues to the fact finder, despite the fact that the case appeared on cross motions for summary judgment. In Jackson v. United States, 192 Ct. Cl. 765, 772, 428 F. 2d 844, 848 (1970), we said:
In view of the foregoing, and fully respecting the wish of the parties to have the case decided on the administrative record, we are unable to hold that there is no genuine issue of material fact, in view of the record, with respect to whether or not plaintiff was dis*678charged as a reprisal for exercising Ms First Amendment right to petition for redress of grievances. This is the key fact issue in the case and before a decision is possible it must be resolved by trial. * * *
See, also, the order of this court in Western Contracting Corp. v. United States, 198 Ct. Cl. 980 (1972), and Rule 101(d) of the Rules of the United States Court of Claims.
Upon the foregoing, the plaintiff’s motion for summary judgment is denied, the defendant’s cross motion for summary judgment is denied, and the case is hereby remanded to the trial division of this court for determination of all the factual and legal issues pertinent to the claim.