concurring:
"Summary judgment is not an available procedure unless the relevant facts, in any view of them, are all one way. Consequently, a denial of summary judgment, with recitals as here, is not to be taken as reflecting that the court has drawn unstated conclusions about the case. Defendant’s motion for reconsideration errs in not recognizing this. It imputes to us views we do not necessarily entertain. It is usually imprudent for a panel to expatiate on a case in this phase, more especially when it cannot agree on what to say. I always want to respond to a party who expresses or inadvertently reveals apparently genuine confusion as to what the triable issues are, because I want to help secure economy in the subsequent use of judicial resources, as the panel did in Allied Materials & Equipment Co. v. United States, 215 Ct. Cl. 406, 569 F.2d 562(1978). There, however, we had a solid foundation to work on, in ASBCA fact findings that bound the parties. I do not think it prudent to discuss the issues here, when it is not necessary to dispose of the motion, and especially over a colleague’s objection, so I hope without much believing that the parties will restrict the trial to what is relevant.”